U.S. v. Reyes, No. 85-1540

CourtU.S. Court of Appeals — Tenth Circuit
Writing for the CourtBefore BARRETT and McKAY; THEIS
Citation798 F.2d 380
Decision Date29 July 1986
Docket NumberNo. 85-1540
Parties20 Fed. R. Evid. Serv. 1405 UNITED STATES of America, Plaintiff-Appellee, v. Raul REYES, Defendant-Appellant.

Page 380

798 F.2d 380
20 Fed. R. Evid. Serv. 1405
UNITED STATES of America, Plaintiff-Appellee,
v.
Raul REYES, Defendant-Appellant.
No. 85-1540.
United States Court of Appeals,
Tenth Circuit.
July 29, 1986.

Page 381

Presiliano A. Torrez, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., with him on brief), Albuquerque, N.M., for plaintiff-appellee United States.

Ted W. Cassman (Penelope M. Cooper and Cristina C. Arguedas with him on brief), of Cooper & Arguedas, Berkeley, Cal., for defendant-appellant Raul Reyes.

Before BARRETT and McKAY, Circuit Judges, and THEIS, * District Judge.

THEIS, District Judge.

Raul Reyes appeals his conviction for conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 846. Reyes asserts the following grounds of error on appeal: (1) the search warrant affidavit lacked probable cause; (2) the executing

Page 382

agents exceeded the scope of the search warrant; (3) certain handwritten notes and a cassette tape were erroneously admitted into evidence; and (4) the trial court improperly allowed a co-conspirator to testify at trial.

I. THE SEARCH WARRANT AFFIDAVIT

Reyes moved to suppress an audio cassette tape seized from his residence during the execution of a search warrant on November 2, 1984. The trial court held a hearing on the matter and denied the suppression motion. The affidavit in support of the search warrant was prepared by a special agent who had an extensive background in drug trafficking investigations. The affidavit provided specific information about Reyes' participation in receipt of cocaine shipments and his role as a financial backer of certain drug transactions. In particular, the affidavit recited the contention of William Ayala, a government informant, that he had delivered fifteen kilograms of cocaine to Reyes over two occasions, in October of 1983 and January of 1984. Ayala also referred to Reyes' involvement in a drug transaction which had not been completed due to the seizure of a kilo and a half of cocaine at Las Cruces, New Mexico, on May 29, 1984. Furthermore, the affidavit mentioned the practice of various members of the conspiracy to maintain records of their associates.

Reyes argues that the search warrant affidavit was defective in two respects. First, he contends that the information contained in the warrant was stale, since five months elapsed between the Las Cruces seizure on May 29, 1984, and the issuance of the warrant on October 30, 1984. Second, Reyes claims that the affidavit did not refer to the conducting of any unlawful activities at Reyes' residence, the place to be searched.

An affidavit in support of a search warrant must provide a substantial basis for determining the existence of probable cause; that there is a fair probability that evidence of a crime will be found in the place to be searched. Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721 (1984). Timeliness is not determined by counting the number of days or months between the occurrence of the facts relied upon and the issuance of the warrant. United States v. Brinklow, 560 F.2d 1003, 1005 (10th Cir.1977). Instead, timeliness depends upon the nature of the underlying circumstances and concepts. Id.; see also United States v. Johnson, 461 F.2d 285 (10th Cir.1972). Moreover, "when the activity is of a protracted and continuous nature the passage of time diminishes in significance." United States v. Sherman, 576 F.2d 292, 296 (10th Cir.1978). In this case the facts alleged in the affidavit pointed to an ongoing conspiracy. Under the totality of the circumstances, given the allegations of repeated drug offenses at several month intervals, the Court finds that the information upon which probable cause was based was not impermissibly stale.

Reyes complains that the information in the affidavit contained no specific link to his residence. The affidavit did indicate that participants in the conspiracy maintained records regarding their activities. It is reasonable to assume that certain types of evidence would be kept at a defendant's residence and an affidavit need not contain personal observations that a defendant did keep such evidence at his residence. Anthony v. United States, 667 F.2d 870 (10th Cir.1981), cert. denied, 457 U.S. 1133, 102 S.Ct. 2959, 73 L.Ed.2d 1350 (1982).

II. THE SCOPE OF THE SEARCH WARRANT

Reyes contends that the agents executing the search warrant exceeded the scope of the warrant in seizing a cassette tape containing discussions concerning the sale and purchase of drugs. The search warrant authorized the seizure of "drug trafficking records, ledgers, or writings identifying cocaine customers, sources, [etc.]." (Tr. Vol. II, p. 45). The court below ruled that in modern times because

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"business records are increasingly being kept on audio or video tape ... the law enforcement officers knew that the records that they were seeking might well be contained on [the] tape." (Tr. Vol. II, pp. 68-69).

The trial court correctly recognized that in the age of modern technology and commercial availability of various forms of items, the warrant could not be expected to...

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112 practice notes
  • U.S. v. McGlory, Nos. 90-3604
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 19 Junio 1992
    ...could be authenticated by their contents, and thus precise handwriting Page 331 identification is not required. In United States v. Reyes, 798 F.2d 380, 383 (10th Cir.1986), the defendant objected to the admission of handwritten notes on authenticity grounds. The notes were seized from the ......
  • U.S. v. Stewart, Docket No. 04-3953(L)-CR.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 6 Enero 2006
    ...made with the intent to further the conspiracy's purpose. Rule 802(d) does not require actual furtherance. See United States v. Reyes, 798 F.2d 380, 384 (10th Cir.1986); see also United States v. Minicone, 960 F.2d 1099, 1110 (2d 5. Because Crawford was decided after her trial, Stewart cont......
  • Agurs v. State, No. 11, September Term, 2009 (Md. App. 5/19/2010), No. 11, September Term, 2009.
    • United States
    • Court of Special Appeals of Maryland
    • 19 Mayo 2010
    ...States v. Riedesel, 987 F.2d 1383 (8th Cir. 1993); United States v. Terry, 911 F.2d 272 (9th Cir. Page 55 1990); United States v. Reyes, 798 F.2d 380 (10th Cir. We recognized that "the mere observation, documentation or suspicion of a defendant's participation in criminal activity will not ......
  • U.S. v. McNeese, Nos. 88-1951
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 2 Mayo 1990
    ...evidence. The affidavit need not contain personal observations that such evidence was kept at the residences. See United States v. Reyes, 798 F.2d 380, 382 (10th Cir.1986); United States v. Fama, 758 F.2d 834, 838 (2d Cir.1985). Finally, because NcNeese offered no showing that the affiant's......
  • Request a trial to view additional results
112 cases
  • U.S. v. McGlory, Nos. 90-3604
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 19 Junio 1992
    ...could be authenticated by their contents, and thus precise handwriting Page 331 identification is not required. In United States v. Reyes, 798 F.2d 380, 383 (10th Cir.1986), the defendant objected to the admission of handwritten notes on authenticity grounds. The notes were seized from the ......
  • U.S. v. Stewart, Docket No. 04-3953(L)-CR.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 6 Enero 2006
    ...made with the intent to further the conspiracy's purpose. Rule 802(d) does not require actual furtherance. See United States v. Reyes, 798 F.2d 380, 384 (10th Cir.1986); see also United States v. Minicone, 960 F.2d 1099, 1110 (2d 5. Because Crawford was decided after her trial, Stewart cont......
  • Agurs v. State, No. 11, September Term, 2009 (Md. App. 5/19/2010), No. 11, September Term, 2009.
    • United States
    • Court of Special Appeals of Maryland
    • 19 Mayo 2010
    ...States v. Riedesel, 987 F.2d 1383 (8th Cir. 1993); United States v. Terry, 911 F.2d 272 (9th Cir. Page 55 1990); United States v. Reyes, 798 F.2d 380 (10th Cir. We recognized that "the mere observation, documentation or suspicion of a defendant's participation in criminal activity will not ......
  • U.S. v. McNeese, Nos. 88-1951
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 2 Mayo 1990
    ...evidence. The affidavit need not contain personal observations that such evidence was kept at the residences. See United States v. Reyes, 798 F.2d 380, 382 (10th Cir.1986); United States v. Fama, 758 F.2d 834, 838 (2d Cir.1985). Finally, because NcNeese offered no showing that the affiant's......
  • Request a trial to view additional results

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