U.S. v. Quezada-Enriquez

• Decision Date: 05 June 2009
• Docket Number: No. 07-2205.,07-2205.
• Citation: 567 F.3d 1228
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Enrique QUEZADA-ENRIQUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

567 F.3d 1228

UNITED STATES of America, Plaintiff-Appellee, v. Enrique QUEZADA-ENRIQUEZ, Defendant-Appellant.

No. 07-2205.

United States Court of Appeals, Tenth Circuit.

June 5, 2009.

Submitted on the briefs:^*

Vicki Mandell-King, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender for the Districts of Colorado and Wyoming, Denver, CO, for Defendant-Appellant.

David N. Williams, Assistant United States Attorney (Gregory J. Fouratt, United States Attorney, with him on the briefs), Office of the United States Attorney District of New Mexico, Albuquerque, NM, for Plaintiff-Appellee.

Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and McCONNELL, Circuit Judge.

LUCERO, Circuit Judge.

Enrique Quezada-Enriquez appeals from his conviction of possession of a firearm by an illegal alien, a charge that arose out of the discovery of a pistol and ammunition during a search of his residence. He contests the constitutionality of the warrant authorizing this search. The warrant was supported by a tip from a reliable confidential informant that Quezada-Enriquez kept a firearm, but officers were unable to corroborate any information suggesting Quezada-Enriquez actually possessed a gun. The supporting affidavit did not disclose the basis of the informant's knowledge.

We do not address the thorny issue of whether the search warrant for Quezada-Enriquez's house was supported by probable cause because we conclude that officers executed the search in good faith. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm Quezada-Enriquez's conviction.

I

Special Agent Frank Ortiz of the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") applied for a warrant on September 25, 2006, in the United States District Court for the District of New Mexico to search Quezada-Enriquez's residence. In support of his application, Agent Ortiz swore an affidavit containing the following facts.

Ortiz received information from a confidential informant who claimed to have seen "Enrique Quesada"¹ with a loaded black nine-millimeter pistol that he kept in his vehicle and in his home. The informant told Ortiz that Quezada-Enriquez was an undocumented immigrant of Mexican nationality; described Quezada-Enriquez's age and physical appearance; identified the make, model, and license plate of his vehicle (a Chevrolet Tahoe); and provided the address of his residence. Ortiz avers that this informant was "a credible and reliable ATF documented confidential informant (CI), who is not working off criminal or other charges and who's [sic] information in the past has led to the seizure of various quantities of illegal narcotic substances, amounts of U.S. currency, firearms and ammunition." No further explanation of the informant's relationship to Quezada-Enriquez is provided in the affidavit.

After receiving this tip, Ortiz and other law enforcement officers surveilled the address provided by the informant. Parked outside the location, they saw a Chevrolet Tahoe matching the description provided. By searching several databases, ATF agents determined that an individual named Enrique Quezada-Enriquez had previously been deported and had no current legal status in the United States. A New Mexico Department of Motor Vehicles database identified Enrique Quezada as an alias for an Enrique Quezada-Enriquez with the same date of birth as the individual identified in the immigration database. Another database inquiry showed that an Enrique Quezada paid utility bills at the address provided by the informant. Agents showed the informant a picture of Quezada-Enriquez obtained from these record checks, and the informant confirmed that the individual depicted was the one he described in his initial tip.

A United States Magistrate Judge issued the warrant on September 25, and it was executed the following day. In doing so, agents entered the residence at the noted address and discovered a .45 caliber semi-automatic pistol in the kitchen and matching ammunition in the bedroom. Quezada-Enriquez was arrested and admitted to agents that he was in the country illegally. He was later charged with one count of firearm possession by an illegal immigrant in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2).

Quezada-Enriquez moved to suppress all evidence obtained as a result of the search of his home, arguing that the search violated the Fourth Amendment because the warrant was unsupported by probable cause and did not fall under the good faith exception to the exclusionary rule. After a hearing, the district court denied this motion, and Quezada-Enriquez pleaded guilty to the sole charge against him, pursuant to an agreement that allowed him to "withdraw his guilty plea" should he prevail on his appeal of the suppression issue. Fed.R.Crim.P. 11(a)(2). He now appeals.

II

We must first determine whether Quezada-Enriquez's challenge to his conviction is moot in light of his deportation from the United States following that conviction. Under Article III of the Constitution, we may hear only cases involving a live case or controversy, and this requirement adheres at all stages of judicial proceedings. United States v. Meyers, 200 F.3d 715, 718 (10th Cir.2000). Once it becomes impossible for a court to grant effectual relief, a live controversy does not exist, and a case is moot. United States v. Hahn, 359 F.3d 1315, 1323 (10th Cir.2004) (en banc).

Quezada-Enriquez pleaded guilty on the condition that he could appeal the denial of suppression and would be allowed to withdraw his plea were the appeal successful. Based on this language in the plea agreement, the government asserts that Quezada-Enriquez would have to return to this country to withdraw his plea should he prevail on appeal. But because he is forbidden from reentering the United States by the immigration laws, see 8 U.S.C. § 1326, the government concludes that we cannot grant him effectual relief, mooting his appeal.²

Although the government contends that Quezada-Enriquez would have to return to the United States to withdraw his plea, the government provides no authority for this proposition. Rule 43 lists a set of proceedings for which "the defendant must be present." Fed.R.Crim.P. 43(a). Although that Rule lists "the plea" as such a proceeding, it does not explicitly require a defendant to be physically present to withdraw a plea, nor have we found any case law suggesting as much. Instead, a defendant typically seeks to withdraw a plea by way of motion. See, e.g., United States v. Garduno, 506 F.3d 1287, 1289 (10th Cir. 2007). Quezada-Enriquez could direct his attorney to file such a motion on his behalf without physically returning to the United States. Moreover, a defendant may waive his right to be present for certain proceedings under Rule 43. See United States v. Edmonson, 962 F.2d 1535, 1544 (10th Cir. 1992) (waiver of right to be present at trial).

The plea agreement before us provides that Quezada-Enriquez "shall be allowed to withdraw his guilty plea" if he prevails in this appeal. Further, Rule 11(a)(2) states that "[a] defendant who prevails on appeal may then withdraw the [conditional] plea." We are unwilling to contravene the plain text of these provisions given the potential for Quezada-Enriquez to withdraw his plea without being physically present in the United States. Because reversing the conviction could provide Quezada-Enriquez with relief from the collateral consequences of conviction, the underlying controversy remains live.

III

In reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the government and uphold the district court's factual findings unless clearly erroneous. United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir.2000). Because a magistrate's probable cause determination must be supported by facts presented in the affidavit, we limit our review to those facts. Id. at 1006. "Determinations relating to the sufficiency of a search warrant and the applicability of the good-faith exception are conclusions of law, ... which this court reviews de novo." Id. at 1005. We afford great deference to a magistrate's finding of probable cause, reversing only if the affidavit supporting the warrant provides "no substantial basis for concluding that probable cause existed." Id. at 1006 (quotation omitted).

A

Because the search warrant in this case relied solely upon (1) an uncorroborated tip from a reliable confidential informant stating that Quezada-Enriquez possessed a firearm combined with (2) police verification of other, publicly available, non-predictive information provided by the informant, Quezada-Enriquez argues that the warrant was not supported by probable cause. The government counters by pointing to the informant's record of providing accurate information to police.

In a seminal case on the use of information from a confidential informant in support of a warrant application, Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court held that veracity, reliability, and basis of knowledge are "highly relevant" as to whether a tip can support probable cause. Id. at 230, 103 S.Ct. 2317. Veracity concerns whether there is reason to believe that the informant is telling the truth, see id. at 227, 103 S.Ct. 2317; United States v. Tuter, 240 F.3d 1292, 1297 (10th Cir.2001), including whether he faces criminal charges or whether his statement is against his own penal interest. "[W]hen there is sufficient independent corroboration of an informant's information, there is no need to establish the veracity of the informant." United States v. Artez, 389 F.3d 1106, 1111 (10th Cir.2004). Reliability determinations entail inquiry into whether the informant has provided accurate information in the past. United States v. Corral, 970 F.2d 719, 727 (10th Cir.1992); see also Gates, 462 U.S. at 243-44, 103...