397 F.3d 1205 (9th Cir. 2005), 03-30532, United States v. Martinez-Garcia

Docket Nº:03-30532.
Citation:397 F.3d 1205
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Salvador MARTINEZ-GARCIA, Defendant-Appellant.
Case Date:February 11, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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397 F.3d 1205 (9th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,


Salvador MARTINEZ-GARCIA, Defendant-Appellant.

No. 03-30532.

United States Court of Appeals, Ninth Circuit

February 11, 2005

Argued and Submitted Sept. 17, 2004

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Tonia L. Moro, Assistant Federal Public Defender, for the defendant-appellant.

Karin J. Immergut, United States Attorney, Douglas W. Fong, Assistant United States Attorney, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, Chief District Judge, Presiding. D.C. No. CR-03-30024-1-MRH.

Before: WALLACE, GOULD, and BEA, Circuit Judges.

GOULD, Circuit Judge:

Salvador Martinez-Garcia appeals his conviction for possessing a firearm as an illegal alien, in violation of 18 U.S.C. § 922(g) (5) (2000). Martinez-Garcia argues that the firearm, seized pursuant to a search warrant for his home, should have been suppressed due to alleged violations of the Fourth Amendment and Federal Rule of Criminal Procedure 41. Both arguments turn on the fact that state police officers began their search while waiting for a Spanish-speaking federal officer to arrive before serving Martinez-Garcia, who does not speak English, with the search warrant. Martinez-Garcia further contends that the district court erred in providing him with only a limited hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and that, in light of allegedly misleading statements and omissions in the affidavit submitted to obtain the search warrant, the warrant was not supported by probable cause. We have jurisdiction pursuant to 28 U.S.C. § 1291 (2000), and we affirm the district court.


On March 21, 2003, Josephine County Circuit Court Judge Gerald Neufeld issued a search warrant based upon the affidavit of Grants Pass Department of Public Safety Officer Peter J. Jenista, who also served as a detective on the Josephine County Interagency Narcotics Team ("JOINT"). The warrant authorized the police to search for evidence relating to the manufacture, delivery, and possession of methamphetamine at a white house with pink trim and a detached carport located at 12579 North Applegate Road. This house on North Applegate Road was occupied by Salvador Martinez-Garcia and his wife, Edelmira Perez-Zepeda. It was located on the Noble Dairy, which contained other buildings, including a house occupied by Martinez-Garcia's brother, Daniel Martinez-Garcia.

In the affidavit supporting the warrant, Jenista detailed the JOINT investigation into alleged methamphetamine distribution by Juan Diego Contreras, Ignacio Hernandez-Salazar and another Martinez-Garcia brother, Juan Carlos. The investigation included, in part, three controlled methamphetamine buys.

In the first buy on November 20, 2002, JOINT arranged for a named informant, Brian Doland, to purchase methamphetamine from Juan Carlos through an unwitting third party, Chandler Scott. Doland wore a wire, but JOINT officers were unable to hear his conversations because of static interference. Officers gave Doland $350, which he in turn gave to Scott, who agreed to buy methamphetamine from Juan Carlos. Scott took the money and went alone to 12579 North Applegate Road, where JOINT officers observed his car. The buy was unsuccessful: Scott returned and told Doland that Juan Carlos had refused to give him methamphetamine; instead, Juan Carlos took the money

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in repayment of a debt. Doland and Scott returned together to 12579 North Applegate Road, under the observation of JOINT officers, in an attempt to get drugs or return of the money, but they were unsuccessful.

JOINT conducted two more controlled buys and observed both of the buys from outside the locations where the drug transactions occurred. On January 10, 2003, Doland arranged to buy methamphetamine from Hernandez-Salazar at the dealer's home on Fruitdale Drive. JOINT officers gave Doland $300 to buy the drugs. Doland reported that when he arrived, Hernandez-Salazar did not have methamphetamine at the house and left Doland with Juan Carlos while he went out. Hernandez-Salazar returned and handed Juan Carlos 16.1 grams of methamphetamine, which Juan Carlos gave to Doland in exchange for the money. JOINT again arranged for Doland to purchase methamphetamine on February 3, 2003 at Hernandez-Salazar's home. Hernandez-Salazar had changed residences to 1248 Darneille Lane, and both Juan Carlos and Hernandez-Salazar told Doland of the move. Doland purchased 14.7 grams of methamphetamine from Hernandez-Salazar and Juan Diego Contreras. Juan Carlos was not present during this third buy.

Doland described the Martinez-Garcia residence at 12579 North Applegate Road in detail and told JOINT officers that Juan Carlos lived in the area that would normally serve as the living room. He informed Jenista that he had been to the North Applegate Road property five times since the failed drug buy in November, including on one occasion when Juan Carlos sold methamphetamine to Scott. Jenista verified with the Oregon Department of Motor Vehicles that Juan Carlos Martinez-Garcia registered his address as 12579 North Applegate Road.

In addition to describing the controlled drug buys, the affidavit specified details about informant Doland, including that he had provided information for monetary consideration. The affidavit also said that Doland had provided information for at least thirty criminal investigations, had not failed any of the polygraph examinations given in connection with many of these investigations, and had provided information that was accurate and subsequently corroborated. Jenista's affidavit reported that he had run a criminal history on Doland and located no convictions, and that he had advised Doland that giving false information in support of a search warrant is a crime. The affidavit contained corroborating statements from two confidential citizen informants who had purchased methamphetamine at the Darneille Lane and Fruitdale Drive addresses. One of the confidential informants was given and passed a polygraph test regarding the veracity of this information.

The affidavit did not state that Doland had drug charges pending against him in federal district court and that JOINT had agreed to give a favorable recommendation to prosecutors in exchange for Doland's information. The affidavit did not mention Doland's conviction for writing a bad check because the criminal history report run by Jenista had not revealed it. The affidavit did not tell the judge that Juan Carlos and Salvador Martinez-Garcia were brothers, that a third brother, Daniel Martinez-Garcia, also lived in a house on the dairy, or that Juan Carlos had been employed at the facility in November 2002. Jenista showed the affidavit to the district attorney's office before presenting it to the judge.

On March 21, 2003, state law enforcement arrived at 12579 North Applegate Road with a search warrant for the house occupied by Salvador Martinez-Garcia and his family. The officers knocked, announced

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their presence, and entered. David Raymond, an officer of the Josephine County Sheriff's office and a detective on JOINT, advised Martinez-Garcia that he had a search warrant and showed him some "paperwork." Martinez-Garcia responded by indicating that he did not speak English, and the testimony conflicts as to whether he asked the officer "what was happening" in English. Raymond then stated "orden de registro," which his police manual stated means "search warrant" in Spanish, and telephoned to Bureau of Immigration and Customs Enforcement ("BICE") agent Fernando Lozano requesting that he come to the house to serve as a translator. Officers removed Martinez-Garcia, his wife, his son, and his sister, Alicia Garcia, from the residence. While waiting for Lozano to arrive and translate, the state officers began to search the house. They soon discovered a handgun in the master bedroom.

Lozano arrived at 12579 North Applegate Road about forty minutes to one hour after the search began, and he read the warrant to Martinez-Garcia, Perez-Zepeda, and Garcia in Spanish. He gave each warnings in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He interviewed each of the adults and asked Martinez-Garcia whether the residence contained any firearms. Martinez-Garcia replied that there was a .22 caliber handgun in the master bedroom. Lozano relayed this information to the searching officers, who said that they had already found the firearm.

Before the execution of the search warrant, Lozano had participated in JOINT briefings with state officers that covered the two sites to be searched, Martinez-Garcia's home on North Applegate Road and Hernandez-Salazar's home on Darneille Road. On March 21, 2003, Lozano initially went to the Hernandez-Salazar residence on Darneille Road and planned to go to the North...

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