United States v. Perez

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 20 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 96-1216
v. (District of Colorado)
(D.C. No. 95-CR-19-S)
ERENIO CARRANCO PEREZ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, LUCERO, and MURPHY, Circuit Judges.
Defendant Erenio C. Perez was found guilty of various drug trafficking and
firearm charges. He appeals his convictions, arguing the district court erred in
denying his motion to suppress evidence seized pursuant to four search warrants.
This court affirms.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I. BACKGROUND
In October 1994, the Colorado Springs Police Department began working
with agents from the Drug Enforcement Administration (DEA) after receiving
information from a confidential informant that several individuals, including an
individual later identified as Defendant, were members of a methamphetamine
and ephedrine trafficking organization in Colorado Springs. On November 20,
1994, at the direction of officers, the informant and another individual made a
controlled buy of methamphetamine from Defendant.
On December 31, 1994, a detective from the Sheriff’s Department in
Fremont County, Colorado, came upon a large U-haul truck stuck in a ditch. The
truck contained approximately twenty-one barrels of ephedrine, a precursor
chemical used to manufacture methamphetamine. The driver of the truck, Ricardo
Perez, was arrested and interviewed by DEA agents and Colorado Springs police.
Ricardo told the officers that he and his brother, Defendant, were involved in
distributing methamphetamine in the Colorado Springs area. Ricardo further told
the officers about two properties, one located in Custer County and the other
located in Fremont County, Colorado, where drugs and ephedrine were stored.
The next day, January 1, 1995, the officers obtained search warrants for the
properties and, with Ricardo’s aid, executed the warrants.
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During the search of the Custer property, officers found methamphetamine,
other illicit drugs, ammunition, firearms, a bulletproof vest, and a vehicle with
two hidden compartments. In an RV on the Custer property, officers found
$84,000 in cash, firearms, and a triple beam scale. While searching the Fremont
property, officers found numerous barrels of ephedrine, a firearm, and
ammunition.
On the same day the search warrants for the Custer and Fremont properties
were executed, Defendant was arrested by Colorado Springs police after leaving
his residence at 5820 Del Rey Drive in a yellow International Scout with
temporary license tags. The vehicle was impounded and a detective later obtained
a search warrant for both the vehicle and the residence. During the search of the
vehicle, officers found throwing stars, a night vision scope, a firearm, and $7000
in cash. In the residence, officers found an empty barrel with the name and
address of the Chemins Company, $6580 in cash, and torn records regarding the
purchase of the Custer property.
II. MOTION TO SUPPRESS
Defendant raises several arguments under the Fourth Amendment to support
his challenge of the district court’s denial of his motion to suppress the evidence
seized during the searches of the Custer property, the Fremont property, the
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vehicle, and his residence. 1 The Fourth Amendment provides that “no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.” U.S. Const. amend. IV.
On appeal from the denial of a motion to suppress, this court views the
evidence in the light most favorable to the government and accepts the district
court’s factual findings unless clearly erroneous. See United States v.
Richardson, 86 F.3d 1537, 1543 (10th Cir.), cert. denied, 117 S. Ct. 588 (1996).
The ultimate determination of the reasonableness of a search, however, is
reviewed de novo. See id.A. Probable Cause
1
The government asserts, and the district court agreed, that Defendant does
not have standing to challenge the searches of the Custer and Fremont properties.
The Custer property was purchased in the names of Lourdes Aragon, Defendant’s
girlfriend and codefendant; Estella Gonzales, Ricardo Perez’s wife; and Jose
Reyes. The Fremont property was purchased by Defendant and Ricardo Perez,
using their aliases. In the Fourth Amendment context, the term “standing” is not
used in its “‘traditional sense as a constitutionally- or prudentially-based
jurisdictional bar,’” but rather refers to whether a defendant has shown that his
own Fourth Amendment rights were violated by the challenged search and
seizure. United States v. Marchant, 55 F.3d 509, 512 (10th Cir. 1995) (quoting
United States v. Eylicio-Montoya, 18 F.3d 845, 850 n.3 (10th Cir. 1994)). This
court need not address the government’s argument that Defendant has no standing
to challenge the searches because we find that, even assuming Defendant does
have standing, the search warrants were valid. See United States v. Scarborough,
128 F.3d 1373, 1377 n.2 (10th Cir. 1997).
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Defendant argues that none of the four search warrants were supported by
probable cause. In determining the existence of probable cause, the issuing
magistrate must decide whether, given the totality of the circumstances, “‘there is
a fair probability that contraband or evidence of a crime will be found in a
particular place.’” United States v. Janus Indus., 48 F.3d 1548, 1552 (10th Cir.
1995) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). This court affords
great deference to the magistrate’s probable cause determination and will uphold
that determination so long as the magistrate had a substantial basis for concluding
that probable cause existed. See id. at 1553.
Defendant asserts the affidavits in support of the search warrants “are
nothing but bare bones affidavits.” Deputy Clinesmith from the Fremont County
Sheriff’s Office provided the affidavit in support of the search warrants for the
Custer and Fremont properties. In his affidavit, Deputy Clinesmith stated that he
arrested Ricardo Perez on December 31, 1994, after observing barrels of
ephedrine in the truck Ricardo was driving, and was present when DEA agents
interviewed Ricardo later that night. Deputy Clinesmith further stated Ricardo
told the agents that he was taking the ephedrine to a ranch in Fremont County,
where numerous other barrels were stored, and that various illicit drugs and
assault weapons were stored on property located in Custer County. Deputy
Clinesmith also testified that the DEA agents and an agent from the Bureau of
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Alcohol, Tobacco, and Firearms (BATF) confirmed that Ricardo’s statements
were consistent with their investigations. Finally, Deputy Clinesmith stated that
Ricardo had a criminal record for drug and firearm charges and that Ricardo was
Defendant’s brother.
With respect to the Scout and the residence, Detective Niski, a detective
with the Metro Vice/Narcotics Unit of the Colorado Springs Police Department,
provided the affidavit in support of the search warrants. In his affidavit,
Detective Niski discussed at some length a controlled buy of methamphetamine
from Defendant on November 20, 1994. During this controlled buy, Detective
Niski observed a confidential informant and another individual meet with
Defendant at a store parking lot, where methamphetamine was exchanged.
Detective Niski stated that other detectives observed Defendant leave his
residence in a GMC Jimmy and drive to the parking lot. Detective Niski also
stated that he spoke with Ricardo Perez on December 31, 1994, after Ricardo was
arrested. Ricardo told Detective Niski that he and his brother, Defendant, were
involved in the distribution of methamphetamine in the Colorado Springs area;
that Defendant had paid $200,000 for the barrels of ephedrine found in the U-haul
truck; and that he had been at Defendant’s residence approximately one week
earlier and believed Defendant was in possession of drugs and cash. Detective
Niski also stated in his affidavit that Defendant was arrested after he and another
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individual left Defendant’s residence in a yellow International Scout vehicle.
Detective Niski further testified that the vehicle was impounded and that a drug-
sniffing dog “alerted on both passenger doors and the rear bumper of the vehicle.”
He also stated that on January 1, 1995, an FBI agent arrested and interviewed an
individual by the name of Valdamar Lansky, who stated that he supplied
Defendant with ephedrine and made a delivery the night before. A Dial Number
Recorder indicated that early in the morning on January 1, two calls were placed
from Defendant’s residence to Mr. Lansky’s residence. Finally, Detective Niski
stated that in his experience, drug dealers often keep weapons and cash on hand
and use their personal vehicles to transport and store drugs, drug paraphernalia,
and drug transaction records.
After carefully reviewing the affidavits, this court concludes the magistrate
had a substantial basis for determining that probable cause existed to search the
two properties, the vehicle, and Defendant’s residence. Based on Ricardo’s
statements to the officers, which were corroborated by DEA and BATF
investigations, the magistrate certainly had a substantial basis for concluding
there was a “fair probability” that contraband would be found on the Custer and
Fremont properties. In light of the police dog’s reaction to the vehicle and
Detective Niski’s statements that drug dealers often store drug-related items in
their vehicles, probable cause existed to search the vehicle. Although Defendant
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argues that Detective Niski’s statements “regarding his experience and training
and his conjecture as to what drug dealers do” should not be taken into account in
determining whether probable cause existed to search the vehicle and Defendant’s
residence, this court has consistently held that an agent’s experience and training
is entitled to consideration. See, e.g., United States v. Wicks, 995 F.2d 964, 972
(10th Cir. 1993).
Probable cause also existed to search Defendant’s residence. Less than two
months before the search of his residence, Defendant was observed leaving the
residence and driving to a store parking lot, where he sold methamphetamine to a
confidential informant and another individual. A reasonable inference from this
transaction is that Defendant stored methamphetamine at his residence. Cf.
United States v. Shomo, 786 F.2d 981, 984 (10th Cir. 1986) (concluding, where
defendant was seen leaving his residence with a firearm, that there was a
reasonable probability he kept the firearm at his residence, and stating “[t]he
magistrate was not required to rule out every other possible alternative”).
Although Defendant suggests the information was stale, the passage of time
between the controlled buy and the search is not fatal, as the affidavit indicates
Defendant was involved in an “ongoing, continuous criminal activity.” Id.Ricardo’s statement to the officers that he had been at Defendant’s residence one
week before his arrest and that he believed Defendant was in possession of cash
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and drugs further supports the existence of probable cause to search the residence.
This court therefore concludes there was probable cause to support the four search
warrants.
B. Overbreadth of Warrants
Defendant also argues that all four warrants are facially overbroad because
they fail to list the items to be seized with sufficient particularity. “The Fourth
Amendment’s requirement that a warrant particularly describe the things to be
seized prevents a general, exploratory rummaging in a person’s belongings . . . .
As to what is to be taken, nothing is left to the discretion of the officer executing
the warrant.” Janus Indus., 48 F.3d at 1553 (internal quotations omitted). The
description of items is “sufficiently particular when it enables the searcher to
reasonably ascertain and identify the things authorized to be seized.” Id. at 1554.
“Broad and generic terms of description may be valid when the terms are as
specific as the circumstances and nature of the activity under investigation
permit.” Richardson, 86 F.3d at 1544 (internal quotations omitted). This court
reviews de novo the legal question of whether a search warrant is overbroad. See
Janus Indus., 48 F.3d at 1554.
The search warrants for the Custer and Fremont properties provided that
officers could search for and seize the following items:
drug paraphernalia, records of ownership and occupancy, books,
records, receipts, notes, ledgers, money, and other papers relating to
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the transportation, ordering, sales and distribution of controlled
substances, firearms, ammunition, receipts of sale of firearms, any
and all controlled substance[s] to include methamphetamine,
precursor[] chemicals for the manufacture of controlled substances
and any equipment and glass[ware] used in the manufacture of
controlled substances.
The search warrants for the vehicle and residence referenced Attachment B,
which listed twelve categories of items that officers could search for and seize,
including controlled substances, currency, records of drug transactions, weapons,
financial records, computers used for keeping drug transaction records, precursor
chemicals, and cooking utensils and glassware used in the manufacture of
methamphetamine. This list is in conformity with Detective Niski’s statements as
to what drug traffickers typically keep in their homes and vehicles.
This court has “upheld search warrants cast in comparably broad terms,
where the subject of the search was a drug trafficking or drug dealing business,
and where circumstances permitted only a more general listing of the items to be
seized.” Wicks, 995 F.2d at 973 (collecting cases); see also Richardson, 86 F.3d
at 1544; Janus Indus., 48 F.3d at 1554. We therefore conclude the four search
warrants were valid because they described the items to be seized with as much
particularity as possible given the circumstances. 2
2
Relying on United States v. Leary, 846 F.2d 592 (10th Cir. 1988),
Defendant argues that the facial overbreadth of the search warrants was not cured
by resort to the affidavits because the warrants did not incorporate the affidavits
by reference and the affidavits were not attached to the warrants. In Leary, the
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The judgment of the United States District Court for the District of
Colorado is AFFIRMED.
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
court held that the particularity of an affidavit may cure an overbroad search
warrant if the affidavit is physically connected to the warrant and the warrant
expressly refers to the affidavit and incorporates it by reference. See id. at 603.
Because this court concludes the search warrants were not overbroad on their
face, we need not address this argument.
Defendant also appears to argue that in addition to disregarding the
affidavits, this court should not consider Attachment B in evaluating the facial
overbreadth of the search warrants for the vehicle and the residence because
Attachment B was not physically attached to the warrants when the warrants were
executed. Attachment B was physically attached to the warrants when Detective
Niski applied for the warrants, and the warrants specifically referred to
Attachment B. Although the record indicates Attachment B was no longer
physically attached to the warrants at the time of execution, it is unclear whether
Attachment B was available to the executing officers. Detective Niski, who
applied for the warrants, was one of the officers who conducted the searches of
the vehicle and residence. Defendant does not argue that the executing officers
exceeded the scope of the items listed in Attachment B in conducting their
searches and seizing items from the vehicle and the residence. Moreover, from
the record it appears that Defendant was not present during either of the searches
and thus could not have reviewed Attachment B prior to the officers conducting
the searches. Under the circumstances, it is appropriate to consider Attachment B
in determining whether the search warrants satisfy the particularity requirements
of the Fourth Amendment.
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