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United States v. Orozco

August 13, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOHN OROZCO, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 02 CR 1164-Joan Humphrey Lefkow, Judge.

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

ARGUED SEPTEMBER 3, 2008

Before EASTERBROOK, Chief Judge, and ROVNER and SYKES, Circuit Judges.

Federal agents arrested John Orozco after they searched his home pursuant to a warrant and found a gun and a digital scale with trace amounts of cocaine. The government charged Orozco with possessing a firearm after having been convicted of a felony and conspiring to distribute more than five kilograms of cocaine and marijuana. After a jury convicted him on both counts, the district judge sentenced Orozco to 360 months in prison.

Orozco appeals his convictions and sentence, arguing that the evidence obtained in the search should have been suppressed, that the district judge improperly admitted evidence relating to Orozco's prior firearm conviction, and that the judge should not have applied a two-level sentencing guidelines enhancement for possessing a firearm in connection with a drug offense. We find no merit in any of Orozco's challenges and affirm his convictions and sentence.

I. Background

In December 2002 federal agents applied for a warrant to search Orozco's residence near Aurora, Illinois, for records relating to narcotics transactions and member-ship lists for the Latin Kings gang. FBI Special Agent Ken Burress submitted an affidavit in support of the warrant, which stated that: (1) reliable gang sources told Burress that Orozco was the second-in-command of the Aurora Latin Kings gang and dealt in large quantities of cocaine and marijuana; (2) several gang members admitted purchasing drugs from Orozco; and (3) Burress knew from his ten years of experience in narcotics investigations that high-ranking gang members often kept detailed records of drug transactions and gang member-ship lists in their homes. Based on this information, a magistrate judge issued the search warrant.

Federal agents executed the warrant and found a Beretta handgun, a box of ammunition, a magazine, two gun holsters, and a digital scale with trace amounts of cocaine in Orozco's home. Orozco was subsequently arrested and charged with possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and conspiracy to distribute cocaine and marijuana in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. Orozco moved to quash the search warrant and suppress the evidence found at his home, claiming that no probable cause existed for the search. The district court agreed that the warrant was not supported by probable cause, but permitted the admission of the evidence at trial because the court found that the officers had acted in good faith.

At trial Orozco argued that the gun belonged to his wife, not him. FBI Special Agent Neal Ormerod testified that he had found a gun holster in Orozco's closet while searching his residence and that a holster is primarily used to carry a concealed firearm. On cross-exami-nation Ormerod stated that the holster was set up for a right-handed shooter. Defense counsel then asked Agent Ormerod whether he knew that Orozco was left-handed; Ormerod said he did not. Following this testimony, the government requested permission to introduce the testimony of Aurora Police Officer Dan Woods to rebut the impression created by defense counsel that Orozco could not have used the holster because he is left-handed. The court granted permission over Orozco's objection. Officer Woods testified that in September 1994 he encountered Orozco under suspicious circumstances. After a brief exchange between the two, Orozco put his right hand under his shirt and grabbed at his waistband. Woods ordered Orozco to place his hands on a nearby vehicle so Woods could search him, but Orozco ran. Woods gave chase and saw Orozco-using his right hand-remove something from his waistband and toss it to the ground. After Orozco was arrested, Officer Woods retraced his steps and found a firearm on the ground where Orozco had tossed the item he removed from his waistband. Orozco was charged and convicted of unlawful possession of the firearm. This evidence, the government argued, showed that the gun discovered in the search of Orozco's home belonged to the left-handed Orozco even though the holster was set up for a right-handed shooter.

The jury convicted Orozco of both charges, and a judge sentenced him to 360 months' imprisonment on the conspiracy count and a concurrent 120 months' imprisonment on the felon-in-possession count. In calculating Orozco's guidelines sentence, the judge imposed a two-level enhancement for possession of a firearm in connection with a drug offense. Orozco objected to the enhancement, claiming that there was no evidence that he had possessed the gun in connection with a drug conspiracy. The judge held that the connection between the two was a permissible inference and applied the enhancement.

II. Discussion

A. Search Warrant

We first address Orozco's claim that the evidence obtained from the search of his home should have been suppressed. The district judge held that while the search warrant was not supported by probable cause, the evidence was nevertheless admissible because the officers acted in good faith. See United States v. Leon, 468 U.S. 897 (1984). Both parties take issue with the district court's ruling. Orozco agrees that no probable cause existed for the search, but claims the district court erred in applying the good-faith exception to the exclusionary rule. The government contends that not only did the officers executing the search rely on the warrant in good faith, but the district court erred in holding that the search warrant was not supported by probable cause.

Probable cause is a practical, non-technical inquiry that asks whether there is a fair probability, given the totality of the circumstances, that evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238 (1983). "When, as here, an affidavit is the only evidence presented to a judge to support a search warrant, 'the validity of the warrant rests solely on the strength of the affidavit.' " United States v. Mykytiuk, 402 F.3d 773, 775 (7th Cir. 2005) (quoting United States v. Peck, 317 F.3d 754, 755-56 (7th Cir. 2003)).The question for us is whether Agent Burress's affidavit adequately established probable cause to search Orozco's home for narcotics and gang-related evidence. Our standard of review requires us to give "great deference" to the ...


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