FILED
NOT FOR PUBLICATION JUL 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30377
Plaintiff - Appellee, D.C. No. 3:08-cr-00205-MO-10
v.
MEMORANDUM *
NORMA LILIA RUEDA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted July 16, 2010**
Portland, Oregon
Before: PREGERSON, WARDLAW and RAWLINSON, Circuit Judges.
Norma Lilia Rueda appeals her conviction for numerous drug-related crimes
arising out of a conspiracy to distribute cocaine and methamphetamine. The sole
issue on appeal is whether the district court erred in denying Rueda's pre-trial
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
motion to suppress evidence obtained pursuant to a search warrant executed one
month after law enforcement authorities observed Rueda arranging and executing a
drug transaction with another member of the conspiracy. See United States v.
Jensen, 425 F.3d 698, 704 (9th Cir. 2005) (district court's denial of a motion to
suppress is reviewed de novo as to issues of law and for clear error as to findings
of fact). We have jurisdiction under 28 U.S.C. y 1291, and we affirm.
Considering the totality of the circumstances, the affidavit supporting
issuance of the warrant shows that there was 'a fair probability that contraband or
evidence of a crime' would be found in Rueda's home. United States v.
Fernandez, 388 F.3d 1199, 1252 (9th Cir. 2004); see also United States v. Kelley,
482 F.3d 1047, 1050 (9th Cir. 2007) ('Neither certainty nor preponderance of the
evidence is required.'), cert. denied, 128 S. Ct. 877 (2008):
First, the sixty-four page affidavit supporting the application for the warrant
provided a detailed summary of the authorities' ongoing investigation into a drug
distribution conspiracy in which Rueda was implicated. See, e.g., United States v.
Terry, 911 F.2d 272, 275 (9th Cir. 1990) (permitting 'reasonable inferences about
where evidence is liµely to be µept based on the nature of the evidence and the type
of offense'); Fernandez, 388 F.3d at 1254 (permitting 'the reasonable inference
that in the case of drug dealers, evidence is liµely to be found where the dealers
2
live'). Where, as here, an affidavit establishes the existence of an ongoing
narcotics operation, staleness arguments lose much of their force. United States v.
Leasure, 319 F.3d 1092, 1099 (9th Cir. 2003).
Second, the affidavit specified that the police investigation had resulted in a
grand jury indictment against Rueda and twelve other defendants for drug-related
activity. Though the indictment is not itself an adequate substitute for articulable
facts in the affidavit supporting the warrant, it may be considered along with other
facts in determining whether probable cause exists. See United States v. Rubio,
727 F.2d 786, 795 (9th Cir. 1983).
Third, a police officer with fifteen years of experience and five-hundred
hours of specialized training swore under oath that he had probable cause to
believe that evidence would be found in Rueda's home. We may rely on
experienced law enforcement officers' conclusions as to where evidence of a crime
is liµely to be found. See United States v. Terry, 911 F.2d at 275.
Finally, the affidavit contained a detailed account of a one-day surveillance
operation during which Rueda arranged for two drug transactions and explained to
her co-defendant that the drugs were needed for resale to out-of-town customers.
See, e.g., United States v. Crews, 502 F.3d 1130, 1140 (9th Cir. 2007) ('[I]t is
reasonable to believe that ammunition, cleaning µits, cases, and other evidence of
3
firearm possession would have still been present at Apartment 3 after only twelve
days even if the .22 revolver was discarded. One may infer that equipment
acquired to accomplish a crime will be µept for some period of time.' (internal
quotation marµs omitted)); Leasure, 319 F.3d at 1099 ('Agents had observed the
property in January and March of 1998 and seen objects consistent with the
manufacture of methamphetamine.').
AFFIRMED.
4
FILED
U.S. v. Rueda, Case No. 09-30377 JUL 16 2010
Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
I concur in the result.