United States v. Alderete

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 23, 2018
• Docket: 18-1032
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 23, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 18-1032 (D.C. No. 1:17-CR-00059-CMA-1) VICTOR ALONSO ALDERETE, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HOLMES, BALDOCK, and CARSON, Circuit Judges. _________________________________

While searching Defendant Victor Alonso Alderete’s trailer pursuant to a

warrant, law enforcement found approximately ten pounds of methamphetamine. As

a result, a grand jury indicted Defendant with one count of conspiring to distribute

methamphetamine and one count of possessing with intent to distribute

methamphetamine. Defendant moved to suppress certain evidence that supported the

search warrant. Specifically, Defendant argued evidence obtained as a result of a

prior search of the Ford Expedition Defendant drove was attained in violation of the

Fourth Amendment and should be stricken from the warrant to search Defendant’s

trailer. After a hearing, the district court denied the motion. Defendant then pleaded

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. guilty to one count of conspiring to distribute methamphetamine and appealed the

denial of his motion to suppress. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

I.

The record reveals the following facts, consistent with the district court’s

findings. On February 7, 2017, a confidential informant (CI), who had provided the

Drug Enforcement Administration (DEA) reliable information in the past, called

DEA Special Agent Jeffrey Baumert and told him a shipment of drugs would be

coming from Phoenix to Denver to be distributed throughout the Denver area. The

next day, the CI met with Agent Baumert to give him more specific information. The

CI told Agent Baumert a large shipment of crystal methamphetamine would be

arriving in Denver and identified Defendant and several other individuals as being

involved in this drug-trafficking scheme. The CI, who had discussed with these

individuals possibly buying multiple pounds of methamphetamine from them,

provided Agent Baumert with the phone numbers of the individuals and told Agent

Baumert they would be driving a maroon Ford Expedition with the license plate

number UQU461. The CI also told Agent Baumert where Defendant lived. The CI

stated the individuals involved were smart and “would be able to sniff out law

enforcement.” ROA Vol. II, 121–22. Agent Baumert ran a license plate check,

which revealed the vehicle associated with the license plate was a maroon Ford

Expedition registered to Defendant’s mother.

2 On February 9, 2017, Agent Baumert and his team began conducting

surveillance on the CI and an auto body shop that the team determined was the “most

likely place for [the shipment] to arrive.” Id. at 125. That evening, the CI met with

Agent Baumert again and relayed the shipment would arrive sometime in the night or

early the next morning and the methamphetamine would be in a tire.

On February 10, 2017, Agent Baumert and his team again conducted

surveillance on the auto body shop and the CI, who went to the shop. Agent Baumert

told the CI to keep him informed throughout the day as to what was happening. Mid-

morning, the CI told Agent Baumert the shipment of methamphetamine finally

arrived and he would have to go to another location to sample it. The CI went to this

other location, which turned out to be Defendant’s trailer, to see the

methamphetamine. Around 11:30 a.m., the CI texted Agent Baumert a picture of

“what appeared to be crystal meth.” Id. at 133. The CI left the trailer shortly

thereafter.

Around 12:00 p.m., the CI met with Agent Baumert to describe what happened

in Defendant’s trailer. Those present while the CI was there included Defendant;

Defendant’s co-conspirator, Jaime Michael Rubio-Perez; and Defendant’s girlfriend,

Jessica Olguin. The CI told Agent Baumert that in the kitchen of the trailer,

Defendant had cut open a tire that contained approximately ten pounds of crystal

methamphetamine. Additionally, Defendant and his co-conspirator gave a sample of

methamphetamine to the CI, which the CI gave to Agent Baumert. The CI told Agent

Baumert it was “highly likely” they would move the drugs from the trailer now that

3 the CI had seen them there because these individuals were “savvy in their

techniques.” Id. at 137, 173. Agent Baumert knew based on his own experience “it

is common for drug traffickers, after they’ve flashed or shown large quantities of

narcotics, to move them to another location so as to avoid robbery or seizure by law

enforcement.” Id. at 137.

At this time, investigators were still surveilling the trailer and observed the

maroon Ford Expedition driving in a manner consistent with a “burn run” near the

trailer. Agent Baumert testified that a “burn run” is a way of driving to look for and

evade surveillance and that evidence of a “burn run” includes making multiple turns,

driving slowly, and passing the same location several times. Id. at 138–39. At this

point, Agent Baumert was concerned the surveillance team might lose sight of the

Expedition and that “all or some of those drugs were going to be moved from that

trailer and would be lost.” Id. at 139. Additionally, he believed there was probable

cause to stop the Expedition based on records checks that indicated these individuals

were involved in drug trafficking, the photograph from the CI of suspected

methamphetamine, the sample of crystal methamphetamine the CI obtained from

Defendant, the fact that the Expedition left the location where the methamphetamine

had been reported, and the Expedition’s manner of driving as it left. Id. at 140–41.

Based on this information, Agent Baumert ordered the Expedition to be

stopped and, in doing so, noted the CI had seen Defendant with a small pistol in the

past. At approximately 12:25 p.m., Officer Bartholomew Stark with the Denver

Police Department (DPD) received the order and stopped the Expedition, which had a

4 severely cracked windshield. Defendant was driving the vehicle with two other

passengers. As a part of standard procedure, Officer Stark asked for Defendant’s

driver’s license. Defendant did not have a driver’s license but handed Officer Stark a

temporary paper identification, which turned out to be invalid. The other occupants,

Roberto Duarte-Araujo and Rubio-Perez, did not have driver’s licenses either.

Officer Stark detained Defendant and the other occupants, handcuffed them, and sat

them on the curb. Because none of the occupants had driver’s licenses and the

windshield was too cracked to drive safely, Officer Stark testified he was going to

impound the car and that he would have had to conduct an inventory search before

such impoundment.

Before he could conduct an inventory search, DEA Task Force Officer Mario

Vasquez arrived at the scene. Detective Vasquez testified that, out of concern there

might be a firearm, he searched the vehicle. During this search, Detective Vasquez

spotted a small “clear plastic bag” with residue between the driver’s seat and center

console. He grabbed the plastic and saw the plastic contained what appeared to be

less than two grams of cocaine. Upon finding the cocaine, Detective Vasquez

ordered the three occupants to be arrested. Defendant was taken to the police station

and questioned by DPD Officer Brian Jeffers. After Officer Jeffers advised

Defendant of his Miranda rights, Defendant made two self-incriminating statements.

He admitted, first, the cocaine in the car was his and, second, that he had a user

quantity of cocaine at his trailer as well.

5 Meanwhile, at approximately 12:30 p.m., DEA Group Supervisor Thomas

Miller led his team in securing Defendant’s trailer. At this time, six law enforcement

officers knocked on the door of the trailer and announced their presence. The parties

dispute exactly what happened next. The Government contends the door opened on

its own, while Defendant alleged the officers “shoved open the door.” Op. Br. at 4.

Either way, the six officers, all in tactical vests and the majority of whom had

firearms, entered the trailer. Upon entering, they found Defendant’s mother, Maria

Alderete; Ms. Alderete’s three-year-old son; and Jessica Olguin. Officers occupied

the trailer for nine hours. During this time, they learned Defendant’s girlfriend,

Jessica Olguin, had a warrant out for her arrest. They arrested her and informed

Olguin of her Miranda rights. She waived these rights and made incriminating

statements about Defendant, including that Defendant is a dealer of

methamphetamine and heroin and had received a shipment of drugs that morning.

The officers did not search the trailer at that time because, even though Ms. Alderete

indicated they could search the trailer, the officers waited for a search warrant “out of

an apparent abundance of caution.” ROA Vol. II, 302.

Agent Baumert applied for a warrant to search the trailer and signed the

supporting affidavit. This affidavit relied on the following to establish probable

cause to search the trailer: (1) Defendant and his co-conspirators departed the trailer

and drove in a manner consistent with attempts to thwart surveillance by law

enforcement; (2) Officers seized a user quantity of cocaine upon searching the Ford

Expedition; (3) Defendant admitted the cocaine was his and that he had a user

6 quantity of cocaine at his trailer as well; (4) Olguin stated, among other things,

Defendant trafficked narcotics; (5) a tire outside of the trailer bore knife marks; and

(6) Defendant had a prior conviction for narcotics offenses. Around 9:00 p.m., a

magistrate issued a warrant to search the trailer. The officers searched the trailer and

located approximately ten pounds of methamphetamine in a backpack found on the

top bunk bed in a bedroom.

A grand jury subsequently charged Defendant with one count of conspiring to

distribute 500 grams or more of methamphetamine and one count of possessing with

intent to distribute 500 grams or more of methamphetamine, both in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A)(viii). Defendant filed a motion to suppress and a

motion for a Franks hearing. 1 In his motion to suppress, Defendant moved to

suppress “all evidence obtained as a result of the unconstitutional detention of

[Defendant] and the unconstitutional search of [Defendant’s] car on February 10,

2017, including cocaine seized from the car and statements [Defendant] made during

the interrogation following his unlawful arrest for possessing the cocaine.” ROA

Vol. I, 23. Defendant argued, because the cocaine and Defendant’s self-

incriminating statements were unconstitutionally obtained, they could not be

considered in determining the sufficiency of the search warrant. With this evidence

1 In Franks v. Delaware, the Supreme Court held the Fourth Amendment requires a district court to hold a hearing “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and . . . the allegedly false statement is necessary to the finding of probable cause.” 438 U.S. 154, 155–56 (1978). 7 stricken from the search warrant, Defendant argued, the search warrant was not

supported by probable cause. In his motion for a Franks hearing, Defendant argued

Agent Baumert knowingly omitted material information in the affidavit in support of

the search warrant. Specifically, Defendant argued Agent Baumert omitted Olguin’s

“multiple convictions for crimes of dishonesty, including a conviction for lying to

police officers.” Id. at 35. If this information had been included in the affidavit,

Defendant argued the affidavit would not have supported probable cause. Because

the affidavit did not establish probable cause, Defendant argued the search warrant

was invalid and the methamphetamine found as a result should be suppressed.

After a hearing, the district court denied both motions. In regard to the Franks

motion, the court held the omission of Olguin’s complete criminal history in the

warrant affidavit did not establish a scheme to conceal her record. After all, the

affidavit explicitly stated Olguin had a warrant for her arrest based on allegations of

forgery. In regard to the motion to suppress, the court held that “more than ample

evidence establish[ed] that the DEA task force had probable cause to believe that the

maroon Expedition was moving narcotics on the afternoon of February 10, 2017.”

ROA Vol. II, 305. Alternatively, the court held the cocaine in the vehicle would

have inevitably been discovered. 2 Therefore, the evidence would not be suppressed.

Defendant subsequently pleaded guilty to one count of conspiring to distribute

500 grams or more of methamphetamine. The district court sentenced him to 120

2 While the Government argued Ms. Alderete consented to the search of the trailer, the district court did not reach the issue of whether this consent was valid. 8 months of imprisonment, to be followed by a five-year term of supervised release.

Defendant timely appealed the denial of his motion to suppress. Here, “we review

legal questions de novo but view the facts in the light most favorable to the

government as the prevailing party.” United States v. Ludwig, 641 F.3d 1243, 1247

(10th Cir. 2011).

II.

A search warrant may only issue if it is supported by probable cause. See

United States v. Sims, 428 F.3d 945, 954 (10th Cir. 2005). “When a warrant is

tainted by some unconstitutionally obtained information, we nonetheless uphold the

warrant if there was probable cause absent that information.” Id. On appeal,

Defendant argues the warrant to search the trailer was tainted by (1) evidence

obtained from the unconstitutional stop and search of the vehicle; and (2) evidence

obtained from the unconstitutional entry into the trailer. Defendant argues the

evidence obtained from the stop and search of the vehicle—specifically, the cocaine

and Defendant’s statements the cocaine was his and that he had additional cocaine at

his trailer—was fruit of an illegal stop and search of the vehicle conducted without

probable cause. Defendant argues the evidence obtained from the trailer—

specifically, Olguin’s statements incriminating Defendant—was fruit of an illegal

entry into the trailer. Defendant maintains that, striking this unconstitutionally

obtained evidence from the warrant affidavit, the affidavit does not contain enough

evidence to support probable cause to issue a warrant to search Defendant’s trailer.

9 Thus, Defendant continues, the ten pounds of methamphetamine found pursuant to

this search of Defendant’s trailer should have been suppressed.

We first address the constitutionality of the stop and search of the Expedition.

The Fourth Amendment protects the “right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const.

amend. IV. The Fourth Amendment does not require law enforcement to obtain a

warrant to stop and search an automobile. Carroll v. United States, 267 U.S. 132,

153 (1925). Instead, to stop an automobile that has not committed a traffic violation,

law enforcement must have “probable cause or a reasonable, articulable suspicion to

believe the car is carrying contraband.” United States v. Chavez, 534 F.3d 1338,

1343 (10th Cir. 2008). To search the automobile, law enforcement must have

probable cause to believe the automobile contains contraband. Id. at 1344–45.

Therefore, if law enforcement had probable cause to believe the Expedition contained

contraband, both the stop and search of the Expedition were constitutional.

Probable cause is a “common-sense standard.” Texas v. Brown, 460 U.S. 730,

742 (1983). “A ‘practical, nontechnical’ probability that incriminating evidence is

involved is all that is required.” Id. (quoting Brinegar v. United States, 338 U.S. 160,

176 (1949)). While probable cause is difficult to quantify, the Supreme Court has

held that probable cause “does not demand any showing that such a belief be correct

or more likely true than false.” Id. Instead, “[p]robable cause to search a vehicle is

established if, under the totality of the circumstances, there is a fair probability that

10 the car contains contraband or evidence.” Chavez, 534 F.3d at 1344 (quoting United

States v. Vasquez-Castillo, 258 F.3d 1207, 1212 (10th Cir. 2001)).

When Agent Baumert ordered the Expedition to be pulled over, he knew

Defendant, the driver of the Expedition, and his co-conspirators had received a

shipment of approximately ten pounds of methamphetamine that morning. He knew

they tried to sell at least some of that methamphetamine to the CI, indicating

Defendant and his co-conspirators had begun the distribution process. Agent

Baumert had the proof of this attempt to distribute with the sample of

methamphetamine the CI had given him. Furthermore, he had information from the

CI—who had not been wrong yet about this drug-trafficking scheme—that the

methamphetamine would “highly likely” be moved from the trailer soon. He

additionally knew Defendant and his co-conspirators, shortly after showing the CI the

methamphetamine, got in the Expedition and drove in a manner that suggested they

were using countersurveillance techniques designed to thwart law enforcement. This

manner of driving only confirmed the possibility that Defendant and the co-

conspirators were moving the drugs. Under these circumstances, we conclude there

was a “fair probability,” or probable cause to believe, that the Expedition contained

methamphetamine. Thus, Agent Baumert had enough information to stop and search

the Expedition.

The question becomes whether Agent Baumert’s knowledge may be imputed

to Officer Stark and Officer Vasquez, who stopped and searched the vehicle. This

Court has made clear that when a law enforcement officer instructs another officer to

11 stop a car, the latter officer may “act[] on the strength” of the former’s probable

cause. Id. at 1347–48. This doctrine, known as the vertical collective knowledge

doctrine, allows Agent Baumert’s knowledge to be imputed to Officer Stark and

Officer Vasquez when Agent Baumert ordered the automobile stopped, even if he did

not communicate all of the information amounting to probable cause. See id.

Accordingly, Officer Stark and Officer Vasquez were allowed to “act[] on the

strength” of Agent Baumert’s probable cause, making their stop and search of the

Expedition valid. 3 See id.

Accordingly, because law enforcement had probable cause to believe the

Expedition contained contraband, the evidence obtained by the search—the cocaine

and Defendant’s subsequent statement that the cocaine was his and that he had

additional cocaine at his trailer—was not obtained in violation of the Fourth

Amendment. Thus, the district court did not err in admitting this evidence or in

holding this evidence must not be stricken from the warrant affidavit.

At this point, we consider whether this evidence is sufficient to support

probable cause to search the trailer. That is, we consider whether, even if Defendant

prevails on his argument that Olguin’s incriminating statements should be suppressed

and stricken from the warrant affidavit, the warrant contained enough evidence to

support probable cause to search the trailer. Again, probable cause requires “a fair

probability that contraband or evidence of a crime will be found in a particular

3 Because the search was justified by probable cause, we need not reach the Government’s alternative argument that the cocaine and Defendant’s self- incriminating statements are admissible under the inevitable discovery doctrine. 12 place.” Sims, 428 F.3d at 954. Striking Olguin’s statements incriminating

Defendant, the warrant was still supported by at least the Expedition’s erratic driving

leaving the trailer (i.e., the place to be searched), a user quantity of cocaine found in

the Expedition, Defendant’s statement that the cocaine found in the car was his, and

Defendant’s statement that he had a user quantity of cocaine in the trailer. This

evidence, particularly Defendant’s own statement that he had drugs in the trailer,

provides more than “a fair probability that contraband or evidence of a crime” would

be found in the trailer. Therefore, the search warrant was supported by probable

cause, and the district court appropriately did not suppress the ten pounds of

methamphetamine found during the execution of the search.

Because the search of Defendant’s car was supported by probable cause and

the subsequently issued warrant to search the trailer was supported by probable

cause, the district court did not err in denying Defendant’s motion to suppress.

Accordingly, we AFFIRM.

Entered for the Court

Bobby R. Baldock Circuit Judge