United States v. Romo-Corrales

under brought claim is Act. His

FELA, not err in and the district court did court.

remanding case to the state

Thus, reject Norfolk respectfully we argument that we should issue

Southern’s directing the DOL to

a writ of mandamus Demay’s claim.

resolve

III. of the district

Accordingly, judgment affirmed.

court is America, STATES of

UNITED

Appellee, ROMO-CORRALES, Appellant.

Jose

No. 09-1072. Appeals,

United States Court

Eighth Circuit. 23, 2009.

Submitted: Oct. 28, 2010.

Filed: Jan. Omaha, Nelson, argued,

Michael David NE, Appellant. AUSA, Lin-

Lynnett Wagner, argued, coln, NE, Appellee. BYE, BEAM, SHEPHERD,

Before Judges. Circuit SHEPHERD, Judge. Circuit appeals the district Jose Romo-Corrales court’s denial of his motion to during two of his evidence seized searches reasons, we following residence. For the affirm.

I. During investiga- criminal on-going tion, Tri-City Drug members of the Task including Investigator Mark Dre- Force— Depart- her of the Grand Island Police collecting been information ment —had regarding possible drug transactions in Dodge and around 315 East Street Island, Grand Nebraska. Pursuant to an in- subpoena administrative vestigation, Investigator Dreher received gas in- company information from local dicating Emerjildo that Fidel Martinez utility was thе subscriber for the resi- dence at 315 East subsequently learned Martinez had been convicted conspiracy methamphet- ‍​​‌​‌​‌​‌​‌‌​‌​​‌‌‌​‌​​‌​​‌​‌‌‌‌​​‌​​‌‌​​​​​​‌‌‌‍to distribute supervised amine and was on re- serving prison. lease after time tigator Dreher also discovered that on February probation Piester, Kopf, 1. The Honorable Richard G. tions of the Honorable David L. Unit- Judge Magistrate Judge States District for the District of Ne- ed States for the District of braska, adopting report Nebraska. recommenda- Street,” that Mar- curtilage alerted authorities of 315 East officer had as could not be located and warrant persons tinez well as “all and all vehi- recently been issued for his arrest. cles found on said or at photograph Investigаtor Dreher showed the time the warrant is served” for both Friesen, the landlord of Martinez to Todd Martinez, person the of Fidel E. any and Friesen indi- Dodge at 315 East “[d]ocumentation, receipts or items of recently men had cated that several which venue show Fidel E. Martinez’ [s] Street, and Dodge moved into 315 East possession or domain of the residence.” photograph that the man had made Prior to the execution of the in- payments rental for the residence follow- vestigators briefing assembled for ing the date that Martinez had violated Investigator where emphasized supervised the terms of his release. that the warrant did not cover con- 23, 2007, surveilling while May On Investigator traband. Dreher instructed Street, Investigatоr Dreher Dodge East if any drug officers that evidence was and other officers observed man-—-match- search, during discovered he was to description of Martinez —enter and immediately notified. leave the residence. The officers did not May On approximately at 7:00 attempt to arrest Martinez because the a.m., law enforcement executed the war- wearing safety equip- officers were not First, rant. a “tactical response team” ment, they person another observed persons conducted an initial search for all residence, Investigator and outside the in the residence and detained two men— Dreher felt the need to obtain a search one of whom was Josе Romo-Corrales. proceeding. warrant before Once officers removed all from the May Investigator Dreher On residence, a began “search team” completed application a search warrant search for connecting venue items Mar- Street, Dodge requesting that 315 East tinez ga- to the residence. While Mar- person the warrant cover both the rage, moving anything, and without linking Mar- tinez as well as venue2 items two, tigator Dreher one-pound discovered tinez to the residence. The affidavit methylsulfonylmethane containers support application of the warrant con- (MSM),3 bulbs, plate, light a hot broken regarding tained information In- garage, several firearms. super- arrest wаrrant for his violation of vestigator Dreher also discovered a natu- release, vised the landlord’s statement gas ral bill for Dodge 315 East Street that paid Martinez had rent at 315 East Martinez, was addressed to as well as oth- Street, and evidence that officers had re- linking er venue evidence Martinez to the cently matching observed a man Mar- residenсe. description entering exiting tinez’s affidavit, however, residence. The did not Investigator Jason Ackles searched a regarding include information the on- bathroom in the residence. In the bath- going drug investigation relating to 315 room, Investigator Ackles shined his flash- Dodge. East light hanging behind a mirror on the wall above the sink and observed what he de- granted authorizing A warrant residence, outbuildings, Believing search of “the scribed as “torn sheet rock.” Investigator commonly Dreher testified that venue evi- 3. MSM is a horse medication used "[a]ny methamphetamine cutting agent. dence is mail that would have as a See [Mar- it,” "mail, Quintanar, including papers, tinez’s] name on United States v. 13). 1998). (Mot. Supp. Hr’g receipts.” Tr. Cir. [and] altered, during discovered Invеstiga- had been that the wall the mirror and discov- Ackles removed tor initial search. he rock which ered a hole in the sheet a five grand jury A federal returned what he bags filled with plastic Romo-Corrales, against indictment count quarter pound than a to be more believed subsequently moved to and he papers, several methamphetamine, discovered at 315 East the evidence immediately Ackles Investigator a scale. Following the two searches. Street Dreher. notified evidentiary hearing, magistrate time, Investigator Scott At the same and Recommenda- judge Report issued a called to a bedroom where Javins was (“R R”), recommending the denial & tion handgun located a .40 caliber officer had The district suppress. of the motion to bedroom, under a mattress. magistrate judge’s R & adopted court items

tigator Javins found venue R the motion. and denied a night baggie— of a stand and drawer into a condi- Romo-Corrales entered to contain residue—-located appearing plea agreement govern- tional with the searching night behind the stand. When right ment in which he resеrved the to items, laundry room for venue Investi- denial of his appeal the district court’s digital a scale con- gator Javins discovered laun- taining liquid suppress. residue under some motion to In the conditional dry laundry hamper. Investigator in a to two plea, pled guilty Romo-Corrales a food vacuum sealer. Javins also located conspiraсy counts of the indictment — room, leaving laundry Investiga- When in violation methamphetamine, distribute accidently tor kicked a cooler sit- Javins 841(a)(1), (b)(1), § and crimi- of U.S.C. ting doorway in the and realized there was forfeiture, nal violation of U.S.C. something inside because of the cooler’s § 853. The district court sentenced weight. ‍​​‌​‌​‌​‌​‌‌​‌​​‌‌‌​‌​​‌​​‌​‌‌‌‌​​‌​​‌‌​​​​​​‌‌‌‍Investigator opened Javins imprison- to 210 months Rоmo-Corrales cooler, discovering that it was filled with a ment. liquid appeared that to contain metham- phetamine crystals.4 Investigator Javins II. propane noticed a torch and a can of also that the dis Romo-Corrales claims point, alcohol. At this Investi- denatured denying trict court erred in his motion to gator Investigator alerted Dreher. Javins that his Fourth Amendment a.m., approximately At 8:00 when offi- rights respects. were violated in two cers alerted to the reviewing When the denial of a motion to they paraphernalia contraband and suppress, we review the district court’s discovered, Investigator Dreher imme- findings factual for clear error and the diately suspended the searсh until another legal question of whether the Fourth search warrant could be issued for the Amendment violated de novo. was contraband. Officers did not remove Williams, (8th 577 F.3d suspected contraband located Cir.2009).

the first search. A second search warrant based on the information in obtained A. the first as well as the contra- First, alleges Romo-Corrales during the execution of band discovered application that for the first search A the first search warrant. second search merely subterfuge for ob- was then conducted and the -officers seized warrant was test, liquid positive methamphetamine. Subsequent to a field tested (1978)). to conduct a search tabling authorization 57 L.Ed.2d 667 A drugs at 315 East Similarly, may an officer not submit an upon based a find- valid warrant “must be deliberately affidavit that omits informa- judicial detached offi- ing by a neutral and tion, included, if destroy which would cause to believe probable cer that there is finding probable cause. Id. at 1073 evidence, or fruits of instrumentalities (holding that a warrant remained valid crime, ... may contraband found [or] though even the affidavit оmitted several place in the to be searched.” United facts because the inclusion of such facts Proell, would not have “eliminated the existence Cir.2007) (quotation Probable cause”). “ cause is established when there is a ‘fair the officer’s failure to ad object probability’ that the of the search on-going dress the drug investigation in may place warrant be found not destroy affidavit did searched.” United States v. (quotation necessary for the first search war an general, underly- officer’s rant. See id. at 1072. The affidavit for obtaining motive for the warrant is (1) the first search warrant included that: irrelevant, “[sjubjective as intentions play outstanding arrest warrant existed for ordinary, probable-cause no role in Fourth (2) Martinez, Martinez had been seen en analysis.” Amendment Whren v. United tering exiting Street, 315 East Dodge States, 1769, 517 116 U.S. S.Ct. (3) utility and Martinez was the subscriber (1996); 135 L.Ed.2d 89 see Horton v. Cali- and had paid rent at the residence. We 2301, fornia, 496 ‍​​‌​‌​‌​‌​‌‌​‌​​‌‌‌​‌​​‌​​‌​‌‌‌‌​​‌​​‌‌​​​​​​‌‌‌‍110 U.S. S.Ct. find that this information established a fair (1990) (finding 110 L.Ed.2d 112 that if the probability that either Martinez or officer “has a valid warrant to search for connecting Martinez to 315 East merеly a suspicion one item and concern- Street, would during be discovered second, ing the whether or not it amounts a search of the establishing residence — cause, probable why fail we to see that probable cause to search the residence for suspicion immunize the should second item type that of evidence. The fact that the during from seizure if it is found a lawful suspected officers drug activity at the resi first”); search for the see also United dence is irrelevant to the 573, Roggeman, 580 n. 5 inquiry though for the search. Even (8th Cir.2002) (“[I]t consequence is no officers did not include the drug investiga ‘that the motivation for the search did not affidavit, tion information in the this did justification’ legal coincide with the for the not affеct the indepen cause that States, (quoting search.” Scott v. United dently existed for the venue search of the 138, 1717, 436 U.S. 56 Therefore, residence. (1978))). we find that L.Ed.2d 168 first search warrant regardless was valid However, a search warrant is in of any underlying motives of law enforce “(1) if: valid a law enforcement officer ment. knowingly intentionally, or with reck truth, disregard less included а B. affidavit, false statement in the warrant alleges Romo-Corrales next (2) statement, without the false the first search of the residence exceeded proba affidavit would not have established of the search warrant Neal, and that ble cause.” any therefore evidence discovered (citing F.3d Delaware, 154, 155-56, illegal Franks v. 438 U.S. the search was fruit оf the initial cooler, mirror or behind a per, garage, the Fourth Amendment Although search. dresser, rummaging and underneath exploratory picture, behind prohibits “general, belongings,” Coolidge v. New person’s bed, lawfully in a con- we find that officers 443, 467, 91 S.Ct. Hampshire, 403 U.S. pursuant to the first ducted the search (1971), a lawful L.Ed.2d they these warrant when searched search all where thе items includes areas search locations, and that the evidence discovered found, might be see in the warrant listed illegal fruit of an there was not (“Police may 527 F.3d at 687 search.5 containers, buildings, all lawfully search and vehicles on III. sought in which the contraband searched judgment of Accordingly, we affirm the found.”).

might be denying court the motion to the district permitted suppress. the warrant offi to search for indicia of cers BYE, concurring. Judge, Circuit East connection to 315 as evidence includes items such Venue panel, I in the concur decision See, bills, e.g., Unit receipts, and letters. during the agree the evidence discovered Timley, v. ed States of Romo-Corrales’ home was ad- Cir.2006) (“[A] authorizing warrant pursuant to the inevitable discov- missible to indicia of occu anything to seize related ery doctrine. broad.”); pancy quite is United States express my con- separately I write to (6th 1001, Blakeney, 942 F.2d 1027 Cir. here. cern over the kind of search at issue 1991) (finding occupancy” that “indicia of of in- Putting momentarily aside the issue “any object or other includes document discovery, prеsents this case a evitable identi provide that would tend to the true government issue: whether the difficult ty occupants prem ‍​​‌​‌​‌​‌​‌‌​‌​​‌‌‌​‌​​‌​​‌​‌‌‌‌​​‌​​‌‌​​​​​​‌‌‌‍ of the owners or of the fugi- may, hunting in the course of for ises”). paper of documents types These tive, party the of a third not search home obviously spaces can fit into small and only fugitive for the also for but and, therefore, containers could be hidden occupancy linking fugitive indicia of the to See, in numerous locations in a residence. the home. (find e.g., Blakeney, 942 F.2d at 1027-28 war- relationship The between arrest ing that a warrant issued for “indicia of rant and a search warrant has been ex- occupancy” and other documents and rec plored example, in numerous cases. For permitted ords officers to search inside a acting may on a valid arrest warrant police they ultimately suitcase —where discover evidence). party not enter the home of a third with- drug ed Because venue evi laundry requirement dence could be located in the ham- out a valid search warrant —a investigation Notаbly, at the time of even if the officers had exceeded ternative line of scope of the first search warrant in exam- the constitutional violation.” United cooler, Pruneda, 597, ining 604 the contents of the the inevitable 518 F.3d discovery (quotation the inevitable dis- doctrine validated admission (1) covery applies drug drug prevail under the inev- because: еvidence. To doctrine doctrine, discovery government lawfully itable evidence would have been discovered "(1) through search must that there was a reasonable the execution of the second show: probability specifically authorized a that the evidence would have been warrant' —which contraband, (2) by lawful means in the absence of misconduct, (2) police govern- discovered while officers were that the substantial, searching actively pursuing lawfully the venue evidence. ment was al-

921 dence,” scope law enforcement here. United officers acted within the by met (8th Risse, 212, 83 F.3d 215 Cir. executing the warrant when the search. 1996) States, (citing Steagald v. United 451 See United States v. 527 1642, 204, 215-16, 101 S.Ct. 68 U.S. (8th Cir.2008) (“Police 682, may F.3d 687 (1981)). However, “an arrest L.Ed.2d 38 lawfully containers, buildings, search all implic on warrant founded and vehicles on the authority it the limited to itly carries with sought searched which the contraband dwelling suspect in which the lives enter a found.”). might be suspect to believe the when there is reason York, New 445 U.S. Payton is within.” v. We have cautioned that “a waxrant au- 1371, 63 L.Ed.2d 639 100 S.Ct. thorizing anything officers to seize related (1980). home, the Fourth Once inside occupancy quite to indicia of is broad.” govern Amendment continues to 615, Timley, United States v. 443 F.3d contempo of searches in seizure conducted (8th Cir.2006). We have also stated that example, raneous to arrest. For officers cause, within meaning “[possessing proba an arrest warrant and Fourth require- Amendment’s warrant suspect is] ble cause to believe his [the ment, probability means a fair that contra- home entitled to enter to search [are] band or evidence a crime will be found anywhere the house which sus [the in particular place. See United States v. Buie, might Maryland found.” v. pect] Horn, Cir.1999) 325, 332-33, 494 U.S. S.Ct. added). cases, (emphasis In most search- (1990). addition, L.Ed.2d 276 once in justified for indicia of occupancy by is home, protect safety officer gather need to evidence linking particu- evidence, may preserve search the See, lar to a e.g., crime scene. of an arrestee and the area within person Gamboa, United States v. control. his immediate See Chimel Cali (8th Cir.2006). Here, contrast, by it is fornia, 395 U.S. why government far from clear needed (1969). L.Ed.2d 685 to link place Martinez to the My concern this case stems from the government searched. The had an inter- by granting fact that law enforcement the Martinez, est in arresting doing but so was authority only to search not for the fugi- not him in contingent finding any par- on tive but also for indicia of occu- place. tiсular And while government’s by pancy fugitive, infringing we risk in connecting interest Martinez to the than necessary upon privacy more home slight, to be searched was the intru- innocent parties. third The parties siveness ‍​​‌​‌​‌​‌​‌‌​‌​​‌‌‌​‌​​‌​​‌​‌‌‌‌​​‌​​‌‌​​​​​​‌‌‌‍the search to third was this case illustrates these con- In executing cerns. substantial. mattress, night searched under a behind a Fortunately, we need not resоlve the stand, dirty a hamper clothing, within thorny issue of whether the search war- cooler, and, by removing inside a a bath- by rant supported cause to wall, mirror room from the inside wall. occupancy. search for indicia of For the Quite obviously, most of these locations majority opinion, reasons stated fugitive. could not have hidden a But suppressiоn of the evidence was not neces-

because law enforcement officers were ad- sary this case because law enforcement ditionally searching occupan- for indicia of inevitably officers would have “[documentation, cy, including receipts, or contraband execution items of venue which show Fidel E. Mar- possession tinez’ or domain of the resi- of the second warrant. judg- in the court’s concur

I therefore

ment. OGLESBY, Petitioner-

Daniel

Appellant, BOWERSOX, Respondent-

Michael

Appellee.

No. 09-1864. Appeals, States Court of

Eighth Circuit. 18, 2009. Dec.

Submitted: 29, 2010.

Filed: Jan. En Rehearing Banc

Rehearing March

Denied

Case Details

Case Name: United States v. Romo-Corrales

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jan 28, 2010

Citation: 592 F.3d 915

Docket Number: 09-1072

Court Abbreviation: 8th Cir.