FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 22, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 05-5072
(D. Ct. No. 04-CR-37-CVE)
LEONARDO CASTILLO-MARQUEZ, (D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
Defendant-Appellant Leonardo Castillo-Marquez entered a conditional guilty plea
to possessing, with intent to distribute, 500 grams of cocaine in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(ii), in which he preserved his right to appeal the denial of his
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
motion to suppress evidence. Mr. Castillo-Marquez now appeals the District Court’s
order denying his motion to suppress evidence obtained from his home by way of a
search warrant. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.
I. BACKGROUND
On approximately February 9, 2004, Tulsa police officer William Wolthuis met
with a confidential informant who agreed to place a phone call to Mr. Castillo-Marquez
for the purpose of purchasing cocaine. Before the meeting took place, Officer Wolthuis
searched informant’s vehicle and the informant himself for any drugs or other contraband
and found none. Following this search, Officer Wolthuis gave the informant money to
buy the cocaine. Thereafter, the informant met Mr. Castillo-Marquez at a predetermined
destination while officers conducted surveillance of the meeting.
After officers witnessed the informant give Mr. Castillo-Marquez the money, Mr.
Castillo-Marquez drove away. The informant then contacted the officers and stated that
Mr. Castillo-Marquez instructed him to wait there while he retrieved the cocaine.
Officers who were following Mr. Castillo-Marquez saw him pull up to a residence at
7835 E. Marshall. Upon arrival, Mr. Castillo-Marquez entered the home with a key and
stayed inside for approximately two to three minutes. At this point, Officer Wolthuis ran
the tag of the car Mr. Castillo-Marquez was driving and learned that it was registered to
him at the 7835 E. Marshall address. He also conducted a utilities check on the home and
learned that service was in Mr. Castillo-Marquez’s name and had been since December
2003.
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When Mr. Castillo-Marquez returned to the meeting place he handed an item to the
informant which the informant later turned over to police. The item contained white
powder which tested positive for cocaine. After witnessing the informant’s phone call to
and subsequent meeting with Mr. Castillo-Marquez, learning of the conversation between
the two men, and following Mr. Castillo-Marquez to the address on the vehicle
registration, Officer Wolthuis suspected Mr. Castillo-Marquez went to 7835 E. Marshall
to obtain the cocaine he later sold to the informant. Officer Wolthuis prepared an
affidavit for a search warrant, and the warrant was issued on February 12, 2004. After
executing the search warrant at 7835 E. Marshall the following day, officers recovered
over 500 grams of cocaine and arrested Mr. Castillo-Marquez.
II. DISCUSSION
A. Standard of Review
When reviewing the denial of a motion to suppress, this court examines the totality
of circumstances and reviews the evidence in the light most favorable to the government.
United States v. Gay, 240 F.3d 1222, 1225 (10th Cir. 2001). Furthermore, we accept the
district court’s factual findings unless they are clearly erroneous. Id. We review de novo
a district court’s determination that a search or seizure is reasonable under the Fourth
Amendment. United States v. Wallace, 429 F.3d 969, 974 (10th Cir. 2005).
B. Merits
Under the Fourth Amendment, “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched,
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and the persons or things to be seized.” U.S. Const. amend. IV. “An affidavit establishes
probable cause for a search warrant if the totality of the information it contains establishes
the ‘fair probability that contraband or evidence of a crime will be found in a particular
place.’” United States v. Soderstrand, 412 F.3d 1146, 1152 (10th Cir. 2005) (quoting
United States v. Rice, 358 F.3d 1268, 1274 (10th Cir. 2004)). Mr. Castillo-Marquez
argues that the information contained in Officer Wolthuis’ affidavit does not satisfy this
standard and therefore renders the search warrant invalid. We disagree. Based on the
factual evidence contained in Officer Wolthuis’ affidavit that he and other officers: (1)
witnessed the confidential informant give money to Mr. Castillo-Marquez for the express
purpose of purchasing cocaine; (2) learned that Mr. Castillo-Marquez told the informant
he would be right back with the drugs; (3) followed Mr. Castillo Marquez to his home
where he entered for two to three minutes; and (4) witnessed Mr. Castillo-Marquez return
directly to the informant with cocaine, the totality of information certainly establishes a
fair probability that cocaine would be found in Mr. Castillo-Marquez’s home.
Mr. Castillo-Marquez next argues that the affidavit lacked information sufficient to
establish a nexus between the cocaine sought by law enforcement and Mr. Castillo-
Marquez’s home. It is well-established that “probable cause requires a nexus between the
place to be searched and the items to be seized.” United States v. Nolan, 199 F.3d 1180,
1183 (10th Cir. 1999). This Court has understood that to establish this nexus, it is not
required that law enforcement obtain direct evidence or personal knowledge that the
contraband sought is actually located at the place to be searched. See id. Rather, an
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affidavit establishes this nexus when it describes circumstances that “would warrant a
man of reasonable caution to believe that the articles sought were located at [the
defendant]’s residence.” United States v. Rahn, 511 F.2d 290, 293 (10th Cir. 1975). In
this case, Mr. Castillo-Marquez told the informant to stay at the meeting place where he
would return with cocaine. After this, Mr. Castillo-Marquez drove directly home, stayed
in his house for a short period of time, and returned directly to the informant with the
cocaine. Any person of reasonable caution would believe, in light of these facts, that Mr.
Castillo-Marquez returned to 7835 E. Marshall for the purpose of picking up cocaine.
Thus, the affidavit was sufficient to establish the requisite nexus between the cocaine
sought by law enforcement and Mr. Castillo-Marquez’s home.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the District Court’s order denying Mr.
Castillo-Marquez’s motion to suppress.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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