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United States v. Garcia

June 3, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ARMANDO GARCIA, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 06 CR 292-Rudolph T. Randa, Chief Judge.

The opinion of the court was delivered by: Evans, Circuit Judge

ARGUED APRIL 14, 2008

Before FLAUM, EVANS, and TINDER, Circuit Judges.

A jury convicted the defendant, Armando Garcia, of possession with intent to distribute 500 grams or more of cocaine; he was subsequently sentenced to 97 months imprisonment. Garcia now appeals three of the district court's rulings. His primary complaint-which consumed the entire discussion at oral argument-is that the district court should have suppressed evidence seized during the execution of a search warrant at his girlfriend's apartment because the warrant lacked probable cause. The magistrate judge (Aaron E. Goodstein) agreed with Garcia and recom- mended that the motion to suppress be granted. The district judge (Rudolph T. Randa), however, found that the warrant was supported by probable cause and, in the alternative, even if probable cause was lacking, the "good faith" exception to the exclusionary rule applied and the evidence should not be suppressed.

On October 30, 2006, Milwaukee County Court Commissioner Barry Slagle issued a search warrant based entirely on the affidavit of Detective David Baker. The affidavit was of the "fill-in-the-blanks" variety (which, we were troubled to hear, is regularly used in Milwaukee County) and stated that a confidential informant was inside Garcia's residence and, within 72 hours beforehand, observed "an off white powdery substance packaged in a plastic bag in the living area of the house[.]" Based on the informant's past involvement in the sale of controlled substances and personal experience, the informant believed the white substance he saw was cocaine. The affidavit also stated that Baker believed that the informant was credible because he had previously provided officers with information that led to the arrest of "more than two" fugitives and to the arrest and conviction of one other person in relation to drug trafficking.

Law enforcement officers executed the search warrant the same day it was issued. Upon breaching the door, they found Garcia's girlfriend, Gabriela Ordoñez, holding a baby in the living room. They then moved to the bedroom and found Garcia. As they entered, Garcia dove for the bed and began reaching under the mattress. The officers then placed Garcia in handcuffs and searched him; they found approximately $1,000 in cash and a small quantity of cocaine in his pockets.

After securing the apartment the officers began their search. In the bedroom where they had located Garcia they noticed a large piece of wood on the floor; the wood was discovered to be the cover to an (open) access panel on the wall. Inside the panel the officers found four individually wrapped kilograms of cocaine. Under the mattress where Garcia had been reaching they found a loaded .38 caliber handgun. In the bedroom closet they found a locked safe containing five bags of cocaine totaling 132 grams, approximately $25,000, a 2000-gram capacity scale, an insurance card bearing Garcia's name, other papers bearing Garcia's name, a gold bracelet with "Garcia" printed on it, and drug notes. The officers also found cocaine residue on a wooden bench in the middle of the floor. Under the bench was a five-pound capacity scale. In the hall closet the officers found a baggie of cocaine near a pill bottle bearing Garcia's name.

During the search Garcia told an officer that he lived at the residence and that Ordoñez had nothing to do with the cocaine. Later, at the police station, the officers interviewed Garcia after advising him of his Miranda rights. During that interview Garcia admitted to living at the apartment with Ordoñez. He said that the $25,000 found in the safe belonged to him but that he had earned it selling cars. Garcia admitted that he regularly used cocaine but did not claim ownership of the four kilograms found in the bedroom wall.

Based on this evidence, a grand jury returned a two-count indictment charging Garcia with possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c).

The district court set a deadline of November 29, 2006, for the filing of pretrial motions. On that day, Garcia, through his attorney, Andres Velez, filed several motions, including a suppression motion challenging the search warrant. On December 13, 2006, while those motions were pending, attorney Jeffrey Jensen substituted for Velez as defense counsel. Jensen did not file additional motions or ask the court to extend the deadline.

On December 21, 2006, the magistrate judge recommended that the motion to suppress be granted. The government objected. The district court ultimately denied the motion to suppress on March 14, 2007. Three weeks later the district court issued an order scheduling the case for trial in July. At that point, Jensen filed a motion to compel the government to disclose the identity of the confidential informant. The district court denied the motion as untimely.

At trial, Detective Baker was called as a witness. On direct examination, Baker stated that on October 30, 2006, he was conducting an investigation of a drug source in Milwaukee. When the government asked Baker if he was "able to identify who that drug source was" or "got a name for the person [he was] investigating," Jensen objected on hearsay and Confrontation Clause grounds. The court sustained the objection, and the government rephrased its question by asking Baker, "[W]hen you applied for that search warrant, did you have a name that you had affiliated that location with?" Jensen objected again, but the court ruled that the question was proper because Baker could testify as to the name on the warrant. Baker then stated that the name on the warrant was "Armando Garcia."

Later, Garcia testified in his own defense, contradicting several of his earlier statements to the police. He stated that he was staying with Ordoñez only occasionally, not living with her. He disclaimed knowledge of the bedroom safe, saying that the money and papers found in it did not belong to him. He admitted that the gold "Garcia" bracelet found in the safe was his, but he had no explanation for how it got there. He denied knowing about the four kilograms of cocaine found in the bedroom wall and opined that someone else must have left them there. The jury returned a verdict of guilty on count one (the drug charge) and not guilty on count two (the firearm charge).

Because the search warrant is the primary issue in this case, we begin with Garcia's other two challenges, neither of which requires much discussion. Garcia first argues that the district court should have granted his motion to compel disclosure of the identity of the confidential informant who provided the information for the search warrant. We review these ...


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