U.S. v. Lora-Solano

• Decision Date: 03 June 2003
• Docket Number: No. 02-4173.,No. 02-4139.,02-4139.,02-4173.
• Citation: 330 F.3d 1288
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Juan LORA-SOLANO, also known as Lora Salono, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Nicolas Cortez-Cruz, also known as Nicko Cortez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

330 F.3d 1288

UNITED STATES of America, Plaintiff-Appellee, v. Jose Juan LORA-SOLANO, also known as Lora Salono, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Nicolas Cortez-Cruz, also known as Nicko Cortez, Defendant-Appellant.

No. 02-4139.

No. 02-4173.

United States Court of Appeals, Tenth Circuit.

June 3, 2003.

COPYRIGHT MATERIAL OMITTED

Submitted on the briefs:^*

Laurie J. Sartorio, Assistant United States Attorney (and Paul M. Warner, United States Attorney, on the brief), United States' Attorney's Office, Salt Lake City, UT, for Plaintiff-Appellee.

Robert Breeze, Salt Lake City, UT, for Defendant-Appellant, Jose Juan Lora-Solano.

Joseph Jardine, Salt Lake City, UT, for Defendant-Appellant, Nicolas Cortez-Cruz.

Before TACHA, Chief Judge, HOLLOWAY, and KELLY, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

In these cases consolidated for purposes of decision, Defendants-Appellants Jose Juan Lora-Solano and Nicholas Cortez-Cruz appeal their convictions for possession with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1) following entry of conditional pleas preserving their rights to appeal the district court's denial of their motions to suppress. Mr. Lora-Solano raises two issues in his appeal: (1) the judge pro tempore who signed the search warrant was not authorized, and (2) the search warrant was not supported by probable cause and lacked sufficient particularity in describing the premises to be searched. Mr. Cortez-Cruz raises six issues in his appeal, which can be grouped under four topics: (1) the lack of authority of the judge pro tempore to issue a search warrant in this case, (2) the lack of probable cause and description of the place to be searched with sufficient particularity in the warrant, (3) the district court's denial of his motion for a continuance, and (4) the district court's increase of his offense level by three levels under U.S.S.G. § 3B1.1(b).

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Background

Relying upon information provided by informant Marcos Lenin Juarez, officers and agents from the Utah Criminal Bureau of Investigation and the DEA Metro Narcotics Task Force planned to intercept a delivery of drugs on November 20, 2000. Mr. Juarez agreed to perform a controlled delivery of drugs to a residence at 2021 Camelot Way in Salt Lake City, Utah, and he told police that he had been paid $2000 by an individual in Phoenix, Arizona, to deliver the drugs to someone named "Nico" (later identified as Mr. Cortez-Cruz). Mr. Juarez was not certain of the exact street address but had visited the house previously. Agents dispatched to 2021 Camelot Way were unable to identify a residence at that address, and so Mr. Juarez went with an officer to the area and realized that the correct address was, in fact, 2051 (not 2021) Camelot Way. Apparently, the new address was not communicated to the officer charged with obtaining the warrant, and the address on the warrant was listed incorrectly as 2021 Camelot Way.

That evening, Mr. Juarez went to the residence at 2051 Camelot Way. Several individuals came out of the house and took items from Mr. Juarez's car. Once the individuals were back inside the house, officers approached the house. Mr. Lora-Solano fled out the back door and was pursued by police. A search of the premises found 50 pounds of marijuana and one kilogram of cocaine. Mr. Lora-Solano told police that he was renting a room at the house, which was owned by Mr. Cortez-Cruz. Mr. Juarez told the police that Mr. Cortez-Cruz had inspected the drugs before the police entered the residence.

Discussion

A. Authority of the Judge Pro Tempore

Under the Fourth Amendment, a neutral and detached magistrate must issue a search warrant for the warrant to be valid. United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We review de novo the legal issue of whether a search or seizure comported with the Fourth Amendment. United States v. Lyons, 7 F.3d 973, 975 (10th Cir.1993).

The search warrant was obtained by Officer Troy Denney from Walter Ellet, a state judge pro tempore. Judge Ellet was appointed on June 27, 2000, for a six-month term or until a vacancy was filled. On December 8, 2000, Judge Ellet's appointment was renewed for a period beginning December 27, 2000, for six months or until a vacancy was filled. Judge Randall Skanchy was selected to fill the vacancy on November 15, 2000, but not sworn into office until January 3, 2001. At issue here, then, is whether Judge Skanchy's selection on November 15, 2000, means that Judge Ellet was not an active judge when he signed the search warrant on November 20, 2000. Relying on language in the Utah Constitution suggesting that a vacancy is "filled" when a person is appointed by the Governor (and not when a person is sworn into office), Appellants contend that Judge Ellet was not an active judge when he signed the warrant.

After reviewing the relevant provisions of the Utah Constitution, Article VIII, Section 8 of the Utah Constitution merely provides the mechanism whereby the state fills vacancies in the judiciary. That provision does not, contrary to Appellants' assertion, determine when a judge begins service and thereby ends the term of a pro tempore judge. A more relevant provision of the Utah Constitution governs the powers of judges pro tempore: "Except as otherwise provided by this constitution, the Supreme Court by rule may authorize retired justices and judges and judges pro tempore to perform any judicial duties." Utah Const. art. VIII, § 4. By appointing Judge Ellet a judge pro tempore in June of 2000 and renewing his appointment in December—well after he signed the warrant in this case—the state was obviously exercising its authority to authorize Judge Ellet to perform judicial duties throughout the period during which the warrant was signed.

Furthermore, the testimony at the suppression hearing regarding the practice of the Utah state judiciary leaves no doubt that Judge Ellet was an active judge at the time of signing the warrant. Judge Ellet was, according to the Utah state judiciary, employed as a judge at the time he signed the warrant. As the district court noted, the December 8, 2000, renewal order stated that Judge Ellet's appointment as a pro tempore judge was being "renewed," with an active date of December 27, the date on which the first appointment would expire. Until Judge Skanchy took the oath on January 3, 2001, then, Judge Ellet was properly acting as a Utah state judge and was empowered to issue a warrant on November 20, 2000.

B. Search Warrant

We review a district court's factual findings underlying its decision to deny a motion to suppress for clear error. United States v. Downs, 151 F.3d 1301, 1302 (10th Cir.1998). We review de novo the ultimate determination on the reasonableness of a search or seizure under the Fourth Amendment. United States v. Anderson, 114 F.3d 1059, 1063 (10th Cir.1997).

Mr. Lora-Solano and Mr. Cortez-Cruz essentially raise three objections to the anticipatory search warrant issued in this case. First, they argue that listing the wrong house number (2021 instead of 2051) displays a lack of sufficient particularity. Second and similarly, they argue that a failure to provide a physical description of the premises to be searched under the warrant also constitutes a lack of sufficient particularity. Finally, they argue that the affidavit supporting the warrant incorrectly alleged that a conversation between the police informant and Mr. Cortez-Cruz took place and was recorded.

An anticipatory search warrant, such as the warrant in this case, is valid "when the warrant application indicates there will be a government-controlled delivery of contraband to the place to be searched, probable cause for a search is established and ... provided the warrant's execution is conditioned on the contraband's delivery to, or receipt at, the designated place." United States v. Rowland, 145 F.3d 1194, 1202 (10th Cir.1998). Under our holding in United States v. Hugoboom, 112 F.3d 1081 (10th Cir.1997), the probable cause requirement is satisfied by reference to a controlled delivery of contraband in the supporting affidavit. See Rowland, 145 F.3d at 1202-03 ("[W]hen the warrant affidavit refers to a controlled delivery of contraband to the place designated for search, the nexus requirement of probable cause is satisfied and the affidavit need not provide additional independent evidence linking the place to be searched to criminal activity.") (citing Hugoboom, 112 F.3d at 1086). By adequately stating the conditions precedent to the warrant's execution (particularly the cooperation of an informant) in the affidavit, the warrant is valid despite the lack of a physical description of the premises.

The district court found that the police had reliably believed Mr. Juarez's claim that he spoke with Mr. Cortez-Cruz, and we do not find that determination clearly erroneous. So also a miscommunication about whether a call between the informant and Mr. Cortez-Cruz was recorded does not render the warrant invalid. The important issue is that the informant did, in fact, have a telephone conversation with Mr. Cortez-Cruz and relayed the contents of the conversation to the police (most importantly, the address of the house where the delivery of drugs would take place). Thus, the statements in the affidavit regarding the telephone call do not rise to the level of deliberately false statements so as to render the warrant invalid.

The error in the warrant regarding the house number to be searched is a closer issue in light of this court's ruling in United States v. Williamson, 1 F.3d 1134 (10th Cir.1993). "The test for determining the adequacy of the description of the location to be searched is whether the description is sufficient `to enable the executing officer to locate and identify the premises with reasonable...