U.S. v. Sanchez

• Decision Date: 10 February 2009
• Docket Number: No. 08-5047.,08-5047.
• Citation: 555 F.3d 910
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luis Gonzales SANCHEZ, Jr., a/k/a Luis Sanchez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

555 F.3d 910

UNITED STATES of America, Plaintiff-Appellee, v. Luis Gonzales SANCHEZ, Jr., a/k/a Luis Sanchez, Defendant-Appellant.

No. 08-5047.

United States Court of Appeals, Tenth Circuit.

February 10, 2009.

William D. Lunn, Tulsa, OK, for Defendant-Appellant.

Jeffrey A. Gallant, Assistant United States Attorney, (David E. O'Meilia, United States Attorney, with him on the brief), for Plaintiff-Appellee.

Before HARTZ, HOLLOWAY, and O'BRIEN, Circuit Judges.

HARTZ, Circuit Judge.

Luis Gonzalez Sanchez Jr.¹ was standing by a vehicle in the driveway of the house of Omar Silvar when police officers arrived to execute a search warrant for the house. An officer ordered him to get down, but he fled. He was quickly apprehended, and a search of his person yielded incriminating evidence. About an hour later, after the search of the house was completed, Mr. Sanchez was formally arrested. He pleaded guilty in the United States District Court for the Northern District of Oklahoma to a charge of possession of marijuana with intent to distribute, see 21 U.S.C. §§ 841(a)(1) and (b)(1)(D). His plea reserved his right to appeal the denial of his motion to suppress the evidence seized from his person and Silvar's house, and he has appealed that decision.

We have jurisdiction under 28 U.S.C. § 1291 and affirm the district court's decision denying suppression. In particular, we hold as follows: (1) The search warrant for the house was lawful even though the affidavit for the warrant provided no direct evidence of criminal conduct at the house. If law-enforcement officers have probable cause to believe that a person is a supplier of illicit drugs, then the officers have probable cause to search the person's home for such contraband and evidence. (2) Officers executing a search warrant of a home may detain persons they encounter standing by a vehicle in the home's driveway. (3) In Oklahoma if such a person flees the officers after being ordered to get down, the officers have probable cause to arrest him for violation of a statute prohibiting obstruction of an officer performing his duties. (4) Officers may search the person of one who is apprehended after such flight, even though (a) the apprehended person is not formally arrested until the search of the home has been completed, and (b) the formal arrest is not for the offense of obstructing an officer. We also hold that the district court did not err in any challenged procedural rulings related to the suppression hearing.

We first address the validity of the search warrant. Then we describe the events during the execution of the warrant and explain why the officers' actions were lawful. Finally, we discuss the district court's procedural rulings at the suppression hearing.

I. VALIDITY OF THE SEARCH WARRANT²

The search warrant in question authorized officers to search for marijuana, drug paraphernalia, drug-sale proceeds, firearms, cellular telephones, pagers, records, ledgers, computers, keys, unexplained wealth, and proof of ownership at the "house, building or premises, the curtilage thereof and appurtenances thereunto belonging" at 713 South Norwood Avenue in Tulsa, Oklahoma. R. Vol. I Doc. 34-3 at 2. Supporting the warrant was an affidavit of Tulsa Police Department Officer Ronald Leatherman, which set forth the following information: Leatherman had a bachelor's degree in criminal-justice administration, had worked for the Tulsa Police Department for seven years, and was a narcotics investigator in the department's Special Investigations Division. He had received training in narcotics-investigation techniques from federal and Oklahoma agencies. During a two-week period a confidential informant had made multiple purchases of marijuana from a seller identified as Seth. Before each transaction Leatherman would listen to a telephone conversation between the informant and Seth in which Seth set a location for the exchange and stated that he would check with his supplier. After searching the informant's person and vehicle for drugs, surveillance officers would follow the informant to the location set by Seth and watch the informant purchase the marijuana from Seth using cash provided by the police. The informant gave the officers the marijuana he had purchased from Seth. At each transaction the officers observed a white Chevrolet pickup driven by an unknown man. The informant identified the man as Seth's supplier and said that the man gave the marijuana to Seth at the time of the buys. After one of the transactions, officers followed the man to 713 S. Norwood. He drove his truck on a circuitous but nonstop route home, a driving pattern that Leatherman described as "[a] tactic commonly used by drug dealers to avoid detection by law enforcement officials." Id. Doc. 34-4 at 3. Utility records showed that Omar Silvar resided at 713 S. Norwood. A driver's license photo obtained from the Oklahoma Department of Public Safety confirmed that Silvar was the pickup driver seen by officers at the buys.

Leatherman's affidavit further states that "[t]hrough [his] training and experience, [he] ha[s] also learned that individuals that sell/distribute illegal drugs often store additional quantities of illegal drugs ... at their residence. It is also common for individuals that distribute illegal drugs to store the money they receive from selling illegal drugs at their residence." Id. It goes on to say that "[t]he fact that Omar Silvar returned to his residence (without stopping at any other locations) after delivering marijuana to `Seth' during the controlled purchases indicates that Silvar has the proceeds from selling the marijuana at his residence." Id.

Mr. Sanchez does not challenge the sufficiency of Leatherman's affidavit to establish probable cause that Silvar was involved in marijuana trafficking. Nor does he challenge the sufficiency of the evidence that Silvar lived at 713 S. Norwood. What he challenges is the existence of probable cause to believe that Silvar's home would contain drugs, drug paraphernalia, drug-sale proceeds, or other evidence of an offense. He argues that the affidavit does not establish that Silvar ever received the proceeds from the buys, does not establish that he was a "Mister Big" supplier (rather than a mere courier), and does not point to any illegal drug activity at 713 S. Norwood itself. We disagree.

"[P]robable cause to issue a search warrant ... exists when the supporting affidavit sets forth sufficient facts that would lead a prudent person to believe that a search of the described premises would uncover contraband or evidence of a crime." United States v. Rowland, 145 F.3d 1194, 1204 (10th Cir.1998). The magistrate presented with a warrant application must make a "practical, common-sense decision based on the totality of the circumstances as set forth in the affidavit." Id. (internal quotation marks omitted). We "afford ... great deference" to the issuing magistrate's probable-cause determination unless there is "no substantial basis for concluding that probable cause existed." United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir.2000) (internal quotation marks omitted).

By that standard, the affidavit was sufficient. The informant's statements, corroborated by what Leatherman heard in the telephone conversations and Silvar's presence at the buys, were sufficient evidence that Silvar was a drug supplier. And we think it merely common sense that a drug supplier will keep evidence of his crimes at his home. In United States v. Sparks, 291 F.3d 683, 689-90 (10th Cir. 2002), we said that when police officers have probable cause to believe that a suspect is involved in drug distribution, there is also probable cause to believe that additional evidence of drug-trafficking crimes (such as drug paraphernalia or sales records) will be found in his residence. A leading treatise notes our decision in Sparks as among those in which courts have not required particular facts to support the inference that a drug trafficker keeps his supply at his residence. See 2 Wayne R. LaFave, Search and Seizure § 3.7(d), at 421-22 n. 170 (4th ed.2004); cf. id. at 421-22 ("[I]t is commonly held that this gap can be filled merely on the basis of the affiant-officer's experience that drug dealers ordinarily keep their supply, records and monetary profits at home.") (footnote omitted). Accordingly, the search warrant was supported by probable cause.

Mr. Sanchez relies on United States v. Nolan, 199 F.3d 1180 (10th Cir.1999), contending that we held the search-warrant affidavit in that case inadequate "because it made no reference to the defendant conducting any of his drug activities from the house." Aplt. Br. at 19. But that is a misreading of our opinion. True, we raised the question whether probable cause to search the residence of a person suspected of drug trafficking may rest on "observations of illegal activity outside of the home ... even in the absence of an allegation that any illegal activity occurred in the home itself." Nolan, 199 F.3d at 1183 (internal quotation marks omitted). We did not, however, answer this question. Rather, we left the answer for another day, affirming the use of the seized evidence at trial under the good-faith exception to the exclusionary rule. See id. at 1184. Sparks, upon which we rely, answered the question three years later.

II. EXECUTION OF THE WARRANT

A. The Events

Corporal Dale Francetic of the Tulsa Police Department began conducting surveillance of 713 S. Norwood shortly before 6 p.m. on February 23, 2007. Initially, no vehicles were present. Within a few minutes, however, Silvar, the alleged supplier, arrived in the white pickup truck that officers had seen him driving when they observed the informant's marijuana purchases. Silvar backed the truck, whose cargo bed carried some boxes, into the driveway of the residence. Mr. Sanchez then arrived in a red Chevrolet pickup truck. Officers had seen this truck outside...