United States v. Adolfo Guzman, Jr. , 657 F. App'x 688 ( 2016 )

FILED
NOT FOR PUBLICATION
AUG 09 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10049
Plaintiff - Appellee, D.C. No. 1:13-cr-00565-HG-1
v.
MEMORANDUM*
ADOLFO GUZMAN, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, District Judge, Presiding
Argued and Submitted June 14, 2016
Honolulu, Hawaii
Before: THOMAS, Chief Judge, and CALLAHAN, and MURGUIA, Circuit
Judges.
Adolfo Guzman, Jr. entered a conditional plea agreement and pleaded guilty
to an indictment charging him with drug trafficking offenses under 21 U.S.C. §§
841(a)(1), 841(b)(1)(A) and 846. On appeal, he claims that the district court erred
in denying his motion to suppress trafficking evidence recovered from the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
residence of co-defendant Antonio Perez, Jr. pursuant to a search warrant. We
have jurisdiction under 18 U.S.C. § 1291 and, on de novo review, affirm the
conviction under the good faith exception to the exclusionary rule.1 United States
v. Fries, 781 F.3d 1137, 1146 (9th Cir. 2015); United States v. Crews, 502 F.3d
1130, 1136 (9th Cir. 2007).
Under the good faith exception, law enforcement officers may execute a
warrant they reasonably believe to be lawful even if the warrant is later found to be
technically defective. United States v. Leon, 468 U.S. 897, 920–21 (1984). A
search conducted pursuant to a warrant will normally fall within the exception
unless one of the following four circumstances exist: (1) the issuing magistrate was
knowingly misled; (2) the issuing magistrate wholly abandoned his or her judicial
role; (3) the application is so lacking in indicia of probable cause as to render
reliance upon it unreasonable; or (4) the warrant is so facially deficient that
reliance upon it is unreasonable. Id. at 923.
Guzman challenges the search based on circumstances two and three. As to
the second circumstance, Guzman contends that the magistrate abandoned his
judicial role by deferring to the assertion that the traveler mentioned in the warrant
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We offer no opinion on whether the challenged warrant application
establishes probable cause.
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affidavit was, in fact, a known drug courier traveling from San Diego to Honolulu.
Unlike the judge in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979), who erred
in conducting his own independent investigation of items to be seized pursuant to
the warrant before him, the magistrate in this case evaluated the facts and made a
detached and neutral decision to issue the warrant based on the totality of the facts
presented in the affidavit alone, see Crews, 502 F.3d at 1138.
Regarding the third circumstance, Guzman contends that the warrant
affidavit is so bare bones that reliance on it was unreasonable. “The test for
reasonable reliance is whether the affidavit was sufficient to ‘create disagreement
among thoughtful and competent judges as to the existence of probable cause.’”
United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988) (quoting Leon, 468 U.S.
at 926). The affidavit here meets this test. The document contains the following
information presenting a “colorable showing of probable cause,” id. at 140: On
May 31, 2013 (the date of the warrant application), law enforcement agents in San
Diego alerted agents in Honolulu that an individual under investigation was
onboard a flight from San Diego to Honolulu. The San Diego agents provided the
Hawaii agents with a description and photo identification of the individual, who
Hawaii agents identified upon his arrival in Honolulu at approximately 1:20 p.m.
Agents secretly followed the individual to his hotel where they observed an
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encounter between the individual and Perez, who was carrying a backpack that
appeared to be empty at the beginning of the encounter but appeared full when the
two parted ways. Agents then followed Perez to an apartment building and, with
the help of the resident manager, determined that Perez lived in unit #601. They
knocked on the door of the unit. Perez opened the door and a strong odor of
marijuana from the apartment caught the agents’ attention, as well as a bong
observed in plain view. The agents inquired whether others were inside the
apartment, but Perez lied, stating that no one else was present. Agents continued to
ask in a loud voice until Guzman and another male emerged from the apartment.
The three were identified and detained, and the apartment secured pending a
warrant to search the residence for controlled substances and other indicia of drug
trafficking. Given these allegations, application of the good faith exception was
proper. See Crews, 502 F.3d at 1137.
AFFIRMED.
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