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United States v. Rivera

United States District Court, E.D. Wisconsin

March 16, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
OMAYRA RIVERA, Defendant.

          ORDER

          J. P. Stadtmueller, U.S. District Judge

         Defendant 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 overruled.

         As 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).

         1. RELEVANT FACTS AND PROCEDURAL HISTORY

         The 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.

         Lazo 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.

         Lazo 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 4).

         Based 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).

         2. STANDARD OF REVIEW

         When 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.

         3.ANALYSIS

         Judges 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.

         Rivera's 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 unreliable.

         Furthermore, 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, ...


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