United States v. Deloera-Escalera ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 15, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-5143
(D.C. No. 4:13-CR-00229-CVE-2)
JOEL DELOERA-ESCALERA, a/k/a (N.D. Okla.)
Roberto, a/k/a Joel Deloera, a/k/a Luis
Perez-Hernandez,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
Joel Deloera-Escalera appeals multiple convictions arising from law
enforcement’s search of his duplex. Deloera-Escalera challenges the district court’s
denial of his motion to consolidate two cases filed against him, one charging illegal
reentry and the other asserting multiple drug-related charges. He also challenges the
denial of his motion to suppress the evidence discovered in a search of his home that
led to the charges in the second case. Finding no reversible error, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,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. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
BACKGROUND
Based on information he received from confidential informants, Oklahoma
Bureau of Narcotics Agent John Morrison applied for a warrant to search an alleged
stash house in Tulsa. In the heading of his supporting affidavit, Morrison listed 1515
South 67th East Avenue in bold, underlined type. He then referred to that address in
six locations in the body of his affidavit. But he also made a single reference to 1515
North 67th East Avenue.
Similarly, the resulting search warrant listed the address to be searched as
1515 North 67th East Avenue. But it otherwise accurately described 1515 South 67th
East Avenue:
The residence is a duplex located south of 15th Street on 67th East
Avenue. It is on the east side of 67th East Avenue and faces west
towards the street. The residence is a single story, multi-family duplex.
The duplex is connected to another duplex just to the south of it. The
structure is a combination of wood and brick. The wood is green in
color and the brick is tan. The residence has shingles that are black in
color.
R. Vol. II at 22.
Before the search, Morrison and Tulsa Police Department Officer W.R.
Mackenzie observed the residence at 1515 South 67th East Avenue. And on
the day they executed the search, Morrison told TPD officers that the subject
house was on South 67th East Avenue. He also gave them a copy of the
affidavit, a copy of the search warrant, and photographs of 1515 South 67th
East Avenue. Mackenzie and other TPD officers then executed the search
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warrant at 1515 South 67th East Avenue. There, they found and arrested Joel
Deloera-Escalera after discovering methamphetamine and firearms.
A grand jury subsequently indicted Deloera-Escalera in Case No. 13-CR-212-
JED for illegally reentering the United States. That case was assigned to U.S. District
Judge John Dowdell. Less than a month later, in Case No. 13-CR-229-CVE, a second
indictment charged Deloera-Escalera with participating in a drug conspiracy,
maintaining a drug-involved premise, and possession of a firearm by an alien
illegally or unlawfully in the United States. Case No. 13-CR-229-CVE was assigned
to U.S. District Judge Claire Eagan.
In response, Deloera-Escalera moved to consolidate all four of the charges into
Case No. 13-CR-212-JED, arguing, “[T]he two cases give the appearance of forum
shopping on the part of the government, and could also give the appearance of
impropriety in the judicial process to the general public.” R. Vol. I at 27. Judge
Eagan denied the motion, in part because she concluded the “cases involve[d]
separate and unrelated crimes.” R. Vol. I at 30. But later, on the government’s
motion, Judge Dowdell dismissed the indictment for illegal reentry in Case No. 13-
CR-212-JED. The government filed a superseding indictment that added Deloera-
Escalera’s illegal reentry charge to Case No. 13-CR-229-CVE.
Meanwhile, Deloera-Escalera filed a motion to suppress, arguing that the
inconsistent addresses in the warrant and affidavit rendered the warrant facially
invalid. Judge Eagan denied the motion, concluding the warrant adequately described
1515 South 67th East Avenue with particularity despite the incorrect address.
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A jury found Deloera-Escalera guilty of all four charges, and the district court
sentenced him to 135 months. Deloera-Escalera appeals.
DISCUSSION
Deloera-Escalera first challenges the district court’s denial of his motion to
consolidate. The district court denied Deloera-Escalera’s motion to consolidate
because the cases involved “separate and unrelated crimes.” R. Vol. I at 30. On
appeal, Deloera-Escalera doesn’t challenge that conclusion. Instead, he merely cites
the importance of preventing forum shopping and avoiding the appearance of
impropriety, and insists the district court erred in refusing to consolidate the cases.
A district court may consolidate cases if all the offenses charged “could have
been joined in a single indictment.” Fed. R. Crim. P. 13. A single indictment, in turn,
may charge multiple offenses only if those offenses “are of the same or similar
character, or are based on the same act or transaction, or are connected with or
constitute parts of a common scheme or plan.” Fed. R. Crim. P. 8(a).
Whether offenses may be joined under Rule 8(a) is a question of law that we
review de novo. United States v. Bagby, 696 F.3d 1074, 1086 (10th Cir. 2012). But
we review a court’s refusal to consolidate cases under Rule 13 for abuse of
discretion. See United States v. Knowles, 572 F.2d 267, 270 (10th Cir. 1978) (“The
decision of the trial court to consolidate the cases for trial under Rule 13 . . . will not
be disturbed on appeal in the absence of a showing of abuse of discretion.”).
Deloera-Escalera makes no effort to establish the charged crimes could have
been joined under Rule 8(a)—a preliminary requirement for consolidation under Rule
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13. See Fed. R. Crim. P. 13 (explaining district court may order that separate cases be
tried together if all offenses could have been joined in single indictment); United
States v. Van Scoy, 482 F.2d 347, 349 (10th Cir. 1973) (explaining that because
offenses were “sufficiently connected together for joinder under Rule 8(a),” they
were also “subject to consolidation” under Rule 13). Therefore, we find no abuse of
discretion in the district court’s refusal to consolidate the cases under Rule 13, and
we affirm the district court’s denial of Deloera-Escalera’s motion to consolidate.
Deloera-Escalera next challenges the denial of his motion to suppress, arguing
the district court erred in rejecting his argument that the inconsistent addresses in the
warrant and affidavit rendered the warrant facially invalid. Specifically, he contends
that as a result of the incorrect addresses, the warrant didn’t describe the place to be
searched with particularity and the resulting search was unconstitutional.
In reviewing the denial of a motion to suppress, we accept the district court’s
factual findings unless they are clearly erroneous and view the evidence in the light
most favorable to the government. See United States v. Padilla-Esparza, 798 F.3d
993, 998 (10th Cir. 2015). We review the district court’s determination of
reasonableness under the Fourth Amendment de novo. Id.
We apply a two-prong test to determine whether a warrant adequately
describes the location to be searched, asking (1) “whether the description is sufficient
to enable the executing officer to locate and identify the premises with reasonable
effort” and (2) “whether there is any reasonable probability that another premise
might be mistakenly searched.” United States v. Garcia, 707 F.3d 1190, 1197 (10th
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Cir. 2013) (quoting United States v. Lora-Solano, 330 F.3d 1288, 1293 (10th Cir.
2003)). Practical accuracy, not technical precision, determines whether a search
warrant adequately describes the premises to be searched. Id. Thus, “[a] technically
wrong address does not invalidate a warrant if it otherwise describes the premises
with sufficient particularity so that the police can ascertain and identify the place to
be searched.” Lora-Solano, 330 F.3d at 1293. If there is a discrepancy, the executing
officer may seek clarification in an attached affidavit. See United States v.
Occhipinti, 998 F.2d 791, 799 (10th Cir. 1993).
Here, the warrant’s description clearly enabled the executing officers to locate
and identify the premises with reasonable effort. See Garcia, 707 F.3d at 1197. The
warrant described the residence in detail, including, critically, its location south of
15th Street. It also described the residence—its orientation, its composition, and its
colors—with sufficient particularity to allow police to identify the place to be
searched. And the attached affidavit clarified any discrepancy by identifying the
address as 1515 South 67th East Avenue in bold, underlined type. See Occhipinti,
998 F.2d at 799 (concluding correct address in attached application clarified incorrect
address in warrant). Finally, Mackenzie’s prior observation of and familiarity with
1515 South 67th East Avenue bolstered the adequacy of the warrant’s description.
See id. (concluding court can consider executing officer’s knowledge to determine if
search warrant’s description is adequate); United States v. Sturmoski, 971 F.2d 452,
458 (10th Cir. 1992) (noting that presence of officer familiar with premises
“provided additional reliability that the correct premises would be searched”).
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Nor do we find any reasonable probability here that officers might have
searched the wrong house. See Garcia, 707 F.3d at 1197. The only other residence
officers might conceivably have searched was 1515 North 67th East Avenue. But the
warrant described a duplex located south of 15th Street, and the affidavit included
information from informants about a stash house near 15th Street and Sheridan. The
record reveals that the 1515 South 67th East Avenue residence is near the
intersection of 15th Street and Sheridan, just south of 15th Street. On the other hand,
1515 North 67th East Avenue is located nearly three miles north of 15th Street. Thus,
the description of the residence in the warrant, plus photos and the executing
officer’s prior knowledge of the premises “virtually eliminated the possibility of
searching the wrong residence.” Id. In other words, the warrant was practically
accurate despite the wrong address. See id.
Because the search warrant adequately described the place to be searched with
particularity, we reject Deloera-Escalera’s facial invalidity argument and affirm the
district court’s denial of his motion to suppress.
Affirmed.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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