United States v. Juan Lopez-Zuniga ( 2018 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 17-3261
    ___________________________
    United States of America
    lllllllllllllllllllllPlaintiff - Appellant
    v.
    Juan Lopez-Zuniga
    lllllllllllllllllllllDefendant - Appellee
    ____________
    Appeal from United States District Court
    for the Northern District of Iowa - Sioux City
    ____________
    Submitted: October 19, 2018
    Filed: November 26, 2018
    ____________
    Before WOLLMAN, ARNOLD, and BENTON, Circuit Judges.
    ____________
    ARNOLD, Circuit Judge.
    After the government indicted him for conspiring to distribute
    methamphetamine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, Juan Lopez-
    Zuniga moved to suppress evidence obtained from tracking devices that the
    government placed on his car. He maintained that probable cause did not support any
    of the four warrants authorizing installation of the trackers. In fact, he argued,
    probable cause was so lacking that the officers who executed the warrants could not
    have believed in good faith that probable cause supported them. See United States v.
    Leon, 
    468 U.S. 897
    (1984). Adopting a magistrate judge's report and
    recommendation, the district court agreed with Lopez-Zuniga and granted his motion
    to suppress. The government files this interlocutory appeal, see 18 U.S.C. § 3731,
    arguing that the district court erred in suppressing the evidence. We affirm the district
    court's suppression of evidence obtained from the first two warrants but reverse the
    suppression of evidence obtained from the third and fourth warrants and remand.
    In December, 2015, a special agent with the Minnesota Bureau of Criminal
    Apprehension applied for a warrant that would allow him to place a GPS tracker on
    Lopez-Zuniga's car so he could monitor the car's movements for sixty days. He
    provided an affidavit detailing a drug investigation into one Rogelio Magana Garcia-
    Jimenez. The affidavit noted several controlled drug transactions involving Garcia-
    Jimenez, including transactions at an apartment where he was believed to live. Near
    the end of the affidavit, the special agent explained that, sometime before a controlled
    drug transaction at the apartment complex where Garcia-Jimenez was believed to live,
    he saw someone in Lopez-Zuniga's car "drop off an individual who resembled Garcia-
    Jimenez." The special agent then explained that another agent later observed Lopez-
    Zuniga and Garcia-Jimenez get into the same car at the same apartment complex and
    drive to a restaurant and mall in Sioux Falls, South Dakota. The special agent said
    that he and other officers believed that Lopez-Zuniga and Garcia-Jimenez were
    conspiring to sell illegal drugs and that Lopez-Zuniga was transporting Garcia-
    Jimenez for that purpose in the car.
    A Minnesota state court issued a warrant on the basis of this affidavit, and
    police attached a GPS tracker to the car and began monitoring its movements. After
    sixty days, the special agent returned to the court for a second warrant to monitor the
    car for another sixty days. The second affidavit included the same information as the
    first as well as the results of the first sixty days of tracking the car. It also noted that
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    law enforcement officers had obtained a pen register on Garcia-Jimenez's phone,
    which showed that he and Lopez-Zuniga had had 154 "contacts" in about a two-
    month period. The district court held that the information provided in the first and
    second warrants did not establish probable cause to track the car. The court further
    held that evidence of probable cause was so lacking that the officers could not have
    relied on the warrants in good faith.
    "Placement of a GPS tracking device on a vehicle is a 'search' within the
    meaning of the Fourth Amendment, requiring probable cause and a warrant." United
    States v. Faulkner, 
    826 F.3d 1139
    , 1144 (8th Cir. 2016). Probable cause exists when,
    considering all the circumstances, there is a fair probability that evidence of a crime
    will be found in a particular place. 
    Id. "Probable cause
    is a fluid concept that focuses
    on the factual and practical considerations of everyday life on which reasonable and
    prudent men, not legal technicians, act," United States v. Colbert, 
    605 F.3d 573
    , 576
    (8th Cir. 2010), and so we review the affidavit for probable cause using a common
    sense approach, not a hypertechnical one. United States v. Grant, 
    490 F.3d 627
    , 632
    (8th Cir. 2007).
    Even if probable cause for issuing a warrant did not exist, courts will not
    suppress the evidence obtained from it where it was objectively reasonable for the
    officer executing the warrant to have relied in good faith on the issuing judge's
    determination that probable cause existed. United States v. Johnson, 
    848 F.3d 872
    ,
    878–79 (8th Cir. 2017). In making this determination, we ask "whether a reasonably
    well trained officer would have known that the search was illegal despite a judge's
    issuance of the warrant." United States v. Jackson, 
    784 F.3d 1227
    , 1231 (8th Cir.
    2015). This so-called "good-faith exception" does not apply when the application is
    "so lacking in indicia of probable cause as to render official belief in its existence
    entirely unreasonable." 
    Id. -3- On
    appeal, the government has abandoned its argument that probable cause
    supported the first warrant; it argues only that the good-faith exception saves
    evidence obtained from the issuance of the first warrant from suppression. We
    disagree. Lopez-Zuniga makes only a brief appearance in the affidavit in support of
    the first warrant application, and the only information about him is that he dropped
    off someone appearing to be Garcia-Jimenez at his apartment and then days later
    picked him up to go to a restaurant and mall. The first affidavit does not connect
    Lopez-Zuniga to any of Garcia-Jimenez's suspected illicit activities. As the magistrate
    judge in this case said, if this amounts to probable cause, "then anyone who drops a
    drug trafficker off at the trafficker's residence and travels with the trafficker for
    innocent activity, such as the trafficker's grandmother or mere acquaintance, would
    be subject to search." We agree, and we think the warrant was so lacking in indicia
    of probable cause that belief in its existence would have been entirely unreasonable.
    In reaching this conclusion, we find instructive our court's decision in United
    States v. Herron, 
    215 F.3d 812
    (8th Cir. 2000). In that case, affidavits used in support
    of a search-warrant application requesting permission to search the defendant's home
    described a marijuana-trafficking ring, but we observed that the defendant "play[ed]
    only a small part in the[ ] affidavits." The only information provided about the
    defendant was that he had two prior convictions for cultivating marijuana, that he was
    related to some of the traffickers, and that one of those relatives had said four months
    before the search warrant was sought that he had stayed with the defendant to help
    harvest corn. 
    Id. at 813–14.
    We held this was insufficient to show probable cause and
    that no reasonable officer could think probable cause existed, so the good-faith
    exception did not apply. 
    Id. at 814–15.
    As in Herron, very little, if anything, connects
    the defendant to the trafficking activities set forth in the affidavit in this case.
    We reach the same conclusion as to the second warrant even though it
    contained additional information. We do not consider the additional information
    obtained from the GPS tracker because, as we just explained, that evidence should be
    -4-
    suppressed. And we do not think the information derived from the pen register is
    enough—all it showed was that Garcia-Jimenez and Lopez-Zuniga had had 154
    "contacts" between December 21 and February 11. The affidavit did not explain what
    did or did not constitute a "contact." For example, we do not know whether one text-
    message conversation constituted a single contact or, say, twenty, depending on how
    many separate messages were sent. But more important, nothing in the affidavit
    indicates that the contacts involved something criminal, or even a statement by the
    affiant that the supposedly high number of contacts were likely the product of a
    criminal conspiracy. In short, the affidavits demonstrate merely that Lopez-Zuniga
    was acquainted with Garcia-Jimenez.
    The third and fourth warrant applications, however, are a different matter. In
    the third warrant application, a special agent in Iowa who was investigating narcotics
    trafficking sought a warrant from an Iowa state court that would allow him to monitor
    the car's movements for an additional sixty days after the second warrant expired. His
    affidavit described the incident where Lopez-Zuniga and Garcia-Jimenez went to the
    restaurant and mall in Sioux Falls and recited that a Minnesota state court had already
    granted a warrant authorizing the installation of the tracker and the monitoring of the
    car's movements. In addition to some of the information obtained from the tracker,
    which we again do not consider, the affidavit contained updated pen register figures,
    which showed "that Lopez-Zuniga had made 245 contacts to and from Garcia-
    Jimenez between January 24, 2016 and April 18, 2016." But there was more. The
    affidavit revealed that a confidential informant had arranged to buy methamphetamine
    from Garcia-Jimenez, who then told the informant where to meet to effect the
    transaction. When the informant went to that location, Lopez-Zuniga met him and
    handed over the methamphetamine.
    This controlled purchase where Lopez-Zuniga sold drugs on Garcia-Jimenez's
    behalf is significant, we believe, because it connects Lopez-Zuniga to illegal activity.
    The magistrate judge asserted, however, that even if he were connected to the illegal
    -5-
    activity being investigated, nothing connected his car to the illegal activity. As a
    result, the magistrate judge concluded, the affidavit failed to contain the required
    "nexus between the contraband and the place to be searched." See 
    Johnson, 848 F.3d at 878
    . The district court apparently adopted this reasoning, and Lopez-Zuniga urges
    us to do so as well.
    We think that, at a minimum, the good-faith exception saves the evidence
    obtained from the third warrant from suppression because the affidavit was not "so
    lacking in indicia of probable cause as to render official belief in its existence entirely
    unreasonable." See 
    Jackson, 784 F.3d at 1231
    . We have emphasized that the Supreme
    Court's use of the phrase "entirely unreasonable" in Leon was a "particularly strong
    choice of words" that we should not dilute. See United States v. Carpenter, 
    341 F.3d 666
    , 670 (8th Cir. 2003). In Carpenter, our court applied the good-faith exception to
    the search of a residence "even though the affidavit did not present facts to indicate
    the existence of a nexus between [the] residence and the suspected contraband." 
    Id. at 670–71.
    We explained that it was not entirely unreasonable for the officer to rely
    on the warrant because, "[a]s a matter of common sense, it is logical to infer that
    someone in possession of valuable contraband would store that contraband in a safe,
    accessible location such as his or her residence." 
    Id. at 671.
    Likewise here, we do not
    think it entirely unreasonable for an officer to think that Lopez-Zuniga might use his
    car to move about in furtherance of a drug conspiracy, especially when he has been
    in frequent contact with a known drug distributor who has ridden in the very car to
    be tracked. And we don't think it entirely unreasonable for an officer to conclude that
    a connection between the car and the contraband need not be as strong when the
    warrant merely authorizes tracking the car's movement (and thus its driver) rather
    than searching the car itself. The point of putting a tracker on a car is not to reveal
    what the car contains but to reveal the locations and movements of those within it. So,
    it seems to us, the search is more about Lopez-Zuniga's movements than the car itself.
    -6-
    Because the fourth warrant application contained the same relevant information
    as the third, we conclude that evidence obtained from that warrant should not have
    been suppressed either.
    Reversed and remanded.
    ____________________
    -7-
    

Document Info

Docket Number: 17-3261

Judges: Wollman, Arnold, Benton

Filed Date: 11/26/2018

Precedential Status: Precedential

Modified Date: 10/19/2024