United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3888
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Jesus Cardenas-Celestino, *
*
Appellant. *
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Submitted: October 16, 2007
Filed: January 2, 2008
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Before BYE, BOWMAN, and SMITH, Circuit Judges.
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SMITH, Circuit Judge.
Jesus Cardenas-Celestino was sentenced to 135 months' imprisonment after his
conviction for conspiring to distribute 50 grams or more of methamphetamine.
Pursuant to a conditional plea agreement, Cardenas-Celestino appeals the denial of his
motion to suppress evidence obtained by the government during a search of his home.
We affirm the district court.1
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
I. Background
Kansas City, Missouri, police received information that a Hispanic male was
selling methamphetamine and cocaine at 122 North Elmwood, a local residence, and
detectives began an investigation of that address. At the instruction of law
enforcement, an informant purchased both cocaine and methamphetamine there on
two occasions from a Hispanic male later identified as Lorenzo Marquez. Relying on
these transactions, police obtained a search warrant for the residence.
Officers went to the address to execute the search warrant, but, before executing
the warrant, the officers observed four Hispanic males, including Cardenas-Celestino,
arrive at the residence in a car. Some of the vehicle's occupants went inside. Then,
police detectives saw the target of the investigation, Marquez, exit the residence and
get back into the car. The car then drove off.
The detectives immediately followed and summoned uniformed officers to
intercept and stop the car. After the stop, the officers identified Cardenas-Celestino
as the driver, although he did not have a driver's license. All four passengers were
handcuffed and returned to 122 North Elmwood. During the residence search, police
detained the car's occupants until they could determine if there was anything illegal
in the residence.
During the North Elmwood search, an anonymous informant told police that
Cardenas-Celestino was a major drug dealer and that Cardenas-Celestino had drugs
at his residence. A police detective asked Cardenas-Celestino if he had any drugs or
weapons at his residence, and Cardenas-Celestino responded that he did not. When
asked if he would allow a search of his home, Cardenas-Celestino responded "let's go,
let's do it." The officers interpreted his response as consent to search. Police then took
Cardenas-Celestino to his residence located at 3226 Roberts Street.
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After arriving, the officers again asked Cardenas-Celestino's permission to
search his residence. The officers translated an English consent-to-search form into
Spanish which Cardenas-Celestino signed. During the search of Cardenas-Celestino's
home police recovered $81,840 in cash, 253 grams of methamphetamine, 230 grams
of cocaine, 257 grams of marijuana, two loaded firearms, ammunition, and a digital
scale. After the search, during an interview with detectives, Cardenas-Celestino
admitted possessing the methamphetamine, cocaine, marijuana and cash recovered.
Cardenas-Celestino was charged with four counts including: (1) conspiracy
with intent to distribute 50 grams or more of methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A) and 846; (2) possession with intent to distribute 50
grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A); (3)
unlawful possession of a firearm by an illegal alien, in violation of 18 U.S.C. §§
922(g)(5) and 924(a)(2); and (4) criminal forfeiture, in violation of 21 U.S.C. § 853.
Cardenas-Celestino filed a motion to suppress the items seized from his
residence arguing two grounds: (1) that his consent for the warrantless search was not
voluntary and not freely given but instead was the product of "explicit and implicit
threats"; and (2) that he lacked real or apparent authority to consent to a search of the
house.
A magistrate judge conducted a suppression hearing to address Cardenas-
Celestino's motion. At this hearing, the two detectives involved with the search of
Cardenas-Celestino's home testified, as did Cardenas-Celestino. The testimony
focused mainly on the circumstances of Cardenas-Celestino's consent to search his
home—he testified that his consent was coerced. The traffic stop that preceded the
search was mentioned as part of the chronology of events, but was not discussed
extensively. One of the police detectives testified that the car Cardenas-Celestino was
driving was stopped because the detectives observed their target, Marquez, in the
vehicle, and "we wanted to see what possible affiliation they had with our target."
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The magistrate issued a report and recommendation to deny Cardenas-
Celestino's motion to suppress. The magistrate found that Cardenas-Celestino was
capable of giving consent and that he voluntarily consented to the search of his home.
The report and recommendation did not analyze or discuss the constitutionality of the
initial traffic stop. Cardenas-Celestino filed no objections to this report. On February
17, 2006, the district court adopted the magistrate's report and recommendation and
denied the motion to suppress.
Subsequently, Cardenas-Celestino entered a conditional guilty plea for
conspiracy to distribute 50 grams or more of methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(A) and 846. He also agreed to forfeit to the United
States $81,840 pursuant to 21 U.S.C. § 853. On October 31, 2006, the district court
accepted this plea and sentenced Cardenas-Celestino to 135 months' imprisonment and
entered a final order of forfeiture for the $81,840 seized from his home.
II. Discussion
Cardenas-Celestino appeals the denial of his motion to suppress, arguing that
the district court committed plain error by refusing to suppress the evidence seized
from his residence. Cardenas-Celestino contends that the evidence was the "poisonous
fruit" of an illegal traffic stop. Although Cardenas-Celestino filed a motion to suppress
in the district court, that motion did not contain the issue of the legality of the initial
traffic stop—the motion argued only that Cardenas-Celestino's consent to search was
not voluntary and that he did not have authority to consent to the search.
The government, citing to Federal Rule of Criminal Procedure 12(e), first
argues that Cardenas-Celestino waived the issue of the validity of the traffic stop, even
for plain error review, because he did not raise it in his motion to suppress. But "[w]e
have not yet decided whether the failure to raise a suppression matter in a timely
pretrial motion precludes plain error review." United States v. Eagle, 498 F.3d 885,
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892 (8th Cir. 2007) (internal citations omitted). Assuming without deciding, however,
that plain error review is available, we find Cardenas-Celestino's claim of error fails.
When reviewing under the plain error standard, we will reverse only if there is
(1) error (2) that is plain and (3) that affects the defendant's substantial rights. United
States v. Hance, 501 F.3d 900, 908 (8th Cir. 2007) (quotations and citation omitted).
As we have said, a plain error must be one that is clear and obvious. United States v.
Eagle, 498 F.3d at 892. It is neither clear nor obvious that the initial traffic stop
constituted a constitutional violation.
According to the record, uniformed officers stopped Cardenas-Celestino's car
at the direction of detectives who were in pursuit of the vehicle because Marquez, the
target of their drug investigation, was known to be inside. Police had obtained a search
warrant for Marquez's residence, and they had probable cause to arrest him based
upon controlled drug purchases. When probable cause to arrest exists, police are
authorized to stop a vehicle containing the subject. United States v. Sherrill, 27 F.3d
344, 346–47 (8th Cir. 1994) (affirming denial of a suppression motion because police
had probable cause to arrest defendant when they stopped his car); United States v.
Boyd, 696 F.2d 63, 65–66 (8th Cir. 1982) (affirming denial of a suppression motion
because the police had probable cause to arrest defendant). "Probable cause to make
a warrantless arrest exists when police officers have trustworthy information that
would lead a prudent person to believe that the suspect has committed a crime."
United States v. Sherrill, 27 F.3d at 347.
In this case, trustworthy information existed that would lead a prudent person
to believe Marquez had committed a crime. Marquez had previously sold drugs to a
police informant on two occasions. The police informant who purchased drugs from
Marquez was searched before and after both sales, and the sales were electronically
recorded and monitored to ensure that the informant had actually purchased the drugs
from Marquez. When the officers were at 122 Elmwood—the target
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residence—before executing the search warrant, they observed Marquez leave the
residence and get into the car driven by Cardenas-Celestino. We conclude the record
in this case would support a finding of probable cause to arrest Marquez.
After the traffic stop, police discovered that Cardenas-Celestino was driving
without a driver's license. At that point, probable cause existed for the officers to
arrest Cardenas-Celestino. United States v. Stephens, 350 F.3d 778, 780 (8th Cir.
2003). Because probable cause existed to arrest Marquez and stop the vehicle he
occupied, which led to probable cause to arrest Cardenas-Celestino for driving without
a license, we cannot conclude that it was plain error to admit evidence seized during
the search of Cardenas-Celestino's home.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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