United States v. Luis Santiago Ramirez

HOLLOWAY, Circuit Before TACHA ELLISON,* Judge. District Judges, and TACHA, Judge. Circuit Santiago Luis A convicted defendant grams than 500 possessing Ramirez of more distribute viola- of cocaine with intent to 841(a)(1) (b)(1)(B), § tion of U.S.C. grams possess more than 500 conspiracy to in viola- cocaine with intent to distribute § and 21 U.S.C. tion of U.S.C. 841(a)(1) (b)(1)(B), carrying § to a using during a firearm relation of 18 drug trafficking offense violation 924(e).1 to a § He was sentenced U.S.C. imprisonment and a term 123 months total of ap- supervised Defendant now release. jurisdiction under 28 U.S.C. peals. We § and we affirm. 11, 1993, a confidential informant June

On at a build- purchased cocaine from defendant Albuquerque, Bridge ing at 838 Southwest (“the building”). The controlled New Mexico investigation buy part of a narcotics from the Sandoval officers conducted Office, including County Lieutenant Sheriffs During buy, officers ob- Ramiro Flores. key open build- use a defendant served alone, building, and hand ing, enter leave Officers informant. cocaine to a confidential building entering the defendant had observed other occasions. on two later, another days Flores and Ten Officer building a search approached the officer Rojas, Ramirez’s one of warrant. Carmelo codefendants, to enter. allowed the officers premises They a search of conducted scale, baggies, six triple-beam plastic found a cocaine, loaded revolver. and a ounces of cash, Rojas uncovered $840 Their search Bustamante, Albuquerque, Edward 0. had the informant including a bill $20 NM, appellant. for buy. during the controlled given (John Neda, Atty. J. Asst. U.S. Tara C. searching the brief), still the officers While were on the Kelly, Atty., with her rang. building telephone at the NM, premises, Atty., Albuquerque, Office of U.S. phone, and the answered the Flores appellee. * charge incorporated the Ellison, three counts also 1. All Senior District James O. The Honorable § 2. abetting the North- 18 U.S.C. Judge, aiding District Court for in violation of Oklahoma, sitting by designation. ern District of mer, going Spanish judge, caller asked in what was on. a New Mexico district state court identification box indicated that application The caller the warrant issued based on an phone placed pay the call had been from a presented by reading Officer Flores. After gas station at the of the block. Officer end affidavit, supporting Judge Officer Flores’s team, nearby Flores called a surveillance por- Blackmer altered the warrant and that apprehended gas which defendant near the listing tion of the affidavit the items to be building. station and him escorted to the (1) Specifically, searched and seized. in- he officers searched defendant and found “person” serted the word “and” between key building cash and a on his $940 “place” on the added the words person. The search of the subse- “and Luis Ramirez himself’ to the items to quently kilogram uncovered an additional affidavit, be searched on the added cocaine a trash basket and three ounces of “keys the words to the doors locks on and/or pair cocaine hidden of boots. Bridge, the doors at 838 Southwest” to the charged

Defendant was with one count of items to be seized on the affidavit. Defen- possessing grams than 500 more of cocaine that, argues dant Judge because Blackmer distribute, with intent to one count of con- “substantially altered” the affidavit and the same, spiracy to do the and one count of warrant, judicial he abandoned his role and using a firearm relation to a traffick- longer was no neutral and detached from the ing timely sup- offense. Defendant moved to investigation.2 press the evidence seized search building. The district court conducted appeal On from the denial of a mo hearing on the matter and denied defen- evidence, suppress tion to we review the dant’s motion. Defendant then filed a mo- by factual determinations made the district tion in prior limine to exclude evidence of a error, court for clear and we view the evi drug-related arrest. The district court de- light dence in the most favorable to the nied this motion as well. government. Bell, United States v. 892 F.2d began 4, Defendant’s trial October 959, Cir.1989), On October returned a verdict of 110 S.Ct. guilty on all three counts. Defendant then (1990). A clearly factual determination is filed a motion to dismiss based on comments only if support erroneous there is no factual by prosecution during closing its in the record or if we are “left with the argument, which the district court denied. definite and firm conviction that a mistake 23, 1994, September On the court sentenced States, has been made.” LeMaire v. United imprisonment defendant to 63 months on Cir.1987). The ulti two, counts one and with the sentences to question mate of whether a search or seizure concurrently, run and 60 months for count Amendment, comported with the Fourth three, consecutively. with the sentence to run however, issue, legal is a which we review de appeals. Defendant now Lyons, novo. United States v. (10th Cir.1993).

II States, In Johnson v. United 333 U.S. Defendant first contends that the district 68 S.Ct. 92 L.Ed. 436 court Justice suppressed should have the evidence building pursuant perhaps quintessential seized at the Jackson delivered war- issuing magistrate explication rant because the policies underlying was not Judge neutral and detached. James Blaek- Fourth Amendment: Judge 2. Defendant also contends that contradicting Blackmer dant has offered no evidence this Rather, testimony. merely argues relied on an unrecorded Judge Judge conversation between he altering Blackmer and Officer making Flores in Blackmer conversed with Flores while changes. affidavit and the warrant in violation of Fed. Because defendant has failed to 5-211(E). Judge R.Crim.P. 41 showing Judge or N.M.R.Crim.P. introduce evidence Blackmer suppression hearing, Blackmer testified at the relied on unrecorded or unsworn statements in however, cause, portion making that he probable relied on the narrative his determination of this making of the affidavit in the additions. Defen- claim must fail. Amendment, application rant for a search and seizure.” point the Fourth Sales, 442 U.S. at at 2324. offi- Lo-Ji grasped often is not zealous which cers, is not that it denies law enforcement case, the district court conducted which support the usual inferences evidentiary hearing matter. That Its men from evidence. reasonable draw hearing Judge Blaekmer read revealed requiring those protection consists portion Flores’s affi- narrative by a de- be neutral and inferences drawn davit and “realized there was sufficient being magistrate judged tached instead Luis Ramirez cause believe that compet- in the often engaged officer possession himself of controlled would enterprise ferreting out crime. itive substances, paraphernalia for cocaine and/or 13-14, purposes For at 369. Id. at key it.” He also concluded that defendant’s Amendment, Fourth it is essential that piece of evi- “was material magistrate issuing a search warrant be possible be in a dence that would useful adjunct than “an rather neutral detached prosecution.” Judge criminal Blaekmer ac- United States v. law enforcement officer.” cordingly permit altered the affidavit so as Leon, 3405, 3416, executing officers to Sales, Lo-Ji Inc. key himself to seize defendant’s 327, 2319, York, 319, 442 99 New U.S. building. additions to affidavit were His (1979). 2324-25, It 60 L.Ed.2d 920 therefore mere sense of the con- common extensions a on a premised that search warrant follows portion tents of the narrative of the same by magistrate a lacks such neu issued who affidavit. trality and “stands on no firmer detachment circumstances, agree with Under these than if had been no warrant at ground there court that common sense district such Coolidge Hampshire, v. New 403 U.S. all.” changes the affidavit “do not indicate that 443, 453, 2022, 2031, 29 564 91 S.Ct. Judge duty a breached his to be Blaekmer (1971). magistrate.” neutral and detached Unit Cf. Judge alteration of the Blaekmer’s Cir.) (9th Banks, 14, ed States v. question call into search warrant does not a (holding commanding officer of neutrality in this In or detachment case. military sufficiently was neutral reservation deed, officer, judicial duty it is the an as a “participat he had not detached because issuing magistrate that a to ensure warrant prosecu any way investigation in the or ed supporting corresponds content denied, defendant), tion” of cert. 429 U.S. concerning the affidavit. Determinations 1024, 644, 50 L.Ed.2d 626 affidavit, however, supporting a content of Dorman, F.Supp. law generally province are enforce (M.D.N.C.1987) (concluding that Thus, Judge ment officers. Blaekmer’s addi abrogate magistrate her constitution did to the affidavit itself are trou tions more obligation neutral detached even al to be analysis. bling, requiring more careful though ... a detective “summon[ed] she investigation matter cur Clearly, magistrate’s assist in the of a a alteration of a war- [her]”), aff'd, rently F.2d 74 can evi- before applicant’s rant affidavit constitute Evans, Cir.1988); United States v. magistrate abandoned her dence (D.Conn.1986) (holding decline, however, adopt F.Supp. judicial role. We suppression magistrate “suggested that a who any per requiring se rule when- in application and warrant itself magistrate an affidavit. warrant ever alters Wheth- “involve[d] clude items” not so magistrate [certain] was neutral and detached er warrant as necessarily application for any particular individu- case disqualify grounds that he lacked inquiry. [him] alized and contextual Courts must First, changes requisite neutrality”). specific on the circumstances surround- focus addi constituted rather minor ing warrant and to the affidavit the issuance of the decide items searched magistrate tions the list of to be “manifest[ed] whether does not neutrality seized. The Fourth Amendment and detachment demanded of Sphinx-like require magistrates “to maintain judicial presented officer with a war- when inscrutability passing applica on warrant III Levasseur, tions.” United States v. Defendant’s next claim concerns the (D.Mass.), F.Supp. part rev’d in on trial court’s admission of evidence that defen (1st grounds, Cir.), other 846 F.2d 786 cert. previously dant possession arrested for denied, 109 S.Ct. trial, with intent to distribute cocaine. At (1988). Second, each of the Albuquerque called Police Judge additions were based on Blaekmer’s Officer Thomas Garduño. Garduño testified portion conclusion that the narrative that defendant had posses been arrested for provided probable affidavit support cause to sion with July intent to distribute cocaine on items, the search or seizure of these that, 1992. Garduño also testified at the challenge defendant does not the search or arrest, time defendant had been found ground seizure of these items on the that the possession eight ounces of cocaine and Finally, lacked cause. $43,000 roughly in cash. The district court Judge altering Blackmer’s of the affidavit is pursuant admitted the evidence to Fed. cry a far from the conduct or circumstances 404(b). R.Evid. We review a trial court’s Supreme that the compro Court has held to evidentiary rulings only for an abuse dis magistrate’s neutrality mise a and detachment. Cestnik, cretion. United States v. — Sales, Cf Lo-Ji Cir.1994), . (holding jus S.Ct. at 2324-25 that the town U.S. —, tice who had issued a warrant acted as an “adjunct law enforcement officer” when he 404(b),4 Under Rule evidence of a de member, “allowed himself to become a if not crimes, prior fendant’s wrongs, or acts is leader, party of the search which was only “admissible purposes limited essentially police operation”); Connally v. only prerequisites when various are satis 245, 250, Georgia, 546, 429 U.S. 97 S.Ct. 548- Robinson, fied.” United States v. 978 F.2d

49, (1977) curiam) (de 50 444 (per — (10th 1554, Cir.1992), denied, 1558 cert. claring Georgia system unconstitutional a un —, 1855, 113 U.S. S.Ct. 123 L.Ed.2d 478 magistrates der which paid were based on (1993). As this court has stated on several they the number of warrants that issued and 404(b) occasions, requires Rule therefore had a direct financial interest in (1) the evidence must be for offered approving applications); Coolidge, (2) proper purpose; the evidence must be 450, 403 U.S. at 91 (holding S.Ct. at 2031 (3) relevant; the trial court must make a attorney general, a state actively “who was Rule 403 determination of whether charge investigation and later was to probative value of the similar acts is sub- prosecutor trial,” be chief at the was not stantially outweighed by potential its for purposes neutral and detached for prejudice; unfair pursuant to Fed. Amendment). Fourth 105, shall, R.Evid. the trial upon court request, jury instruct the that the evidence Judge We therefore find that Blackmer did of similar only acts is to be considered for abrogate duty to be neutral and proper purpose for which it was admit- passing detached in on Officer Flores’s war- ted. application. rant The district court did not refusing err suppress the evidence Jefferson, 1242, United States v. 925 F.2d pursuant (10th seized to the search of Cir.), denied, the build- 884, 1258 cert. 502 U.S. ing.3 238, 239, 112 (1991); S.Ct. relatedly crimes, 3. Defendant contends that if the war- wrongs, Evidence of other or acts is invalid, rant was the officers lacked prove not admissible to the character of a cause to arrest defendant because "the law offi- person in order conformity to show action in only cers at that time relied on that basis for the however, may, therewith. It be admissible for seizure, arrest and search of Be- [defendant].” motive, purposes, proof oppor- other such as of valid, cause we hold that the search warrant was intent, tunity, preparation, plan, knowledge, argument must fail. identity, or absence of mistake or accident. 404(b) specifically 4. Rule states:

943 Johnson, previ- 42 officer that he F.3d former undercover had v. see also United States (10th Cir.1994) ously purchased cocaine from the defendant 1312, (quoting the 1315 — “sufficiently probative of U.S. —, defendant’s] same), denied, [the cert. Mora, admission”); support intent to its 1439, States United Cir.1991) (holding prior of (10th F.2d at 237 Poole, v. 929 F.2d “sufficiently uncharged drug was transaction (same). in turn. address each element We distributing charge [of cocaine] related First, govern reveals that the the record intent, motive, conspiracy establish testimony to ment introduced Garduno’s probative and that the evidence did have real possess and dis intent show defendant’s Brown, value”); United v. cocaine, participation that his tribute Cir.1985) (holding that evi- knowing. This court has conspiracy was prior dence of a defendant’s arrest for mari- drug prior “the repeatedly held that use juana probative possession highly “was plan, to show motive intent involvement possess defendant’s scheme to and dis- [the] trafficking appropriate.” offense is marijuana”), grounds tribute rev’d on other Sturmoski, v. F.2d United States Kentucky, sub v. nom. Griffith (10th Cir.1992); see also United States 93 L.Ed.2d (10th Cir.1989); Record, F.2d Mora, Third, explicitly district court consid Cir.), probative prej ered the evidence’s value and (1988). Indeed, 102 L.Ed.2d udicial effect under Fed.R.Evid. 403.5 404(b) expressly provides probative that evidence that the Rule court concluded value “proof testimony substantially of ... prior crimes is admissible for Garduno’s was intent, knowledge, outweighed danger prejudice ... or unfair plan, ... absence 404(b). afford trial courts broad of mistake or accident.” Fed.R.Evid. defendant. We July making rulings 1992 arrest under Rule The evidence defendant’s discretion Reddeck, proper purpose. United States v. therefore offered (10th Cir.1994). find no reason to dis We Second, clearly the evidence was relevant. here. turb its conclusion Each for which defendant offenses Finally, gave prove the district court charged required the limiting after knowledge respect appropriate instruction. Both or intent with either cocaine, testimony and at the con- possession dis- Officer Garduno’s of the its defendant’s trial, the tribution, the court instructed participation conspira- in the clusion or it consider of defen- cy. testimony jury that could evidence Garduno’s de- —that only to July arrest determine for dant’s previously fendant had been arrested necessary crimi- had the drug trafficking possession of whether defendant and found in intent, oppor- a motive or $43,000in nal whether he had eight of cash— ounces cocaine crime, or he knowledge tunity to commit the whether probative of defendant’s according plan.6 This instruction respect charged. acted to intent to the offenses with McKinnell, jury’s the consid- appropriately 888 F.2d constrained States v. See United Brown, (10th Cir.1989) testimony of evidence. See (finding of eration the allegedly acts of the similar provides: consider evidence 5. Rule relevant, on other occasions determine committed may Although be excluded if evidence or substantially outweighed had a state of mind probative whether the defendant value is its prejudice, charged by danger necessary unfair confusion of the crime the of intent commit issues, misleading jury, indictment, or the or consid- the or the Defendant in the whether time, delay, or erations of undue waste opportunity to the the commit had a motive or presentation of evidence. needless cumulative indictment, charged the whether acts in the Fed.R.Evid. plan according or in Defendant acted of a preparation commission crime. for fact, given by limiting the the instruction In purposes which the limited for These are suggested by It court was defendant's counsel. allegedly prior acts similar of other stated: July by Luis Ramirez on committed doubt, you beyond a that [I]f find reasonable may be considered. did commit the the Defendant Luis Ramirez indictment, you charged may then acts in the —nied, (upholding —, F.2d at 914 the admission of evi- drug prior dence of defendant’s arrest L.Ed.2d 282 jury

where the trial court instructed the applies analysis This court a two-step the not to be considered evidence “was as determining government’s the whether be trial, proof of the for offense but the prosecutorial havior constituted misconduct. motive, purpose determining limited in- Lonedog, v. mistake”) (inter- tent, knowledge, absence Cir.), omitted). quotation nal marks United Martinez-Nava, States sum, In the admission of Officer Garduno’s (10th Cir.1988). First, we examine “whether testimony satisfied four all elements this was, fact, improper.” conduct Lone- admissibility test court’s under Rule so, dog, 929 F.2d at 572. If “we must then 404(b). Moreover, are we mindful determine whether it warrants reversal.” recognized “long admissibility court has case, Id. In this the district court concluded previous wrongs and crimes context was, fact, prosecutor’s statement violations, especially of narcotics when the “improper argument.” counsel It found that time, prior activity proba- highly was close prosecutor’s “the implicitly sup comments tive, activity similar which ported] Tony Lopez the conclusion if McKinnell, charged.” is testify concerning had been allowed to F.2d at 676. therefore find that We timing buy of the controlled he would have district court did not abuse its discretion in credible, been a truthful witness.” The court admitting prior drug evidence of defendant’s nonetheless concluded that the statement did arrest. because, not warrant reversal context trial, of the entire the error was harmless. IV prosecutor’s A improper state Defendant next contends that a state ment to harmless unless “there is prosecution during ment made reason jury’s to believe that it influenced the government’s argument closing amounted to Alexander, verdict.” United prosecutorial Specifically, misconduct. Cir.1988) (internal quo government’s attorney stated: omitted). tation assessing marks whether an impact, misconduct had such con explain you, I’m here court rules to whole, including sider the trial as a “the attorney, [defendant’s but if Mr. Finzel] court, curative acts the district it, the extent he wanted could it. If he wanted misconduct, and the role of miscon explain timing Martinez-Nava, duct within the case.” when his client left with the [confidential reversal, F.2d at 416. To warrant the mis deal, during informant] the tim- “flagrant enough conduct have must been ing driveway, from the exit to the when jury grounds influence convict on oth Ray picks up again visually, Flores him if er presented.” than the evidence United he wanted to timing Chapa- hear the of the Lowder, (10th States v. 5 F.3d 473 Cir. incident, why la restaurant didn’t he let 1993); see also Manriquez United States v. Tony Lopez you brought Tony tell that? I Arbizo, (10th Cir.1987). 833 F.2d 248 rebuttal, Lopez on but explaining without rules, court you Mr. Finzel didn’t want prosecutor’s The statement in this objected hear it. He when I asked the flagrant.7 First, ease so was not the state question. isolated,” “singular ment no more allegation An of prosecutorial misconduct than a few brief comments of a course presents question a four-day Peña, mixed of fact and law trial. See United States v. that Kerby, we review Cir.1991); de novo. Fero v. 39 930 F.2d 1491 Manri (10th Cir.1994), Arbizo, F.3d quez Second, cert. de- 833 F.2d defendant, agree 7. Because we with the court question district we do not reach the prosecutor's prejudicial actually improper. comments were not whether the comments were jury long of the as as it is within the on more evidence instructed the district court lawyers’ Hannigan, bounds of reason.” Grubbs v. state- than one occasion (10th Cir.1993). evidence, jury 982 F.2d that the ments were of the the case the basis had decide a To establish violation of 21 U.S.C. Peña, 930 F.2d at presented. See evidence § government “prove must that the district Finally, agree with the objec defendant knew at least the essential ample evi- the record contained court that conspiracy knowingly tives of the jury to have found defendant dence for voluntarily part became a of it.” United beyond charged a guilty the crimes rea- Johnson, States v. Arbizo, id.; Manriquez See sonable doubt. — denied, —, Cir.1994), cert. U.S. at 248. The district court was 833 F.2d (1995). 1439, 131 S.Ct. L.Ed.2d 318 concluding the im- correct therefore constituting may agreement infer an a con harm- prosecutor’s statement was pact of the spiracy parties “from the acts less. indicating circumstantial con other accomplishment cert action for a V purpose.” may “pre It common Id. also Finally, raises three additional defendant knowing partici sume that a is a defendant (1) government arguments: failed to pant fur conspiracy when he acts in sufficient evidence to sustain his introduce objective conspiracy.” therance of the (2) conviction; conspiracy that the evidence Brown, 1493, 1502 United States v. 924(c) was insufficient to sustain his section omitted), (10th Cir.) (internal quotation marks conviction; evidence seized that the — —, rt. U.S. S.Ct. ce building sup- from the should been (1993). Moreover, 353, 126 L.Ed.2d as executing the pressed because the officers Supreme recently held in Court United the Posse Act. search violated Comitatus — Shabani, U.S. —, S.Ct. arguments in turn. We address each these section 846 does require prove prosecution “to a A conspirator act in fur committed an overt First, contends that at-, conspiracy.” therance of the Id. to sustain the record lacks sufficient evidence at 383. possess conspiring to co his conviction for in this reveals suffi to distribute under The record case caine with intent of fact § in cient evidence for a rational trier U.S.C. 846. Whether the es have concluded that defendant knew the sufficient evidence to sustain de troduced question objectives conspiracy and vol law that sential fendant’s conviction is Urena, First, untarily part of it. de novo. States v. became we review United (10th Cir.), all lived cert. de record shows that three defendants —nied, —, together, possessed on a ranch that all three keys the cocaine and will not overturn a where We found, however, Of drug paraphernalia were and that jury’s guilt, “unless no verdict of previously defen trier could have found the ficer Flores had observed rational of fact Rojas beyond enter the crime dant and codefendant Carmelo essential elements of Second, Tansy, building together. 46 the reasonable doubt.” Romero (10th that, Cir.1995), searching 1024, in the build cert. de Flores testified F.3d 1032 —nied, —, Rojas a marked bill ing, he seized from $20 S.Ct. U.S. (1995). given de had of that the confidential informant In our examination record, buy light in the of cocaine June in the fendant controlled the we view the evidence earlier, Finally, as Offi government to without 1993. discussed most favorable the pre that had “weighting] conflicting cer Garduño testified defendant evidence or consid drug trafficking viously for er[ing] credibility Kelly v. been arrested the of witnesses.” Cir.1993). (10th eight Roberts, possession and had been found 998 F.2d $43,000 roughly Indeed, jury’s cocaine and “accept resolution ounces of we will the — cash, denied, indicating U.S. —, that ob- defendant knew the cert.

jectives conspiracy. Viewing upheld the rec- L.Ed.2d 357 we a defendant’s 924(c) light most to conviction prose- ord favorable under section where cution, proximity that was firearms were in close drugs conclude there sufficient to the and there was substantial jury beyond for to have found evidence connect evidence ing the defendant to the conspired that defendant where the reasonable doubt drugs and firearm possess were seized. Id. at cocaine with intent distribute.

889. B case, In this Officer Flores testified that the officers discovered the firearm Defendant next claims that the evidence top right the water heater next to six un- was insufficient to sustain his conviction testimony ounces cocaine. This alone is 924(c)(1) using carry- § der 18 U.S.C. for jury sufficient for con ing during drug a firearm and in relation to a weapon proximi cluded close 924(c) trafficking offense. Section states ty drugs “readily therefore acces “[wjhoever, during any and in relation to 924(e). purposes sible” for of section drug trafficking ... crime ... uses or car- firearm, shall, in pun- ries a addition to remaining The two elements of the section 924(c) provided drug for such ishment ... traffick- integral test —that the firearm be an crime, ing imprisonment part be sentenced to for undertaking the criminal it 924(c)(1). years.” § five 18 U.S.C. undertaking’s increase the likelihood of the require “a nexus between the readi success— that, pur This court has held for ly gun accessible and the offense.” United 924(c), poses of section “uses” Dahlman, (10th v. States 13 F.3d “during firearm relation to” a criminal — Cir.1993), denied, —, cert. U.S. “(1) undertaking readily when the firearm 128 L.Ed.2d 218 As an (2) accessible, integral part is an crimi appellate reviewing sufficiency court for undertaking, nal increases the likeli evidence, presume “we a nexus between a undertaking hood that the criminal would drug trafficking firearm and a offense when Hall, succeed.” United States v. 20 F.3d ready an individual with access to a firearm (10th Cir.1994). 1084, 1088-89 To show that is involved in such an offense.” United accessible, readily govern a firearm was Holland, (10th v. States 10 F.3d ment must it demonstrate that “was available — Cir.1993), —, vicinity the defendant where see also drug trafficking place.” offense took United Coslet, 1495; Parrish, at F.2d F.2d Parrish, “However, at 1298. charged a defendant Cir.1991); Coslet, see also United States a drug trafficking may offense overcome (10th Cir.1993) (‘“Ac presumption by presenting some evi requires only cess’ to a firearm suggesting present dence the firearm was weapon be available the defendant in the facilitating drug a reason other than op occurred”). vicinity where the offense Parrish, 1298; eration.” 925 F.2d at see also Coslet, 987 at F.2d can demonstrate case, In this defendant has oth- ready offered no accessibility of a firearm show explanation presence er for the of the fire- ing proximity a close between the firearm arm. We Hall, therefore conclude that there drugs. and the For jury sufficient evidence for the instance, to convict Conner, in United States v. using defendant of a firearm in relation to a Cir.1992), F.2d 1172 this court held that drug trafficking offense in violation of 18 drugs “directly evidence that the were below 924(c)(1). § U.S.C. the firearm” was “sufficient for to find weapon [the defendant] intended the C readily be during available for use the transaction.” at Id. 1174. And in Finally, argues that, United defendant be (10th Cir.), v. Hager, States sergeant cause Air Force photo- took judgment Act claim. The at the Comitatus items seized graphs of the scene, court is therefore AFFIRMED. the district the arrest officers videotaped and the Posse conducting the search violated HOLLOWAY, 1385,8 Judge, concurring Act, § the Circuit and 18 U.S.C.

Comitatus dissenting: during the search should and seized evidence Defendant, suppressed. have been therefore by the ma- I concur in the result reached however, in his argument this failed to raise analysis. jority opinion and much of its dis the suppress to evidence before motion However, join opinion I am unable to the Rules of Criminal trict court. The Federal my disagreement fully because of as written mo to make require defendants Procedure majority’s analysis of the issue of with the trial, prior to Fed. suppress to evidence tions require- alleged of the constitutional violation 12(b)(3), fail that the and dictate R.Crim.P. magistrate ment that a neutral and detached thereof, to do constitutes waiver ure so probable cause has been determine whether 12(f). court has And this held Fed.R.Crim.P. analysis, sought. My the shown for warrant 12(f)’s provision applies not “waiver that Rule however, same result leads me the motion, a pretrial the to make only to failure I majority and also the reaches this issue particular to include but also to the failure reject is re- the claim that reversal would States argument in motion.” United judge who quired because the issued (10th Cir.1991), Dewitt, initiative, warrant, signifi- on his own (1992). cant additions and alterations affidavit presented, the other and warrant. On issues Having to include his Posse Comita- failed majority opinion agreement with the I am in argument suppress, tus Act in his motion judgment. affirmance of the and its there- has waived the claim. We only if its district court fore will reverse the plain of the evidence constituted admission Davis, 55 F.3d United States v.

error. A is, That admission erroneous, Turning to Amendment issue it the Fourth have evidence must been raised, magis- right principal claim is that the the fundamental “affeet[ed] must was not impartial tri- issued the search warrant fair trate who of ... defendant detached; thus warrant was here. neutral al.” Id. find no such error We all seized suppression invalid based on searches VI underlying about this required. The facts they dispute are covered issue are not reasons, find For the aforementioned testimony judge by the of the state district judgment of court. no the district error (Rojas R. Rec- who issued VI sufficiently magistrate neutral The ord) Flores, 5-13, who Officer at detached, its the district court did abuse presented his affidavit and obtained admitting evidence of defen- discretion in at Supp.R. II 7-16. search warrant. arrest, prosecutor’s prior drug and the dant’s clearly in troubling facts are stated closing during argument was statement Majority Opinion at addition, majority opinion. prejudicial to defendant. reading affidavit of 940. After sufficient evidence sustain record contains Flores, judge issued the war- the state who conspiracy and firearm convic- defendant’s portion of warrant and the tions, Posse rant altered the has waived his and defendant expressly cept under circumstances in cases and purpose Act is 8. The of the Posse Comitatus troops of Con- 'the direct active use of federal Constitution or Act “limit authorized to enforce law enforcement officers’ any Army civil laws of this nation." willfully part of or the gress, uses Hartley, United States v. posse or otherwise Air as a comitatus Force 1986) (quoting Cir. United not more than laws shall be fined execute the Feather, F.Supp. v. Red $10,000 years, imprisoned two not more than or (D.S.D.1975)). time The version in force (amended 1994). § U.S.C. both." "Whoever, ex- challenged search stated: listing probable the affidavit the items to be on searched determination cause to search Specifically, judge for and the (3) seized. insert- person; defendant Ramirez’s and ed the word “and” the handwritten between truth, judicial the judge state fulfilled his “person” “place” words and on the obligation to review the affidavit and deter- put immediately and his initials underneath probable justi- mine whether cause existed to that insertion. To the warrant affidavit fy the issuance of a search warrant. Order judge also added the handwritten words “and at 1-2. (the Luis Ramirez himself: J.F.B.” initials judge), issuing by which were written the B (of Flores). initials “R.F.” Officer Ramino affidavit, judge Moreover the added to the is, troubling question The having per- which was attached to the search warrant proper judicial duty formed his to review the it, by “keys and referred the words to the affidavit probable and determine whether door(s) doors locks on the at 838 and/or shown, why issuing cause was should the (of Bridge, The initials SW.” “R.F.” judge significant have made changes and (of Flores) issuing judge) and “J.F.B.” additions to the affidavit and the search war- Supp.R., were also I added. Affidavit at 1. majority opinion rant? The dismisses by effect alterations and additions concern, viewing judge the insertions into was to command the war- the seizure and himself, search of rant and as defendant Ramirez the affidavit “common ex- sense keys signifi- search for to doors and tensions” and “rather minor additions.” Ma- locks— steps cant further which the affidavit and jority Opinion at I agree cannot judge warrant as submitted to the did do. analysis in light pronouncements of clear by Supreme Court and other courts that judge The state who issued the warrant the Fourth requires Amendment a determi- suppression hearing. testified at the He said nation and action neutral detached portion that when he read the narrative magistrate. affidavit, he “felt that [items those he be person added] would concealed on join Nevertheless in the result of the Record) (Rojas Luis Ramirez.” VI R. at 12. majority opinion on this issue. This concur- acknowledged He that he made the hand- ring dissenting opinion my explain will himself, written additions with his insertion analysis First, steps: my in three reasons wording himself,” of the “and Luis Ramirez rejecting majority opinion’s dismissal of “person” his addition of “and” between involving the constitutional claim as mere “place,” “Keys and his addition of the words “common sense extensions” and “minor addi- to the doors locks the doors at 838 and/or affidavit; second, tions” to the warrant and ...,” Bridge which the warrant commanded my analysis that nevertheless the denial of to be searched for. Id. at 8. is undisput- It suppress the motion to upheld should as ed, testified, be judge as the that he did not (the cocaine, scale, participate evidence any way in the actual execution revolver) plastic baggies question. of the loaded ob- Id. and. tained the search at 838 notes, majority opinion As the in- Bridge on portions consideration of the valid stant case the judge federal district affidavit, redacting warrant and after findings following written suppression the invalid additions made the state (1) hearing. found changes, He third, judge; my reasoning that the de- above, noted did not indicate that the state suppress nial the motion as to the judge duty breached his to be a neutral person seized from Ramirez’s citing magistrate, detached Lo-Ji Sales v. upheld should be because ex- York, cause New isted, independently of the warrant and affi- and United davit, Levasseur, Ramirez, (D.Mass.1988); for the seizure of F.Supp. and that judge’s the state person conduct amounted therefore the of his was valid judicial review the affidavit neutral as a search incident to a lawful arrest.

949 probable requested the cause exists for ar C search.”). Indeed, Coolidge, rest the or 1 it Court voided a search warrant because was basically First, my disagreement is by attorney general a state who was issued opinion pages at analysis majority the the actively charge investigation 941-42, rejecting the claim of constitutional prosecutor later to the chief at trial. was be that a neutral and violation of the mandate Wisconsin, 740, See also Welsh v. 466 U.S. the magistrate make determination detached 10, 2091, 10, 748 n. 104 S.Ct. 2097 n. 80 the of a on cause and issuance (1984) (requiring 732 inferences majority opinion, the warrant. There “by from to be drawn a neutral and warrants things, dismisses the additions among other magistrate byof the detached instead officer as “mere and warrant com- to the affidavit engaged competitive enterprise in the often of the contents mon sense extensions crime”); ferreting Franks v. Dela out Id portion of the same affidavit.” narrative ware, 154, 164, 2674, 2681, 438 98 U.S. S.Ct. says that common opinion at such (1978) (“The 57 L.Ed.2d 667 bulwark of changes that the state do not indicate sense course, protection, Fourth Amendment duty to be neutral and judge “breached his Clause, that, requiring the absent Warrant 941, at and that the magistrate,” id detached exceptions, police certain obtain a warrant “constitute made the affidavit insertions magistrate from a neutral and disinterested the minor additions to list of items rather search.”).1 embarking upon before or seized.” Id. at 941. be searched Turning concerning judge other cases re disagree. the state inserted When magis quirement of a neutral and should be detached provision that Ramirez himself searched, trate, persuaded I am that United States when he ordered seized and (9th Cir.), Banks, denied, 14 keys v. cert. to the doors and that the search include 644, 1024, 429 97 S.Ct. 50 L.Ed.2d 626 Bridge, significant made sub U.S. locks at 838 he 941, Majority Opinion at by cited affidavit and the additions stantive so, a com doing judge helps the here. There was not warrant. sufficiently manding was neutral prescribed constitu officer held conforming to his then “[sjince to issue a search warrant. The duty not the neutral and detached tional he was by challenge general, action and the magistrate required his and detached merely argument that such an officer Hampshire, New Coolidge v. Constitution.” 2031, 453, 2022, way due 443, in no be neutral detached 91 29 could U.S. 403 Here, however, (1971); Sales, Inc., specific ac position. to his L.Ed.2d 564 see Lo-Ji making 2324-25; judge in 327, of the state at Shad tions 442 at 99 S.Ct. U.S. 345, 350, on his changes in affidavit and City Tampa, U.S. 92 v. 407 wick initiative, 2119, 2123, raise serious concerns. Unit own 32 L.Ed.2d 783 Dorman, (“[A]n F.Supp. v. 657 511 magistrate meet two ed States issuing must detached, (M.D.N.C.1987), aff'd, F.2d 74 Cir. neutral and tests. He must be 1988) majori- (Table), by determining is also relied capable of whether he must be 175, party"), Valenzuela, ally one impartiality himself with also State v. N.H. See 1252, (1987) (Justice 1067, 1785, stating denied, Souter A.2d 110 S.Ct. rt. U.S. ce "[Wjhatever neutrality else the court that (1990); Wotring, v. State entail, they might it is clear detachment (1981) ("While 279 S.E.2d W.Va. disengagement from require activ severance issue, we are the lower court on this we affirm enforcement.") (quoting v. of law Shadwick ities City justice peace by troubled fact 2123), Tampa, 92 S.Ct. at 407 U.S. at preparing with the State Police worked Hampshire, Young v. New cert. denied sub nom. added.)). (Emphasis But see State warrant." 485 U.S. 108 S.Ct. Stanley, Nolan, 175-76 617 S.W.2d Tennessee 519, 526, (1988); Ariz. State v. (Term. 1981) complaint (rejecting Ct.Crim.App. magistrate's (disapproving ac P.2d 950-51 concerning [unspecified] deletions and "certain circumstances), upholding tions but warrant magistrate...." issuing additions affidavit; magistrate upheld on action of the State, A.2d L.Ed.2d 751 404, Gardner reasoning his neutral did not detract from (Del. 1989) that it (upholding but not it). ity, judge magistrate but demonstrated ing must maintain "[t]he Delaware, ty opinion. upheld 171-72, Dorman a conclu- v. While 98 S.Ct. at There, magistrate sion of a 2684-85. actions did not the Court said that when a proper showing prohibited rise the level of actions is made of deliberate false- Constitution, judge reviewing disregard hood or reckless for truth in an issue seriously warrant, then, questioned magistrate’s supporting affidavit search actions: a setting after aside the material that is the strongly disapproves The court of some subject alleged falsity disregard of the Magistrate in of the actions of Moon this truth, if there remains sufficient further in- absolutely A magistrate

matter. has no to support finding probable formation a of telephoning business a detective and re- cause, hearing required. no’ is questing report that he to the Sheriffs Department investigation assist in and Following here, procedure a only similar may “procedure” of a case. It well be that the evidence obtained as a im- result of the made, that a dictates such call be but such proper additions to warrant and affidavit junction officer, is the a would I be inadmissible. feel procedure fellow “Judges magistrate. magistrates and are proper is here since this case does not in- adjuncts law team.” volve like Coolidge enforcement circumstances those in Leon, 897, 917, United States rejected where a entirety warrant was in its 3405, 3417, had improperly by because it been issued investigator prosecutor chief and state obviously tainting added). F.Supp. affidavit and (emphasis at 514 case— aas whole. 403 at judgment are making The here involves at 2031. Here judge’s the state office and ingredient a fundamental of Fourth Amend- duty judge whether there was protection. ment We must not dismiss the cause for a warrant did not demonstrate such question insignificant, acts in as nor condone Coolidge fundamental conflict of interest as precedent by may them a which invite disre- involved. As Coolidge, the Court noted in gard requirement neutrality strict 2029-30, 403 U.S. at where magistrate and issuing detachment of investigator the State’s chief prosecutor and warrant. I am challenged convinced that the warrant, hardly issued the “there could be a judge making actions the state altera- appropriate setting per more for a rule of se tions and additions to the warrant and affida- ” disqualification.... per No such se rule for vit were violations of standard of conduct everything invalidation of judge the state did required magis- of a neutral and detached justified is here. trate. I agree Therefore cannot with the only majority opinion’s analysis particular It was by when the and its conclusion actions judge the state making the alterations and were taken in additions the war- upheld. rant invalid additions to should be the affidavit and warrant the constitutional violation occurred. by These judge discrete actions the state distinguish this case from Lo-Ji. There the Second, despite my disagreement with the Court noted because of the con- overall analysis majority opinion on the neu- magistrate, duct of the “[i]t is difficult to issue, magistrate join tral and detached I acting discern when he was as a ‘neutral suppression. the affirmance of the denial of judicial detached’ officer when he was opinion, my proper remedy for the police prosecutors one with the in the invalid additions here the state seizure_” executive 442 U.S. at judge to the affidavit and warrant does not S.Ct. at require the invalidation of the warrant and as a rationale, whole. Instead I believe the Under the Franks here would proper remedy reject only the warrant and affi- portions reliance on the only davit and that invalidly be redacted the evidence affidavit and warrant added me, judge. obtained under the unlawful additions to the To this is a constitu- reasonable accommodation, affidavit warrant be set protecting aside. This tional the Fourth practice approved would right follow the Franks Amendment of the defendant while “The facts and circumstances unnecessary defendant. wholesale invalida- avoiding an knowledge agents of evi- suppression within the of the warrant tion they reasonably had trust of which those dence. to war worthy information were sufficient objective had rant belief a crime Third, reject reliance on the been Skow I would committed.” while (10th Cir.1987). portions the affidavit improperly added ronski uphold the denial of per I would from defendant’s evidence seized obtained suppression of evidence legally per dictates son was obtained fruits of that of Ramirez alternatively, search was the search so on the alternative I would do search. pursuant to a validly seized constitution government that if argued by the even basis ally incident a permitted search lawful Ramirez was the search of the warrant for arrest. defective, by proba- supported his was arrest (empha- September 1993 at 2-3 Order of subsequent search thus the ble cause and added). sis Ap- arrest. incident to a lawful search was at Brief pellee’s Answer judge I the extent agree with trial Watson, from that the evidence seized he found States v. United validly pursuant supports person seized Ramirez’s was permitted of which was in a inci- constitutionally arrest Ramirez to a search daytime. noted that place in Watson public lawful The valid search dent to a arrest. felony supports history clearly warrantless thus to the lawful arrest Ramirez incident public places, that such arrests arrests admissibility key supports the only supported probable be cause at need remaining person. on his cash found Id. 96 S.Ct. at time of arrest. at scale, cocaine, baggies evidence—the exigent nor Neither an arrest warrant by a loaded revolver —was obtained required. is Id. at circumstances search portions under valid search 827-28; also States v. see United by the inval- warrant which were not affected Cir.) (“Law 868, 877 Wright, 932 F.2d all of id Therefore additions. may person personnel arrest enforcement admissible, properly held question was probable a warrant if there is cause without correctly suppress denied. motion crime.”), person committed to believe that II Maez, (10th Cir.1989) (a n. 7 sum, respectfully I dissent from public probable warrantless arrest analysis majority opinion on the consti- of the Fourth Amend does not violate the cause mandate tutional claim violation ment, though exigent circumstances do even magis- concerning a neutral and detached exist). above, However, explained on trate. as denying order the motion Here analysis I reach of a basis different judge suppress, the cited Watson and district majority on the as does the same result issue found: namely suppression opinion, defendant were The officers who arrested issues, fully required. all other concur On of a transaction con- aware controlled majori- analysis and conclusions Bridge, at 838 past in the recent summated ty opinion. SW, defendant and confidential between Moreover, the officers knew informant. that cocaine

prior to defendant’s arrest firearm found at 838 loaded were SW,

Bridge, execu- based the successful warrant. These factors

tion cause and

rise to the level

justify the warrantless arrest officers’

Case Details

Case Name: United States v. Luis Santiago Ramirez

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Aug 8, 1995

Citation: 63 F.3d 937

Docket Number: 94-2228

Court Abbreviation: 10th Cir.