United States v. Shaun Espino

FILED
NOT FOR PUBLICATION JAN 08 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10573
Plaintiff - Appellee, D.C. No. 2:12-cr-00124-FJM-1
v.
MEMORANDUM*
SHAUN ROBERT ESPINO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, Senior District Judge, Presiding
Submitted December 5, 2013**
San Francisco, California
Before: GOULD and PAEZ, Circuit Judges, and EZRA, District Judge.***
Defendant-Appellant Shaun Robert Espino (“Espino”) appeals the district
court’s denial of his motion to suppress drugs and drug paraphernalia found during
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
a search of his residence by agents from the Bureau of Alcohol, Tobacco, Firearms
and Explosives (“ATF”). We affirm.
ATF agents sought a warrant to search Espino’s residence for guns, drugs,
and related paraphernalia as part of a federal firearms and narcotics trafficking
investigation. The warrant application was supported by the affidavit of ATF
Special Agent Jonathan Santarsiero (“Agent Santarsiero”), who learned during a
custodial interview with an informant that Espino was a convicted felon who sold
drugs. The informant described Espino and his cars, as well as his residence and
its location, in specific detail. He also said he personally witnessed Espino fire a
pistol through the roof of a shed on his property and sell drugs.
After Agent Santarsiero corroborated many of the informant’s statements
and descriptions, he requested a warrant to search Espino’s residence for guns and
drugs or evidence thereof. The warrant application described Espino’s residence
with particularity, referring to its cross-streets, size, and color, as well as specific
details like its security gate, red brick and wrought iron fence, mailbox, lamppost,
and address plaque. U.S. Magistrate Judge James Metcalf found that the
application established probable cause and issued the warrant.
During the search, ATF agents discovered no guns that definitively belonged
to Espino, but did find ten firearms apparently belonging to his mother, as well as
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more than 1,100 rounds of ammunition. They also discovered methamphetamine,
marijuana, and various drug paraphernalia—including glass smoking pipes, storage
containers, and a counterfeit bill detection pen—in a safe bolted to the floor of a
closet in Espino’s bedroom.
Espino filed a motion to suppress this evidence, arguing that the warrant did
not allege sufficient facts to establish probable cause for the search because it
neither gave a reason to believe that Espino was then in control or possession of
any firearms, nor mentioned the type or quantity of drugs expected to be found.
The district court denied Espino’s motion without a hearing. Espino thereafter
pleaded guilty to one count of possession of methamphetamine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii), but he reserved the
right to appeal the denial of his suppression motion.
We review de novo a district court’s denial of a motion to suppress. United
States v. Needham, 718 F.3d 1190, 1193 (9th Cir. 2013). Nonetheless, we give
“great deference to an issuing judge’s finding that probable cause supports a
warrant and review such findings for clear error.” United States v. Underwood,
725 F.3d 1076, 1081 (9th Cir 2013) (internal quotation marks omitted). Our duty
in such cases is “simply to ensure that the magistrate had a ‘substantial basis for
. . . conclud[ing]’ that probable cause existed.” Illinois v. Gates, 462 U.S. 213,
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238-39 (1983) (alteration and ellipsis in original) (quoting Jones v. United States,
362 U.S. 257, 271 (1960)).
Where, as here, a warrant application is based largely on an informant’s tips,
the magistrate should consider “whether probable cause exists from the totality of
the circumstances to determine a sufficient level of reliability and basis of
knowledge for the tip[s].” United States v. Bishop, 264 F.3d 919, 924 (9th Cir.
2001). We look to many factors in assessing whether information provided by an
informant is reliable; one factor is “independent police corroboration of the
information provided by [the] informant.” Id. at 925. Such corroboration can
provide the sort of “substantial basis” required for a magistrate to determine that
there is a “fair probability that contraband or evidence of a crime will be found” in
the place to be searched. Gates, 462 U.S. at 238. When considering the basis of an
informant’s knowledge, we evaluate “how the informant came by his or her
knowledge,” and first-hand knowledge is more compelling than hearsay. Bishop,
264 F.3d at 925.
A warrant application must establish a “reasonable nexus between the crime
or evidence and the location to be searched.” United States v. Crews, 502 F.3d
1130, 1136-37 (9th Cir. 2007). But it “need only be reasonable to seek the
evidence at the location indicated in the affidavit”; neither certainty, nor even near
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certainty, is required. Id. at 1137. Moreover, “we do not evaluate probable cause
in hindsight, based on what a search does or does not turn up.” Florida v. Harris,
133 S. Ct. 1050, 1059 (2013). Rather, a search “is good or bad when it starts and
does not change character from its success” or failure. United States v. Di Re, 332
U.S. 581, 595 (1948).
Espino argues that ATF agents lacked probable cause to believe that he
possessed firearms at the time of the search. We disagree. The informant’s
assertion that he personally witnessed Espino fire a pistol through the roof of a
shed behind his residence shows a clear nexus between the items to be seized,
firearms, and the place to be searched, Espino’s property. This first-hand
observation gave the magistrate a “substantial basis for . . . conclud[ing] that
probable cause existed” to search Espino’s residence for guns. Gates, 462 U.S. at
238-39 (alteration and ellipsis in original) (internal quotation marks omitted); see
also United States v. Patayan Soriano, 361 F.3d 494, 507 (9th Cir. 2003); United
States v. Elliott, 893 F.2d 220, 223 (9th Cir. 1990).
Espino also argues that the warrant application did not establish probable
cause to search for drugs. Once again, however, the informant’s first-hand
knowledge of Espino’s drug dealing was enough to provide the magistrate with
probable cause to issue the search warrant. See Elliott, 893 F.2d at 223. The nexus
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standard is relaxed when it comes to drugs: “Direct evidence that contraband or
evidence is at a particular location is not essential to establish probable cause to
search the location. . . . In the case of drug dealers, evidence is likely to be found
where the dealers live.” United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th
Cir. 1986) (internal citations omitted). Finally, when a suspect engages in counter-
surveillance, as here, we have consistently held that such behavior is “‘indicative
of narcotics distribution.’” United States v. Chavez-Miranda, 306 F.3d 973, 978
(9th Cir. 2002) (quoting United States v. Ocampo, 937 F.2d 485, 490 (9th Cir.
1991)).
AFFIRMED.
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