United States v. Perez

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 20, 1998
• Docket: 96-1216
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 20 1998 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 96-1216 v. (District of Colorado) (D.C. No. 95-CR-19-S) ERENIO CARRANCO PEREZ,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before TACHA, LUCERO, and MURPHY, Circuit Judges.

Defendant Erenio C. Perez was found guilty of various drug trafficking and

firearm charges. He appeals his convictions, arguing the district court erred in

denying his motion to suppress evidence seized pursuant to four search warrants.

This court affirms.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. I. BACKGROUND

In October 1994, the Colorado Springs Police Department began working

with agents from the Drug Enforcement Administration (DEA) after receiving

information from a confidential informant that several individuals, including an

individual later identified as Defendant, were members of a methamphetamine

and ephedrine trafficking organization in Colorado Springs. On November 20,

1994, at the direction of officers, the informant and another individual made a

controlled buy of methamphetamine from Defendant.

On December 31, 1994, a detective from the Sheriff’s Department in

Fremont County, Colorado, came upon a large U-haul truck stuck in a ditch. The

truck contained approximately twenty-one barrels of ephedrine, a precursor

chemical used to manufacture methamphetamine. The driver of the truck, Ricardo

Perez, was arrested and interviewed by DEA agents and Colorado Springs police.

Ricardo told the officers that he and his brother, Defendant, were involved in

distributing methamphetamine in the Colorado Springs area. Ricardo further told

the officers about two properties, one located in Custer County and the other

located in Fremont County, Colorado, where drugs and ephedrine were stored.

The next day, January 1, 1995, the officers obtained search warrants for the

properties and, with Ricardo’s aid, executed the warrants.

-2- During the search of the Custer property, officers found methamphetamine,

other illicit drugs, ammunition, firearms, a bulletproof vest, and a vehicle with

two hidden compartments. In an RV on the Custer property, officers found

$84,000 in cash, firearms, and a triple beam scale. While searching the Fremont

property, officers found numerous barrels of ephedrine, a firearm, and

ammunition.

On the same day the search warrants for the Custer and Fremont properties

were executed, Defendant was arrested by Colorado Springs police after leaving

his residence at 5820 Del Rey Drive in a yellow International Scout with

temporary license tags. The vehicle was impounded and a detective later obtained

a search warrant for both the vehicle and the residence. During the search of the

vehicle, officers found throwing stars, a night vision scope, a firearm, and $7000

in cash. In the residence, officers found an empty barrel with the name and

address of the Chemins Company, $6580 in cash, and torn records regarding the

purchase of the Custer property.

II. MOTION TO SUPPRESS

Defendant raises several arguments under the Fourth Amendment to support

his challenge of the district court’s denial of his motion to suppress the evidence

seized during the searches of the Custer property, the Fremont property, the

-3- vehicle, and his residence. 1 The Fourth Amendment provides that “no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.” U.S. Const. amend. IV.

On appeal from the denial of a motion to suppress, this court views the

evidence in the light most favorable to the government and accepts the district

court’s factual findings unless clearly erroneous. See United States v.

Richardson, 86 F.3d 1537, 1543 (10th Cir.), cert. denied, 117 S. Ct. 588 (1996).

The ultimate determination of the reasonableness of a search, however, is

reviewed de novo. See id.

A. Probable Cause

1 The government asserts, and the district court agreed, that Defendant does not have standing to challenge the searches of the Custer and Fremont properties. The Custer property was purchased in the names of Lourdes Aragon, Defendant’s girlfriend and codefendant; Estella Gonzales, Ricardo Perez’s wife; and Jose Reyes. The Fremont property was purchased by Defendant and Ricardo Perez, using their aliases. In the Fourth Amendment context, the term “standing” is not used in its “‘traditional sense as a constitutionally- or prudentially-based jurisdictional bar,’” but rather refers to whether a defendant has shown that his own Fourth Amendment rights were violated by the challenged search and seizure. United States v. Marchant, 55 F.3d 509, 512 (10th Cir. 1995) (quoting United States v. Eylicio-Montoya, 18 F.3d 845, 850 n.3 (10th Cir. 1994)). This court need not address the government’s argument that Defendant has no standing to challenge the searches because we find that, even assuming Defendant does have standing, the search warrants were valid. See United States v. Scarborough, 128 F.3d 1373, 1377 n.2 (10th Cir. 1997).

-4- Defendant argues that none of the four search warrants were supported by

probable cause. In determining the existence of probable cause, the issuing

magistrate must decide whether, given the totality of the circumstances, “‘there is

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

particular place.’” United States v. Janus Indus., 48 F.3d 1548, 1552 (10th Cir.

1995) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). This court affords

great deference to the magistrate’s probable cause determination and will uphold

that determination so long as the magistrate had a substantial basis for concluding

that probable cause existed. See id. at 1553.

Defendant asserts the affidavits in support of the search warrants “are

nothing but bare bones affidavits.” Deputy Clinesmith from the Fremont County

Sheriff’s Office provided the affidavit in support of the search warrants for the

Custer and Fremont properties. In his affidavit, Deputy Clinesmith stated that he

arrested Ricardo Perez on December 31, 1994, after observing barrels of

ephedrine in the truck Ricardo was driving, and was present when DEA agents

interviewed Ricardo later that night. Deputy Clinesmith further stated Ricardo

told the agents that he was taking the ephedrine to a ranch in Fremont County,

where numerous other barrels were stored, and that various illicit drugs and

assault weapons were stored on property located in Custer County. Deputy

Clinesmith also testified that the DEA agents and an agent from the Bureau of

-5- Alcohol, Tobacco, and Firearms (BATF) confirmed that Ricardo’s statements

were consistent with their investigations. Finally, Deputy Clinesmith stated that

Ricardo had a criminal record for drug and firearm charges and that Ricardo was

Defendant’s brother.

With respect to the Scout and the residence, Detective Niski, a detective

with the Metro Vice/Narcotics Unit of the Colorado Springs Police Department,

provided the affidavit in support of the search warrants. In his affidavit,

Detective Niski discussed at some length a controlled buy of methamphetamine

from Defendant on November 20, 1994. During this controlled buy, Detective

Niski observed a confidential informant and another individual meet with

Defendant at a store parking lot, where methamphetamine was exchanged.

Detective Niski stated that other detectives observed Defendant leave his

residence in a GMC Jimmy and drive to the parking lot. Detective Niski also

stated that he spoke with Ricardo Perez on December 31, 1994, after Ricardo was

arrested. Ricardo told Detective Niski that he and his brother, Defendant, were

involved in the distribution of methamphetamine in the Colorado Springs area;

that Defendant had paid $200,000 for the barrels of ephedrine found in the U-haul

truck; and that he had been at Defendant’s residence approximately one week

earlier and believed Defendant was in possession of drugs and cash. Detective

Niski also stated in his affidavit that Defendant was arrested after he and another

-6- individual left Defendant’s residence in a yellow International Scout vehicle.

Detective Niski further testified that the vehicle was impounded and that a drug-

sniffing dog “alerted on both passenger doors and the rear bumper of the vehicle.”

He also stated that on January 1, 1995, an FBI agent arrested and interviewed an

individual by the name of Valdamar Lansky, who stated that he supplied

Defendant with ephedrine and made a delivery the night before. A Dial Number

Recorder indicated that early in the morning on January 1, two calls were placed

from Defendant’s residence to Mr. Lansky’s residence. Finally, Detective Niski

stated that in his experience, drug dealers often keep weapons and cash on hand

and use their personal vehicles to transport and store drugs, drug paraphernalia,

and drug transaction records.

After carefully reviewing the affidavits, this court concludes the magistrate

had a substantial basis for determining that probable cause existed to search the

two properties, the vehicle, and Defendant’s residence. Based on Ricardo’s

statements to the officers, which were corroborated by DEA and BATF

investigations, the magistrate certainly had a substantial basis for concluding

there was a “fair probability” that contraband would be found on the Custer and

Fremont properties. In light of the police dog’s reaction to the vehicle and

Detective Niski’s statements that drug dealers often store drug-related items in

their vehicles, probable cause existed to search the vehicle. Although Defendant

-7- argues that Detective Niski’s statements “regarding his experience and training

and his conjecture as to what drug dealers do” should not be taken into account in

determining whether probable cause existed to search the vehicle and Defendant’s

residence, this court has consistently held that an agent’s experience and training

is entitled to consideration. See, e.g., United States v. Wicks, 995 F.2d 964, 972

(10th Cir. 1993).

Probable cause also existed to search Defendant’s residence. Less than two

months before the search of his residence, Defendant was observed leaving the

residence and driving to a store parking lot, where he sold methamphetamine to a

confidential informant and another individual. A reasonable inference from this

transaction is that Defendant stored methamphetamine at his residence. Cf.

United States v. Shomo, 786 F.2d 981, 984 (10th Cir. 1986) (concluding, where

defendant was seen leaving his residence with a firearm, that there was a

reasonable probability he kept the firearm at his residence, and stating “[t]he

magistrate was not required to rule out every other possible alternative”).

Although Defendant suggests the information was stale, the passage of time

between the controlled buy and the search is not fatal, as the affidavit indicates

Defendant was involved in an “ongoing, continuous criminal activity.” Id.

Ricardo’s statement to the officers that he had been at Defendant’s residence one

week before his arrest and that he believed Defendant was in possession of cash

-8- and drugs further supports the existence of probable cause to search the residence.

This court therefore concludes there was probable cause to support the four search

warrants.

B. Overbreadth of Warrants

Defendant also argues that all four warrants are facially overbroad because

they fail to list the items to be seized with sufficient particularity. “The Fourth

Amendment’s requirement that a warrant particularly describe the things to be

seized prevents a general, exploratory rummaging in a person’s belongings . . . .

As to what is to be taken, nothing is left to the discretion of the officer executing

the warrant.” Janus Indus., 48 F.3d at 1553 (internal quotations omitted). The

description of items is “sufficiently particular when it enables the searcher to

reasonably ascertain and identify the things authorized to be seized.” Id. at 1554.

“Broad and generic terms of description may be valid when the terms are as

specific as the circumstances and nature of the activity under investigation

permit.” Richardson, 86 F.3d at 1544 (internal quotations omitted). This court

reviews de novo the legal question of whether a search warrant is overbroad. See

Janus Indus., 48 F.3d at 1554.

The search warrants for the Custer and Fremont properties provided that

officers could search for and seize the following items:

drug paraphernalia, records of ownership and occupancy, books, records, receipts, notes, ledgers, money, and other papers relating to

-9- the transportation, ordering, sales and distribution of controlled substances, firearms, ammunition, receipts of sale of firearms, any and all controlled substance[s] to include methamphetamine, precursor[] chemicals for the manufacture of controlled substances and any equipment and glass[ware] used in the manufacture of controlled substances.

The search warrants for the vehicle and residence referenced Attachment B,

which listed twelve categories of items that officers could search for and seize,

including controlled substances, currency, records of drug transactions, weapons,

financial records, computers used for keeping drug transaction records, precursor

chemicals, and cooking utensils and glassware used in the manufacture of

methamphetamine. This list is in conformity with Detective Niski’s statements as

to what drug traffickers typically keep in their homes and vehicles.

This court has “upheld search warrants cast in comparably broad terms,

where the subject of the search was a drug trafficking or drug dealing business,

and where circumstances permitted only a more general listing of the items to be

seized.” Wicks, 995 F.2d at 973 (collecting cases); see also Richardson, 86 F.3d

at 1544; Janus Indus., 48 F.3d at 1554. We therefore conclude the four search

warrants were valid because they described the items to be seized with as much

particularity as possible given the circumstances. 2

2 Relying on United States v. Leary, 846 F.2d 592 (10th Cir. 1988), Defendant argues that the facial overbreadth of the search warrants was not cured by resort to the affidavits because the warrants did not incorporate the affidavits by reference and the affidavits were not attached to the warrants. In Leary, the

-10- The judgment of the United States District Court for the District of

Colorado is AFFIRMED.

ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge

court held that the particularity of an affidavit may cure an overbroad search warrant if the affidavit is physically connected to the warrant and the warrant expressly refers to the affidavit and incorporates it by reference. See id. at 603. Because this court concludes the search warrants were not overbroad on their face, we need not address this argument. Defendant also appears to argue that in addition to disregarding the affidavits, this court should not consider Attachment B in evaluating the facial overbreadth of the search warrants for the vehicle and the residence because Attachment B was not physically attached to the warrants when the warrants were executed. Attachment B was physically attached to the warrants when Detective Niski applied for the warrants, and the warrants specifically referred to Attachment B. Although the record indicates Attachment B was no longer physically attached to the warrants at the time of execution, it is unclear whether Attachment B was available to the executing officers. Detective Niski, who applied for the warrants, was one of the officers who conducted the searches of the vehicle and residence. Defendant does not argue that the executing officers exceeded the scope of the items listed in Attachment B in conducting their searches and seizing items from the vehicle and the residence. Moreover, from the record it appears that Defendant was not present during either of the searches and thus could not have reviewed Attachment B prior to the officers conducting the searches. Under the circumstances, it is appropriate to consider Attachment B in determining whether the search warrants satisfy the particularity requirements of the Fourth Amendment.

-11-