FILED
United States Court of Appeals
Tenth Circuit
January 10, 2012
Elisabeth A. Shumaker
Clerk of Court
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-3331
FELIPE RUIZ,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 6:10-CR-10032-MLB-1)
Kurt P. Kerns of Ariagno, Kerns, Mank & White of Wichita, Kansas, for
Defendant-Appellant.
David M. Lind, Assistant United States Attorney (Barry R. Grissom, United
States Attorney, with him on the brief), District of Kansas, Wichita, Kansas, for
Plaintiff-Appellee.
Before LUCERO, SEYMOUR, and EBEL, Circuit Judges.
SEYMOUR, Circuit Judge.
Felipe Ruiz conditionally pled guilty to possessing with intent to distribute
five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1). He
reserved his right to appeal the district court’s denial of his motions to suppress
evidence. On appeal, he contends the district court erred in refusing to suppress
evidence seized from a rented airplane and from his former residence. We affirm.
I.
A.
On January 20, 2010, Mr. Ruiz flew a rented airplane from Las Cruces,
New Mexico, and landed in Liberal, Kansas. The Air and Marine Operations
Center (AMOC) is a radar monitoring and coordination facility affiliated with the
Department of Homeland Security that monitors civilian air space for the purpose
of detecting suspicious flights and criminal activity in private aviation. During
Mr. Ruiz’s flight, employees of AMOC concluded the flight was suspicious.
They based this conclusion on their observations that Mr. Ruiz had not filed a
flight plan in marginal weather, and the fact that an aircraft carrying drugs had
landed in Liberal six months earlier. AMOC contacted an agent with Immigration
and Customs Enforcement (ICE) to communicate these suspicions.
As Mr. Ruiz was landing, an ICE agent contacted Lyddon Aero Center, the
fixed base operator at the airport in Liberal, and asked the receptionist, Megan
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Parmenter, to report any suspicious behavior by Mr. Ruiz. When Mr. Ruiz came
into the Lyddon Aero Center lobby, he paid Ms. Parmenter with cash for fuel and
for storing the plane overnight in Lyddon’s hangar.
It is not unusual for transient airplanes belonging to customers to be stored
in Lyddon Aero Center’s north hangar. Customers and employees have access to
the north hangar during the day, but the facility is closed to customers at night.
Mr. Ruiz’s airplane was placed in the north hangar along with airplanes owned by
other customers, as well as some owned by Bill Lyddon, one of Lyddon Aero
Center’s co-owners. Lyddon Aero Center is surrounded by a chain link fence and
the north hangar is accessible through a coded gate or through the office.
After Mr. Ruiz left to stay in a local hotel, Ms. Parmenter spoke with the
ICE agent, told him that Mr. Ruiz had paid in cash, and explained that it was
unusual for customers to pay in cash. The ICE agent told Ms. Parmenter that
there was a Kansas Bureau of Investigation (KBI) office in Liberal, and that he
would send agents and a drug dog to Lyddon Aero Center. Ms. Parmenter
subsequently called Mr. Lyddon to explain the situation. He instructed her to
provide the officers and drug dog with access to the north hangar.
Shane Finely, a KBI special agent, went to Lyddon Aero Center and spoke
with Ms. Parmenter. She told the agent that Mr. Ruiz paid in cash and that his
airplane was in the north hangar. Mr. Finely asked to see the hangar, and Ms.
Parmenter escorted him to it. After examining the airplane and finding it to be
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locked, Mr. Finely contacted the sheriff’s office in nearby Beaver County,
Oklahoma, to request the assistance of a drug detection dog.
Sheriff Rueben Parker arrived soon thereafter with Kilo, his drug dog. At
the time, Kilo was certified by the State of Oklahoma to detect heroin, cocaine,
methamphetamine, and marijuana. Kilo was also certified by the National
Narcotic Detector Dog Association located in San Marcos, Texas. When Kilo was
deployed around the plane, he alerted several times to the presence of a narcotic
in the plane. Mr. Finely obtained a search warrant and returned to the hangar.
Mr. Lyddon provided a bucket of spare keys, one of which opened the door of the
plane. Inside, Mr. Finely found a suitcase containing 28 bundles of kilo-sized
packages of cocaine.
B.
Beginning in January 2008, Mr. Ruiz rented a house in Norwich,
Connecticut from Richard Oraskovich. On February 5, 2010, Mr. Oraskovich
received a letter from Mr. Ruiz, dated January 18 stating that as of January 31 he
would no longer be renting the home because he had unexpectedly relocated to
Phoenix, Arizona. In the letter, Mr. Ruiz told Mr. Oraskovich he could keep the
down payment and furniture, but he requested that Mr. Oraskovich store his
electronics, documents, and clothing until he could return. A few days later, Mr.
Oraskovich received another letter that was essentially identical to the first one.
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On the afternoon of February 5, Mr. Oraskovich’s wife went to the rental
house with a locksmith because Mr. Ruiz had changed the lock. The locksmith
had to drill out the lock because it was tamper-proof. After finding several
thousand dollars in the downstairs bathroom, Mrs. Oraskovich called her husband.
When he arrived at the residence, Mr. Oraskovich found two wooden crates in the
garage, clothes all over the bedroom, and flight plans and manuals in the study.
Believing that something was wrong, he contacted the Norwich Police
Department (NPD).
Several NPD officers responded, and Mr. Oraskovich asked them to search
the residence. During their search, one of the officers noticed on a rafter in the
basement ceiling what looked like kilo packages of drugs. One of them was
partially open and contained a white powdery substance that appeared to be
cocaine. The officers contacted NPD detectives, who acquired a search warrant.
During the subsequent search they seized packages of cocaine, $8,700 in cash,
money counters, computer equipment, and a safe. Sometime later, federal law
enforcement officers obtained a second search warrant and performed an
additional search of the residence.
C.
Mr. Ruiz filed separate motions to suppress the evidence seized during the
searches of the airplane and the rental house. After an evidentiary hearing, the
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district court denied both motions.
II.
Mr. Ruiz first contends the district court erred when it denied his motion to
suppress the evidence obtained from the search of the airplane. In his motion,
Mr. Ruiz relied on Franks v. Delaware, 438 U.S. 154 (1978), and argued the
affidavit for search of the airplane recklessly omitted two types of material
information that would have altered the probable cause determination. Mr. Ruiz
asserted the affidavit omitted information that would have demonstrated his
reasonable expectation of privacy in the north hangar. He also contended the
affidavit omitted information that would have undermined the reliability of Kilo’s
positive alerts near the airplane.
Under Franks v. Delaware, 438 U.S. 154, 155-56 (1978),
[w]e exclude evidence discovered pursuant to a search warrant when
(1) a defendant proves by a preponderance of the evidence “the
affiant knowingly or recklessly included false statements in or
omitted material information from an affidavit in support of a search
warrant and (2) after excising such false statements and considering
such material omissions we conclude the corrected affidavit does not
support a finding of probable cause.”
United States v. Campbell, 603 F.3d 1218, 1228 (10th Cir. 2010) (quoting United
States v. Garcia-Zambrano, 530 F.3d 1249, 1254 (10th Cir. 2008) (alterations
omitted); see also United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir.
1997). “The standards of deliberate falsehood and reckless disregard set forth in
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Franks apply to material omissions as well as affirmative falsehoods.” United
States v. McKissick, 204 F.3d 1282, 1297 (10th Cir. 2000). An omission is
material if it is “so probative as to negate probable cause.” Stewart v. Donges,
915 F.2d 572, 582 n.13 (10th Cir. 1990).
When we review a district court’s denial of a motion to suppress, we
review de novo the district court’s ultimate determination of reasonableness under
the Fourth Amendment, but we accept the district court’s factual findings unless
they are clearly erroneous and we view the evidence in the light most favorable to
the prevailing party. United States v. Avery, 295 F.3d 1158, 1167 (10th Cir.
2002). “Specifically, we review for clear error the district court’s findings
regarding the truth or falsity of statements in the affidavit and regarding the
intentional or reckless character of such falsehoods.” Garcia-Zambrano, 530
F.3d at 1254. “Whether a corrected affidavit supports a finding of probable cause
is a question of law that we review de novo.” Id.
A.
The district court found that Mr. Ruiz had no reasonable expectation of
privacy in the north hangar. In making this finding, the court relied on United
States v. Porter, 701 F.2d 1158, 1164-65 (6th Cir. 1983), where the Sixth Circuit
held that a defendant had no expectation of privacy in an airplane hangar he did
not control, even though he had permission to use it occasionally. The district
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court emphasized that Lyddon Aero Center is open to the public during business
hours; the north hangar is a community hangar used to store aircraft and
equipment for Mr. Lyddon and his customers; Mr. Lyddon maintains control over
the hangar and gave officers permission to enter it; and while employees and
customers have access to the hangar during the day, customers do not have access
after business hours. The court noted that while Mr. Ruiz had permission to store
the airplane in the hangar, he presented no evidence establishing that he
maintained control over the hangar.
A search only violates an individual’s Fourth Amendment rights if he or
she has a “legitimate expectation of privacy in the area searched.” United States
v. Anderson, 154 F.3d 1225, 1229 (10th Cir. 1998). In determining whether Mr.
Ruiz had a legitimate expectation of privacy in the north hangar, we consider two
factors: (1) “whether the defendant manifested a subjective expectation of privacy
in the area searched” and (2) “whether society is prepared to recognize that
expectation as objectively reasonable.” United States v. Allen, 235 F.3d 482, 489
(10th Cir. 2000) (internal quotation marks omitted). We agree with the Sixth
Circuit that a defendant has no objectively reasonable expectation of privacy in a
hangar that he does not control. Porter, 701 F.2d at 1164-65. Here, Mr. Lyddon
maintained control over the hangar at all times, the hangar stored aircraft and
equipment for Mr. Lyddon and other customers, and Mr. Ruiz had no access to
the hangar after business hours. Even if Mr. Ruiz had a “subjective expectation
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of privacy” in the hangar, it was not an “objectively reasonable” one. See Allen,
235 F.3d at 489.
Mr. Ruiz correctly contends the affidavit omitted information concerning
the security of the hangar that is arguably relevant to whether he had a legitimate
expectation of privacy in it. Specifically, the affidavit did not state that Mr. Ruiz
paid to store the airplane in the hangar, that the hangar itself was only accessible
to Lyddon Aero Center employees or other customers, and that the facility was
located on fenced property accessible only through a coded gate. Even if this
information had been included, however, it is not “so probative as to negate
probable cause,” Stewart, 915 F.2d at 582 n.13, because it does not establish that
Mr. Ruiz had a legitimate expectation of privacy in the hangar in the
circumstances of this case.
Mr. Ruiz urges us to find he had a reasonable expectation of privacy in the
hangar comparable to a tenant’s expectation of privacy in his rented house or a
motel occupant’s expectation of privacy in his motel room. See, e.g., Stoner v.
California, 376 U.S. 483, 487-90 (1964) (holding that search of hotel room
without a search warrant and without consent of absent guest was unlawful, even
though hotel clerk had consented to search); Chapman v. United States, 365 U.S.
610, 615-18 (1961) (holding that police officers’ warrantless search of rented
home, with consent of landlord but not tenant, violated tenant’s Fourth
Amendment rights). But this case is quite different because Mr. Ruiz stored the
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airplane in a hangar entirely controlled by Mr. Lyddon. And unlike the occupant
of a rented home or motel room, Mr. Ruiz shared the hangar space with other
Lyddon Aero Center customers. If anything, this case is more analogous to
Minnesota v. Olson, 495 U.S. 91 (1990), where the Supreme Court held that “an
overnight guest has a legitimate expectation of privacy in his host’s home,” but
“[t]he host may admit or exclude from the house as he prefers.” Id. at 98-99.
Thus, even if we assume that Mr. Ruiz had an expectation of privacy in the
hangar akin to that of a houseguest, Mr. Lyddon as the owner could nevertheless
admit law enforcement officials into the hangar.
Finally, Mr. Ruiz cites two cases involving parking lots which, he claims,
support his argument that he had a legitimate expectation of privacy in the
hangar. In United States v. Ludwig, 10 F.3d 1523 (10th Cir. 1993), we held that a
defendant had no reasonable expectation of privacy in a motel parking lot that
“was open and visible from the public roads bordering it,” where the defendant
“produced no evidence that the lot was fenced, that a gate prevented unauthorized
entry, or even that signs restricted entry to the parking lot.” Id. at 1526. The
parking lot was patrolled by law enforcement officers and drug dogs with
permission from the motel manager. Id. at 1525. Ludwig is of no help to Mr.
Ruiz. There, as here, police were present with the owner’s permission. Id. The
mere fact that the defendant in Ludwig lacked a legitimate expectation of privacy
in an unfenced, open parking lot does not imply that Mr. Ruiz had a privacy
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interest in a fenced hangar that he shared with the hangar’s owner and other
customers.
Similarly, in United States v. Gooch, 499 F.3d 596 (6th Cir. 2007), the
Sixth Circuit held that a defendant did not have a reasonable expectation of
privacy in a VIP section of a parking lot where the lot was shared by several
commercial establishments, members of the public could freely walk through the
VIP area, and police regularly patrolled the lot, including the VIP area. Id. at
601-02. In dicta, the court suggested that had the case “concerned a private
parking garage that required individuals to use a code or card to enter,” then “one
could reasonably argue that the area was not open to the general public, and thus
individuals might have a higher expectation of privacy.” Id. at 601. But the
Sixth Circuit’s dicta does not explain whether occupants of a private parking lot
would continue to maintain a “higher expectation of privacy” where the lot’s
owner authorized law enforcement officers to patrol the property. Neither our
statements in Ludwig, nor the Sixth Circuit’s dicta in Gooch, undermines our
conclusion here that Mr. Ruiz did not have a reasonable expectation of privacy in
the hangar where Mr. Lyddon maintained control over it at all times, Mr. Ruiz
lost access entirely after business hours, Mr. Ruiz shared the space with other
customers, and Mr. Lyddon allowed law enforcement officials to enter.
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B.
The district court also found that the affidavit did not contain any false
statements or material omissions regarding the drug dog, Kilo. The court found
the affidavit sufficient because it accurately represented that Kilo was certified to
detect heroin, cocaine, methamphetamine, and marijuana. The court further found
the affidavit did not omit any material information concerning Kilo’s reliability,
and Mr. Ruiz presented no evidence that Kilo’s alerts were unreliable. Mr. Ruiz
contends testimony by Mr. Parker showed that on three of Kilo’s past ten drug
sniffs, the dog falsely alerted authorities even though no drugs were found. Had
this information been included, Mr. Ruiz believes probable cause would have
been vitiated. 1
“As a general rule, a search warrant based on a narcotics canine alert will
be sufficient on its face if the affidavit states that the dog is trained and certified
to detect narcotics.” Kennedy, 131 F.3d at 1376-77 (citations omitted). We do
1
The search warrant affidavit described the narcotic dog’s alert as follows:
Sheriff PARKER deployed his certified K9 to sniff the exterior of the
aircraft. The K9 indicated to the presence of a narcotic odor coming
from the aircraft. Sheriff PARKER’s K9 is certified to detect heroin,
cocaine, methamphetamine and marijuana.
Sheriff PARKER advised that his certified K9 alerted to the presence
of a narcotic odor coming from the aircraft.
Aplt. App., vol. I at 20.
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not require “affiants to include a complete history of a drug dog’s reliability
beyond the statement that the dog has been trained and certified to detect drugs.”
Id. at 1377. Under Franks, a court may look beyond the affidavit to see whether
it omitted material information about a particular dog’s reliability that would
negate probable cause. See id. This does not mean, however, that we must
“mount a full-scale statistical inquisition” into the drug dog’s history. United
States v. Ludwig, 641 F.3d 1243, 1251 (10th Cir. 2011). “Instead, courts typically
rely on the dog’s certification as proof of its reliability,” given that “canine
professionals are better equipped than judges to say whether an individual dog is
up to snuff.” Id. Of course, “if a credentialing organization proved to be a sham,
its certification would no longer serve as proof of reliability.” Id. (citations
omitted). In other words, the judicial task is limited “to assessing the reliability
of the credentialing organization, not individual dogs.” Id.
In this case, Kilo was certified by the State of Oklahoma to detect heroin,
cocaine, methamphetamine, and marijuana. Kilo was also certified by the
National Narcotic Detector Dog Association. Mr. Ruiz has not argued that either
of these credentialing organizations is a sham.
Even assuming Kilo had a reliability rate of seventy percent over his last
ten drug sniffs, probable cause was not undermined. 2 In Ludwig, where the
2
We have previously noted that although “[a] false alert occurs when no
seizable amounts of contraband are located during a search,” false alerts do not
(continued...)
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“dog’s alert suggested a 58% chance of finding a seizable quantity of drugs,” we
explained that “[w]hile we hesitate to get into the business of affixing figures on
probable cause, if we were pushed to do so we would hold this to be enough.” Id.
at 1252. “After all, probable cause doesn’t require an officer’s suspicion about
the presence of contraband to be more likely true than false.” Id. (citations and
internal quotation marks omitted). Accordingly, omission of the information
about Kilo’s reliability was immaterial.
Because the information omitted from the affidavit was immaterial to the
magistrate’s probable cause determination, we need not determine whether the
omissions were the result of “reckless disregard for the truth” or a “deliberate
falsehood.” See Kennedy, 131 F.3d at 1376. The district court properly denied
Mr. Ruiz’s motion to suppress the evidence obtained from the search of the
airplane.
III.
The second issue in this appeal concerns the district court’s denial of Mr.
Ruiz’s motion to suppress evidence seized from his former residence, including
cocaine. In his motion to suppress and brief in support thereof, Mr. Ruiz asserted
2
(...continued)
necessarily mean “that the drug dog alerted without detecting any odor of
narcotics.” Kennedy, 131 F.3d at 1375 n.6. Drug dogs can detect narcotics
residue that is left on objects that have come into contact with drugs, “even
though no seizable quantity [of drugs] has been found.” Id.
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only that the police’s initial entry of the rental house was unconstitutional
because it was without his permission and without a warrant. He did not
specifically contend that the search of his personal property was otherwise
unconstitutional. Accordingly, the district court addressed only whether Mr. Ruiz
retained a reasonable expectation of privacy in the rental house. The court found
that when Mr. Ruiz terminated the lease he effectively abandoned the rental
house. As a result, he did not have a reasonable expectation of privacy in the
house at the time the police searched it upon request of the owner.
“[T]he Fourth Amendment allows for warrantless search and seizure of
abandoned property.” United States v. Flynn, 309 F.3d 736, 738 (10th Cir. 2002)
(citing United States v. Hernandez, 7 F.3d 944, 947 (10th Cir. 1993)). “The test
for abandonment is whether the defendant retained a reasonable expectation of
privacy in the property.” Id. (citing Hernandez, 7 F.3d at 947). “An expectation
of privacy is a question of intent which may be inferred from words, acts, and
other objective facts.” Hernandez, 7 F.3d at 947 (citation omitted). The
abandonment must also be voluntary. Id.
Mr. Ruiz’s letter to Mr. Oraskovich explicitly stated that, as of January 31,
2010, he would no longer be renting the home. He also explained that because he
was unable to return, the landlord could keep his furniture. In this case, there is
no question that Mr. Ruiz voluntarily abandoned the rental house when he
terminated the lease. See United States v. Stevenson, 396 F.3d 538, 547 (4th Cir.
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2005) (“[W]hen someone no longer lives in his apartment, expresses an intention
of not returning to his apartment, gives away all of his personal property in the
apartment, and abandons his leasehold interest in the apartment, his subjective
expectation of privacy in that apartment is not reasonable as a matter of law.”).
Mr. Ruiz now argues that even if he abandoned the rental house, he
retained a legitimate expectation of privacy in his personal belongings, including
the black plastic bag and the packages of cocaine which, when discovered by the
police, led state and federal officers to acquire search warrants to search the
house and seize various items. Because Mr. Ruiz failed to raise this argument in
the district court, we will not consider it. See United States v. Burke, 633 F.3d
984, 988 (10th Cir. 2011) (“[A] suppression argument raised for the first time on
appeal is waived (i.e., completely barred) absent a showing of good cause for why
it was not raised before the trial court.”).
We thus hold the district court did not err in denying Mr. Ruiz’s motion to
suppress evidence found in the rental house. Reviewing de novo the ultimate
question of reasonableness under the Fourth Amendment, we conclude the seizure
of evidence in this case was valid.
We AFFIRM.
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