United States v. Adan Tellez ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3335
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Arkansas.
*
Adan Tellez, a/k/a Cervantes Ramiro, *
a/k/a Rigoberto Barragan, a/k/a *
Adalid Dircio-Tellez, *
*
Appellant. *
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Submitted: April 11, 2000
Filed: July 3, 2000
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Before RICHARD S. ARNOLD, BEAM, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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MORRIS SHEPPARD ARNOLD, Circuit Judge.
Adan Tellez was charged with one count of distribution of methamphetamine and
one count of possession of methamphetamine with the intent to distribute it, see 21
U.S.C. § 841(a)(1). When he sought to suppress evidence found during a search of his
home, the district court1 denied the motion, and Mr. Tellez then entered a conditional
plea of guilty to both of the charges against him. See Fed. R. Crim. P. 11(a)(2). He
appeals and we affirm.
I.
All of the relevant events in this case occurred on a single day. Sometime during
the afternoon of that day, a police informant telephoned Mr. Tellez with a request to
buy methamphetamine. Mr. Tellez agreed to the sale and drove to the informant's
house, where the informant bought a quantity of methamphetamine. Undercover
officers followed Mr. Tellez after he left the informant's residence. Mr. Tellez drove
to his home, and the police kept that location under surveillance.
At the conclusion of the first transaction, Mr. Tellez had told the informant that
he could provide additional drugs if desired, and that all the informant had to do was
to call. Later that afternoon, the informant telephoned Mr. Tellez to arrange for another
sale of methamphetamine. Mr. Tellez, who at that time was still at home, agreed to the
sale and stated that he would return to the informant's residence in a few hours with the
drugs.
The investigating officer then prepared a warrant application stating the facts just
recited and indicating that the police planned to stop Mr. Tellez's vehicle when he left
his home that evening. The investigating officer also requested a warrant to search
Mr. Tellez's home in the event that controlled substances were found on Mr. Tellez or
in his vehicle and the magistrate issued a warrant. Mr. Tellez subsequently left his
house, and a search revealed drugs in a compartment of his car when officers stopped
it. Mr. Tellez's house was then searched and additional narcotics were found.
1
The Honorable H. Franklin Waters, United States District Judge for the Western
District of Arkansas.
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II.
Mr. Tellez contends that the use of an anticipatory warrant in the circumstances
of this case was impermissible. Although we have upheld the use of anticipatory
warrants, see, e.g., United States v. Tagbering, 985 F.2d 946, 950 (8th Cir. 1993),
Mr. Tellez argues that there was insufficient evidence of a nexus between his home and
the discovery of the drugs to support the issuance of a conditional warrant. The issue
for the district court was whether there was at least a substantial basis for the
magistrate's finding of probable cause, and our review of the magistrate's finding is
equally deferential. See id. at 949.
It seems to us that the facts set forth in the detective's affidavit create a
substantial basis for the magistrate to find that there was probable cause to search
Mr. Tellez's home, even if the proposed condition (i.e., the discovery of narcotics on
Mr. Tellez's person or in his car) never occurred. The facts alleged in the affidavit
indicate that Mr. Tellez was a drug dealer and had offered to provide drugs in the future
on demand. The informant had spoken with Mr. Tellez over the telephone and had
arranged for another sale. The new sale was to take place in the immediate future, and
the police knew that Mr. Tellez had been at home and not anywhere else since leaving
the informant's residence.
"Probable cause means a 'fair probability that contraband or evidence of a crime
will be found in a particular place' given the circumstances set forth in the affidavit."
United States v. Horn, 187 F.3d 781, 785 (8th Cir. 1999), cert. denied, 120 S. Ct. 1442
(2000), quoting Illinois v. Gates, 462 U.S. 213, 238 (1983). In this case there was
evidence that Mr. Tellez was engaged in a continuing course of criminal activity, and
we believe that it could fairly be inferred that he was keeping a supply of drugs and
perhaps other evidence related to his drug dealing in his home. Although it is true that
neither the informant nor the detective had actual knowledge that contraband was in
Mr. Tellez's home, absolute certainty was not necessary: a fair probability is all that
is required.
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We think that United States v. Loy, 191 F.3d 360 (3rd Cir. 1999), cert. denied,
120 S. Ct. 1429 (2000), on which Mr. Tellez places a great deal of reliance, is
distinguishable. In Loy, 191 F.3d at 363, the police sent child pornography to the
defendant's post office box and obtained an anticipatory warrant to search the
defendant's home when the defendant received the pornography at his box. The court
found that the anticipatory warrant was invalid because there was no evidence of a
nexus between the defendant's home and the receipt of the pornography at the post
office. Id. at 366-67. In fact, the defendant rented storage space in a commercial
facility and had indicated to an undercover officer that that was where he kept his child
pornography. Id. at 366.
We agree, of course, that there must be evidence of a nexus between the
contraband and the place to be searched before a warrant may properly issue, see
United States v. Koelling, 992 F.2d 817, 823 (8th Cir. 1993). For the reasons already
indicated, however, we think that the circumstances of our case provide sufficient
evidence of this nexus, even without the occurrence of the condition. We think that the
discovery of drugs on Mr. Tellez shortly after leaving his home in response to an order
placed by a customer certainly contributes to a finding of probable cause, but was not
necessary to uphold the warrant.
We note in passing that Mr. Tellez has correctly pointed out that several of the
facts recited by the government in its brief occurred after the warrant had issued, and
were therefore irrelevant to the determination of whether, "based on facts existing when
the warrant is issued ... there is probable cause to believe [that] the contraband ... will
be [at the place to be searched] ... when the warrant is executed." Loy, 191 F.3d at
365. This point notwithstanding, however, we think that the facts set forth in the
affidavit provided sufficient grounds for the magistrate to find that a fair probability
existed that narcotics would be found in Mr. Tellez's home.
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III.
It seems to us, moreover, that even if we found that the search warrant was not
supported by probable cause, the evidence would still be admissible under the
good-faith exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897,
922 (1984). Under Leon, 468 U.S. at 926, the exclusionary rule will not bar evidence
obtained pursuant to an invalid search warrant unless the magistrate who issued the
warrant abandoned his or her neutral and detached role in issuing it, or unless "the
officers were dishonest or reckless in preparing their affidavit or could not have
harbored an objectively reasonable belief in the existence of probable cause."
In this case, we see no indication that the magistrate abandoned his neutral and
detached role in issuing the warrant. Although Mr. Tellez quibbles with some of the
inferences drawn in the affidavit supporting the warrant application, moreover, we see
no reason to think that the officers were dishonest or reckless in preparing the affidavit.
Finally, even if we agreed with Mr. Tellez that there was insufficient evidence of a
nexus between his home and the contraband, which we do not, we still would not find
that the warrant application was so deficient that the good-faith exception could not
apply. In our view, the facts known to the officers clearly supported an objectively
reasonable belief in the existence of probable cause.
IV.
For the reasons stated herein, we affirm the district court's denial of Mr. Tellez's
motion to suppress.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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