United States v. Bedolla

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 16, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,

v. No. 06-3225
(D.C. No. 04-CR-40001-SAC)
M A RIA N O BED O LLA , (D . Kan.)

Defendant-Appellant.

OR D ER AND JUDGM ENT *

Before BR ISC OE, M cKA Y, and GORSUCH, Circuit Judges.

Defendant M ariano Bedolla is serving a 235-month prison sentence after

being found guilty of four drug-related offenses, including possession and

conspiracy to distribute methamphetamine. He challenges his convictions on

appeal, arguing that the district court erred in denying his pre-trial motion to

suppress evidence seized in violation of his Fourth Amendment rights. He claims

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
that one of the search warrants lacked probable cause and that police officers

went beyond the scope of the warrant. Because we conclude that the police

executed the challenged search warrant in good faith under United States v. Leon,

468 U.S. 897 (1984), we exercise our jurisdiction under 28 U.S.C. § 1291 to

AFFIRM .

I. Factual Background

A. First Search Warrant

On January 8, 2004, Special Agent Brian Carroll of the Kansas Bureau of

Investigation applied for a search warrant to search the defendant’s home at

10782 Kettle W ay in Dodge City, Kansas for paraphernalia used in the packaging

and distribution of methamphetamine. In support of his request, SA Carroll

submitted a sworn affidavit that primarily detailed the drug trafficking activities

of defendant’s brother, Felipe Bedolla, but included several allegations linking

defendant to those activities.

The affidavit states that on December 4, 2003, a cooperating individual

(“CI”) who sold methamphetamine for Felipe 1 told officers of the Emporia Police

Department (“EPD”) that Felipe was in Emporia to collect money for previous

sales of methamphetamine and that he was staying at local motel. Based on that

tip, EPD officers found Felipe’s car at a motel and witnessed Felipe and a man

1
W e will refer to Felipe Bedolla by his first name so as not to confuse him
with the defendant.

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later determined to be defendant get into the car and drive to the CI’s home,

where the CI paid money to Felipe. The police then followed Felipe and

defendant to a bank where Felipe made a deposit. A week later, on December 11,

2003, the police intercepted a phone call between Felipe and the CI in which

Felipe told the C I that he was on his way to Emporia to deliver more

methamphetamine. Over the course of the next two days, an undercover agent

accompanied the CI to his meetings with Felipe and witnessed the two exchanging

money and methamphetamine.

The affidavit continues that on January 5, 2004, defendant was arrested

along with Felipe, Juan Carlos Verducco-Camarena, and others on drug charges

relating to an ongoing narcotics investigation. The affidavit states that at the time

of their arrest, the Bedolla brothers had been in Emporia for two days trying to

collect money from the CI. W hen defendant was booked into the county jail, he

listed 10782 Kettle W ay as his permanent address. The affidavit goes on to

describe a January 6, 2004, police interview of someone whose name has been

redacted. W e cannot tell from the record or the parties’ briefs w hether this

unknown person is Verducco-Camarena or the CI or, indeed, whether they are one

and the same. In any event, this person told the officers conducting the interview

that he had been selling methamphetamine for Felipe in the Emporia area for 8 or

9 months. He said that Felipe traveled from Dodge City to Emporia every Sunday

to collect money and deliver methamphetamine and that sometimes defendant

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accompanied Felipe on these trips. This same person also described the location

of w hat he believed to be Felipe’s home in D odge City, which one of the officers

familiar with the area recognized as 10782 Kettle W ay. The person also told the

officers that Felipe told him that defendant assisted Felipe in cutting the

methamphetamine. He further “advised that the [cutting] took place in the

basement of Felipe’s home on Kettle W ay.” R. doc. 27 at A4. 2

Based on this information a magistrate judge issued a warrant at 4:00 p.m.

on January 8, 2004, authorizing a document search of the Kettle W ay residence.

It specifically identified the following items to be searched for and seized:

Documents, recipes, notes, books, and pamphlets, evidence of ownership,
control and occupancy of the property . . . records of drug sales distribution
and production, activities and confederates . . . records of drug proceeds
and/or the proceeds themselves . . . weapons.

Id. at A6. According to the warrant return, dated January 9, 2004, the search was

executed at 5:14 p.m. on January 8 and completed at 11:00 p.m. In addition to

documents and drug paraphernalia, officers found methamphetamine, which is

listed as seized property in the warrant return.

2
The parties vigorously dispute whether the person referenced in SA
Carroll’s affidavit personally observed defendant cutting the methamphetamine or
whether this information is hearsay obtained from Felipe. It is not relevant to our
disposition, however, because, as we explain below, we can affirm the district
court’s ruling without deciding whether SA Carroll’s affidavit was sufficient to
establish probable cause.

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B. Second Search Warrant

After methamphetamine was found in the defendant’s home, SA Carroll

prepared another affidavit, also dated January 8, 2004, specifically requesting a

warrant to search the K ettle W ay residence for “[methamphetamine], drug use

paraphernalia and other illegal drugs.” Id. at A13. A second warrant issued at

8:12 p.m. on January 8, 2004, apparently while the initial search of defendant’s

home was ongoing, and identified methamphetamine among the items that could

be seized. The return for this second warrant, dated January 9, 2004, makes clear

that the two warrants were executed simultaneously. It states that the search

pursuant to the second warrant was executed on January 8, 2004, at 8:20 p.m. and

was completed at 11:00 p.m. M oreover, the description of the methamphetamine

found in defendant’s home is identical in both the first and second warrant

returns.

C. M otion to Suppress

On April 5, 2004, defendant filed a motion to suppress the

methamphetamine seized from his home, raising the following arguments: (1) he

argued that SA Carroll’s first affidavit lacked information concerning the

credibility and reliability of the CI and specifically lacked independent

corroboration of the CI’s statement that he assisted Felipe in cutting

methamphetamine; (2) he argued the first search warrant was based on stale

information; (3) he accused SA Carroll of submitting an affidavit that contained

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erroneous and tainted information designed to mislead the issuing judge; (4) he

claimed the seizure of methamphetamine from his home exceeded the scope of the

first warrant; and (5) he argued the Leon good-faith exception did not apply

because the issuing judge was deliberately misled, the warrant lacked specificity,

and SA Carroll’s affidavit lacked any indicia of probable cause.

Although the district court rejected each of the above arguments, defendant

asserts error only with respect to the first and fourth. The court rejected his first

argument, explaining that not every piece of information obtained from an

informant requires independent verification. It went on to note that many of the

CI’s statements in this case were independently verified, including his statement

that Felipe was in Emporia on December 4, 2003, and could be found at a local

motel. The court concluded that the information provided by SA Carroll “enabled

the magistrate to judge the validity of the informant’s information, and showed

some independent verification of the information given officers by the CI.” R.

doc. 103 at 10.

The court also rejected defendant’s argument that the executing officers

exceeded the scope of the first warrant by seizing methamphetamine, concluding

that there was a logical nexus between the drugs and the terms of the first

warrant. See U nited States v. Gentry, 642 F.2d 385, 387 (10th Cir. 1981) (holding

that items are admissible “[w]hen a logical nexus exists between seized but

unnamed items and those items listed in the warrant”). It also held that under the

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“practical accuracy” standard applicable to search warrants, United States v.

Ortega-Jiminez, 232 F.3d 1325, 1328 (10th Cir. 2000) (quotation omitted), the

first search warrant could be read to include drugs among the items that could be

seized if found. And in any event, the court concluded that defendant failed to

show that the officers had actually seized, as opposed to simply secured, the

methamphetamine during the first search. Finally, the court held that even if the

first warrant lacked probable cause, the first search was nonetheless valid under

Leon, stating that it had “reviewed the four exceptions to Leon’s applicability, and

[found] them inapplicable.” R. doc. 103 at 19.

As we already mentioned, the defendant does not appeal all of the district

court’s rulings. He challenges only the court’s determination that the first

warrant was supported by probable cause and its finding of a logical nexus

between the first warrant and the drugs seized. Specifically, he argues that SA

Carroll’s first affidavit contained no information about the credibility and

reliability of the CI, nor any independent verification of the CI’s statements,

including his statement regarding defendant’s involvement in cutting

methamphetamine.

II. Discussion

“In reviewing the denial of a motion to suppress, this court views the

evidence in the light most favorable to the government and upholds the district

court’s factual findings unless clearly erroneous.” United States v. Danhauer,

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229 F.3d 1002, 1005 (10th Cir. 2000). W e review the district court’s conclusions

of law de novo, including its determinations relating to sufficiency of a warrant

and whether the Leon good-faith exception should apply. Id.

Not all cases require us to resolve the Fourth Amendment question of

whether a particular warrant was supported by probable cause. In some cases,

resolution of the Fourth Amendment question is “necessary to guide future action

by law enforcement officers and magistrates.” Id. (quotation omitted). In more

routine cases, however, those that pose no important Fourth Amendment

questions, we have discretion to proceed directly to the Leon good-faith analysis.

See Leon, 468 U.S. at 925 (holding that reviewing courts have discretion to turn

directly to the good-faith issue). W e conclude this case falls in the latter

category. As such, we need not decide whether SA Carroll’s first affidavit

contained sufficient facts to lead the magistrate to believe that a search of the

defendant’s home would uncover evidence of criminal activity. See Danhauer,

229 F.3d at 1006. Likew ise, our disposition does not depend on whether the CI’s

veracity and basis of knowledge were sufficiently verified.

In Leon, the Court explained that

[i]f the purpose of the exclusionary rule is to deter unlawful police
conduct, then evidence obtained from a search should be suppressed
only if it can be said that the law enforcement officer had knowledge,
or may properly be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment.

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468 U.S. at 919 (quotation omitted). The Court therefore created an exception to

the exclusionary rule for evidence obtained pursuant to an unlawful search if the

officers executed the search with objective good faith, relying on a search warrant

issued by a neutral judge or magistrate. See id. at 919-21. In determining

whether to apply the exception, our inquiry is “confined to the objectively

ascertainable question whether a reasonably well trained officer would have

known that the search was illegal despite the magistrate’s authorization.” Id. at

922 n.23. The Leon Court recognized four circumstances in which the exception

would not apply because the officer would “have no reasonable grounds for

believing that the warrant was properly issued.” 468 U.S. at 923.

First, evidence should be suppressed if the issuing magistrate was
misled by an affidavit containing false information or information
that the affiant would have known w as false if not for his reckless
disregard of the truth. Second, the exception does not apply when
the issuing magistrate wholly abandoned his judicial role. Third, the
good-faith exception does not apply when the affidavit in support of
the warrant is so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable. Fourth, the
exception does not apply when a warrant is so facially deficient that
the executing officer could not reasonably believe it was valid.

Danhauer, 229 F.3d at 1007 (quotations and alterations omitted).

Although defendant does not directly challenge the district court’s

good-faith determination, his arguments attacking the reliability of the informant

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implicate the third exception recognized in Leon. 3 W e conclude, however, that

SA Carroll’s affidavit was not so lacking in indicia of probable cause as to

convince a reasonably well-trained officer that the search was illegal. See

Danhauer, 229 F.3d at 1007. W e have previously explained that “the absence of

information establishing the informant’s reliability or basis of knowledge does not

necessarily preclude an officer from manifesting a reasonable belief that the

warrant was properly issued, particularly when the officer takes steps to

investigate the informant’s allegation.” Id. (citation omitted). Furthermore, an

officer is not required to corroborate information provided by an informant

through personal observation. See United States v. M athis, 357 F.3d 1200, 1204

(10th Cir. 2004). It is enough if the officer simply has “knowledge of other

matters that reasonably corroborate the informant’s statements.” Id. Finally, w e

have held that good faith can be established so long as a minimal nexus exists

betw een the place to be searched and the suspected criminal activity. See United

States v. Gonzales, 399 F.3d 1225, 1231 (10th Cir. 2005).

SA Carroll’s affidavit supplied sufficient information to justify his reliance

on the informant’s statements concerning defendant’s involvement in Felipe’s

drug trafficking. Certainly, there was sufficient independent evidence that Felipe

3
Defendant raised some arguments in the district court bearing on the first
exception, but he abandoned and thus waived those arguments on appeal.
Likewise, his appellate brief lacks any arguments relating to the second and
fourth exceptions recognized in Leon.

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himself was engaged in the trafficking of methamphetamine. The affidavit

described an intercepted phone call between the informant and Felipe in which the

two discussed a drug deal, and an undercover agent witnessed Felipe and the

informant exchanging methamphetamine for cash. There was also independent

verification that defendant was at least minimally involved in some of Felipe’s

drug trafficking. The police witnessed him accompanying Felipe on at least one

drug transaction, after which the two went to a bank to deposit money. And of

course, the informant stated that defendant assisted Felipe in cutting

methamphetamine. Defendant’s residence on Kettle W ay is tied to these

transactions. The informant stated that he believed Felipe also lived in the house

and used it to prepare the methamphetamine. W e therefore conclude that SA

Carroll, who both obtained and participated in the execution of the warrant,

reasonably believed the fruits of his investigation into the informant’s allegations

sufficiently linked defendant to Felipe’s criminal activities and the Kettle W ay

residence.

W e further conclude that officers acted in good faith in seizing

methamphetamine despite the limited scope of the first warrant. The seized drugs

unquestionably bore a reasonable relation to the drug paraphernalia listed in the

warrant and there was therefore a logical nexus between the two, which justified

the seizure. See G entry, 642 F.2d at 387. M oreover, it is far from clear from the

record that the drugs were actually seized pursuant to the first warrant and not the

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second. Upon finding the drugs, SA Carroll applied for another warrant, which

appears to have been issued before the first search was even completed. It

confuses matters that the warrant returns for both searches contain identical

descriptions of the seized drugs. W e nonetheless conclude based on the totality

of the circumstances, including the timeliness of the second warrant, that Leon’s

good faith exception applies to the officers’ seizure of the methamphetamine. A s

a result, the district court did not err in denying defendant’s motion to suppress.

A FFIR ME D.

Entered for the Court

M ary Beck Briscoe
Circuit Judge

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