United States v. Rivera

347 F. App'x 833
Procedural entryThis page is a short order in United States v. Rivera. Read the opinion of the Court — 413 F. App'x 470
Court of Appeals for the Third Circuit·Decided October 6, 2009·No. No. 08-3491·Published

Opinion

OPINION

AMBRO, Circuit Judge.

John Anthony Gonzalez, Jr.,1 appeals the order of the District Court denying his motion to suppress physical evidence. He claims the Court erred by refusing to suppress evidence in light of two alleged deficiencies in the affidavit supporting the search warrant: (1) a lack of sufficient statements addressing the reliability of a dog sniff; and (2) statements in violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). For the reasons below, we affirm the order of the District Court denying the motion to suppress.

I. Facts

On July 4, 2006, Philadelphia Police Officer Richard Martinez received information from an informant that large quantities of cocaine were being stored in locker J0819 at the Public Storage facility at 2700 Grant Avenue in Philadelphia. The informant provided detailed information about the packaging of the cocaine, stating that there were kilogram bricks inside two or more dark colored duffle bags stored inside the locker. The source stated that some kilograms were wrapped in tan color tape and others in foil. We note that these are details that can only be verified after execution of a search warrant. The informant also provided information regarding the purported owners of the cocaine. The source informed Officer Martinez that two Hispanic males, identified as David Rivera and Johnny Versace, were coming from Florida the next day to move the cocaine out of the storage locker to an unknown location. Officer Martinez shared his notes with the officer who eventually drafted the search warrant for the locker, Officer Brian Myers.

In response to this information, Officer Myers and others went to the Public Storage facility later that day. There, they verified the existence of a locker J0819, and upon talking to the employee on duty, learned that it had been rented by an individual using the name Daniel Rivera. This Daniel Rivera used an address in Fort Lauderdale, Florida. The officers also brought with them a photograph of a David Rivera fitting the description of the David Rivera identified by the informant. The employee, who apparently was new [836]*836and the only one on duty, did not recognize the individual in the photograph.

At the request of the officers on site, Officer Dispasquale and her trained drug detection dog, Tre, came to the storage facility and was exposed to locker J0819. Officer Dispasquale then notified Officer Myers that Tre “had a positive indication on storage locker J0819 for narcotics.” J.A. 96-97. Officer Myers returned to headquarters and prepared a search and seizure warrant for that locker. The affidavit, in its entirety, is reproduced below:

On 7-4-06 your affiant P/O Myers# 6657 received information from P/O Martinez # 1718. P/O Martinez stated that a source of information contacted the officer and stated that the Public Storage at 2700 Grant Ave. storage locker # J0819 within the last 24 hours is being used to store kilos of cocaine. The source stated that the kilos are inside a dark colored duffle bag. Some kilos are wrapped a tan color tape and some kilos are wrapped in foil. The source stated that there are 2 or more duffle bags inside the storage locker. The source stated that a H/M named Daniel Rivera along with another H/M named Johnny Versace were coming from Florida on 7-5-06 to move the kilos to an unknown location. P/O Myers and Cpl. Judge # 8027 then went to the employee at the Public Storage at 2700 Grant Ave. The employee confirmed that Daniel Rivera with an address of 925 SW 30th St. Ft. Lauder-dale, Florida was renting the storage locker. At this time Cpl. Judge then had K9 come to the Public Storage at 2700 Grant Ave. storage locker # J0819. P/O Dispasquale # 6742 and TRE # K549 arrived on location. TRE indicated POSITIVE on the door of the storage locker # J0819. P/O White # 4296 has a surveillance of the storage locker.

J.A. 48 (emphasis in original). There was no mention of the name “David Rivera,” and no mention of the attempt at a photo identification. This affidavit was presented to a Philadelphia County bail commissioner, and the search warrant was granted. That same evening, still July 4, officers returned to the locker and carried out the search warrant. They found 47.83 kilograms of cocaine inside the locker, packaged in duffle bags.

Gonzalez was later charged in a federal indictment with one count of possession with intent to distribute under 21 U.S.C. § 841(a)(1). He moved to suppress the evidence and also sought a hearing pursuant to Franks. The District Court held a hearing on Gonzalez’s motion.

At the hearing, Officer Myers testified that he had “mistakenly” switched the two similar names of “David” and “Daniel” when drafting the affidavit because the Public Storage employee used the name “Daniel,” as per the account record there. As to the failed identification by the Public Storage employee, Myers testified that he failed to include this information in the affidavit because the employee was new. He stated that he did ask to speak to another employee but there was no one else on duty because of the holiday. Myers testified that he had used dog sniffs over 50 times, but he did not have or attempt to acquire any information about the training of Tre, the canine, or Officer Dispasquale, the canine handler.

After the hearing, the District Court denied Gonzalez’s motion. It specifically rejected the Franks challenge and also declined to adopt a rule requiring the police to substantiate the dog’s reliability, training, and experience in the affidavit. Gonzalez later pled guilty to the indictment, reserving the right to appeal the District Court’s denial of the motion to [837]*837suppress physical evidence. After sentencing, he filed a timely appeal.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

In evaluating the District Court’s denial of the motion to suppress, we review for clear error as to the underlying facts, but exercise plenary review over the application of law to properly found facts. United States v. Riddick, 156 F.3d 505, 509 (3d Cir.1998) (citing United States v. Inigo, 925 F.2d 641, 656 (3d Cir.1991)). However, this does not mean that we are to second-guess a magistrate’s determination of sufficient evidence to support a finding of probable cause. In particular, the Supreme Court has recognized that affidavits are normally drafted by nonlawyers in the midst and haste of a criminal investigation, and thus after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. Illinois v. Gates, 462 U.S. 213, 235-36, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

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