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United States v. Perez-Trevino

United States Court of Appeals, Eighth Circuit

May 29, 2018

United States of America Plaintiff-Appellee
v.
Marcos Perez-Trevino Defendant-Appellant United States of America Plaintiff-Appellee
v.
Juan Flores, also known as Alejandro Becerra Defendant-Appellant United States of America Plaintiff-Appellee
v.
Daniela Castellanos Defendant-Appellant

          Submitted: January 11, 2018

          Appeals from United States District Court for the Northern District of Iowa - Waterloo

          Before COLLOTON, BENTON, and ERICKSON, Circuit Judges.

          ERICKSON, CIRCUIT JUDGE.

         Defendants/Appellants Marcos Perez-Trevino ("Perez-Trevino"); Juan Flores, a/k/a Alejandro Becerra ("Flores"); and Daniela Castellanos ("Castellanos") were tried together by a jury in the United States District Court for the Northern District of Iowa for their roles in a conspiracy to distribute methamphetamine. All three were found guilty and were sentenced by the court. After carefully considering the several issues raised by the appellants, we affirm the judgments of the district court.[1]

         I. BACKGROUND/PROCEDURE

         In August 2015, eleven defendants, including the appellants, were charged in a conspiracy to deliver methamphetamine in and around Marshalltown, Iowa. Several of the defendants entered guilty pleas, but the appellants chose to proceed to a jury trial. During the six-day trial, some of the defendants' original co-conspirators cooperated with the government and testified, hoping for more favorable sentencing recommendations.

         Prior to trial, Perez-Trevino moved to suppress evidence obtained during an August 12, 2015, traffic stop in Oklahoma. Perez-Trevino argued that the vehicle was improperly impounded and the inventory search was unlawful. The motion was heard by the chief magistrate judge, and Chouteau (Oklahoma) Police Officer Thomas Scott Fisher testified at the hearing. The chief magistrate judge issued a report and recommendation that the motion be denied. The district court overruled Perez-Trevino's objections, adopted the report and recommendation, and denied the motion.

         Castellanos brought a pretrial motion to suppress evidence obtained from the interception of wire and electronic communications of a cell phone identified as Target Telephone #16, arguing that the application for the wiretap: (1) lacked sufficient specificity to establish probable cause, and (2) failed to sufficiently show the wiretap was necessary as required by 18 U.S.C. § 2518(3)(c). After argument on the motion without any additional evidence, the chief magistrate judge, finding the affidavit sufficient, issued a report and recommendation that the motion be denied. The district court overruled Castellanos's objections, adopted the report and recommendation, and denied the motion.

         During the five-day trial, the government witnesses testified about information gleaned during the investigation including evidence obtained from intercepts of several telephones. The cooperating co-conspirators testified about their own participation in the conspiracy and their knowledge of the participation of the three defendants. Following the procedures outlined in United States v. Bell, 573 F.2d 1040 (8th Cir. 1978), the trial court conditionally admitted hearsay evidence from alleged co-conspirators. Much of the testimony referenced Mario Murillo-Mora, a member of the conspiracy to distribute methamphetamine, who was connected by evidence to each of the defendants, as well as to other members of the conspiracy. The evidence revealed that the reason the government targeted various electronic devices, including telephone #16, was their connection to communications to and from Murillo-Mora related to the distribution of narcotics.

         At the end of the government's case, the court entertained objections to the co-conspirator hearsay testimony. The court overruled the objections, finding that each of the admitted statements was made by a co-conspirator in the course of and in furtherance of the conspiracy. The court denied Perez-Trevino's request for a jury instruction on multiple conspiracies and an instruction regarding a mere buyer/seller relationship.

         The jury found Perez-Trevino guilty of conspiracy to distribute 500 grams or more of a substance containing a detectable amount of methamphetamine, which contained more than 50 grams of pure methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Flores and Castellanos were found guilty of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. The district court sentenced Perez-Trevino to 292 months' imprisonment and sentenced Flores and Castellanos to 240 months' imprisonment.

         II. SUPPRESSION MOTIONS

         "When reviewing the denial of a motion to suppress, we review a district court's factual findings for clear error and legal conclusions de novo." United States v. Evans, 781 F.3d 433, 436 (8th Cir. 2015) (citing United States v. Harris, 747 F.3d 1013, 1016 (8th Cir. 2014)). We "will affirm the district court's denial of a motion to suppress evidence unless it is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made." United States v. Collins, 883 F.3d 1029, 1031 (8th Cir. 2018) (quoting United States v. Braden, 844 F.3d 794, 799 (8th Cir. 2016)). We may affirm on any ground supported by the record. United States v. Murillo-Salgado, 854 F.3d 407, 414 (8th Cir. 2017). For example, in United States v. Wells, 347 F.3d 280, 287 (8th Cir. 2003), we affirmed the denial of a motion to suppress based on the automobile exception to the warrant requirement rather than on the search-incident-to-arrest exception on which the district court relied.

         A. Perez-Trevino - Search of Automobile and Contents

         On August 12, 2015, Officer Fisher noticed a 2000 Oldsmobile Intrigue with North Dakota license plates traveling north on Highway 69 in Oklahoma. He stopped the vehicle for a taillight violation. As he approached the vehicle, Officer Fisher observed two occupants in the car. Perez-Trevino presented an identification card to Officer Fisher but claimed to be licensed in Texas. Officer Fisher had separate conversations with Perez-Trevino and the passenger. The two gave conflicting stories as to their destination: Perez-Trevino indicating Iowa City and the passenger claiming Marshalltown. Officer Fisher ran Perez-Trevino's identifying information and determined that he did not have a valid license.[2] A license check for the passenger revealed that his license was suspended. Officer Fisher arrested Perez-Trevino for driving without a license. Having been instructed by the chief of police that stopped vehicles are not to be left abandoned on the roadside, Officer Fisher arranged to have the vehicle towed. Before the vehicle was towed, Officer Fisher prepared to do an inventory search of the vehicle in order to log any valuables. Officer Fisher testified:

Any time we have arrested someone out of a vehicle or we have made contact with somebody where a vehicle - where we have become liable for it because of an action from us, we must impound that vehicle with the two wrecker services we have on rotation and then we have to conduct a thorough vehicle inventory.

         When Officer Fisher leaned inside the vehicle to begin the inventory, he smelled raw marijuana "directly over the center console." He checked the contents of the center console because, according to his testimony, "[i]t's a common place, along with the glove box, for valuables or anything somebody is going to store in the vehicle." When he lifted the console, he discovered a plastic bag containing a green leafy substance, which was later determined to be marijuana. The inventory search further uncovered various food items and drinks. A one dollar bill containing a clear substance, later determined to be methamphetamine, was found under the passenger seat. Located in the back seat was a large cooler. Upon opening the cooler, Officer Fisher found more food and drinks and a Ziploc bag "containing a large amount of methamphetamine." It was later determined that the bag contained 877 grams of methamphetamine. A list of items found in the search was reported on a "CHOUTEAU POLICE DEPT. STORED VEHICLE REPORT" which indicated the vehicle was registered in North Dakota to Marcos and Maria Perez.

         The Chouteau Police Department has a published policy for "Impoundment of Vehicles" that provides guidance for impounding and inventorying vehicles. Among the several stated reasons for impounding vehicles are safekeeping of evidence and "public assistance towing." The public assistance towing section specifically requires towing "[w]hen, following arrest of the owner/operator or for other reasons, the vehicle cannot be left at the scene without substantial risk of theft from or damage to the vehicle or personal property contained therein." The policy's inventory procedure provides:

1. It is the duty of all officers, who impound motor vehicles, to perform an inventory of those vehicles.
2. The purpose of this inventory will be to ensure a proper accounting of all property in or attached to the vehicle in order to protect the officer from liability of assumed damages and/or missing property.
3. The officer performing the inventory will conduct a thorough and uniform inventory of the vehicle and its compartments.

         One of the regulations listed in the policy statement provides that "[o]fficers should take all necessary precautions when towing a vehicle to properly search and inventory a vehicle. An inventory search is intended to protect the citizen, the officer and the wrecker company from claims of loss and theft."

         Citing Florida v. Wells, 495 U.S. 1 (1990), Perez-Trevino argues that the inventory search of the car violated the Fourth Amendment because the Chouteau Police Department policy did not provide sufficiently standardized criteria for searching closed containers inside the vehicle. "It is 'well-settled' law that 'a police officer, after lawfully taking custody of an automobile, may conduct a warrantless inventory search of the property to secure and protect vehicles and their contents within police custody.'" United States v. Williams, 777 F.3d 1013, 1015 (8th Cir. 2015) (quoting United States v. Rehkop, 96 F.3d 301, 305 (8th Cir. 1996)). The search "must comply with 'standardized police procedures.'" Id. at 1016 (quoting United States v. Mayfield, 161 F.3d 1143, 1145 (8th Cir. 1998)). "The police are not precluded from conducting inventory searches when they lawfully impound the vehicle of an individual that they also happen to suspect is involved in illegal activity." United States v. Pappas, 452 F.3d 767, 771 (8th Cir. 2006) (quoting United States v. Marshall, 986 F.2d 1171, 1175-76 (8th Cir. 1993)). We conclude that the Chouteau Police Department towing policy contained sufficiently standardized police procedures for Officer Fisher to inventory the contents of the vehicle and its compartments.

         We do not decide whether the Chouteau inventory policy provided Officer Fisher with authority to open the cooler. Instead, we affirm the denial of the motion to suppress because, at the time he opened the cooler, Officer Fisher had sufficient probable cause to search the vehicle and its contents under the "automobile exception" to the Fourth Amendment warrant requirement. Accord United States v. Winters, 221 F.3d 1039, 1042 (8th Cir. 2000) ("Trooper Busch then smelled raw marijuana. This created probable cause to search the car and its containers for drugs."). "Under the automobile exception, officers may search a vehicle without a warrant if they have probable cause to believe the vehicle contains evidence of criminal activity." United States v. Davis, 569 F.3d 813, 817 (8th Cir. 2009) (quoting United States v. Cortez-Palomino, 438 F.3d 910, 913 (8th Cir. 2006) (per curiam). Prior to searching inside the cooler, Officer Fisher had obtained contradictory statements from the car's occupants as to their destination, discovered the plastic bag containing the marijuana, and found the dollar bill containing apparent drug residue. This was sufficient probable cause to search inside the cooler. Accord Davis, 569 F.3d at 817-18 ("If there had been any doubt about whether the smell of smoldering cannabis constituted probable cause to search the vehicle, such doubt was obviated by the discovery of a bag of marijuana in Davis's pocket.").

         B. Castellanos - Wiretap of Target Telephone #16

         Daniela Castellanos argues that the district court erred in denying her motion to suppress evidence gained from the wiretap of Target Telephone #16. In 18 U.S.C. § 2518, Congress defined the procedure that must be followed for the "interception of wire, oral, or electronic communications." 18 U.S.C. § 2518(10)(a) provides:

Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that -
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization or approval.

         "The remedies and sanctions described in [chapter 18] with respect to the interception of electronic communications are the only judicial remedies and sanctions for nonconstitutional violations of this chapter involving such communications." 18 U.S.C. § 2518(10)(c). An "aggrieved person" is defined at 18 U.S.C. § 2510(11) as "a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed." In paragraph No. 2 of her motion to suppress the wiretap evidence, Castellanos alleges: "During the period of time the wiretap authorization was in place, the government contends that Ms. Castellanos was heard on or a party in some of the phone calls and text messages involving target telephone 16."

         Castellanos contends that her motion should have been granted because the affidavit attached to the warrant application did not contain sufficient facts to support a finding of probable cause or of necessity as required by 18 U.S.C. § 2518(3)(a-c). We address each asserted error separately, United States v. Thompson, 690 F.3d 977, 984-87 (8th Cir. 2012), and hold that the district court did not err in denying the motion to suppress.

         1. Probable Cause

         Section 2518 requires a two-step probable cause analysis. First, there must be probable cause that an individual has committed, is committing, or is about to commit a crime listed in 18 U.S.C. § 2516. 18 U.S.C. § 2518(3)(a). Second, the application must show probable cause that "particular communications" relating to the specific offense will be obtained from the interception of the communication. 18 U.S.C. § 2518(3)(b). "We have long held" that the probable cause standards in section 2518 "are co-extensive with the constitutional requirements" of the Fourth Amendment. United States v. Gaines, 639 F.3d 423, 430 (8th Cir. 2011) (quoting United States v. Leisure, 844 F.2d 1347, 1354 (8th Cir. 1988)). This guides us in our review of the district court's probable cause analysis. We also recognize, however, that the particularity requirements of section 2518(3)(b) are defined by the statute. Id. at 431-32 (citing United States v. Donovan, 429 U.S. 413, 416, 428 (1977)). The first step is not disputed as § 2516(1)(e) lists any offense involving "the manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic drugs, marihuana, or other dangerous drugs, punishable under any law of the United States."

         Our analysis focuses on the second step. The application for the wiretap warrant identified Target Telephone #16 as subscribed to Geoffrey Forney of Des Moines, Iowa, and used by Mario Murillo-Mora. The application sought authorization for intercepting "wire and electronic communications" of several named individuals, including Murillo-Mora, and several unknown males and females who had been communicating with Murillo-Mora and other co-conspirators on prior authorized electronic communication interceptions. Castellanos was not one of the individuals identified in the application. An application for authorizing a wiretap must identify "the person, if known, committing the offense and whose communications are to be intercepted." 18 U.S.C. § 2518(1)(b)(iv). The Supreme Court has interpreted the statute as not requiring the government "to identify an individual in the application unless it has probable cause to believe (i) that the individual is engaged in the criminal activity under investigation and (ii) that the individual's conversations will be intercepted over the target telephone." United States v. Donovan, 429 U.S. 413, 423 (1977) (citing United States v. Kahn, 415 U.S. 143 (1974)). A wiretap application must, however, "name an individual if the Government has probable cause to believe that the individual is engaged in the criminal activity under investigation and expects to intercept the individual's conversations over the target telephone." Id. at 428. A district court's grant of an application for a wiretap is appropriate if it is the result of a "practical, common-sense decision" that "considering the 'totality-of-the-circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Thompson, 690 F.3d at 984-85 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). "In determining probable cause we are bound to consider only the facts contained within the four corners of the affidavit." United States v. Milton, 153 F.3d 891, 894 (8th Cir. 1998) (citing United States v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995)).

         The application for the wiretap authorization order specifically names more than twenty individuals, in addition to several yet unidentified target subjects suspected in the conspiracy to distribute narcotics, based on investigations from prior court-authorized wiretaps. The government sufficiently identified all of the individuals it had probable cause to believe were involved in criminal activity.

         The application informed the court of the type of evidence law enforcement expected to recover from the targeted telephone. It states:

In particular, these wire and electronic communications are expected to include conversations of an ...

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