United States v. Ortiz-Cervantes

• Decision Date: 21 August 2017
• Docket Number: No. 16-1788,16-1788
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roberto Carlos ORTIZ-CERVANTES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

868 F.3d 695

UNITED STATES of America, Plaintiff-Appellee,

v.Roberto Carlos ORTIZ-CERVANTES, Defendant-Appellant.

No. 16-1788

United States Court of Appeals, Eighth Circuit.

Submitted: May 12, 2017

Filed: August 21, 2017

Counsel who presented argument on behalf of the appellant was Christopher James Roth, of Omaha, NE. The following attorney(s) appeared on the appellant brief; Paul Forney, of Omaha, NE.

Counsel who presented argument on behalf of the appellee was Kimberly C. Bunjer, AUSA, of Omaha, NE. The following attorney(s) appeared on the appellee brief; Douglas Jeffrey Amen, AUSA, of Omaha, NE.

Before RILEY, BEAM, and SHEPHERD, Circuit Judges.

RILEY, Circuit Judge.

Roberto Carlos Ortiz-Cervantes appeals the denial of his motion to suppress evidence obtained as a result of the execution of a warrant to search his residence. After the district court¹ denied the motion to suppress, Ortiz-Cervantes pled guilty and was convicted of possession with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1). We affirm, concluding probable cause supported the search warrant and the search was conducted in good faith, even though the magistrate judge issuing the search warrant was not properly cross-designated to issue warrants for property located outside of his district. See 28 U.S.C. § 1291 (appellate jurisdiction).

I. BACKGROUND

On May 13, 2014, a Drug Enforcement Administration (DEA) special agent, Chad Schmitt, filed an application and supporting affidavit for a search warrant before a magistrate judge in the Northern District of Iowa (NDIa). The property to be searched was a single-family residence located across the Missouri River in South Sioux City, Nebraska.

The affidavit detailed ten controlled buys of methamphetamine from Victor Gonzalez between September 16, 2013, and May 13, 2014. Phone records of calls and text messages before the controlled buys linked Gonzalez to Jose W. Orellana. Orellana was in contact with Ortiz-Cervantes before three of the ten controlled buys, indicating to DEA agents Ortiz-Cervantes supplied Orellana with methamphetamine, and Orellana, in turn, supplied Gonzalez.

The affidavit also stated Ortiz-Cervantes lived at 3308 Santa Rita Court in South Sioux City, Nebraska. Ortiz-Cervantes shared the residence with his sister and her family, including her husband, Orellana's brother. Orellana visited the 3308 Santa Rita Court residence shortly before the controlled buys on October 17, 2013, and May 13, 2014.

Agents conducted a proffer interview on November 13, 2013, with Jovany Bautista. Bautista stated he had purchased methamphetamine from "Roberto" in early 2013 and identified a photograph of Ortiz-Cervantes as Roberto. Bautista also identified a picture of the 3308 Santa Rita Court residence as one of the places he met Roberto to purchase methamphetamine and told agents that Roberto lived in the basement of the residence while his sister and her family lived upstairs.²

The NDIa magistrate judge approved the application and issued a search warrant for the 3308 Santa Rita Court residence in South Sioux City, Nebraska. Officers executed the search warrant and found Ortiz-Cervantes in the basement along with more than 500 grams of methamphetamine. Ortiz-Cervantes was subsequently indicted in the District of Nebraska on one count of possession with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1).

Before the district court and a magistrate judge in the District of Nebraska, Ortiz-Cervantes moved to suppress the evidence obtained as a result of the search of the 3308 Santa Rita Court residence. Ortiz-Cervantes argued the NDIa magistrate judge did not have the authority to issue warrants for searches of property located in the District of Nebraska, and the affidavit did not include sufficient probable cause. The motion to suppress was denied, and Ortiz-Cervantes conditionally pled guilty, reserving the right to appeal the denial of his motion to suppress.

II. DISCUSSION

Ortiz-Cervantes challenges the search warrant on two grounds. First, Ortiz-Cervantes claims there was insufficient probable cause to support the warrant. Second, he asserts the search warrant was invalid because the NDIa magistrate judge was not authorized to issue warrants outside of his jurisdiction. "On appeal from the denial of a motion to suppress, we review the district court's historical factual findings for clear error and its conclusions of law on the probable cause issue de novo." United States v. Jeanetta , 533 F.3d 651, 654 (8th Cir. 2008).

A. Probable Cause

Probable cause to issue a search warrant "exists, if under the totality of the circumstances, a showing of facts can be made ‘sufficient to create a fair probability that evidence of a crime will be found in the place to be searched.’ " United States v. Underwood , 364 F.3d 956, 963 (8th Cir. 2004) (quoting United States v. Gabrio , 295 F.3d 880, 883 (8th Cir. 2002) ), vacated on other grounds sub nom Carpenter v. United States , 543 U.S. 1108, 125 S.Ct. 1037, 160 L.Ed.2d 1032 (2005) (mem.). The affidavit in support of the search warrant application here detailed ten controlled buys of methamphetamine; back-and-forth communications among Gonzalez, Orellana, and Ortiz-Cervantes, a resident of 3308 Santa Rita Court; visits to 3308 Santa Rita Court before two controlled buys; and a proffer interview in which the interviewee stated Ortiz-Cervantes sold the interviewee methamphetamine at the 3308 Santa Rita Court residence.

Ortiz-Cervantes argues the information connecting him and the residence to the conspiracy to sell methamphetamine was stale. "There is no bright-line test for determining when information in a warrant is stale." United States v. Pruneda , 518 F.3d 597, 604 (8th Cir. 2008). "A warrant becomes stale if the information supporting the warrant is not ‘sufficiently close in time to the issuance of the warrant and the subsequent search conducted so that probable cause can be said to exist as of the time of the search.’ " United States v. Brewer , 588 F.3d 1165, 1173 (8th Cir. 2009) (quoting United States v. Palega , 556 F.3d 709, 715 (8th Cir. 2009) ).

The first controlled buy that connected Ortiz-Cervantes to the conspiracy occurred on September 24, 2013—almost eight months before the search warrant was issued and the search was conducted—and the proffer interview in November 2013 identified Ortiz-Cervantes as selling methamphetamine more than a year before the search. However, just before the tenth and final controlled buy—which occurred the same day agents applied for and executed the search warrant—Orellana stopped at the 3308 Santa Rita Court residence on his way to Gonzalez's residence, immediately before Gonzalez met the undercover officer.

" ‘In investigations of ongoing narcotics operations, intervals of weeks or months between the last described act and the application for a warrant [do] not necessarily make the information stale,’ " Jeanetta , 533 F.3d at 655 (quoting United States v. Ortiz , 143 F.3d 728, 732-33 (2d Cir. 1998) ), and a "lapse of time is least important when the suspected criminal activity is continuing in nature and when the property is not likely to be destroyed or dissipated," United States v. Lemon , 590 F.3d 612, 614 (8th Cir. 2010) (quoting United States v. Horn , 187 F.3d 781, 786 (8th Cir. 1999) ). Though drugs " ‘can be easily concealed and moved about,’ " United States v. Button , 653 F.2d 319, 325 (8th Cir. 1981) (quoting Ashley v. State , 251 Ind. 359, 241 N.E.2d 264, 269 (1968) ), the facts here demonstrate "a continuing pattern of behavior" sufficient to establish probable cause even with months-old information, Palega , 556 F.3d at 715. A series of controlled buys spanning from months to hours before the application for a search warrant supported the agents' inference that Gonzalez, Orellana, and Ortiz-Cervantes had an ongoing conspiracy to sell methamphetamine and at least some transactions occurred at the 3308 Santa Rita Court residence. See , e.g. , United States v. Colbert , 828 F.3d 718, 727 (8th Cir. 2016) (reasoning information obtained several months before the application for a search warrant was not stale where there was evidence of an ongoing criminal enterprise as recently as three weeks before the warrant application).

The evidence tying 3308 Santa Rita Court to the conspiracy was not the strongest—communications with Ortiz-Cervantes before some controlled buys, but not all of them, visits to the residence Ortiz-Cervantes shared with Orellana's brother's family, and a statement Ortiz-Cervantes sold methamphetamine from the residence more than a year before the search—but was sufficient to create "a fair probability that contraband or evidence of a crime [would] be found in a particular place." Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

"[W]e accord ‘substantial deference’ to the judicial officer's finding," and the district court was correct in denying Ortiz-Cervantes's motion to suppress the evidence for lack of probable cause. United States v. Garcia-Hernandez , 682 F.3d 767, 771 (8th Cir. 2012) (quoting United States v. Buchanan , 574 F.3d 554, 561 (8th Cir. 2009) ).

B. Cross-Designation of the Magistrate Judge

A magistrate judge "has authority to issue a warrant to search for and seize a person or property located within the district" in which the judge sits. Fed. R. Crim. P. 41(b)(1). The magistrate judge in this case who issued this warrant sat in the Northern District of Iowa, while the property that was the subject of the search warrant was located in the District of Nebraska, outside the NDIa magistrate judge's jurisdiction. But a magistrate judge can issue warrants in an "adjoining district" "[w]here the [Judicial] conference deems it desirable." 28 U.S.C. § 631(a).

Under § 631(a), a magistrate judge is...