United States v. Adolfo Ortega
2017 U.S. App. LEXIS 7275
| 5th Cir. | 2017Background
- Police obtained a state search warrant for Adolfo Ortega’s home based primarily on a confidential informant’s tip that Ortega possessed cocaine inside the residence within 48 hours.
- Executing the warrant, officers found ~3,000 grams of cocaine in a shed, two handguns, a scale, baggies, and ~$45,000 in a safe in a closet. Ortega was charged with drug distribution and a § 924(c) firearm count.
- Ortega moved to suppress and requested a Franks hearing and sought disclosure of confidential informants’ identities; the magistrate held an evidentiary hearing and recommended denying both motions; the district court adopted the recommendation.
- Ortega pleaded guilty (reserving right to appeal suppression and disclosure denials) and was sentenced to 120 months total; he appealed, raising: sufficiency of factual basis for § 924(c) conviction, denial of motion to compel identities (CI-2 and Person 4), and denial of suppression.
- On appeal the Fifth Circuit: rejected Ortega’s Bailey-based challenge to the § 924(c) factual basis (Congress amended § 924(c) to cover possession), upheld the district court’s denial of informant disclosure, but found a false statement in the warrant affidavit about the affiant’s prior dealings with CI-2 and vacated convictions/sentences to permit further factfinding on the affiant’s intent under Franks.
Issues
| Issue | Ortega's Argument | Government's Argument | Held |
|---|---|---|---|
| Sufficiency of factual basis for § 924(c) firearm charge | Mere proximity of firearms to drugs is insufficient; Bailey requires active use | 1998 amendment (Bailey Fix) criminalized possession in furtherance; possession suffices | Rejected Ortega; possession supports § 924(c) conviction under current law |
| Motion to compel disclosure of CI-2 and Person 4 identities | Identities essential to challenge probable cause; CI-2 was sole source for warrant | Informer's privilege applies; the informants were tipsters not witnesses to charged offenses | Denial affirmed; defendant offered only speculation and informants were not witnesses to the charged offense |
| Motion to suppress (Franks) — falsity of affidavit statements | Affidavit knowingly/recklessly misrepresented that CI-2 had previously provided reliable information to the affiant and that CI-2 saw cocaine inside the house | Affiant relied on another officer’s representations; affidavit fairly described events; even if one statement imprecise, probable cause existed | Court found one statement (that affiant previously received reliable info from CI-2) was false; insufficient factfinding on affiant’s intent — vacated and remanded for determination of intent under Franks |
| Probable cause after excising false statement | If false statement excised, remaining affidavit lacks indicia of informant reliability and is insufficient to show fair probability contraband would be found | If properly stated (affiant relied on another officer) probable cause would exist; good-faith exception noted | Assuming excision, remaining affidavit insufficient for probable cause; resolution depends on whether the falsehood was intentional or reckless |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (requiring suppression if affidavit contains intentional or reckless falsehoods material to probable cause)
- Bailey v. United States, 516 U.S. 137 (pre-1998 decision on "use" of a firearm in furtherance of drug crime)
- Abbott v. United States, 562 U.S. 8 (holding Congress’s amendment covers possession in furtherance, superseding Bailey)
- Roviaro v. United States, 353 U.S. 53 (informer's privilege balancing test)
- United States v. Ibarra, 493 F.3d 526 (5th Cir. standard of review for informer disclosure)
- United States v. Cavazos, 288 F.3d 706 (standard of review for suppression rulings)
- Illinois v. Gates, 462 U.S. 213 (totality-of-circumstances probable cause inquiry)
- United States v. Froman, 355 F.3d 882 (Franks analysis and excision framework)
- United States v. Namer, 680 F.2d 1088 (Franks and presumptions when magistrate did not consider excised affidavit)
- United States v. Jackson, 818 F.2d 345 (informant reliability requirement for probable cause)
- United States v. Mays, 466 F.3d 335 (factors for assessing anonymous tip reliability)
- United States v. Looney, 532 F.3d 392 (reviewing affiant's state of mind on inclusion of false statements)
- United States v. Gonzales, 606 F.2d 70 (mere conjecture about informant relevancy insufficient for disclosure)