United States v. Cordova

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 31, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-6039
(D.C. No. 5:13-CR-00137-HE-1)
OMERO CORDOVA, a/k/a Omar L. (W.D. Okla.)
Cordova,
Defendant - Appellant.
_________________________________
ORDER
_________________________________
Before MATHESON, McKAY, and MORITZ, Circuit Judges.
_________________________________
This matter is before the court, sua sponte, to correct page 6 of the Opinion issued
originally on July 6, 2015. The revised Opinion is attached to this order and shall issue
nunc pro tunc to the original filing date. The time deadline for filing any petition for
rehearing runs from the entry of the July 6, 2015, judgment and thus has expired.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 6, 2015
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 14-6039
OMERO CORDOVA, a/k/a
Omar L. Cordova,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:13-CR-00137-HE-1)
J. Lance Hopkins of Tahlequah, Oklahoma for Appellant.
Sanford C. Coats, U.S. Attorney, and David McCrary and Edward J. Kumiega, Assistant
U.S. Attorneys, Oklahoma City, Oklahoma, for Appellee.
_________________________________
Before MATHESON, McKAY, and MORITZ, Circuit Judges.
________________________________
MORITZ, Circuit Judge
________________________________
While executing a search warrant at Omero Cordova’s home, law enforcement
found marijuana, firearms, and drug paraphernalia, and Cordova admitted ownership of
the items. Charged with various offenses, Cordova sought to suppress the evidence
against him. Although the district court agreed the affidavit failed to provide probable
cause, it denied Cordova’s motion to suppress under the good faith exception to the
warrant requirement. The court also rejected Cordova’s separate motion to suppress his
statements, concluding his confession was voluntary. A jury subsequently convicted
Cordova of all six charges against him. Cordova appeals, challenging the district court’s
denial of his motions to suppress the evidence and his statements.
Exercising jurisdiction under 28 U.S.C. § 1291, we reverse. We conclude the
affidavit contained so few facts implicating either Cordova or his current home that a
reasonable officer could not have relied on the warrant in good faith. Because the
government conceded at oral argument that if the good faith exception doesn’t apply then
Cordova’s statements must also be suppressed as fruit of the poisonous tree, we need not
address Cordova’s second issue and we remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On October 16, 2012, Chris Gabeau—an Oklahoma City police detective assigned
to a Federal Bureau of Investigation task force—sought a search warrant for Omero
Cordova’s home at 2412 S.W. 78th Street, Oklahoma City.
The first three pages of Detective Gabeau’s affidavit contain general information
about Gabeau, his qualifications and experience, and his conclusions regarding the traits
and habits of drug dealers. The substantive portion of the affidavit begins on page four
and is entitled “Details of Investigation.” The first six paragraphs of those details contain
information from an unidentified confidential source interviewed in October 2011, a year
before the warrant’s execution. The confidential source self-identified as a member of the
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Juarito Gang, which is “heavily involved in narcotics trafficking” in the Oklahoma City
area. The unnamed informant detailed specific sales of methamphetamine between the
gang and “one of [its] main suppliers,” Christopher Billingsley, within the previous two
months. Oklahoma County Search Warrant Aff., Doc. 25-2, at 4. Notably, Cordova’s
name does not appear in the first six paragraphs of the substantive portion of the affidavit
and the affidavit does not identify him as a member of the Juarito gang or as a participant
in any of the sales the informant described.
The affidavit then switches gears and discusses an event that occurred some 21
months before the warrant’s execution. According to the affidavit, state troopers
discovered 70 pounds of marijuana in a vehicle bound for Oklahoma City in January
2011. The affidavit does not indicate who was driving the vehicle at the time of the traffic
stop but states that law enforcement learned the marijuana “was supposed to be delivered
to 8008 S Youngs Blvd to a subject in a black [C]orvette.” Aff. at 4 (Emphasis added).
According to the affidavit, Cordova had listed 8008 S. Youngs Boulevard in Oklahoma
City as his address on an October 2011 police form on which he reported a burglary. The
affidavit concludes this paragraph by indicating that on an unspecified date, officers
observed a black Corvette registered to Christopher Billingsley parked outside the
Youngs Boulevard address.
Turning to somewhat more recent events, the affidavit detailed that in January
2012, approximately nine months before the warrant’s execution, Cordova purchased a
residence at 2412 S.W. 78th Street, “using Cordova’s mother . . . to actual [sic] purchase
the home.” Aff. at 4-5. The affidavit also indicated Cordova’s mother purchased the
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home from a member of a family known by law enforcement to be involved in selling
methamphetamine, cocaine HCL, and marijuana. The affiant further advised that “it is
not uncommon” for drug traffickers to conceal vehicle, cell phone, and home purchases
by using family members as straw buyers to avoid law enforcement detection.
But the affiant provided no specific information regarding whether or when the
individual who sold the home had been involved in drug trafficking, except to say that the
affiant had reviewed “several documents from other agencies including but not limited to:
Oklahoma City Police Department, Drug Enforcement Agency and so forth stating
numerous surveillance hours, wire interceptions, [and] Confidential Informants
purchasing controlled substance from the [] family DTO.” Aff. at 5.
The affidavit also noted that law enforcement sporadically surveilled 2412 S.W.
78th Street during the summer and fall of 2012. Most notably, the affidavit indicated that
approximately four months earlier, during the week of June 4, 2012, law enforcement
officers watched as Billingsley drove up to the home in his black Corvette followed by a
white Nissan Titan registered to Cordova. According to the affidavit, Billingsley got out
of the car, opened the garage door, and then drove into the garage, shutting the door
behind him. While the affidavit indicates that the Titan’s “driver” left in a third car while
Billingsley remained, it doesn’t identify the driver of the Titan. Nor does it indicate
whether anyone else was at the residence or how long Billingsley remained there.
Additionally, the affidavit identified five other dates in the three preceding
months—July 26, July 30, September 21, September 24, and October 15—on which
officers surveilled the 78th Street property. Those officers noted only that vehicles
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registered to Cordova sometimes parked at the residence and that, on two occasions, a
vehicle not registered to him parked at the house. Finally, the affidavit noted Billingsley
had three non-drug convictions, two in 1993 and one in 1995. The affidavit identified one
prior conviction for Cordova—an undated conviction for possessing a controlled
substance.
Based on this information, on October 16, 2012, an Oklahoma state court judge
found probable cause to issue a search warrant for Cordova’s 78th Street home. State and
federal law enforcement officers executing the warrant the following day discovered four
firearms; more than $12,000 in cash; 123.7 grams of marijuana; and various items
associated with distribution, including a box of plastic bags, a heat sealer, a digital scale,
and a ledger.
Officers triggered Cordova’s security system as they entered the residence,
prompting the monitoring company to contact Cordova, who returned home. Officers
immediately detained Cordova and a detective advised him that officers wanted to speak
to him about guns and marijuana they had discovered in the search of his home. The
detective also asked Cordova to contact his wife and request that she return home so
officers could “determine [her] involvement.” Jackson v. Denno Hr’g Tr., Doc. 116, at
13. Cordova responded that “[e]verything in the house [was his]”—a statement he
reiterated after receiving his Miranda rights and signing a waiver. Id. at 13, 19, 23-24.
The United States indicted Cordova for distributing marijuana, possessing more
than 130 grams of marijuana with intent to distribute, possessing firearms in furtherance
of a drug trafficking crime, maintaining a place for using and distributing marijuana,
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making a false statement to an Internal Revenue Service Agent, and money laundering.
Cordova moved to suppress the physical evidence and his incriminating statements,
arguing the affidavit did not provide probable cause for the warrant. The district court
agreed but concluded the good faith exception applied and declined to suppress the
evidence. The district court also denied Cordova’s motion to suppress his confession after
rejecting Cordova’s argument that officers coerced his confession by impliedly tying his
wife’s liberty to Cordova’s cooperation.
After a jury convicted Cordova as charged, the district court sentenced him to 156
months’ imprisonment. This appeal followed.
DISCUSSION
Cordova argues Gabeau’s affidavit contained so little indicia of probable cause
that no reasonable officer would have relied on it and that the district court erred in ruling
otherwise. Cordova further contends police coerced his confession and that the district
court should have suppressed his statements. Because the government did not challenge
the district court’s determination that the warrant lacked probable cause, we initially
consider whether the officers could have reasonably relied on the warrant in good faith—
a question of law we review de novo. See United States v. Tuter, 240 F.3d 1292, 1299
(10th Cir. 2001).
Although a search conducted pursuant to a warrant not supported by probable
cause violates the Fourth Amendment, evidence discovered during such a search need not
be suppressed so long as “‘an officer acting with objective good faith obtain[ed] a search
warrant from a detached and neutral magistrate and the executing officers act[ed] within
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its scope.’” See id. at 1298-99 (quoting United States v. Nolan, 199 F.3d 1180, 1184
(10th Cir. 1999)). But this good faith exception doesn’t apply if the affidavit was “so
lacking in indicia of probable cause as to render official belief in its existence entirely
unreasonable.” See United States v. Leon, 468 U.S. 897, 922-23 (1984) (internal
quotations and citations removed). An officer can’t rely in good faith on an affidavit that
is “bare bones” or “devoid” of factual support. United States v. Corral-Corral, 899 F.2d
927, 934 (10th Cir. 1990).
In arguing the affidavit in this case lacked any indicia of probable cause, Cordova
focuses on the staleness of the information contained in the affidavit, particularly the
information that 21 months before the affidavit’s execution, officers learned that 70
pounds of marijuana was slated to be delivered to “a subject in a black [C]orvette” parked
in front of Cordova’s former residence. He also challenges the affidavit’s failure to
supply a nexus between criminal activity and the place to be searched—his current
residence at the time the warrant was executed.
The government concedes that the information supporting the warrant was dated,
but argues it was refreshed by more recent information implicating Cordova’s current
residence in an ongoing and continuous drug trafficking enterprise. Similarly, the
government maintains that even though the marijuana was destined for a vehicle that
Cordova did not own, which was to be parked in front of a house where Cordova no
longer lived, the affidavit provided a nexus with his current residence because of
Cordova’s “ongoing relationship” with Billingsley and the fact that Cordova used a straw
purchaser to buy his current home from someone involved in drug trafficking. Aplee. Br.
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at 15-16.
But the parties’ specific disputes obfuscate a more significant problem: while the
affidavit may have provided some indication of Billingsley’s involvement in an on-going
drug enterprise and some weak information regarding Cordova’s association with
Billingsley, it was devoid of any facts supporting the inference that Cordova or his home
were involved with Billingsley’s—or anyone else’s—ongoing drug enterprise.
In arguing for the good faith exception, the government relies primarily on a 21-
month-old transaction involving a drug delivery that not only never occurred, but that
even if it had occurred, was to involve delivery to an unnamed subject in a vehicle
registered to Billingsley, parked in front of Cordova’s former home. The affidavit
contained no information indicating the delivery was to be made to Cordova or to
Cordova’s current address. Nor did it indicate that Cordova assisted in arranging the two-
year-old transaction, knew the transaction was set to occur, or was even at his former
home at the slated delivery time.
While dated information of an ongoing criminal enterprise may be relevant to a
probable cause analysis, see United States v. Shomo, 786 F.2d 981, 984 (10th Cir. 1986),
the isolated fact of an attempted drug delivery to a car parked in front of Cordova’s
former house 21 months before the warrant was issued provides neither evidence of
Cordova’s participation in such an ongoing enterprise nor evidence that his former home
was being used in such an enterprise. In short, the nearly two-year-old information
implicating Billingsley—but not Cordova or his home—is of little assistance to the
government even under the deferential good faith analysis. See United States v.
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Campbell, 603 F.3d 1218, 1233 (10th Cir. 2010) (concluding that although affidavit
contained some dated information, officers did not unreasonably rely on warrant because
affidavit recounted defendant’s gang-related activity and criminal activity spanning nine
years); United States v. Craig, 861 F.2d 818, 822-23 (5th Cir. 1988) (finding sufficient
indicia of probable cause for reasonable reliance when affidavit provided evidence that
defendant sporadically engaged in criminal activity over a thirteen-year period); see also
United States v. Mathis, 357 F.3d 1200, 1207 (10th Cir. 2004) (concluding affidavit’s
information was not stale when evidence demonstrated defendant’s ongoing criminal
activity from 1999 to 2001).
As one of our sister circuits has explained, the use of a residence in a drug
enterprise “is not inherently ongoing,” but rather exists on a continuum from a single use
of the home in dealing drugs to the use of the home as a “drug den.” See United States v.
Hython, 443 F.3d 480, 485-86 (6th Cir. 2006). At best, the affidavit here provided
evidence of a single failed transaction slated to occur in front of Cordova’s former home
21 months before law enforcement sought a warrant for Cordova’s current home.
Because this stale information cannot support a conclusion that Cordova’s current home
was an operation base for ongoing criminal activity, we conclude a reasonable officer
would have accorded the warrant’s keystone piece of information little to no weight.
The government also relies heavily on what it characterizes as Billingsley’s “free
access” to Cordova’s current home. But this characterization considerably overstates the
affidavit’s assertions. The single connection the affidavit makes between Billingsley and
Cordova’s current home involves an event that occurred four months prior to the
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affidavit’s execution. Specifically, in June 2012, law enforcement officers observed
Billingsley drive up to Cordova’s current home followed by an individual in a vehicle
registered to Cordova. The affidavit indicates that Billingsley opened the garage, drove
inside the garage, and shut the door. Nothing in the affidavit indicates Billingsley had
unfettered access to the interior of the home. Further, even coupled with the dated
information of Billingsley’s attempted drug transaction in front of Cordova’s former
home, this single observation falls short of supporting even an inference that Billingsley
was using Cordova’s current residence as a drug den for ongoing trafficking activities.
Put simply, the government’s argument relies largely on two pieces of
information. One is not only dated but fails to implicate either Cordova or Cordova’s
former residence, let alone the place for which the warrant was sought. The other, while
at least involving the place for which the warrant was sought, is an isolated incident that
fails to show Cordova allowed Billingsley to use his home for purposes of Billingsley’s
drug enterprise. These two isolated incidents not only fail to provide probable cause but,
even when considered with the information discussed below, they fail to provide any
indicia of probable cause.
What remains of the government’s argument rests on the affidavit’s suggestion
that Cordova used his mother as a “straw purchaser” for his home to avoid discovery of
his drug dealings. While we defer to law enforcement’s expertise on whether innocent
facts might indicate criminal activity, that deference is not without its limits. The
affidavit indicates that it is common for drug traffickers to use family members to conceal
large purchases, and then simply states that Cordova’s mother purchased his current
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home. Thus, the affidavit implies without concluding that Cordova used his mother as a
straw purchaser to conceal the purchase. But without other information implicating
Cordova or his home in criminal activity, the officer’s suggestion that Cordova engaged
in an activity sometimes associated with criminals is sheer speculation and of minuscule
value.
Finally, the government tacitly acknowledges that the affidavit’s remaining
information doesn’t substantially further its cause. While the affidavit identifies
Billingsley’s prior criminal history, that history is quite dated—occurring in the mid-
90s—and was unrelated to drug activity. Even more to the point, the affidavit identified
only a single prior conviction for Cordova—an undated conviction for mere possession,
not distribution. Cf. United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972) (noting
that the value of a “mere isolated violation” diminishes quickly whereas evidence of a
course of conduct does not); see also United States v. Potts, 586 F.3d 823, 830 (10th Cir.
2009) (stating that information about possessing child pornography was not stale because
such material is likely to be “hoard[ed]”). Similarly, the government doesn’t even suggest
there is any significance to the affidavit’s only real reference to what the district court
termed “more recent matters”—namely, law enforcement’s surveillance of Cordova’s
current residence on approximately seven days over a five-month period. As the district
court pointed out, that surveillance was less than enlightening, revealing only officers’
“verif[ication] Mr. Cordova’s car was parked in his own driveway.”
While the good-faith exception is broad, it is not boundless. Boiled down, the
affidavit at issue here indicated nothing more than that a high-volume drug delivery was
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set to be made to a vehicle parked in front of Cordova’s former home nearly two years
before officers sought a warrant for his current home and that one party to that drug deal
was present at Cordova’s current residence on one occasion four months before the
warrant was executed. Not only does this information fail to provide probable cause, it is
so removed from implicating Cordova or his current residence that it amounts to nothing
more than a hunch. See United States v. Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004)
(pointing out that while a court must look at the totality of the circumstances rather than
engage in a “divide-and-conquer” analysis, it may not “arrive at probable cause simply by
piling hunch upon hunch” (internal citation and quotation removed)).
CONCLUSION
Given the sparse connection between Cordova’s current home and ongoing or
recent criminal activity, we conclude officers acted unreasonably in relying on the
affidavit and we reverse the district court’s ruling. And because the government conceded
at oral argument that if we concluded officers did not rely on the affidavit in good faith
then Cordova’s subsequent statements were fruit of the poisonous tree, we also reverse
the district court’s decision denying Cordova’s motion to suppress his statements.
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