U.S. v. Palega

• Decision Date: 18 February 2009
• Docket Number: No. 08-2305.,08-2305.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ekueta PALEGA, also known as "Q" Palega, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

556 F.3d 709

UNITED STATES of America, Plaintiff-Appellee, v. Ekueta PALEGA, also known as "Q" Palega, Defendant-Appellant.

No. 08-2305.

United States Court of Appeals, Eighth Circuit.

Submitted: December 11, 2008.

Filed: February 18, 2009.

Jay P. Miller, AUSA, argued and briefed, Pierre, SD, for Plaintiff-Appellee.

Mark Falk, AFPD, argued, Rapid City, SD, Edward Albright, AFPD, on the brief, Pierre, SD, for Defendant-Appellant.

Before COLLOTON and SHEPHERD, Circuit Judges, and GOLDBERG, Judge.¹

RICHARD W. GOLDBERG, Judge, United States Court of International Trade, sitting by designation.

In 2007, Ekueta Palega was convicted of conspiracy and possession of methamphetamine with intent to distribute. Prior to his arrest, on December 1, 2006, law enforcement officers attempted to execute a search warrant issued by Magistrate Judge Mark A. Moreno² two days prior. The warrant authorized the search of the residence of Morris Palega a/k/a "Q" and Eddie Castro a/k/a "Eddie Burnette," as well as their persons, including urine samples. The location of the residence in the warrant was given through a physical description; no specific address was provided. When law enforcement officers arrived at the residence described, Ekueta Palega, the Defendant, was present. At that time, they discovered that Morris Palega and "Q" were not the same person. "Q" was a nickname for Ekueta Palega, the Defendant, and Morris Palega, the proper name listed on the warrant, is his brother. The residence described in the warrant belonged to Ekueta Palega, and not Morris Palega. After discussion with Magistrate Judge Moreno, the officers proceeded to search Ekueta Palega's residence and obtained a urine sample from him. Seven days later, a second warrant was requested and granted for a backpack and three locked safes, which were discovered during the December 1 search.

Prior to trial, Palega moved to suppress his statements and the evidence seized from his residence on December 1 and December 8, 2006 on Fourth and Fifth Amendment grounds. The motion was denied and the statements and evidence were presented to the jury. Palega now appeals the admission of the statements and evidence, as well as the sentence he received. Because Palega is, in fact, Q and because the correct residence was searched, we affirm the district court's³ decision to uphold the search warrant, and the decision to admit the urine sample. We also affirm the drug quantity used by the district court to determine Palega's sentence. However, because the forfeiture amount was incorrectly stated in the order, the Court remands for correction of this error.

I. The Validity of the Warrant

A. Description of the Residence in the Warrant

Palega argues that since the authorities failed to stop the search and seek a new warrant after discovering the discrepancy in the names listed in the warrant, the district court should have suppressed all evidence seized during the search, all statements made by Ekueta Palega, and all evidence found in later searches as fruits of the poisonous tree.⁴ However, it is sufficient that the description of the premises in the warrant is such that the officer can, with reasonable effort, ascertain and identify the place intended, and avoid mistakenly searching the wrong premises. United States v. Gamboa, 439 F.3d 796, 806 (8th Cir.2006). Importantly, warrants have been upheld "where one part of the description of the premises to be searched is inaccurate, but the description has other parts which identify the place to be searched with particularity." United States v. Gitcho, 601 F.2d 369, 371 (8th Cir.1979).

Here, the description of the residence in the warrant provided enough accuracy to locate the intended structure, regardless of the owner's name specified. Individual statements given in the warrant affidavit described, both physically and with sufficient directions, the residence in question. In addition, two agents had previously conducted surveillance on this particular house. Photographs of the residence searched were taken both pre-surveillance and at the time the search warrant was executed. This case is unlike Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987), where the search of an apartment was properly ceased after it was discovered that it was the incorrect apartment. Here, the correct residence was searched and there was no need to amend the warrant prior to executing the search.

The incorrect first name listed in the warrant is a negligible error. The full name listed on the warrant was "Morris Palega, also known as Q." However, Ekueta Palega, not Morris Palega, is the individual known as Q. On December 1, while the warrant was being executed, an officer that had previously been called to the residence identified Defendant as the man he thought was Morris Palega. There was simply confusion regarding Defendant's first name. Q is the individual whose residence the law enforcement officers sought to search, and Defendant is Q. Innocent mistakes or negligence alone are insufficient to void a warrant. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Palega does not allege that the error in the first name was more than negligence or an innocent mistake. Despite the incorrect first name, the residence itself was adequately identified and described in the warrant affidavit; thus, the probability of a mistaken search was negated. Quite simply, the residence that the officers intended to be searched was searched.

B. Probable Cause

Palega also contends that there was insufficient probable cause for the warrant because the warrant affidavit did not provide sufficient information to determine the reliability or credibility of the informants, and because the information provided was otherwise stale. Probable cause exists when "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 214, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). This requires consideration of the totality of the circumstances and considerable deference is given to the district court's determination of probable cause. Gamboa, 439 F.3d at 805. In analyzing the totality of the circumstances, an informant's veracity, reliability, and basis of knowledge are all relevant and important factors. Gates, 462 U.S. at 230, 103 S.Ct. 2317. "The core question in assessing probable cause based upon information supplied by an informant is whether the information is reliable." United States v. Williams, 10 F.3d 590, 593 (8th Cir.1993). A "disclosure in the affidavit that the informant was an admitted participant in the crime and therefore an eyewitness to most of the acts constituting the crime as described in the affidavit" is one manner to determine the credibility and reliability of an informant. United States v. Long, 449 F.2d 288, 293 (8th Cir.1971).

Here, the warrant affidavit includes statements from at least one informant who indicated that he had bought methamphetamine directly from Q, which implicates the informant in the crime. There were additional statements from other informants indicating that they were aware that Q sold drugs, or that Q was the provider to their drug dealer. Several of the sources described the residence of Q as the residence that was then listed in the warrant and also described Q physically. In only one instance did an informant, as described in the affidavit, refer to the drug dealer as "Morris Palega" and not as "Q"; however he provided a physical description that is similar to that of the Defendant. Because these informants admitted to participating in drug crimes themselves, their credibility stems from this participation and the first-hand accounts of their interactions with or knowledge of the Defendant. Additionally, Officer Baldwin's surveillance of Q's residence on two separate occasions revealed an unusual frequency of short term visitors late at night. The statements of the informants and the surveillance, when taken collectively, indicated that there was a fair probability that the residence described would contain contraband. The totality of the circumstances thus provided probable cause for the search warrant.

Palega's argument that the information in the warrant affidavit is stale and outdated is similarly misplaced. Regarding the information presented to the magistrate judge, it is material that "the facts in an affidavit supporting a search warrant must be 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 and not simply as of some time in the past." United States v. Wagner, 989 F.2d 69, 75 (2d Cir.1993). While some of the information provided in the warrant affidavit was more than two years old, there was also information as recent as five days prior to the warrant application. In short, the affidavit describes a continuing pattern of behavior, and when taken as a whole, the information is not stale.

II. Palega's Consent to the Urine Sample

Palega separately seeks to suppress his urine sample as well as statements made to Officer Baldwin alleging that they were obtained in violation of his Miranda rights under the Fifth Amendment. When his Miranda...