63 F.3d 937 (10th Cir. 1995), 94-2228, United States v. Ramirez

Docket Nº:94-2228.
Citation:63 F.3d 937
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Luis Santiago RAMIREZ, Defendant-Appellant.
Case Date:August 08, 1995
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 937

63 F.3d 937 (10th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Luis Santiago RAMIREZ, Defendant-Appellant.

No. 94-2228.

United States Court of Appeals, Tenth Circuit

August 8, 1995

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Edward O. Bustamante, Albuquerque, NM, for appellant.

Tara C. Neda, Asst. U.S. Atty. (John J. Kelly, U.S. Atty., with her on the brief), Office of U.S. Atty., Albuquerque, NM, for appellee.

Before TACHA and HOLLOWAY, Circuit Judges, and ELLISON, [*] District Judge.

TACHA, Circuit Judge.

A jury convicted defendant Luis Santiago Ramirez of possessing more than 500 grams of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(B), conspiracy to possess more than 500 grams of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 846 and 21 U.S.C. Sec. 841(a)(1) and (b)(1)(B), and carrying or using a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c). 1 He was sentenced to a total of 123 months imprisonment and a term of supervised release. Defendant now appeals. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

I

On June 11, 1993, a confidential informant purchased cocaine from defendant at a building at 838 Bridge Southwest in Albuquerque, New Mexico ("the building"). The controlled buy was part of a narcotics investigation conducted by officers from the Sandoval County Sheriff's Office, including Lieutenant Ramiro Flores. During the buy, officers observed defendant use a key to open the building, enter alone, leave the building, and hand cocaine to a confidential informant. Officers had observed defendant entering the building on two other occasions.

Ten days later, Officer Flores and another officer approached the building with a search warrant. Carmelo Rojas, one of Ramirez's codefendants, allowed the officers to enter. They conducted a search of the premises and found a triple-beam scale, plastic baggies, six ounces of cocaine, and a loaded revolver. Their search of Rojas uncovered $840 cash, including a $20 bill that the informant had given defendant during the controlled buy.

While the officers were still searching the premises, the telephone at the building rang. Officer Flores answered the phone, and the

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caller asked in Spanish what was going on. The caller identification box indicated that the call had been placed from a pay phone at a gas station at the end of the block. Officer Flores called a nearby surveillance team, which apprehended defendant near the gas station and escorted him to the building. The officers searched defendant and found $940 cash and a key to the building on his person. The search of the building subsequently uncovered an additional kilogram of cocaine in a trash basket and three ounces of cocaine hidden in a pair of boots.

Defendant was charged with one count of possessing more than 500 grams of cocaine with intent to distribute, one count of conspiracy to do the same, and one count of using a firearm in relation to a drug trafficking offense. Defendant timely moved to suppress the evidence seized in the search of the building. The district court conducted a hearing on the matter and denied defendant's motion. Defendant then filed a motion in limine to exclude evidence of a prior drug-related arrest. The district court denied this motion as well.

Defendant's trial began October 4, 1993. On October 7, the jury returned a verdict of guilty on all three counts. Defendant then filed a motion to dismiss based on comments made by the prosecution during its closing argument, which the district court denied. On September 23, 1994, the court sentenced defendant to 63 months imprisonment on counts one and two, with the sentences to run concurrently, and 60 months for count three, with the sentence to run consecutively. Defendant now appeals.

II

Defendant first contends that the district court should have suppressed the evidence seized at the building pursuant to the warrant because the issuing magistrate was not neutral and detached. Judge James Blackmer, a New Mexico state district court judge, issued the warrant based on an application presented by Officer Flores. After reading Officer Flores's supporting affidavit, Judge Blackmer altered the warrant and that portion of the affidavit listing the items to be searched and seized. Specifically, he (1) inserted the word "and" between "person" and "place" on the warrant, (2) added the words "and Luis Ramirez himself" to the items to be searched on the affidavit, and (3) added the words "keys to the doors and/or locks on the doors at 838 Bridge, Southwest" to the items to be seized on the affidavit. Defendant argues that, because Judge Blackmer "substantially altered" the affidavit and the warrant, he abandoned his judicial role and was no longer neutral and detached from the investigation. 2

On appeal from the denial of a motion to suppress evidence, we review the factual determinations made by the district court for clear error, and we view the evidence in the light most favorable to the government. United States v. Bell, 892 F.2d 959, 965 (10th Cir.1989), cert. denied, 496 U.S. 925, 110 S.Ct. 2618, 110 L.Ed.2d 639 (1990). A factual determination is clearly erroneous only if there is no factual support in the record or if we are "left with the definite and firm conviction that a mistake has been made." LeMaire v. United States, 826 F.2d 949, 953 (10th Cir.1987). The ultimate question of whether a search or seizure comported with the Fourth Amendment, however, is a legal issue, which we review de novo. United States v. Lyons, 7 F.3d 973, 975 (10th Cir.1993).

In Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), Justice Jackson delivered perhaps the quintessential explication of the policies underlying the Fourth Amendment:

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The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

Id. at 13-14, 68 S.Ct. at 369. For purposes of the Fourth Amendment, it is essential that a magistrate issuing a search warrant be neutral and detached rather than "an adjunct law enforcement officer." United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677 (1984); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327, 99 S.Ct. 2319, 2324-25, 60 L.Ed.2d 920 (1979). It therefore follows that a search premised on a warrant issued by a magistrate who lacks such neutrality and detachment "stands on no firmer ground than if there had been no warrant at all." Coolidge v. New Hampshire, 403 U.S. 443, 453, 91 S.Ct. 2022, 2031, 29 L.Ed.2d 564 (1971).

Judge Blackmer's alteration of the search warrant does not call into question his neutrality or detachment in this case. Indeed, as a judicial officer, it is the duty of an issuing magistrate to ensure that a warrant corresponds to the content of the supporting affidavit. Determinations concerning the content of a supporting affidavit, however, are generally the province of law enforcement officers. Thus, Judge Blackmer's additions to the affidavit itself are more troubling, requiring more careful analysis.

Clearly, a magistrate's alteration of a warrant applicant's affidavit can constitute evidence that the magistrate abandoned her judicial role. We decline, however, to adopt any per se rule requiring suppression whenever a magistrate alters an affidavit. Whether a magistrate was neutral and detached in any particular case is necessarily an individualized and contextual inquiry. Courts must focus on the specific circumstances surrounding the issuance of the warrant and decide whether the magistrate "manifest[ed] that neutrality and detachment demanded of a judicial officer when presented with a warrant application for a search and seizure." Lo-Ji Sales, 442 U.S. at 326, 99 S.Ct. at 2324.

In this case, the district court conducted an evidentiary hearing on the matter. That hearing revealed that Judge Blackmer read the narrative portion of Officer Flores's affidavit and "realized that there was sufficient probable cause to believe that Luis Ramirez himself would have possession of controlled substances, cocaine and/or paraphernalia for it." He also concluded that defendant's key to the building "was a material piece of evidence that would be useful in a possible criminal prosecution." Judge Blackmer accordingly altered the affidavit so as to permit the executing officers to search defendant himself and to seize defendant's key to the building. His additions to the affidavit were mere common sense extensions of the contents of the narrative portion of the same affidavit.

Under these circumstances, we agree with the district court that such common sense changes to the affidavit "do not indicate that Judge Blackmer breached his duty to be a neutral and detached magistrate." Cf. United States v. Banks, 539 F.2d 14, 16 (9th Cir.) (holding that the commanding officer of a military reservation was sufficiently neutral and detached because he had not "participated in any way in the investigation or prosecution" of the defendant), cert. denied, 429 U.S. 1024, 97 S.Ct. 644, 50 L.Ed.2d 626 (1976); United States v. Dorman, 657 F.Supp. 511, 514 (M.D.N.C.1987) (concluding that the magistrate did not abrogate her constitutional obligation to be neutral and detached even though she "summon[ed] ... a detective to assist in the investigation of a matter currently before [her]")...

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