United States v. Luis Santiago Ramirez

63 F.3d 937, 42 Fed. R. Serv. 1270, 1995 U.S. App. LEXIS 21416, 1995 WL 465806
CourtCourt of Appeals for the Tenth Circuit
DecidedAugust 8, 1995
Docket94-2228
StatusPublished
Cited by62 cases

This text of 63 F.3d 937 (United States v. Luis Santiago Ramirez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Luis Santiago Ramirez, 63 F.3d 937, 42 Fed. R. Serv. 1270, 1995 U.S. App. LEXIS 21416, 1995 WL 465806 (10th Cir. 1995).

Opinions

TACHA, Circuit Judge.

A jury convicted defendant Luis Santiago Ramirez of possessing more than 500 grams of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), conspiracy to possess more than 500 grams of cocaine with intent to distribute in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1) and (b)(1)(B), and carrying or using a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(e).1 He was sentenced to a total of 123 months imprisonment and a term of supervised release. Defendant now appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

On June 11, 1993, a confidential informant purchased cocaine from defendant at a building at 838 Bridge Southwest in Albuquerque, New Mexico (“the building”). The controlled buy was part of a narcotics investigation conducted by officers from the Sandoval County Sheriffs Office, including Lieutenant Ramiro Flores. During the buy, officers observed defendant use a key to open the building, enter alone, leave the building, and hand cocaine to a confidential informant. Officers had observed defendant entering the building on two other occasions.

Ten days later, Officer Flores and another officer approached the building with a search warrant. Carmelo Rojas, one of Ramirez’s codefendants, allowed the officers to enter. They conducted a search of the premises and found a triple-beam scale, plastic baggies, six ounces of cocaine, and a loaded revolver. Their search of Rojas uncovered $840 cash, including a $20 bill that the informant had given defendant during the controlled buy.

While the officers were still searching the premises, the telephone at the building rang. Officer Flores answered the phone, and the [940]*940caller asked in Spanish what was going on. The caller identification box indicated that the call had been placed from a pay phone at a gas station at the end of the block. Officer Flores called a nearby surveillance team, which apprehended defendant near the gas station and escorted him to the building. The officers searched defendant and found $940 cash and a key to the building on his person. The search of the building subsequently uncovered an additional kilogram of cocaine in a trash basket and three ounces of cocaine hidden in a pair of boots.

Defendant was charged with one count of possessing more than 500 grams of cocaine with intent to distribute, one count of conspiracy to do the same, and one count of using a firearm in relation to a drug trafficking offense. Defendant timely moved to suppress the evidence seized in the search of the building. The district court conducted a hearing on the matter and denied defendant’s motion. Defendant then filed a motion in limine to exclude evidence of a prior drug-related arrest. The district court denied this motion as well.

Defendant’s trial began October 4, 1993. On October 7, the jury returned a verdict of guilty on all three counts. Defendant then filed a motion to dismiss based on comments made by the prosecution during its closing argument, which the district court denied. On September 23, 1994, the court sentenced defendant to 63 months imprisonment on counts one and two, with the sentences to run concurrently, and 60 months for count three, with the sentence to run consecutively. Defendant now appeals.

II

Defendant first contends that the district court should have suppressed the evidence seized at the building pursuant to the warrant because the issuing magistrate was not neutral and detached. Judge James Blaek-mer, a New Mexico state district court judge, issued the warrant based on an application presented by Officer Flores. After reading Officer Flores’s supporting affidavit, Judge Blackmer altered the warrant and that portion of the affidavit listing the items to be searched and seized. Specifically, he (1) inserted the word “and” between “person” and “place” on the warrant, (2) added the words “and Luis Ramirez himself’ to the items to be searched on the affidavit, and (3) added the words “keys to the doors and/or locks on the doors at 838 Bridge, Southwest” to the items to be seized on the affidavit. Defendant argues that, because Judge Blackmer “substantially altered” the affidavit and the warrant, he abandoned his judicial role and was no longer neutral and detached from the investigation.2

On appeal from the denial of a motion to suppress evidence, we review the factual determinations made by the district court for clear error, and we view the evidence in the light most favorable to the government. United States v. Bell, 892 F.2d 959, 965 (10th Cir.1989), cert. denied, 496 U.S. 925, 110 S.Ct. 2618, 110 L.Ed.2d 639 (1990). A factual determination is clearly erroneous only if there is no factual support in the record or if we are “left with the definite and firm conviction that a mistake has been made.” LeMaire v. United States, 826 F.2d 949, 953 (10th Cir.1987). The ultimate question of whether a search or seizure comported with the Fourth Amendment, however, is a legal issue, which we review de novo. United States v. Lyons, 7 F.3d 973, 975 (10th Cir.1993).

In Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), Justice Jackson delivered perhaps the quintessential explication of the policies underlying the Fourth Amendment:

[941]*941The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

Id. at 13-14, 68 S.Ct. at 369. For purposes of the Fourth Amendment, it is essential that a magistrate issuing a search warrant be neutral and detached rather than “an adjunct law enforcement officer.” United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677 (1984); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327, 99 S.Ct. 2319, 2324-25, 60 L.Ed.2d 920 (1979). It therefore follows that a search premised on a warrant issued by a magistrate who lacks such neutrality and detachment “stands on no firmer ground than if there had been no warrant at all.” Coolidge v. New Hampshire, 403 U.S. 443, 453, 91 S.Ct. 2022, 2031, 29 L.Ed.2d 564 (1971).

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Bluebook (online)
63 F.3d 937, 42 Fed. R. Serv. 1270, 1995 U.S. App. LEXIS 21416, 1995 WL 465806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-luis-santiago-ramirez-ca10-1995.