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United States v. Gallegos

United States District Court, W.D. Texas, San Antonio Division

September 5, 2017

UNITED STATES OF AMERICA,
v.
ARTHUR LUIS GALLEGOS, Defendant.

          ORDER

          XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE

         On this day came on to be heard Defendant's motions to suppress (docket nos. 101, 461). The Defendant, Arthur Luis Gallegos, and 34 other individuals are charged in count one of an indictment with conspiracy to obstruct, delay, and affect commerce and the movement of articles and commodities in commerce by extortion in violation of 18 U.S.C. § 1951. The indictment alleges that the defendant and other members of the Texas Mexican Mafia (TMM) would require non-members who distribute narcotics to pay a ten-percent “tax” on the proceeds of any drug distribution. The indictment alleges that failure to pay the “tax” or “dime” resulted in serious bodily injury, robbery, or death. In a superseding indictment the Defendant has also been charged in count ten with being a felon in possession of various firearms. In 94-cr-29, the Government has filed a motion to revoke Defendant's supervised release alleging he committed new crimes in violation of the terms of his supervised release.

         Defendant's motion to suppress

         The Defendant argues that the affidavit in support of the search warrant contains misrepresentations, fails to state facts that support probable cause for the search of Defendant's apartment, is essentially a “bare bones affidavit, ” and that in conducting the search the law enforcement officers performed a “no knock” search when the warrant failed to specifically allow for such an intrusion.

         Background

         On May 18, 2017, FBI Special Agent Katherine Gutierrez signed an affidavit in support of search warrant. Based upon an ongoing investigation, SA Gutierrez stated that she believed there was probable cause that the Defendant and various other individuals were engaged in a drug conspiracy, unlawfully using communication facilities, and using firearms in furtherance of drug trafficking crimes, and violating several other laws.

         Regarding Defendant and his residence, the affidavit stated that the Defendant had previously been convicted of a felony (carjacking), the apartment was believed to be the residence of the Defendant, that Defendant was believed to be the TMM Northside's Sergeant, that on March 26, 2017, agents surveilled a meeting between a confidential informant and Gallegos, and the informant paid a $200 “dime” payment to Gallegos and another TMM member Jose Luis Cortez. The affidavit further stated that on April 23, 2017, agents surveilled another instance of a dime payment being made and the TMM Northside Lieutenant Ricky Escobedo was followed from the original location to Defendant Gallegos' apartment complex, where the two met in the parking lot.

         Further, the affidavit stated that on May 7, 2017, a confidential informant called Gallegos, and that they discussed “checking out a house, ” and that Gallegos wanted to be well-armed depending on how many “of them there are.”

         Otherwise, the forty-three page affidavit detailed allegations that all thirteen residences to be searched were residences of active TMM members who were allegedly involved in extortion and drug trafficking activities. The affidavit detailed that the TMM organization often engaged in violent activity, and that there was a high risk of danger to law enforcement officers who announce their presence before making entry.

         The Magistrate Judge signed the search and seizure warrant authorizing the search of Defendant's apartment (as well as the other residences) on May 18, 2017. The warrant authorized the search and seizure of any drug ledgers, currency, computers and cell phones, records relating to the TMM, controlled substances, firearms, and indicia of participation in home invasions/robberies, such as ski masks, body armor, and stolen property.

         Prior to the execution of the warrant, SA Gutierrez organized law enforcement officers into teams, and assigned each team to a residence. SA Martin and others were assigned to execute the warrant at Defendant's apartment. SA Martin testified that prior to executing the warrant he had read the affidavit and warrant. They made a no knock entry into the apartment, and located Gallegos. Various weapons, currency, suspected drug ledgers, cell phones and a tablet computer were seized.

         Analysis

         During the hearing held on August 30, 2017, SA Gutierrez testified and the Court finds that although there were minor mistakes in the affidavit, there were no material misrepresentations, much less false statements that were made intentionally or with reckless disregard for the truth. See United States v. Ortega, 854 F.3d 818, 825 (5th Cir. 2017). The motion to suppress is denied on this ground.

         “‘Bare bones' affidavits typically ‘contain wholly conclusory statements, which lack the facts and circumstances from which a magistrate can independently determine probable cause.' Generally, examples of ‘bare bones' affidavits include those that merely state that the affiant ‘has cause to suspect and does believe' or ‘[has] received reliable information from a credible person and [does] believe' that contraband is located on the premises.” United States v. Pope, 467 F.3d 912, 920 (5th Cir. 2006). The affidavit at issue here was not a “bare bones” affidavit and there was probable cause for a warrant to be issued for the search of Defendant's apartment. The affidavit presented evidence that Defendant was believed to be a TMM Sergeant, and a confidential informant stated that Defendant received a “dime” payment. On another occasion the confidential informant saw a TMM Lieutenant receive a dime payment and immediately thereafter met Defendant at the parking lot of his apartment ...


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