United States v. Ruiz

• Decision Date: 10 January 2012
• Docket Number: No. 10–3331.,10–3331.
• Citation: 664 F.3d 833
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Felipe RUIZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

664 F.3d 833

UNITED STATES of America, Plaintiff–Appellee,

v.Felipe RUIZ, Defendant–Appellant.

No. 10–3331.

United States Court of Appeals, Tenth Circuit.

Jan. 10, 2012.

Kurt P. Kerns of Ariagno, Kerns, Mank & White of Wichita, KS, for Defendant–Appellant.

David M. Lind, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), District of Kansas, Wichita, KS, for Plaintiff–Appellee.

Before LUCERO, SEYMOUR, and EBEL, Circuit Judges.

SEYMOUR, Circuit Judge.

Felipe Ruiz conditionally pled guilty to possessing with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1). He reserved his right to appeal the district court's denial of his motions to suppress evidence. On appeal, he contends the district court erred in refusing to suppress evidence seized from a rented airplane and from his former residence. We affirm.

I.

A.

On January 20, 2010, Mr. Ruiz flew a rented airplane from Las Cruces, New Mexico, and landed in Liberal, Kansas. The Air and Marine Operations Center (AMOC) is a radar monitoring and coordination facility affiliated with the Department of Homeland Security that monitors civilian air space for the purpose of detecting suspicious flights and criminal activity in private aviation. During Mr. Ruiz's flight, employees of AMOC concluded the flight was suspicious. They based this conclusion on their observations that Mr. Ruiz had not filed a flight plan in marginal weather, and the fact that an aircraft carrying drugs had landed in Liberal six months earlier. AMOC contacted an agent with Immigration and Customs Enforcement (ICE) to communicate these suspicions.

As Mr. Ruiz was landing, an ICE agent contacted Lyddon Aero Center, the fixed base operator at the airport in Liberal, and asked the receptionist, Megan Parmenter, to report any suspicious behavior by Mr. Ruiz. When Mr. Ruiz came into the Lyddon Aero Center lobby, he paid Ms. Parmenter with cash for fuel and for storing the plane overnight in Lyddon's hangar.

It is not unusual for transient airplanes belonging to customers to be stored in Lyddon Aero Center's north hangar. Customers and employees have access to the north hangar during the day, but the facility is closed to customers at night. Mr. Ruiz's airplane was placed in the north hangar along with airplanes owned by other customers, as well as some owned by Bill Lyddon, one of Lyddon Aero Center's co-owners. Lyddon Aero Center is surrounded by a chain link fence and the north hangar is accessible through a coded gate or through the office.

After Mr. Ruiz left to stay in a local hotel, Ms. Parmenter spoke with the ICE agent, told him that Mr. Ruiz had paid in cash, and explained that it was unusual for customers to pay in cash. The ICE agent told Ms. Parmenter that there was a Kansas Bureau of Investigation (KBI) office in Liberal, and that he would send agents and a drug dog to Lyddon Aero Center. Ms. Parmenter subsequently called Mr. Lyddon to explain the situation. He instructed her to provide the officers and drug dog with access to the north hangar.

Shane Finely, a KBI special agent, went to Lyddon Aero Center and spoke with Ms. Parmenter. She told the agent that Mr. Ruiz paid in cash and that his airplane was in the north hangar. Mr. Finely asked to see the hangar, and Ms. Parmenter escorted him to it. After examining the airplane and finding it to be locked, Mr. Finely contacted the sheriff's office in nearby Beaver County, Oklahoma, to request the assistance of a drug detection dog.

Sheriff Rueben Parker arrived soon thereafter with Kilo, his drug dog. At the time, Kilo was certified by the State of Oklahoma to detect heroin, cocaine, methamphetamine, and marijuana. Kilo was also certified by the National Narcotic Detector Dog Association located in San Marcos, Texas. When Kilo was deployed around the plane, he alerted several times to the presence of a narcotic in the plane. Mr. Finely obtained a search warrant and returned to the hangar. Mr. Lyddon provided a bucket of spare keys, one of which opened the door of the plane. Inside, Mr. Finely found a suitcase containing 28 bundles of kilo-sized packages of cocaine.

B.

Beginning in January 2008, Mr. Ruiz rented a house in Norwich, Connecticut from Richard Oraskovich. On February 5, 2010, Mr. Oraskovich received a letter from Mr. Ruiz, dated January 18 stating that as of January 31 he would no longer be renting the home because he had unexpectedly relocated to Phoenix, Arizona. In the letter, Mr. Ruiz told Mr. Oraskovich he could keep the down payment and furniture, but he requested that Mr. Oraskovich store his electronics, documents, and clothing until he could return. A few days later, Mr. Oraskovich received another letter that was essentially identical to the first one.

On the afternoon of February 5, Mr. Oraskovich's wife went to the rental house with a locksmith because Mr. Ruiz had changed the lock. The locksmith had to drill out the lock because it was tamper-proof. After finding several thousand dollars in the downstairs bathroom, Mrs. Oraskovich called her husband. When he arrived at the residence, Mr. Oraskovich found two wooden crates in the garage, clothes all over the bedroom, and flight plans and manuals in the study. Believing that something was wrong, he contacted the Norwich Police Department (NPD).

Several NPD officers responded, and Mr. Oraskovich asked them to search the residence. During their search, one of the officers noticed on a rafter in the basement ceiling what looked like kilo packages of drugs. One of them was partially open and contained a white powdery substance that appeared to be cocaine. The officers contacted NPD detectives, who acquired a search warrant. During the subsequent search they seized packages of cocaine, $8,700 in cash, money counters, computer equipment, and a safe. Sometime later, federal law enforcement officers obtained a second search warrant and performed an additional search of the residence.

C.

Mr. Ruiz filed separate motions to suppress the evidence seized during the searches of the airplane and the rental house. After an evidentiary hearing, the district court denied both motions.

II.

Mr. Ruiz first contends the district court erred when it denied his motion to suppress the evidence obtained from the search of the airplane. In his motion, Mr. Ruiz relied on Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and argued the affidavit for search of the airplane recklessly omitted two types of material information that would have altered the probable cause determination. Mr. Ruiz asserted the affidavit omitted information that would have demonstrated his reasonable expectation of privacy in the north hangar. He also contended the affidavit omitted information that would have undermined the reliability of Kilo's positive alerts near the airplane.

Under Franks v. Delaware, 438 U.S. 154, 155–56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978),

[w]e exclude evidence discovered pursuant to a search warrant when (1) a defendant proves by a preponderance of the evidence “the affiant knowingly or recklessly included false statements in or omitted material information from an affidavit in support of a search warrant and (2) after excising such false statements and considering such material omissions we conclude the corrected affidavit does not support a finding of probable cause.”

United States v. Campbell, 603 F.3d 1218, 1228 (10th Cir.2010) (quoting United States v. Garcia–Zambrano, 530 F.3d 1249, 1254 (10th Cir.2008) (alterations omitted)); see also United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir.1997). “The standards of deliberate falsehood and reckless disregard set forth in Franks apply to material omissions as well as affirmative falsehoods.” United States v. McKissick, 204 F.3d 1282, 1297 (10th Cir.2000). An omission is material if it is “so probative as to negate probable cause.” Stewart v. Donges, 915 F.2d 572, 582 n. 13 (10th Cir.1990).

When we review a district court's denial of a motion to suppress, we review de novo the district court's ultimate determination of reasonableness under the Fourth Amendment, but we accept the district court's factual findings unless they are clearly erroneous and we view the evidence in the light most favorable to the prevailing party. United States v. Avery, 295 F.3d 1158, 1167 (10th Cir.2002). “Specifically, we review for clear error the district court's findings regarding the truth or falsity of statements in the affidavit and regarding the intentional or reckless character of such falsehoods.” Garcia–Zambrano, 530 F.3d at 1254. “Whether a corrected affidavit supports a finding of probable cause is a question of law that we review de novo.” Id.

A.

The district court found that Mr. Ruiz had no reasonable expectation of privacy in the north hangar. In making this finding, the court relied on United States v. Porter, 701 F.2d 1158, 1164–65 (6th Cir.1983), where the Sixth Circuit held that a defendant had no expectation of privacy in an airplane hangar he did not control, even though he had permission to use it occasionally. The district court emphasized that Lyddon Aero Center is open to the public during business hours; the north hangar is a community hangar used to store aircraft and equipment for Mr. Lyddon and his customers; Mr. Lyddon maintains control over the hangar and gave officers permission to enter it; and while employees and customers have access to the hangar during the day, customers do not have access after business hours. The court noted that while Mr. Ruiz had permission to store the airplane in the hangar, he presented no evidence establishing that he maintained control over the hangar.

A search only violates an individual's Fourth Amendment rights if he or she has a “legitimate expectation of privacy in the area searched.” United States v. Anderson, 154 F.3d 1225, 1229 (10th Cir.1998). In determining...