United States v. Bedolla , 232 F. App'x 805 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 16, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-3225
(D.C. No. 04-CR-40001-SAC)
M A RIA N O BED O LLA , (D . Kan.)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before BR ISC OE, M cKA Y, and GORSUCH, Circuit Judges.
Defendant M ariano Bedolla is serving a 235-month prison sentence after
being found guilty of four drug-related offenses, including possession and
conspiracy to distribute methamphetamine. He challenges his convictions on
appeal, arguing that the district court erred in denying his pre-trial motion to
suppress evidence seized in violation of his Fourth Amendment rights. He claims
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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 consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
that one of the search warrants lacked probable cause and that police officers
went beyond the scope of the warrant. Because we conclude that the police
executed the challenged search warrant in good faith under United States v. Leon,
468 U.S. 897 (1984), we exercise our jurisdiction under 28 U.S.C. § 1291 to
AFFIRM .
I. Factual Background
A. First Search Warrant
On January 8, 2004, Special Agent Brian Carroll of the Kansas Bureau of
Investigation applied for a search warrant to search the defendant’s home at
10782 Kettle W ay in Dodge City, Kansas for paraphernalia used in the packaging
and distribution of methamphetamine. In support of his request, SA Carroll
submitted a sworn affidavit that primarily detailed the drug trafficking activities
of defendant’s brother, Felipe Bedolla, but included several allegations linking
defendant to those activities.
The affidavit states that on December 4, 2003, a cooperating individual
(“CI”) who sold methamphetamine for Felipe 1 told officers of the Emporia Police
Department (“EPD”) that Felipe was in Emporia to collect money for previous
sales of methamphetamine and that he was staying at local motel. Based on that
tip, EPD officers found Felipe’s car at a motel and witnessed Felipe and a man
1
W e will refer to Felipe Bedolla by his first name so as not to confuse him
with the defendant.
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later determined to be defendant get into the car and drive to the CI’s home,
where the CI paid money to Felipe. The police then followed Felipe and
defendant to a bank where Felipe made a deposit. A week later, on December 11,
2003, the police intercepted a phone call between Felipe and the CI in which
Felipe told the C I that he was on his way to Emporia to deliver more
methamphetamine. Over the course of the next two days, an undercover agent
accompanied the CI to his meetings with Felipe and witnessed the two exchanging
money and methamphetamine.
The affidavit continues that on January 5, 2004, defendant was arrested
along with Felipe, Juan Carlos Verducco-Camarena, and others on drug charges
relating to an ongoing narcotics investigation. The affidavit states that at the time
of their arrest, the Bedolla brothers had been in Emporia for two days trying to
collect money from the CI. W hen defendant was booked into the county jail, he
listed 10782 Kettle W ay as his permanent address. The affidavit goes on to
describe a January 6, 2004, police interview of someone whose name has been
redacted. W e cannot tell from the record or the parties’ briefs w hether this
unknown person is Verducco-Camarena or the CI or, indeed, whether they are one
and the same. In any event, this person told the officers conducting the interview
that he had been selling methamphetamine for Felipe in the Emporia area for 8 or
9 months. He said that Felipe traveled from Dodge City to Emporia every Sunday
to collect money and deliver methamphetamine and that sometimes defendant
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accompanied Felipe on these trips. This same person also described the location
of w hat he believed to be Felipe’s home in D odge City, which one of the officers
familiar with the area recognized as 10782 Kettle W ay. The person also told the
officers that Felipe told him that defendant assisted Felipe in cutting the
methamphetamine. He further “advised that the [cutting] took place in the
basement of Felipe’s home on Kettle W ay.” R. doc. 27 at A4. 2
Based on this information a magistrate judge issued a warrant at 4:00 p.m.
on January 8, 2004, authorizing a document search of the Kettle W ay residence.
It specifically identified the following items to be searched for and seized:
Documents, recipes, notes, books, and pamphlets, evidence of ownership,
control and occupancy of the property . . . records of drug sales distribution
and production, activities and confederates . . . records of drug proceeds
and/or the proceeds themselves . . . weapons.
Id. at A6. According to the warrant return, dated January 9, 2004, the search was
executed at 5:14 p.m. on January 8 and completed at 11:00 p.m. In addition to
documents and drug paraphernalia, officers found methamphetamine, which is
listed as seized property in the warrant return.
2
The parties vigorously dispute whether the person referenced in SA
Carroll’s affidavit personally observed defendant cutting the methamphetamine or
whether this information is hearsay obtained from Felipe. It is not relevant to our
disposition, however, because, as we explain below, we can affirm the district
court’s ruling without deciding whether SA Carroll’s affidavit was sufficient to
establish probable cause.
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B. Second Search Warrant
After methamphetamine was found in the defendant’s home, SA Carroll
prepared another affidavit, also dated January 8, 2004, specifically requesting a
warrant to search the K ettle W ay residence for “[methamphetamine], drug use
paraphernalia and other illegal drugs.” Id. at A13. A second warrant issued at
8:12 p.m. on January 8, 2004, apparently while the initial search of defendant’s
home was ongoing, and identified methamphetamine among the items that could
be seized. The return for this second warrant, dated January 9, 2004, makes clear
that the two warrants were executed simultaneously. It states that the search
pursuant to the second warrant was executed on January 8, 2004, at 8:20 p.m. and
was completed at 11:00 p.m. M oreover, the description of the methamphetamine
found in defendant’s home is identical in both the first and second warrant
returns.
C. M otion to Suppress
On April 5, 2004, defendant filed a motion to suppress the
methamphetamine seized from his home, raising the following arguments: (1) he
argued that SA Carroll’s first affidavit lacked information concerning the
credibility and reliability of the CI and specifically lacked independent
corroboration of the CI’s statement that he assisted Felipe in cutting
methamphetamine; (2) he argued the first search warrant was based on stale
information; (3) he accused SA Carroll of submitting an affidavit that contained
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erroneous and tainted information designed to mislead the issuing judge; (4) he
claimed the seizure of methamphetamine from his home exceeded the scope of the
first warrant; and (5) he argued the Leon good-faith exception did not apply
because the issuing judge was deliberately misled, the warrant lacked specificity,
and SA Carroll’s affidavit lacked any indicia of probable cause.
Although the district court rejected each of the above arguments, defendant
asserts error only with respect to the first and fourth. The court rejected his first
argument, explaining that not every piece of information obtained from an
informant requires independent verification. It went on to note that many of the
CI’s statements in this case were independently verified, including his statement
that Felipe was in Emporia on December 4, 2003, and could be found at a local
motel. The court concluded that the information provided by SA Carroll “enabled
the magistrate to judge the validity of the informant’s information, and showed
some independent verification of the information given officers by the CI.” R.
doc. 103 at 10.
The court also rejected defendant’s argument that the executing officers
exceeded the scope of the first warrant by seizing methamphetamine, concluding
that there was a logical nexus between the drugs and the terms of the first
warrant. See U nited States v. Gentry, 642 F.2d 385, 387 (10th Cir. 1981) (holding
that items are admissible “[w]hen a logical nexus exists between seized but
unnamed items and those items listed in the warrant”). It also held that under the
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“practical accuracy” standard applicable to search warrants, United States v.
Ortega-Jiminez, 232 F.3d 1325, 1328 (10th Cir. 2000) (quotation omitted), the
first search warrant could be read to include drugs among the items that could be
seized if found. And in any event, the court concluded that defendant failed to
show that the officers had actually seized, as opposed to simply secured, the
methamphetamine during the first search. Finally, the court held that even if the
first warrant lacked probable cause, the first search was nonetheless valid under
Leon, stating that it had “reviewed the four exceptions to Leon’s applicability, and
[found] them inapplicable.” R. doc. 103 at 19.
As we already mentioned, the defendant does not appeal all of the district
court’s rulings. He challenges only the court’s determination that the first
warrant was supported by probable cause and its finding of a logical nexus
between the first warrant and the drugs seized. Specifically, he argues that SA
Carroll’s first affidavit contained no information about the credibility and
reliability of the CI, nor any independent verification of the CI’s statements,
including his statement regarding defendant’s involvement in cutting
methamphetamine.
II. Discussion
“In reviewing the denial of a motion to suppress, this court views the
evidence in the light most favorable to the government and upholds the district
court’s factual findings unless clearly erroneous.” United States v. Danhauer,
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229 F.3d 1002, 1005 (10th Cir. 2000). W e review the district court’s conclusions
of law de novo, including its determinations relating to sufficiency of a warrant
and whether the Leon good-faith exception should apply. Id.Not all cases require us to resolve the Fourth Amendment question of
whether a particular warrant was supported by probable cause. In some cases,
resolution of the Fourth Amendment question is “necessary to guide future action
by law enforcement officers and magistrates.” Id. (quotation omitted). In more
routine cases, however, those that pose no important Fourth Amendment
questions, we have discretion to proceed directly to the Leon good-faith analysis.
See Leon, 468 U.S. at 925 (holding that reviewing courts have discretion to turn
directly to the good-faith issue). W e conclude this case falls in the latter
category. As such, we need not decide whether SA Carroll’s first affidavit
contained sufficient facts to lead the magistrate to believe that a search of the
defendant’s home would uncover evidence of criminal activity. See Danhauer,
229 F.3d at 1006. Likew ise, our disposition does not depend on whether the CI’s
veracity and basis of knowledge were sufficiently verified.
In Leon, the Court explained that
[i]f the purpose of the exclusionary rule is to deter unlawful police
conduct, then evidence obtained from a search should be suppressed
only if it can be said that the law enforcement officer had knowledge,
or may properly be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment.
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468 U.S. at 919 (quotation omitted). The Court therefore created an exception to
the exclusionary rule for evidence obtained pursuant to an unlawful search if the
officers executed the search with objective good faith, relying on a search warrant
issued by a neutral judge or magistrate. See id. at 919-21. In determining
whether to apply the exception, our inquiry is “confined to the objectively
ascertainable question whether a reasonably well trained officer would have
known that the search was illegal despite the magistrate’s authorization.” Id. at
922 n.23. The Leon Court recognized four circumstances in which the exception
would not apply because the officer would “have no reasonable grounds for
believing that the warrant was properly issued.” 468 U.S. at 923.
First, evidence should be suppressed if the issuing magistrate was
misled by an affidavit containing false information or information
that the affiant would have known w as false if not for his reckless
disregard of the truth. Second, the exception does not apply when
the issuing magistrate wholly abandoned his judicial role. Third, the
good-faith exception does not apply when the affidavit in support of
the warrant is so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable. Fourth, the
exception does not apply when a warrant is so facially deficient that
the executing officer could not reasonably believe it was valid.
Danhauer, 229 F.3d at 1007 (quotations and alterations omitted).
Although defendant does not directly challenge the district court’s
good-faith determination, his arguments attacking the reliability of the informant
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implicate the third exception recognized in Leon. 3 W e conclude, however, that
SA Carroll’s affidavit was not so lacking in indicia of probable cause as to
convince a reasonably well-trained officer that the search was illegal. See
Danhauer, 229 F.3d at 1007. W e have previously explained that “the absence of
information establishing the informant’s reliability or basis of knowledge does not
necessarily preclude an officer from manifesting a reasonable belief that the
warrant was properly issued, particularly when the officer takes steps to
investigate the informant’s allegation.” Id. (citation omitted). Furthermore, an
officer is not required to corroborate information provided by an informant
through personal observation. See United States v. M athis, 357 F.3d 1200, 1204
(10th Cir. 2004). It is enough if the officer simply has “knowledge of other
matters that reasonably corroborate the informant’s statements.” Id. Finally, w e
have held that good faith can be established so long as a minimal nexus exists
betw een the place to be searched and the suspected criminal activity. See United
States v. Gonzales, 399 F.3d 1225, 1231 (10th Cir. 2005).
SA Carroll’s affidavit supplied sufficient information to justify his reliance
on the informant’s statements concerning defendant’s involvement in Felipe’s
drug trafficking. Certainly, there was sufficient independent evidence that Felipe
3
Defendant raised some arguments in the district court bearing on the first
exception, but he abandoned and thus waived those arguments on appeal.
Likewise, his appellate brief lacks any arguments relating to the second and
fourth exceptions recognized in Leon.
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himself was engaged in the trafficking of methamphetamine. The affidavit
described an intercepted phone call between the informant and Felipe in which the
two discussed a drug deal, and an undercover agent witnessed Felipe and the
informant exchanging methamphetamine for cash. There was also independent
verification that defendant was at least minimally involved in some of Felipe’s
drug trafficking. The police witnessed him accompanying Felipe on at least one
drug transaction, after which the two went to a bank to deposit money. And of
course, the informant stated that defendant assisted Felipe in cutting
methamphetamine. Defendant’s residence on Kettle W ay is tied to these
transactions. The informant stated that he believed Felipe also lived in the house
and used it to prepare the methamphetamine. W e therefore conclude that SA
Carroll, who both obtained and participated in the execution of the warrant,
reasonably believed the fruits of his investigation into the informant’s allegations
sufficiently linked defendant to Felipe’s criminal activities and the Kettle W ay
residence.
W e further conclude that officers acted in good faith in seizing
methamphetamine despite the limited scope of the first warrant. The seized drugs
unquestionably bore a reasonable relation to the drug paraphernalia listed in the
warrant and there was therefore a logical nexus between the two, which justified
the seizure. See G entry, 642 F.2d at 387. M oreover, it is far from clear from the
record that the drugs were actually seized pursuant to the first warrant and not the
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second. Upon finding the drugs, SA Carroll applied for another warrant, which
appears to have been issued before the first search was even completed. It
confuses matters that the warrant returns for both searches contain identical
descriptions of the seized drugs. W e nonetheless conclude based on the totality
of the circumstances, including the timeliness of the second warrant, that Leon’s
good faith exception applies to the officers’ seizure of the methamphetamine. A s
a result, the district court did not err in denying defendant’s motion to suppress.
A FFIR ME D.
Entered for the Court
M ary Beck Briscoe
Circuit Judge
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