Lead Opinion
In thеse cases consolidated for purposes of decision, Defendants-Appellants Jose Juan Lora-Solano and Nicholas Cortez-Cruz appeal their convictions for possession with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1) following entry of conditional pleas preserving their rights to appeal the district court’s denial of their motions to suppress. Mr. Lora-Solano raises two issues in his appeal: (1) the judge pro tem-pore who signed the search warrant was not authorized, and (2) the search warrant was not supported by probable cause and lacked sufficient particularity in describing the premises to be searched. Mr. Cortez-Cruz raises six issues in his appeal, which can be grouped under four topics: (1) the lack of authority of the judge pro tempore to issue a search warrant in this case, (2) the lack of probable cause and description of the place to be searched with sufficient
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Background
Relying upon information provided by informant Marcos Lenin Juarez, officers and agents from the Utah Criminal Bureau of Investigation and the DEA Metro Narcotics Task Force planned to intercept a delivery of drugs on November 20, 2000. Mr. Juarez agreed to perform a controlled delivery of drugs to a residence at 2021 Camelot Way in Salt Lake City, Utah, and he told police that he had been paid $2000 by an individual in Phoenix, Arizona, to deliver the drugs to someone named “Nico” (later identified as Mr. Cortez-Cruz). Mr. Juarez was not certain of the exact street address but had visited the house previously. Agents dispatched to 2021 Camelot Way were unable to identify a residence at that address, and so Mr. Juarez went with an officer to the area and realized that the correct address was, in fact, 2051 (not 2021) Camelot Way. Apparently, the new address was not communicated to the officer charged with obtaining the warrant, and the address on the warrant was listed incorrectly as 2021 Camelot Way.
That evening, Mr. Juarez went to the residence at 2051 Camelot Way. Several individuals came out of the house and took items from Mr. Juarez’s car. Once the individuals were back inside the house, officers approached the house. Mr. Lora-Solano fled out the back door and was pursued by police. A search of the premises found 50 pounds of marijuana and one kilogram of cocaine. Mr. Lora-Solano told police that he was renting a room at the house, which was owned by Mr. Cortez-Cruz. Mr. Juarez told the police that Mr. Cortez-Cruz had inspected the drugs before the police entered the residence.
Discussion
A. Authority of the Judge Pro Tempore
Under the Fourth Amendment, a neutral and detached magistrate must issue a search warrant for the warrant to be valid. United States v. Leon,
The search warrant was obtained by Officer Troy Denney from Waltеr Ellet, a state judge pro tempore. Judge Ellet was appointed on June 27, 2000, for a six-month term or until a vacancy was filled. On December 8, 2000, Judge Ellet’s appointment was renewed for a period beginning December 27, 2000, for six months or until a vacancy was filled. Judge Randall Skanchy was selected to fill the vacancy on November 15, 2000, but not sworn into office until January 3, 2001. At issue here, then, is whether Judge Skanchy’s selection on November 15, 2000, means that Judge Ellet was not an active judge when he signed the search warrant on Novеmber 20, 2000. Relying on language in the Utah Constitution suggesting that a vacancy is “filled” when a person is appointed by the Governor (and not when a person is sworn into office), Appellants contend that Judge Ellet was not an active judge when he signed the warrant.
After reviewing the relevant provisions of the Utah Constitution, Article VIII, Section 8 of the Utah Constitution merely provides the mechanism whereby the state fills vacancies in the judiciary. That provi
Furthermore, the testimony at the suppression hearing regarding the practice of the Utah state judiciary leaves no doubt that Judge Ellet was an active judge at the time of signing the warrant. Judge Ellet was, according to the Utah state judiciary, employed as a judge at the time he signed the warrant. As the district court noted, the December 8, 2000, renewal order stated that Judge Ellet’s appointment as a pro tempore judge was being “renewed,” with an active date of December 27, the date on which the first appointment would expire. Until Judge Skanchy took the oath on January 3, 2001, then, Judge Ellet was properly acting as a Utah state judge and was empowered to issue a warrant on November 20, 2000.
B. Search Warrant
We review a district court’s factual findings underlying its decision to deny a motion to suppress for clear error. United States v. Downs,
Mr. Lora-Solano and Mr. Cortez-Cruz essentially raise three objections to the anticipatory search warrant issued in this case. First, they argue that fisting the wrong house number (2021 instead of 2051) displays a lack of sufficient particularity. Second and similarly, they argue that a failure to provide a physical description of the premises to be searched under the warrant also constitutes a lack of sufficient particularity. Finally, they argue that the affidavit supporting the warrant incоrrectly alleged that a conversation between the police informant and Mr. Cortez-Cruz took place and was recorded.
An anticipatory search warrant, such as the warrant in this case, is valid “when the warrant application indicates there will be a government-controlled delivery of contraband to the place to be searched, probable cause for a search is established and ... provided the warrant’s execution is conditioned on the contraband’s delivеry to, or receipt at, the designated place.” United States v. Rowland,
The district court found that the police had reliably believed Mr. Juarez’s claim that he spoke with Mr. Cortez-Cruz, and we do not find that determination clearly erroneous. So also a miscommunication about whether a call between the informant and Mr. Cortez-Cruz was recorded does not render the warrant invalid. The important issue is that the informant did, in fact, have a telephone conversation with Mr. Cortez-Cruz and relayed the contents of the conversation to the police (most importantly, the address of the house where the delivery of drugs would take place). Thus, the statements in the affidavit regarding the telephone call do not rise to the level of deliberately false statements so as to render the warrant invalid.
The error in the warrant regarding the hоuse number to be searched is a closer issue in light of this court’s ruling in United States v. Williamson,
As to the first concern (locate and identify the premises with reasonable effort), a clerical error as to the number of the house to be searched does not entail an error as to which house would, in faсt be searched. “[Pjractical accuracy rather than technical precision controls the determination of whether a search warrant adequately describes the premises to be searched.” United States v. Dorrough,
“The requisite specificity of the description ... depends heavily on the facts of each case.” Dorrough,
We disagree with the dissent’s claim that the “search warrant relied on here indicated only an address of ’2021 Camelot Way’ with no other supporting description.” Dissent at 1295-96; see also id. at 1296 (“The search warrant here contained no description whatever of the place to be searched other than the wrong street number ....”); id. at 1297 n. ** (“[N]o language can be found in the warrant conditioning its execution on the delivery of the contraband.”). The warrant states that the “Affiant anticipates that a controlled delivery of a large quantity of marijuana and cocaine ... will be made by Agents of thе Criminal Investigations Bureau,” and that “[yjour Affiant prays to include in this affidavit for a search warrant for any rooms, attics, basements, crawl spaces and other parts therein as they pertain to the home where the drugs are expected to be delivered.” I. Rec. Doc. 63, Exhibit B at 1-2 (emphases added). The references in the warrant to the controlled delivery of drugs may not strictly be conditions precedent to execution of the warrant, but we can still look at the warrant as a whole and see that the warrant (and the supporting affidavit) make extensive reference to the expected drug sale. The warrant and the affidavit gave a precise description of the place to be searched — the house to be searched was the house where a controlled delivery of drugs would take place. The danger that the particular description requirement seeks to avoid is the threat of general and exploratory searches, Andresen v. Maryland,
Finally, even if we were to find that misstating thе address on the warrant by a single digit but relying on an informant to identify the premises before execution of the warrant did, in fact, render the warrant invalid, the good faith exception of Leon,
C. Denial of Motion for Continuance
As to Mr. Cortez-Cruz’s appeal of the district court’s denial of a request for a continuance, a defendant may enter a conditional plea in order to preserve “the right tо have an appellate court review an adverse determination of a specified pretrial motion.” Fed.R.Crim.P. 11(a)(2) (emphasis added). The district court’s decision not to grant a continuance was never mentioned as an issue on which the plea was conditioned, and Cortez-Cruz thereby waived his right to appeal that issue and all other nonjurisdietional defenses by entering a plea. See United States v. Salazar,
D. Sentencing Increase
Finally, under the Sentencing Guidelines, a district court may impose a three level increase in a defendant’s offense level where the criminаl activity involved five or more participants and the defendant played a managerial or supervisory role. U.S.S.G. § 3Bl.l(b). We review the district court’s determination that a defendant was a manager or supervisor of criminal activity for clear error. United States v. VanMeter,
We conclude from a review of the record that the district court properly found that Mr. Cortez-Cruz met the requirements for a three level increase. The government showed by a preponderance of the evidence that there were at least five participants in the drug dealing. Based on the fact that it was Mr. Cortez-Cruz’s home that was the center of this activity and that Mr. Cortez-Cruz planned much of the activity, the district court did not commit clear error in finding that he was a supervisor or manager of the operation.
Accordingly, the district court’s judgment of conviction and sentence in these cases is AFFIRMED.
Dissenting Opinion
dissenting in part:
The Fourth Amendment mandates, inter alia, that no search warrant shall issue, “but upon probable cause, supported by Oath or affirmation, and particularly describing the place tо be searched, and the persons or things to be seized.” Here the Majority Opinion concludes that the warrant issued was valid under the Fourth Amendment even though it had an admittedly erroneous address of the home to be searched, and the warrant gave no other particulars describing the property. Because I cannot agree with this disregard of the commands of the Constitution, I must respectfully dissent from Part B of the Majority Opinion addressing the search warrant and from the reliance on the United States v. Leon,
The search warrant relied on here indicated only an address of “2021 Camelot Way” with no other supporting description. The house that was actually searched was described as “2051 Camelot Way.” The search warrant here contained no description whatever of the place to be searched other than the wrong street number, “2021 Camelot Way.” Reliance on such a warrant with these deficiencies cannot be justified under our precedents. We have held that:
To pass muster under the Fourth Amendment, “[t]he warrant must describe the place to be searched with sufficient particularity so that the executing officer can locate and identify it with reasonable effort. The requisite specificity of the description differs for rural and urban areas and depends heavily on the facts of each case.” United States v. Dorrough,927 F.2d 498 , 500 (10th Cir.1991). “[P]ractical accuracy rather than technical precision controls the determination of whether a search warrant adequately describes the premises to be searchеd.” Id.
United States v. Williamson,
I would conclude here, as we did in Williamson, that “the warrant at issue did not describe the premises to be searched with sufficient particularity because it cannot be described as even ‘practically accurate.’ ”
Here, as in Williamson, the critical point is that the warrant’s only attempt tо describe the property with the required particularity was defective. The Majority Opinion blurs the line between the probable cause requirement and the mandate that the warrant describe with particularity the place to be searched. After concluding, properly, that a controlled delivery satisfies the probable cause requirement, the Majority Opinion states that consequently, “the warrant is valid despite the lack of a physical description of the premises.” Majority Opinion at 1292-93.
But the Fourth Amendment requires both probable cause and a particular description of the place to be searched. The Majority Opinion offers no authority for its bold assumption that satisfaction of the probable cause requirement obviates the requirement of a particular description of the premises to be searched. The Majority Opinion confesses that the error in the description here is “a closer issue” in fight of Williamson, as noted. I am concerned that the Majority Opinion’s unsupported statement that satisfaction of the probable cause requirement renders the warrant “valid despite the lack of a physical description,” Majority Opinion at 1293, will cause confusion and disarray in our Fourth Amendment precedents. The difficulty is compounded when the Majority Opinion relies again on the presence of probable cause to shore up the absence of any description of the property to be searched in its Leon analysis. Majority Opinion at 1295.
I would hold that Williamson requires us to reverse the denial of the motion to suppress here. In that case, there was no question that the officers had probable cause and that the officers knew what premises were the target of the search. But, as in Williamson, the government here “asks us to adopt a rule that an
A number of precedents are reported in which search warrants have been held valid in spite of errors or ambiguities in the descriptions of the places to be searched,
The Majority Opinion fails to explain the reasoning for its remarkable holding dispensing with any requirement that an anticipatory search warrant contain an accurate designation of an address of the premises to be searched or any description of the premises. Aside from the already noted conflation of the separate and critical probable cause and particularity requirements, the Majority Opinion offers very little. The Majority Opinion says that a “technically wrong address ... does not invalidate a warrant if it otherwise describеs the premises with sufficient particularity so that the police can ascertain
II
Nor can I join the Majority Opinion’s alternative holding that the denial of the suppression motion can be affirmed under the good faith rationale of United States v. Leon,
III
For these reasons I must respectfully dissеnt from Part B of the Majority Opinion.
Notes
.At all stages, it seems, all parties have assumed that the warrant is a conditional one. As the majority notes, we have held that such warrants may satisfy the probable cause requirement "provided the warrant’s execution is conditioned on the contraband’s delivery to, or receipt at, the designated place.” Slip op. at 1292 (quoting United States v. Rowland,
. See, e.g., United States v. Occhipinti,
. See, e.g., United States v. Williamson,