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United States v. Ortiz-Cervantes

United States Court of Appeals, Eighth Circuit

August 21, 2017

United States of America Plaintiff- Appellee
v.
Roberto Carlos Ortiz-Cervantes Defendant-Appellant

          Submitted: May 12, 2017

         Appeal from United States District Court for the District of Nebraska - Omaha

          Before RILEY, BEAM, and SHEPHERD, Circuit Judges.

          RILEY, Circuit Judge.

         Roberto Carlos Ortiz-Cervantes appeals the denial of his motion to suppress evidence obtained as a result of the execution of a warrant to search his residence. After the district court[1] denied the motion to suppress, Ortiz-Cervantes pled guilty and was convicted of possession with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1). We affirm, concluding probable cause supported the search warrant and the search was conducted in good faith, even though the magistrate judge issuing the search warrant was not properly cross-designated to issue warrants for property located outside of his district. See 28 U.S.C. § 1291 (appellate jurisdiction).

         I. BACKGROUND

         On May 13, 2014, a Drug Enforcement Administration (DEA) special agent, Chad Schmitt, filed an application and supporting affidavit for a search warrant before a magistrate judge in the Northern District of Iowa (NDIa). The property to be searched was a single-family residence located across the Missouri River in South Sioux City, Nebraska.

         The affidavit detailed ten controlled buys of methamphetamine from Victor Gonzalez between September 16, 2013, and May 13, 2014. Phone records of calls and text messages before the controlled buys linked Gonzalez to Jose W. Orellana. Orellana was in contact with Ortiz-Cervantes before three of the ten controlled buys, indicating to DEA agents Ortiz-Cervantes supplied Orellana with methamphetamine, and Orellana, in turn, supplied Gonzalez.

         The affidavit also stated Ortiz-Cervantes lived at 3308 Santa Rita Court in South Sioux City, Nebraska. Ortiz-Cervantes shared the residence with his sister and her family, including her husband, Orellana's brother. Orellana visited the 3308 Santa Rita Court residence shortly before the controlled buys on October 17, 2013, and May 13, 2014.

         Agents conducted a proffer interview on November 13, 2013, with Jovany Bautista. Bautista stated he had purchased methamphetamine from "Roberto" in early 2013 and identified a photograph of Ortiz-Cervantes as Roberto. Bautista also identified a picture of the 3308 Santa Rita Court residence as one of the places he met Roberto to purchase methamphetamine and told agents that Roberto lived in the basement of the residence while his sister and her family lived upstairs.[2]

         The NDIa magistrate judge approved the application and issued a search warrant for the 3308 Santa Rita Court residence in South Sioux City, Nebraska. Officers executed the search warrant and found Ortiz-Cervantes in the basement along with more than 500 grams of methamphetamine. Ortiz-Cervantes was subsequently indicted in the District of Nebraska on one count of possession with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1).

         Before the district court and a magistrate judge in the District of Nebraska, Ortiz-Cervantes moved to suppress the evidence obtained as a result of the search of the 3308 Santa Rita Court residence. Ortiz-Cervantes argued the NDIa magistrate judge did not have the authority to issue warrants for searches of property located in the District of Nebraska, and the affidavit did not include sufficient probable cause.

         The motion to suppress was denied, and Ortiz-Cervantes conditionally pled guilty, reserving the right to appeal the denial of his motion to suppress.

         II.DISCUS ...


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