U.S. v. Calle-Cardenas
| Decision Date | 09 December 1987 |
| Docket Number | VELASQUEZ-SANTARIAG,CALLE-CARDENA,JARAMILLO-ECHEVERR,Nos. 86-2093,D,s. 86-2093 |
| Citation | 837 F.2d 30 |
| Parties | UNITED STATES of America, Appellee, v. Edgarefendant, Appellant. UNITED STATES of America, Appellee, v. Wilsonefendant, Appellant. UNITED STATES of America, Appellee, v. Marioefendant, Appellant. to 86-2095. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
John B. Reilly, Warwick, R.I., by Appointment of the Court, for defendants, appellants Edgar Calle-Cardenas and Mario Jaramillo-Echeverri.
Joan C. Stanley, by Appointment of the Court, with whom Law Offices of Colette Manoil, Boston, Mass., was on brief, for defendant, appellant Wilson Velasquez-Santariaga.
James H. Leavey, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on briefs, for appellee.
Before COFFIN, BOWNES and TORRUELLA, Circuit Judges.
The appeals of appellants Calle-Cardenas and Jaramillo-Echeverri challenge the district court's denial of their motion to suppress evidence of cocaine and other property seized.
Federal agents obtained a warrant from a federal magistrate at 2:08 p.m. on June 13, 1986. Probable cause to issue the warrant was based on information supplied to Agent Burkett, the affiant, by an informant, that appellant Calle was distributing at least one kilogram of cocaine weekly from "his residence at 46-48 Comstock Street (first floor, side door right)." The warrant authorized a search of "the right side, first floor apartment of 46-48 Comstock Street, Pawtucket, R.I. ... occupied by Edgar Calle." Agents surveilling the premises, however, at about the time the warrant was signed by the magistrate, 2:00 p.m., observed a person emerge from an automobile and enter the dwelling through a door on the left side. Soon thereafter, that person emerged from the building and drove off. A check of the license plate number revealed that the vehicle was registered in the name of appellant Calle. The vehicle returned at 3:15, the driver entered the building and returned to the vehicle as before, and again drove off. He was followed and confronted. Identifying himself as one Mazo, he told the police that Calle's residence was in fact the left side, first floor apartment, and that Calle had been in the apartment when he, Mazo, had left.
At this time, around 4:00 p.m., the warrant above described had not been executed. Agent Parham, who had supplied the informant's information for Agent Burkett's affidavit, then supplied this new information to the magistrate and obtained a second warrant authorizing search of "the left side, first floor apartment of 46-48 Comstock Street ... occupied by Edgar Calle." The agents then went to the premises, entered by the left door, found themselves in a common passageway, and, taking the door to their right, forced their way into appellant's apartment. It should be noted that the building, in addition to the outside door on the left, had a front door, an entrance at the right side (which led only to a basement apartment), and a door at the rear.
At this remove it is difficult to see how appellant could devote so much time at the Franks hearing, which the district court gratuitously held out of an abundance of caution, or so much space in his brief, to his challenge to the denial of his motion to suppress. We say this because we cannot imagine what the agents could have done better. When their surveillance of the premises created a doubt as to which side of the house was the location of appellant's apartment (or the entrance thereto), they refrained from proceeding on the basis of their warrant and obtained another one with the corrected location.
Appellant spins an argument that, when the agents realized that the informant's information about the contraband being in the right side apartment was in error, they "abandoned" their "reliable informant." Mazo's information, appellant argues, "specifically negates" the informant's "basis of knowledge," leaving no basis for any suspicion that there was contraband to be found in the left side apartment.
The problem with this approach is that appellant would have u...
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