United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge
Omayra Rivera (“Rivera”) is charged with one
count of conspiracy to possess with intent to distribute and
distribute one kilogram or more of heroin, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and 18
U.S.C. § 2. (Docket #1). Before the Court is the January
30, 2017 report and recommendation of Magistrate Judge David
E. Jones as to Rivera's motion to suppress evidence,
which he recommends should be denied. (Docket #254). Rivera
filed an objection thereto on February 14, 2017 (Docket
#257), the government responded on March 2, 2017 (Docket
#264), and Rivera did not file a reply. The objection is now
fully briefed and, for the reasons stated below, it will be
detailed in the report and recommendation, Rivera seeks to
suppress all the evidence-including narcotics, packaging
materials, a handgun, and other items-and derivative evidence
obtained as a result of the search of her home that underlies
the present charges. (Docket #254 at 2). She claims that the
affidavit supporting the search warrant did not set forth
sufficient facts to establish probable cause to search the
home. Id. Rivera contends that the facts asserted in
that affidavit were “‘vague, innocuous, and
stale'” as to her and her alleged role in the drug
trafficking organization that is the subject of this case.
Id. (quoting Docket #244 at 16).
RELEVANT FACTS AND PROCEDURAL HISTORY
relevant facts are drawn from Magistrate Jones' report
and recommendation, as the parties have not objected to those
facts. Evelyn Lazo (“Lazo”) is a police officer
for the City of Milwaukee and was the affiant for the search
warrant application at issue here. Id. at 3. She has
fourteen years of experience as an officer, including a
years-long investigation into the activities of the Rivera
Drug Trafficking Organization (“Rivera DTO”).
Id. The Rivera DTO operates in Milwaukee and sells
primarily heroin, cocaine, and marijuana. Id. Phone
numbers used by the Rivera DTO have been linked to several
heroin overdose deaths. Id.
avers that law enforcement have been investigating the group
since 2011. Id. In her affidavit, she explained in
detail several investigative avenues that supported her
belief that Rivera's home (and others identified in the
affidavit) contained evidence linked to the Rivera DTO.
Id. These included: (1) confidential source
information; (2) controlled purchases of narcotics and
consensual phone calls; (3) overdose death investigations;
(4) GPS tracking; (5) court-authorized interceptions; (6)
information pertaining to specific individuals; and (7)
residence information. Id.
touched on Rivera and her activities in only some of these
areas. For instance, the explanation of the heroin overdose
investigations does not mention Rivera, nor does the section
on GPS tracking. Id. at 4. Yet other portions of the
affidavit deal with her directly. First, the confidential
sources identified several members of the Rivera DTO and
their roles in the organization. Id. at 3. Five of
the six individuals identified Rivera as an active member of
the group. Id. These individuals were interviewed
between eight and thirty-six months prior to the warrant
application. Id. at 8. Second, the informants
described in detail several controlled purchases of drugs,
though Rivera's role in these purchases was only that she
allegedly had another individual selling drugs on her behalf.
Id. at 3-4. Finally, several wiretapped
conversations between Rivera and others were presented.
Id. at 4. In one of these calls, which occurred just
over a month prior to the warrant application, Rivera
discussed a failed drug sale to an out-of-town visitor who
had wanted to purchase marijuana and a “white
dust” worth $1, 500 per ounce. (Docket #250-5 ¶
145). Finally, Lazo provided a list of residences sought to
be searched, including Rivera's. (Docket #254 at
on this affidavit, Magistrate Judge William E. Duffin signed
the application and search warrant on June 13, 2016.
Id. As noted above, law enforcement recovered drugs,
drug paraphernalia, a firearm, and other items from
Rivera's residence. Magistrate Jones denied her motion to
suppress this evidence, noting that although Lazo's
averments as to Rivera herself were less prominent and recent
than those as to other members of the Rivera DTO, this did
not undermine the validity of the warrant. Id. at
6-9. Further, Magistrate Jones found that even if the warrant
was deemed invalid, the good-faith exception to the
exclusionary rule under United States v. Leon, 468
U.S. 897 (1984), should bar suppression of the evidence.
(Docket #254 at 9-10). Rivera timely objected to these
rulings. (Docket #257).
STANDARD OF REVIEW
reviewing a magistrate's recommendation, this Court is
obliged to analyze the recommendation de novo. 28
U.S.C. § 636(b)(1)(C). The Court can “accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate.” Id.
The Court's review encompasses both the magistrate's
legal analysis and factual findings. Id.
assessing search warrant applications are asked to employ
both discernment and common sense. United States v.
Anderson, 450 F.3d 294, 302 (7th Cir. 2006). The judge
must be satisfied that probable cause exists that the place
to be searched contains evidence of a crime. United
States v. Jones, 208 F.3d 603, 608 (7th Cir. 2000). Yet
“direct evidence linking a crime to a particular place,
while certainly helpful, is not essential to establish
probable cause to search that place.” United States
v. Aljabari, 626 F.3d 940, 944 (7th Cir. 2010). Instead,
the judge must look at the totality of the circumstances
presented, including the nature of the evidence sought and
the crime alleged, to determine if “there is a fair
probability that contraband or evidence of a crime will be
found in a particular place.” Illinois v.
Gates, 462 U.S. 213, 218 (1983). Scrutinizing every
detail for possible defects is neither required nor
appropriate, since probable cause is a “fluid
concept” embracing “the assessment of
probabilities in particular factual contexts, ” not
legal certainties. Id. at 232; Anderson,
450 F.3d at 302 (“The probable cause inquiry is
practical, not technical.”). Moreover, on later review,
the issuing judge's finding of the existence of probable
cause is entitled to deference and should not be gainsaid
“if there is substantial evidence in the record that
supports his decision.” United States v.
Sutton, 742 F.3d 770, 773 (7th Cir. 2014);
Gates, 462 U.S. at 238-39.
position is that the evidence before Magistrate Duffin was
too old and too attenuated in its connection to her to
establish probable cause to search her residence.
See (Docket #257). The Court disagrees. There was
evidence that Rivera was a suspected drug dealer, which was
shown by, for example, an intercepted call just over one
month before the warrant application in which Rivera speaks
of selling narcotics to an out-of-town visitor. See
(Docket #244 at 15). Numerous confidential informants
corroborated the notion that Rivera was a member of the
Rivera DTO and had been selling drugs as part of the group
for a long time. Id. at 5-10. That the informants
did not themselves possess some corroborating evidence for
their statements does not make their statements inherently
Lazo believed, based on her long experience in narcotics
investigations, that evidence would likely be located in
Rivera's residence. Officers are permitted to draw
reasonable inferences from the facts presented; one of the
most common inferences, and one which is eminently
reasonable, is that drug dealers keep their wares at home.
Aljabari, 626 F.3d at 944 (“Simple common
sense supports the inference that one likely place to find
evidence of a crime is the suspect's home, at least
absent any information indicating to the contrary.”);
United States v. Orozco, ...