United States v.Tellez

• Decision Date: 11 April 2000
• Docket Number: No. 99-3335,DIRCIO-TELLE,APPELLANT,99-3335
• Citation: 217 F.3d 547
• Parties: (8th Cir. 2000) UNITED STATES OF AMERICA, APPELLEE, v. ADAN TELLEZ, A/K/A CERVANTES RAMIRO, A/K/A RIGOBERTO BARRAGAN, A/K/A ADALID Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 547

217 F.3d 547 (8th Cir. 2000)

UNITED STATES OF AMERICA, APPELLEE, v. ADAN TELLEZ, A/K/A CERVANTES RAMIRO, A/K/A RIGOBERTO BARRAGAN, A/K/A ADALID DIRCIO-TELLEZ, APPELLANT.

No. 99-3335

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: April 11, 2000

Filed: July 3, 2000

Appeal from the United States District Court for the Western District of Arkansas.

Before Richard S. Arnold, Beam, and Morris Sheppard Arnold, Circuit Judges.

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 court ¹ 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.

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.

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...