United States v. John Orozco ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 06-4235
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOHN O ROZCO ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 1164—Joan Humphrey Lefkow, Judge.
A RGUED S EPTEMBER 3, 2008—D ECIDED A UGUST 13, 2009
Before E ASTERBROOK, Chief Judge, and R OVNER and
S YKES, Circuit Judges.
S YKES, Circuit Judge. Federal agents arrested John
Orozco after they searched his home pursuant to a
warrant and found a gun and a digital scale with trace
amounts of cocaine. The government charged Orozco
with possessing a firearm after having been convicted of
a felony and conspiring to distribute more than five
kilograms of cocaine and marijuana. After a jury con-
2 No. 06-4235
victed him on both counts, the district judge sentenced
Orozco to 360 months in prison.
Orozco appeals his convictions and sentence, arguing
that the evidence obtained in the search should have
been suppressed, that the district judge improperly
admitted evidence relating to Orozco’s prior firearm
conviction, and that the judge should not have applied
a two-level sentencing guidelines enhancement for pos-
sessing a firearm in connection with a drug offense.
We find no merit in any of Orozco’s challenges and
affirm his convictions and sentence.
I. Background
In December 2002 federal agents applied for a warrant
to search Orozco’s residence near Aurora, Illinois, for
records relating to narcotics transactions and member-
ship lists for the Latin Kings gang. FBI Special Agent
Ken Burress submitted an affidavit in support of the
warrant, which stated that: (1) reliable gang sources told
Burress that Orozco was the second-in-command of the
Aurora Latin Kings gang and dealt in large quantities
of cocaine and marijuana; (2) several gang members
admitted purchasing drugs from Orozco; and (3) Burress
knew from his ten years of experience in narcotics in-
vestigations that high-ranking gang members often kept
detailed records of drug transactions and gang member-
ship lists in their homes. Based on this information, a
magistrate judge issued the search warrant.
Federal agents executed the warrant and found a Beretta
handgun, a box of ammunition, a magazine, two gun
No. 06-4235 3
holsters, and a digital scale with trace amounts of cocaine
in Orozco’s home. Orozco was subsequently arrested
and charged with possession of a firearm in violation of
18 U.S.C. § 922(g)(1) and conspiracy to distribute cocaine
and marijuana in violation of 21 U.S.C. § 846 and 18 U.S.C.
§ 2. Orozco moved to quash the search warrant and
suppress the evidence found at his home, claiming that
no probable cause existed for the search. The district
court agreed that the warrant was not supported by
probable cause, but permitted the admission of the evi-
dence at trial because the court found that the officers
had acted in good faith.
At trial Orozco argued that the gun belonged to his
wife, not him. FBI Special Agent Neal Ormerod testified
that he had found a gun holster in Orozco’s closet
while searching his residence and that a holster is pri-
marily used to carry a concealed firearm. On cross-exami-
nation Ormerod stated that the holster was set up for
a right-handed shooter. Defense counsel then asked
Agent Ormerod whether he knew that Orozco was left-
handed; Ormerod said he did not. Following this testi-
mony, the government requested permission to intro-
duce the testimony of Aurora Police Officer Dan Woods
to rebut the impression created by defense counsel that
Orozco could not have used the holster because he is left-
handed. The court granted permission over Orozco’s
objection. Officer Woods testified that in September 1994
he encountered Orozco under suspicious circumstances.
After a brief exchange between the two, Orozco put his
right hand under his shirt and grabbed at his waistband.
Woods ordered Orozco to place his hands on a nearby
4 No. 06-4235
vehicle so Woods could search him, but Orozco ran.
Woods gave chase and saw Orozco—using his right
hand—remove something from his waistband and toss it
to the ground. After Orozco was arrested, Officer Woods
retraced his steps and found a firearm on the ground
where Orozco had tossed the item he removed from
his waistband. Orozco was charged and convicted of
unlawful possession of the firearm. This evidence, the
government argued, showed that the gun discovered in
the search of Orozco’s home belonged to the left-handed
Orozco even though the holster was set up for a right-
handed shooter.
The jury convicted Orozco of both charges, and a judge
sentenced him to 360 months’ imprisonment on the
conspiracy count and a concurrent 120 months’ impris-
onment on the felon-in-possession count. In calculating
Orozco’s guidelines sentence, the judge imposed a two-
level enhancement for possession of a firearm in con-
nection with a drug offense. Orozco objected to the en-
hancement, claiming that there was no evidence that he
had possessed the gun in connection with a drug con-
spiracy. The judge held that the connection between
the two was a permissible inference and applied the
enhancement.
II. Discussion
A. Search Warrant
We first address Orozco’s claim that the evidence
obtained from the search of his home should have been
No. 06-4235 5
suppressed. The district judge held that while the search
warrant was not supported by probable cause, the evi-
dence was nevertheless admissible because the officers
acted in good faith. See United States v. Leon, 468 U.S. 897
(1984). Both parties take issue with the district court’s
ruling. Orozco agrees that no probable cause existed for
the search, but claims the district court erred in applying
the good-faith exception to the exclusionary rule.
The government contends that not only did the officers
executing the search rely on the warrant in good faith,
but the district court erred in holding that the search
warrant was not supported by probable cause.
Probable cause is a practical, nontechnical inquiry
that asks whether there is a fair probability, given the
totality of the circumstances, that evidence of a crime
will be found in a particular place. Illinois v. Gates, 462
U.S. 213, 238 (1983). “When, as here, an affidavit is the
only evidence presented to a judge to support a search
warrant, ‘the validity of the warrant rests solely on the
strength of the affidavit.’ ” United States v. Mykytiuk, 402
F.3d 773, 775 (7th Cir. 2005) (quoting United States v.
Peck, 317 F.3d 754, 755-56 (7th Cir. 2003)). The question
for us is whether Agent Burress’s affidavit adequately
established probable cause to search Orozco’s home
for narcotics and gang-related evidence. Our standard of
review requires us to give “great deference” to the decision
of the magistrate judge who issued the warrant and no
deference to the district court’s determination that proba-
ble cause was lacking. United States v. McIntire, 516
F.3d 576, 578 (7th Cir. 2008).
6 No. 06-4235
Agent Burress’s affidavit stated that according to
reliable sources, Orozco was the second-in-command
of the Aurora Latin Kings gang. In addition, several
cooperating gang members told Agent Burress that Orozco
was a large-scale drug trafficker and that they had pur-
chased drugs from Orozco in the recent past. Moreover,
Agent Burress asserted that in his ten years of experience,
he knew that high-ranking gang members often kept
membership lists, drug-transaction records, and other
evidence of gang- and drug-related activity in their
homes. Based on this information, the magistrate judge
issued the warrant to search Orozco’s home for
“[l]edgers/records related to narcotics transactions, gang
related indicia, photographs of gang members, led-
gers/records related to gang activity, indicia of residency
and real estate documents.”
The government concedes that the only support for
a link between Orozco’s home and the sought-after evi-
dence of drug dealing and gang activity was Agent
Burress’s belief—informed by his decade of experience
as a narcotics investigator—that Orozco, as second-in-
command of the Aurora Latin Kings gang, would keep
drug- and gang-related evidence at his home. The gov-
ernment claims this is sufficient to support probable
cause and cites our decision in United States v. Lamon for
support. 930 F.2d 1183 (7th Cir. 1991). In Lamon, an infor-
mant told police that Lamon routinely sold cocaine out
of his house and his car. Based on this information,
police obtained a warrant to search Lamon’s residence
and his car and found cocaine and drug-packaging materi-
als in both places. Id. at 1185. During the search, Lamon
No. 06-4235 7
told officers that the house was only his secondary resi-
dence; his primary residence was about a mile away. After
the search police returned to court and requested a
second warrant to search Lamon’s primary residence.
Admitting that the informant had only identified
Lamon’s secondary residence and his car as sites of drug
sales, the requesting officer asserted that in his “nine
years of investigating drug trafficking in the Milwaukee
area,” he knew that drug dealers often kept drugs and
records at their primary residence. Id. at 1186. The state
court issued a search warrant on this information. We
upheld the warrant, stating that the specific evidence
of drugs in Lamon’s second residence plus the officer’s
experience regarding drug dealers’ primary residences
supported the issuing court’s probable-cause determina-
tion.
The district judge thought Lamon was distinguishable
from the facts at issue here. It is true that in Lamon
the affidavit contained more than just the officer’s asser-
tion that drug dealers often kept drug evidence in their
homes; our opinion also emphasized that police had
already discovered drugs and drug-packaging materials
in Lamon’s secondary residence and in his car. Here, the
link between Orozco’s home and the gang and narcotics
evidence rests solely on Agent Burress’s assertion that
high-ranking gang members often keep evidence of gang
and drug activity in their homes. The district judge be-
lieved that the officer’s experience, without more, was not
sufficient to support probable cause to search Orozco’s
home.
8 No. 06-4235
We disagree. It is true that Agent Burress’s assertion
about the likelihood of locating evidence in the home of a
high-ranking gang member was not corroborated by
information specific to Orozco’s activities at his home.
But it is well established as a general matter that a magis-
trate evaluating a warrant application is entitled to take
an officer’s experience into account in determining
whether probable cause exists. Lamon, 930 F.2d at 1189.
“Warrants may be issued even in the absence of direct
evidence linking criminal objects to a particular site.” Id. at
1188 (internal quotation marks omitted). An issuing
magistrate “is entitled to draw reasonable inferences
about where evidence is likely to be kept, based on the
nature of the evidence and the type of offense,” and
specifically, “[i]n the case of drug dealers, evidence is
likely to be found where the dealers live.” Id. (internal
quotation marks omitted).
Orozco cites the Sixth Circuit’s decision in United States
v. Schultz, 14 F.3d 1093 (6th Cir. 1994), as support for his
argument that Burress’s affidavit was deficient. In that
case, an informant told the police that a man named
“Schultz” supplied him with drugs. Police determined
where Schultz lived and that he had prior convictions
for possession of marijuana. Police also discovered that
Schultz owned several safe-deposit boxes at a local
bank. Based on this information, an officer applied for
a warrant to search the safe-deposit boxes, asserting
that “[b]ased on his training and experience[,] . . . it is
not uncommon for the records, etc., of such [drug] dis-
tribution to be maintained in safe deposit boxes.” Id.
at 1097. The Sixth Circuit held that the affidavit was
insufficient to establish probable cause.
No. 06-4235 9
Burress’s affidavit was stronger than the affidavit at
issue in Schultz. The affidavit in Schultz said only that
it was “not uncommon,” in the agent’s experience, for
drug dealers to keep records of drug activity in safe-
deposit boxes. Here, in contrast, Burress swore that his
decade of experience as a narcotics investigator con-
vinced him that because Orozco was a high-ranking
gang member, evidence of drug trafficking and gang
activity “will be found” in his home. The issuing magis-
trate judge was entitled to credit Burress’s lengthy ex-
perience and high degree of confidence that the sought-
after evidence was very likely to be found in Orozco’s
home. Giving “great deference” to the decision of the
magistrate judge, McIntire, 516 F.3d at 578, we conclude
that Burress’s affidavit was sufficient to establish
probable cause to search Orozco’s home.
And were it not, we would otherwise agree with the
district court’s conclusion that the evidence obtained in
the search was admissible under the good-faith excep-
tion. The fruits of a search based on an invalid warrant
may be admitted at trial if the executing officer relied on
the invalid warrant in good faith. Leon, 468 U.S. at 922. “An
officer’s decision to obtain a warrant is prima facie evidence
that she was acting in good faith.” Mykytiuk, 402 F.3d at
777. The defendant can rebut the presumption of good faith
by showing that (1) the issuing judge abandoned his role as
a neutral and detached arbiter; (2) the officers were reck-
less or dishonest in preparing the supporting affidavit; or
(3) the affidavit was so lacking in probable cause that no
officer could have reasonably relied on it. Id. (citing Leon,
468 U.S. at 923). Orozco confines his argument to this last
10 No. 06-4235
point—he claims that no reasonable officer could have
believed Agent Burress’s affidavit was sufficient to estab-
lish probable cause.
We are not persuaded. We evaluate an officer’s good-
faith reliance with an analysis similar to the one used in
qualified-immunity cases and charge officers with knowl-
edge of well-established legal principles. United States v.
Koerth, 312 F.3d 862, 869 (7th Cir. 2002). We have not
“clearly held that a materially similar affidavit previously
failed to establish probable cause under facts that were
indistinguishable from those presented in the case at
hand.” Id. To the contrary, the facts in Lamon were quite
similar (though not identical) to those at issue here, and
we upheld the warrant in that case. Furthermore, there
is nothing on the face of this warrant that would cause
the executing officers to suspect that probable cause
was lacking. The district court correctly concluded that
Agent Burress acted in good faith when he executed the
search of Orozco’s home in reliance on the warrant. The
court therefore properly denied Orozco’s suppression
motion.
B. Evidence of Prior Conviction
Orozco next contends that the evidence relating to his
prior firearm conviction was inadmissible under Rule
404(b) of the Federal Rules of Evidence. We will uphold a
district judge’s Rule 404(b) ruling if (1) the evidence is
admitted for a purpose other than establishing the defen-
dant’s propensity to commit a crime; (2) the evidence is
similar enough and close enough in time to be relevant
No. 06-4235 11
to the matter at hand; (3) the evidence is sufficient to
support a jury finding that the defendant committed the
similar act; and (4) the probative value of the evidence
is not substantially outweighed by the danger of unfair
prejudice. See United States v. Dennis, 497 F.3d 765, 768
(7th Cir. 2007).
The district court applied these factors and concluded
that Officer Woods’s testimony was admissible under
Rule 404(b). We agree. First, the evidence was not
admitted to show Orozco’s propensity to commit crime; it
was admitted for the purpose of showing that Orozco
handles firearms with his right hand, not his left. Further-
more, Orozco opened the door to this evidence by cross-
examining Agent Ormerod about the fact that the holster
found in his closet was set up for a right-hand shooter.
See United States v. Bursey, 85 F.3d 293, 297 (7th Cir. 1996).
Once he did so, the government was free to introduce
evidence tending to show that although he was left-
handed, Orozco handles firearms with his right hand.
Moreover, the evidence was sufficiently similar to the
charged firearm offense to be relevant to the issues
being tried; Orozco’s prior and present gun offenses
both involved acts of unlawful possession. Orozco argues
that the act of tossing a gun while running from police
differs significantly from the act of pulling a gun from a
holster to shoot. While certainly not identical, they are
similar enough for purposes of Rule 404(b). See United
States v. Lloyd, 71 F.3d 1256, 1264-65 (7th Cir. 1995) (observ-
ing that we will not enforce the similarity requirement
too rigidly). The facts underlying Orozco’s prior convic-
tion demonstrate that Orozco carried a gun on his
12 No. 06-4235
right side and used his right hand to pull it out of his
waistband and toss it away; this evidence suggests—albeit
not conclusively—that Orozco handles guns with his
right hand despite being generally left-handed. The
evidence was clearly strong enough—Orozco pleaded
guilty in the earlier case—and its probative value was
not outweighed by the danger of unfair prejudice to
Orozco. Finally, the district judge issued a limiting in-
struction reminding the jury that this evidence could only
be considered on the question of whether Orozco used
his right hand to handle guns. Accordingly, the district
court did not abuse its discretion in admitting the evi-
dence relating to Orozco’s prior firearm conviction.
C. Sentence Enhancement
Finally, Orozco argues that the district court improperly
enhanced his sentence by two levels for possessing a
gun in connection with a drug offense. Section 2D1.1(b)(1)
of the sentencing guidelines instructs the sentencing
court to increase a defendant’s base offense level by
two levels “[i]f a dangerous weapon (including a firearm)
was possessed.” Application Note 3 clarifies that this
enhancement should not be applied if “it is clearly im-
probable that the weapon was connected with the offense.”
A burden-shifting approach determines if the § 2D1.1(b)(1)
enhancement applies. United States v. Bothun, 424 F.3d 582
(7th Cir. 2005). The government must first prove by a
preponderance of the evidence that the defendant pos-
sessed the gun; once it has done so, the burden shifts to
the defendant to show that it was “clearly improbable”
No. 06-4235 13
that the gun was connected to the underlying drug
offense. Id. at 586.
Here, the government plainly met its burden of proving
that Orozco possessed the gun found in his house; Orozco
failed to carry his burden of establishing that it was
“clearly improbable” that the gun was connected to the
charged drug conspiracy. Orozco points out that there
was no evidence that the gun was actually used in any
drug transaction, but this argument misses the point.
Agent Ormerod testified that he found the gun and
ammunition in Orozco’s home and the holster in his
bedroom. He also testified that agents found a digital
scale with traces of cocaine residue in the home,
suggesting that Orozco conducted drug transactions there.
That there was no evidence that Orozco actually used
the gun in connection with a drug transaction does not
make it “clearly improbable” that the gun was connected
to the underlying drug conspiracy. The district court
properly applied the § 2D1.1(b)(1) enhancement.
For the foregoing reasons, we A FFIRM the judgment of
the district court.
8-13-09