United States v. Ortiz, 052412 FED3, 11-2979

Docket Nº:11-2979
Opinion Judge:SMITH, Circuit Judge.
Party Name:UNITED STATES OF AMERICA v. JOSE M. ORTIZ, Appellant
Judge Panel:Before: SMITH and FISHER, Circuit Judges and STEARNS, District Judge
Case Date:May 24, 2012
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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UNITED STATES OF AMERICA

v.

JOSE M. ORTIZ, Appellant

No. 11-2979

United States Court of Appeals, Third Circuit

May 24, 2012

NOT PRECEDENTIAL

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) May 17, 2012

On Appeal from the United States District Court for the Middle District of Pennsylvania District Court No. 1-10-cr-00131-001 District Judge: The Honorable Christopher C. Conner

Before: SMITH and FISHER, Circuit Judges and STEARNS, District Judge [*]

OPINION

SMITH, Circuit Judge.

Jose Ortiz, following his arrest, was indicted for one count of unlawful distribution and possession with the intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 841(a)(1) ("Count I") and one count of unlawful possession of a handgun by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1) ("Count II"). Prior to trial, Ortiz moved to suppress certain evidence on the basis that his warrantless arrest and the warrantless search of his garage and home were unlawful. The District Court, following a suppression hearing, denied Ortiz's motion.

Ortiz entered into a conditional plea agreement with the government, which required him to plead guilty to Counts I and II but allowed him to subsequently appeal the District Court's denial of his motion to suppress. Ortiz pled guilty pursuant to the conditional plea agreement and appealed the denial of his motion to suppress. We will affirm.1

I.

At the suppression hearing, four police officers who were members of the York County Drug Task Force — Sean Wolf, Craig Fenstermacher, Scott Nadzom, and Kenny Hassinger — testified for the government. Wolf testified that, on March 10, 2010, a cooperating confidential informant (the "CI") arranged to meet Ortiz for the purpose of purchasing heroin. This meeting was to take place at a garage Ortiz owned that was located at 100 Church Avenue, York, Pennsylvania (the "Church Avenue Garage").2Prior to the anticipated transaction, the officers searched the CI to ensure that he did not have any money or contraband, gave the CI $1, 100 to conduct the controlled buy, and positioned themselves around the Church Avenue Garage to conduct surveillance.

Nadzom testified that he witnessed the CI walk into the Church Avenue Garage and close the door. After a few minutes, the CI exited the Church Avenue Garage and walked to Fenstermacher's car. Fenstermacher testified that the CI turned over 150 bags of heroin to him.

Ortiz exited the Church Avenue Garage and stood in the fenced lot talking to a neighbor. Nadzom gave the arrest signal and the...

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