United States v. Ahmad

118 F. App'x 183

Opinions

MEMORANDUM

*

Issam Ahmad Suliman Abu Laila (“Suliman”) appeals his conviction and sentence for fraud relating to identification documents, access devices, and an application for a passport. He contends that the search warrants for his apartment, storage unit, and two computers were not supported by probable cause, and that the officer’s reliance on the warrants did not fall within the “good-faith” exception to the exclusionary rule. In addition, he argues that his sentence was improper in light of Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We affirm the conviction, but remand for the district court to determine whether re-sentencing is appropriate under United States v. Castro, 382 F.3d 927, (9th Cir.2004).

1. Fourth Amendment Claims

We hold that the government has waived the claim that Suliman failed to establish standing to challenge the search. See Steagald v. United States, 451 U.S. 204, 209, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). However, we also conclude that the government acted in good-faith in executing the warrants.

Under Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), probable cause to issue a search warrant exists when “given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 238, 103 S.Ct. 2317. A magistrate judge may issue a warrant for a residence if a “reasonable nexus” exists between the residence and the evidence sought; that is, the magistrate “need only find that it would be reasonable to seek the evidence there.” United States v. Chavez-Miranda, 306 F.3d 973, 978 (9th Cir.2002) (citation omitted). In making this determination, the magistrate judge must consider “the type of crime, the nature of the missing items, the extent of the suspect’s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide stolen property,” United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir.1970), but, in the end, he must make a “practical, common-sense” decision. Gates, 462 U.S. at 238, 103 S.Ct. 2317.

At the time the investigating agents obtained a search warrant for Suliman’s apartment, Suliman had already been arrested for making a false statement in an application for a passport, in violation of 18 U.S.C. § 1542, and the agents had already obtained substantial evidence that he was using at least three different identities. In an effort to obtain further inculpatory documentary evidence, they sought a warrant to search an apartment that they reasonably believed to be his residence, on the basis of record checks of the vehicle that he was driving at the time of his arrest as well as additional investigation. The affidavit, submitted by Agent Chalupsky, explained the evidence against Suliman and stated that, based on his fifteen years of training and experience, he believed that “persons who obtain fraudulent documents” tend to hide such documents in their residences, along with documents relating to their true identity. Suliman argues that Agent Chalupsky’s affidavit was insufficient to establish a nexus between his residence and the evidence sought.

We need not determine here whether probable cause exists for the issuance of the warrant.¹ Even assuming that the affidavit was insufficient to establish probable cause, it fell within the good-faith exception established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). There is no evidence that the officer seeking the warrant acted in bad faith; the warrant was issued by a proper authority; and there is no evidence that the issuing magistrate abandoned his neutral judicial role. Furthermore, the affidavit was not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Id. at 928, 104 S.Ct. 8405 (citation omitted); see also United States v. Schultz, 14 F.3d 1093, 1098 (9th Cir.1994); United States v. Procopio, 88 F.3d 21, 28 (1st Cir.1996).²

We further conclude that the officers acted in good-faith in executing the warrant for the storage unit, which the magistrate issued “[i]n view of the massive amount of fraud-related materials found in Suliman’s apartment, and Chalupsky’s observation that the closet and storage space in the apartment was filled to capacity.” Finally, we conclude that the agents did not exceed the scope of the warrants, because a “reasonable officer [would] have interpreted the warrants] to permit the searches] at issue.” United States v. Gorman, 104 F.3d 272, 274 (9th Cir.1996). Even assuming the agents exceeded the scope of the warrants, the seizures were justified by the plain-view doctrine. See Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). As the district court concluded, given “the sheer volume of bank statements, credit card statements, checks and credit .cards — all in a large variety of names — their incriminating nature as evidence of possible identity and credit card fraud was immediately apparent.”

2. Sentencing claims

Although we reject Suliman’s claim that his sentence was unfair because some of his fraud, was committed prior to his offense date, see United States v. Ortland, 109 F.3d 539, 546 (9th Cir.1997), we remand the question of the legality of his sentence to the district court. Normally, we would defer consideration of the question whether Blakely, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403, renders Suliman’s sentence unconstitutional until the Supreme Court issues its decisions in United States v. Booker, 375 F.3d 508 (7th Cir.2004), cert. granted — U.S. -, 125 S.Ct. 11, 159 L.Ed.2d 838 (2004), and Fanfan v. United States, No. 03-47, 2004 WL 1723114 (D.Me. June 28, 2004), cert. granted, — U.S. -, 125 S.Ct. 11, 159 L.Ed.2d 838 (2004). However, because the portion of his sentence unaffected by Blakely has already expired, we remand the issue to the district court for its consideration pursuant to United States v. Castro, 382 F.3d 927.

AFFIRMED in part; REMANDED for further proceedings.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . But see United States v. Chavez-Miranda, 306 F.3d 973, 978 (9th Cir.2002) (noting that issuing judges may rely on the training and experience of affiant police officers and recognizing that in narcotics cases evidence is likely to be found in dealer’s residence); United States v. Sayakhom, 186 F.3d 928, 934 (9th Cir.1999) (holding that there was probable cause to search residence and car of mail fraud suspect where postal inspector stated that, based on his experience and belief, operators of businesses that involve paperwork typically leave paperwork in their cars and residence); United States v. Terry, 911 F.2d 272, 275 (9th Cir.1990) ("[A] magistrate may rely on the conclusions of experienced law enforcement officers regarding where evidence of a crime is likely to be found.”) (internal quotation marks and citation omitted); United States v. Grandstaff, 813 F.2d 1353, 1356 (9th Cir.1987) (reasonable to infer that a robber might still have remainder of stolen money in hotel room five months after the robbery); United States v. Jacobs, 715 F.2d 1343, 1346 (9th Cir.1983) (reasonable to conclude that incriminating articles of clothing would be found in residence three and a half months after robbery).

2 . We do not suggest that the Leon good-faith exception would apply in all cases where materials might reasonably be found in a suspect’s home. For example, the exception would not apply where, as in United States v. Gourde, 382 F.3d 1003 (9th Cir.2004), the officers had ample opportunity to obtain the desired information from another source and there was insufficient evidence to demonstrate that the suspect had committed a crime; in such case, there would be no fair probability that incriminating material would be found in the suspect’s house and a search would be in bad-faith. Id. at 1012-14. Similarly, it would not apply where an affidavit did not connect the particular location to the suspect, rendering official belief in the validity of the warrant unreasonable. United States v. Hove, 848 F.2d 137, 139-40 (9th Cir.1988).

The dissent relies heavily upon United States v. Schultz for the proposition that probable cause does not exist when the only connection between the crime and the residence is the officer’s reasonable belief that the evidence might be hidden there. However, in that case, although the Sixth Circuit determined that there was an absence of probable cause, it held that the good-faith exception applied. 14 F.3d at 1098.