United States v. Rodriguez-Suazo

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Rodriguez-Suazo No. 01-2590 ELECTRONIC CITATION: 2003 FED App. 0354P (6th Cir.) File Name: 03a0354p.06 _________________ OPINION UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT KAREN NELSON MOORE, Circuit Judge. Defendant- _________________ Appellant Alfredo Rodriguez-Suazo (“Rodriguez-Suazo”) appeals from the judgment entered against him after he UNITED STATES OF AMERICA , X entered a conditional guilty plea to the following offenses: Plaintiff-Appellee, - reentry of deported alien in violation of 8 U.S.C. § 1326, - fraud and related activity in connection with identification - No. 01-2590 documents and information in violation of 18 U.S.C. § 1028, v. - and fraud and misuse of visas, permits, and other documents > in violation of 18 U.S.C. § 1546. On appeal, Rodriguez- , Suazo argues that the search of his residence was unlawful ALFREDO RODRIGUEZ-SUAZO , - Defendant-Appellant. - because the search warrant was not based on probable cause to believe that the items listed in the warrant would be found N at the place to be searched. Rodriguez-Suazo also argues that Appeal from the United States District Court the stop of his vehicle, the search of his vehicle, and his for the Eastern District of Michigan at Detroit. subsequent detention violated the Constitution because the No. 00-80790—Arthur J. Tarnow, District Judge. officers lacked probable cause, and they did not have a warrant. Moreover, Rodriguez-Suazo contends that the Argued: July 31, 2003 officers lacked reasonable suspicion to detain Rodriguez- Suazo once the traffic stop failed to uncover any evidence of Decided and Filed: October 6, 2003 criminal activity. Finally, Rodriguez-Suazo argues that the search warrant affidavit contained intentionally or recklessly Before: DAUGHTREY, MOORE, and SUTTON, Circuit false information. Thus, Rodriguez-Suazo contends that Judges. anything he said during the search of his home and the search of his person and effects should be suppressed as the fruit of _________________ the poisonous tree. We now AFFIRM the district court’s denial of Rodriguez-Suazo’s motions to suppress. COUNSEL I. BACKGROUND ARGUED: Francisco J. Villarruel, Detroit, Michigan, for Appellant. Kathleen Moro Nesi, ASSISTANT UNITED On October 31, 2000, the Detroit Police Department arrived STATES ATTORNEY, Detroit, Michigan, for Appellee. at 5492 Florida to execute a search warrant at Rodriguez- ON BRIEF: Francisco J. Villarruel, Detroit, Michigan, for Suazo’s residence. According to the police, they arrived Appellant. Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

No. 01-2590 United States v. Rodriguez-Suazo 3 4 United States v. Rodriguez-Suazo No. 01-2590

sometime around 1:00 p.m.1 The search warrant identified the officers arrived at 5492 Florida and observed a man, 5492 Florida as one of two places to be searched; expressly fitting the warrant’s description for individual #2 and driving permitted the search of a 1989 Gray GMC Sierra pickup truck the GMC truck mentioned therein, the officers followed the bearing the Michigan license plate number 2615HR; and also truck and stopped it three blocks from that address. authorized the search of a five-foot nine-inch Hispanic male Rodriguez-Suazo produced a Michigan driver’s license weighing 170 pounds, with black hair and an olive bearing the name Reynaldo Michel Figueroa and admitted complexion, and going by the name “Alfredo.”2 Thus, when that he was an illegal Mexican immigrant. At this point the officers seized Rodriguez-Suazo, seized his wallet and its contents, searched the truck, and confiscated his vehicle. 1 According to Rodriguez-Suazo, he was handcuffed and in The time of the search is a disputed factual issue. At the hearing on the motion to suppress, counsel for Rodriguez-Suazo argued that police custody for a significant amount of time.3 Rodriguez- Rodriguez-Suazo was stopp ed by the Detroit police somewhere between Suazo was never read his rights, never shown a warrant, and 9:30 and 10:00 a.m. As a matter of deduction, then, counsel for never told the reason for his detention. Rodriguez-Suazo argues that at the time Rodriguez-Suazo was stopped, searched, and arre sted, the police did not have the necessary pro bab le After an unspecified amount of time, the officers returned cause because they did not obtain the search warrant until sometime later that afternoon. Joint Appendix (“J.A.”) at 121 (Tr. of Mo t. Hr’g). We do Rodriguez-Suazo to 5492 Florida where they conducted a not consider the timing to be critical because we agree with the district search of the premises. The officers possessed a search court’s conclusion that as long as the officers knew the information warrant that was issued in an effort to uncover a drug contained in the warrant at the time of the searches then they had the operation, thus the search warrant included a long list of items necessary probable cause, even without affirmation from the magistrate to be seized including: all items used in connection with drug in the form of a warrant. offenses, proceeds in connection with drug offenses, 2 passports, vehicle registrations and titles, and records Specifically, the search warrant stated the following: THEREFORE, IN THE NAME OF THE PEOPLE OF THE reflecting residences. The home search uncovered a Mexican STATE OF MICHIGAN, I command that you search . . . [t]he passport and United States visa with Rodriguez-Suazo’s entire premises known as, 5492 Florida, located in the City of picture and the name Abel Izai Ledezma-Garcia. Eventually, Detroit, County of W ayne, State of M ichigan. . . . The entire Rodriguez-Suazo admitted that he bought these documents in premises known as 6071 P roctor, located in the City of D etroit, County of Wayne, State of Michigan. . . . Also to be searched: #1 Raymie Baraza, Hispanic male, DOB 6-2-65, 5'-10", and medium build, large nose #2 Hispanic male, 5'-9", 170 pounds, black hair, olive complexion, AKA “Alfredo” 1990 Subaru, Le gacy, go ld in color, hatch back, 2001 M ichigan #3 Comelio Hernandez, Hispanic, male, 32 years of age, 5'-10", plate RRX464 190-200 pounds, medium olive comp lexion, black hair, hazel 1998 Mercury, Marquis, white in co lor, 20 01 M ichigan plate eyes. AKA “Hector” RGJ072 Also to be searched: J.A. at 21 (Br. in Supp. of Mot. to Suppress, App. A, Search W arrant). 1997 Ford, Crown Victoria, 2001 Michigan plate 7EBP97, 3 brown in color, being driven by either #1 or #3 , this vehicle is Rodriguez-Suazo contends that he was kept under police guard for equipped with aftermarket hidden com partm ents over an hour and a half while the police searched the Proctor addre ss. 1989 GMC , Sierra, pick-up, 2001 Michigan plate 2615HR, gray After that search was com plete and he was interrogated, he was taken to in color with red trim, cap on rear, being driven by either #1 or the Florid a add ress and was mad e to wait while law enforcement #3. conducted the search of that residence.

No. 01-2590 United States v. Rodriguez-Suazo 5 6 United States v. Rodriguez-Suazo No. 01-2590

Mexico for $2,000 and then used them to gain illegal entry then, and on appeal, that the information relayed by the intro the United States. informant and incorporated into the affidavit was either falsified by the informant or by the affiant, and thus the The factual basis for the search warrant came from a affiant was not truthful or was reckless in his disregard for the confidential informant. On October 30, 2000, the confidential truth by relying on the informant in the affidavit. In an informant told the affiant, Lieutenant Arthur McNamara attempt to refute the confidential informant’s statements, (“McNamara”)4, that based on his observations, a man named Rodriguez-Suazo submitted his own affidavit stating that no Raymie Baraza (“Baraza”) used the Proctor address to store male individual5 has been to the Florida address who could his drugs. This same informant told the officers that based on have possibly observed Rodriguez-Suazo in possession of “past observations,” Baraza stores a “large amount of narcotic illegal drugs or large sums of money. The defendant’s proceeds” at the 5492 Florida location. J.A. at 23-24 (Br. in affidavit also contains a sworn statement that Rodriguez- Supp. of Mot. to Suppress, App. A, Search Warrant- Suazo does not know anyone named Raymie Baraza. A Affidavit). According to the informant, Baraza stored the subsequent motion to suppress argued that the stop of proceeds where he lived at 5492 Florida. In addition, the Rodriguez-Suazo while driving in his vehicle and his eventual confidential informant stated that only the three individuals arrest were unlawful because the police did not have probable listed in the search warrant were allowed to enter these cause to search the vehicle or reasonable suspicion to detain premises to conduct narcotic sales. A mere forty-eight hours Rodriguez-Suazo. That motion aimed to suppress any before the signing of the affidavit and search warrant, the evidence seized from the vehicle or Rodriguez-Suazo and any informant accompanied Baraza to the Proctor address so that statements made by Rodriguez-Suazo to the police. The final Baraza could pick up a large amount of cocaine to distribute motion to suppress focused on the invalidity of the search to another individual. warrant as it pertained to 5492 Florida. Rodriguez-Suazo claimed that the search warrant was issued without probable On November 8, 2000, Rodriguez-Suazo was indicted on cause to believe that the items contained in the warrant would three counts: reentry of deported alien, fraud and related be found at the location named therein. Thus, Rodriguez- activity in connection with identification documents and Suazo contends that the issuing magistrate abandoned his role information, and fraud and misuse of visas, permits, and other as a neutral and detached judicial officer by issuing this documents. Rodriguez-Suazo filed three motions to suppress. entirely unsupported warrant. In the alternative, defendant Rodriguez-Suazo’s first motion sought to suppress the argues that, despite the magistrate’s authorization, no evidence retrieved from the 5492 Florida address and the reasonable police officer would have relied on this statements he made during and after the search because the unsubstantiated warrant. search warrant was not based on probable cause to search him and his home when the issuing magistrate relied on an Rodriguez-Suazo requested an evidentiary hearing to affidavit with falsified information. Rodriguez-Suazo argued pursue these arguments further. The district court denied his request for an evidentiary hearing and suppression motions but preserved its right to reevaluate its decision if Rodriguez- 4 McN amara was a member of the De troit police force for twenty- eight years, serving the most recent fourteen years in the narc otics division. McNamara justifiably relied on this informant because he had 5 used this same informant on more than three different occasions which Rodriguez-Suazo’s appellate brief changes this to “no person” could resulted in over three arrests and over three convictions. have seen d rug proceeds in storage at the Florida ad dress.

No. 01-2590 United States v. Rodriguez-Suazo 7 8 United States v. Rodriguez-Suazo No. 01-2590

Suazo could make a proffer that the police officers did not II. ANALYSIS have a warrant at the time of their stop and search of Rodriguez-Suazo.6 The district court also suggested that even A. Standard of Review if Rodriguez-Suazo could show that the officers did not have a warrant at the time of these events, the government When reviewing a district court’s denial of a motion to nonetheless could satisfy the probable cause requirement if suppress evidence, we review the factual findings for clear the officers knew of the warrant’s contents when they error and the legal conclusions as to the existence of probable searched Rodriguez-Suazo and his home.7 cause de novo. United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999), cert. denied, 528 U.S. 1176 (2000). “It is well After he was unsuccessful in his motions to suppress settled that in seeking suppression of evidence the burden of evidence, Rodriguez-Suazo, pursuant to a conditional Rule 11 proof is upon the defendant to display a violation of some Plea Agreement, pleaded guilty to all three counts in the constitutional or statutory right justifying suppression.” indictment. Ultimately, Rodriguez-Suazo was adjudicated United States v. Feldman, 606 F.2d 673, 679 n.11 (6th Cir. guilty on each count, and on November 14, 2001, he was 1979). “When reviewing the denial of a motion to suppress sentenced to twenty months’ imprisonment on each count, to evidence, we must consider the evidence in the light most run concurrently. Rodriguez-Suazo now timely appeals from favorable to the government.” United States v. Garza, 10 the district court’s judgment and its order denying his motions F.3d 1241, 1245 (6th Cir. 1993). to suppress. The standard of review for determining the sufficiency of the affidavit “is whether the magistrate had a substantial basis for finding that the affidavit established probable cause to believe that the evidence would be found at the place cited.” United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991). We do not engage in de novo review of the affidavit, but 6 At the motion hearing, the district court asked Rodriguez-Suazo to “[r]ather the magistrate’s probable cause determination identify the time when the search warrant was issued. Rodriguez-Suazo should be afforded great deference.” Id.; see also United responded that he was unable to verify that information from the 36th States v. Leon, 468 U.S. 897, 914 (1984) (“[T]he preference District Court. for warrants is most appropriately effectuated by according 7 ‘great deference’ to a magistrate’s determination.”). This Specifically, the district court stated: [I]f you can pro vide m e with some kind of authority that says, deferential review is consistent with “the Fourth assuming the officers had in some form the same information Amendment’s strong preference for searches conducted that was ultimately put before the magistrate judge, that absent pursuant to a warrant.” Illinois v. Gates, 462 U.S. 213, 236 a search warrant did not constitute proba ble cause to sto p this (1983). Our determination of whether the information defendant, that might affect my decision on an evidentiary supporting the affidavit is stale utilizes the same standard of hearing as well, but I am operating from the assumption, from which I could be disabused of if that isn’t the law, that the same review as used to determine the sufficiency of an affidavit. information that the magistrate judge acted on if in the United States v. Canan, 48 F.3d 954, 958-59 (6th Cir. 1995). possession of the officers who arrested this de fendant would have constituted probable ca use even without a magistrate judge agreeing with them. J.A. at 144 (Tr. of Mo t. Hr’g).

No. 01-2590 United States v. Rodriguez-Suazo 9 10 United States v. Rodriguez-Suazo No. 01-2590

B. The Searches Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978) (internal quotation omitted)). When law enforcement officials have The Fourth Amendment to the United States Constitution acted unreasonably, the exclusionary rule exists to suppress provides for the issuance of warrants based on probable cause evidence gained through unconstitutional means. United and supported by oath or affirmation. U.S. Const. amend. IV. States v. Calandra, 414 U.S. 338, 348 (1974); Nix v. The Fourth Amendment requires that the warrant “particularly Williams, 467 U.S. 431, 443 (1984) (“[T]he way to ensure describ[e] the place to be searched, and the persons or things [constitutional and statutory] protections is to exclude to be seized.” Id. Probable cause to search is described as a evidence seized as a result of such violations notwithstanding “fair probability” that evidence of the crime will be found at the high social cost of letting persons obviously guilty go the location to be searched. Gates, 462 U.S. at 238; see also unpunished for their crimes.”). This exclusion applies equally Davidson, 936 F.2d at 860 (holding that the affidavit “to the fruits of the illegally seized evidence.” Calandra, 414 established a substantial basis for a probable cause finding U.S. at 347. The purpose behind exclusion is not to remedy “[b]ecause only the probability, and not a prima facie the harm suffered by the victim of the illegal search, but showing, of criminal activity is the standard of probable rather “to deter future unlawful police conduct and thereby cause”). The inquiry requires that the magistrate or judge effectuate the guarantee of the Fourth Amendment against review the totality of the circumstances “to make a practical, unreasonable searches and seizures.” Id. Thus, evidence common-sense” determination of whether probable cause is procured through an illegal search or seizure is not present. Gates, 462 U.S. at 238. “The issuing judge or automatically suppressed, but rather the applicability of magistrate ‘may give considerable weight to the conclusion certain exceptions to exclusion first are considered. See Leon, of experienced law enforcement officers regarding where 468 U.S. at 906. evidence of a crime is likely to be found and is entitled to draw reasonable inferences about where evidence is likely to In Leon, the Supreme Court explained that the exclusionary be kept.’” United States v. Caicedo, 85 F.3d 1184, 1192 rule “operates as ‘a judicially created remedy designed to (1996) (quoting United States v. Lawson, 999 F.2d 985, 987 safeguard Fourth Amendment rights generally through its (6th Cir. 1993) (internal quotation omitted)). On review, the deterrent effect, rather than a personal constitutional right of district court will not have a basis for overturning the the person aggrieved.’” Id. at 906 (internal quotation conclusion of the magistrate unless the magistrate did not omitted). The Court reasoned that because the rule was have a “substantial basis” for determining that probable cause designed to deter police misconduct, the benefits from was present. Gates, 462 U.S. at 238. excluding evidence procured by objectively reasonable reliance on a later invalidated search warrant were The Fourth Amendment’s primary purpose is to protect insignificant compared to the costs of such exclusion. Id. at “[t]he right of people to be secure in their persons, houses, 907-08. The Court encouraged lower courts to consider the papers, and effects, against unreasonable searches and totality of the circumstances using an objective measure when seizures.” U.S. Const. amend. IV. “‘The critical element in assessing “whether a reasonably well trained officer would a reasonable search is not that the owner of the property is have known that the search was illegal despite the suspected of crime but that there is reasonable cause to magistrate’s authorization.” Id. at 923 n.23. Thus, the Court believe that the specific things to be searched for and seized stated that the “evidence obtained from a search should be are located on the property to which entry is sought.’” United suppressed only if it can be said that the law enforcement States v. Savoca, 761 F.2d 292, 297 (6th Cir. 1985) (quoting officer had knowledge, or may properly be charged with

No. 01-2590 United States v. Rodriguez-Suazo 11 12 United States v. Rodriguez-Suazo No. 01-2590

knowledge, that the search was unconstitutional under the facially-valid search warrant, the evidence should have been Fourth Amendment.” Id. at 919 (quoting United States v. excluded because: (1) the warrant was based on a knowing or Peltier, 422 U.S. 531, 542 (1975)). reckless falsehood contained in the affidavit, (2) the magistrate abandoned his role as a neutral and detached The Leon Court identified three situations in which the judicial officer because there were not sufficient facts to fruits of an illegal search could be suppressed regardless of conclude that evidence of the crime would be found at 5492 law enforcement’s reliance on a warrant issued by a Florida; and (3) the warrant was so lacking in probable cause magistrate. Id. at 923. These situations include when: (1) a that a reasonable officer would not have relied on it. warrant is based on a knowing or reckless falsity contained in the affidavit, Leon, 468 U.S. at 914; (2) a warrant is issued by When reviewing the affidavit for evidence establishing a magistrate who abandons his judicial role by failing to be probable cause, we ask whether there was a “fair probability” neutral and detached, instead serving as a “rubber stamp” for that any evidence would be found at the location to be law enforcement, id.; and (3) a warrant is “so lacking in searched. Davidson, 936 F.2d at 859 (quotation omitted); see indicia of probable cause as to render official belief in its also Mays v. City of Dayton, 134 F.3d 809, 814 (6th Cir. existence entirely unreasonable.” Id. at 923 (quotation 1998) (“A determination of probable cause simply requires omitted). The first situation involves police misconduct consideration of whether there were reasonable grounds to appropriate for deterrence, while the second two situations are believe at the time of the affidavit that the law was being proper for exclusion because “no reasonably well-trained violated on the premises to be searched.”). As the Court officer should rely on the warrant.” Savoca, 761 F.2d at 296 stated in Gates, we approach the question using a totality of (quotation omitted). the circumstances test, to arrive at “a practical, common- sense” conclusion as to whether probable cause existed. 1. Search of 5492 Florida Gates, 462 U.S. at 238. When the probable cause for a search warrant is based upon information provided by a confidential Rodriguez-Suazo argues that the search of his residence informant, we must consider the informant’s veracity, violated the Fourth Amendment because the search warrant reliability, and “basis of knowledge.” United States v. Smith, affidavit lacked sufficient facts to establish the necessary 182 F.3d 473, 477 (6th Cir. 1999); see also Gates, 462 U.S. probable cause. Rodriguez-Suazo argues that the affidavit at 230 (noting that “an informant’s ‘veracity,’ ‘reliability’ and failed to establish a nexus between the items contained in the ‘basis of knowledge’ are all highly relevant in determining the warrant and the place to be searched. He asserts that the value of his report”). Only by evaluating these factors under confidential informant’s statements create probable cause to the fluid totality of circumstances approach, can we “ensure search only the Proctor residence, not the Florida residence. that the magistrate was informed of some of the underlying Specifically, he raises the fact that the informant neither circumstances from which the informant concluded evidence stated that he entered the Florida address nor described with of a crime is where he claimed it would be found, and some particularity the location of the money, the way in which it of the underlying circumstances from which the officer was stored, or the amount he observed being stored. The concluded that the informant . . . was reliable.” Smith, 182 informant also failed to provide a timeframe for when he saw F.3d at 478. Another factor to consider is law enforcement’s proceeds stored at this address, thus the tip was insufficient corroboration of the informant’s tip. Id. The Supreme Court and stale as it pertains to the Florida address. Moreover, has stated that information provided by a proven and reliable Rodriguez-Suazo argues that even if the officers relied on a informant, along with police corroboration of the tip, is

No. 01-2590 United States v. Rodriguez-Suazo 13 14 United States v. Rodriguez-Suazo No. 01-2590

sufficient to establish the necessary probable cause. McCray occasions Baraza stored drug proceeds at his Florida address v. Illinois, 386 U.S. 300, 304 (1967). and that within forty-eight hours a big sale had taken place with drugs Baraza obtained from the Proctor address. From In the instant case, McNamara, the affiant, was a twenty- these facts, the magistrate could infer that there existed a fair eight-year-veteran officer with fourteen years of service in the probability that the proceeds from that very recent sale would narcotics division. In the search warrant affidavit itself, be stored once again at the Florida address. See id. (“The task McNamara attested to the confidential informant’s reliability of the issuing magistrate is simply to make a practical, and credibility, citing more than three occasions when the common-sense decision whether . . . there is a fair probability confidential informant assisted law enforcement with that contraband or evidence of a crime will be found in a information leading to more than three arrests and more than particular place.”); Mays, 134 F.3d at 814 (noting that the three convictions. McNamara also stated that information magistrate’s determination is not overturned on appeal provided by this informant in the past has proven to be both “unless arbitrarily exercised”). This remains true, even if the reliable and accurate. According to McNamara, the informant informant’s tip contained erroneous information, that is, even stated that he or she previously had observed Baraza and if Baraza did not actually reside or if no drug proceeds were Hernandez selling large quantities of cocaine. The informant found at the Florida address. Moreover, Rodriguez-Suazo’s also revealed that he or she had personal knowledge that staleness claim is defeated by the pattern of drug activity Baraza stored large amounts of drug proceeds at the Florida observed by the informant on more than one occasion. See residence on previous occasions because Baraza did not trust generally United States v. Henson, 848 F.2d 1374, 1382 (6th anyone with his money. In addition, the informant noted that Cir. 1988) (“[R]elated events covering a broad span of time only three individuals (one who fit the description of continuing to the current period may furnish a most reliable Rodriguez-Suazo) were permitted access to the Florida house, indicia of present activity, thereby clearly demonstrating that and that all of the vehicles listed in the warrant transport probable cause exists.”); see also United States v. Greene, drugs. Most pertinently, the informant stated that, within the 250 F.3d 471, 481 (6th Cir. 2001) (concluding that evidence past forty-eight hours, the informant was at the Proctor of ongoing criminal activity generally can defeat a staleness address with Baraza, when Baraza picked up a large amount claim). And while the police failed independently to of cocaine for the purpose of selling it to another individual. corroborate the informant’s tip through surveillance or other McNamara further corroborated the informant’s tip by means, corroboration is not always required. See generally acknowledging that McNamara previously had arrested United States v. Allen, 211 F.3d 970, 976 (6th Cir) (en banc), Baraza for possession of three kilograms of cocaine and that cert. denied, 513 U.S. 907 (2000) (holding that when the a warrant was outstanding for Baraza’s arrest. informant is known to the affiant, named to the magistrate, has proven reliability, and directly observed the criminal Assessing the contents of the affidavit under the totality of activity in the recent past, independent police corroboration the circumstances, we conclude that the information is not required for a magistrate to determine that a probability contained therein provided a “substantial basis” from which exists that evidence of a crime will be uncovered). Based on the magistrate could conclude that probable cause was present the foregoing, we conclude that the search warrant permitting to search the Florida premises. Gates, 462 U.S. at 238. the search of the Florida residence was supported by probable While it is true that the informant did not offer a specific cause, and thus Rodriguez-Suazo’s constitutional rights were timeframe for when he saw drug proceeds stored at the not infringed when the police searched 5492 Florida. Florida address, the informant did state that on previous

No. 01-2590 United States v. Rodriguez-Suazo 15 16 United States v. Rodriguez-Suazo No. 01-2590

Even if we reached the opposite conclusion in our probable 171. The intentionally or recklessly false statement must be cause review — determining that the affidavit and resulting made by the affiant herself, not the non-governmental search warrant did not contain a sufficient nexus to justify the informant. Id.; Mays, 134 F.3d at 816 (“Franks recognizes search of 5492 Florida — we nonetheless would conclude that that information an affiant reports may not ultimately be the evidence was properly admitted pursuant to Leon’s good- accurate, and is willing to tolerate such a result at that early faith-reliance exception to the exclusionary rule. In Leon, the stage of the process, so long as the affiant believed the Supreme Court stated that evidence generally will not be accuracy of the statement at the time it was made.”). excluded where officers reasonably rely on a facially valid search warrant. Leon, 468 U.S. at 922. Although Rodriguez- Thus, even if we determined that probable cause did not Suazo contends otherwise, the exceptions to the Leon good- exist to search 5492 Florida, Rodriguez-Suazo’s attack on the faith doctrine do not apply in this case. veracity of the confidential informant’s statements would be insufficient to meet his burden for a Franks evidentiary Rodriguez-Suazo attacks the statements made by the hearing without a substantial showing that the affiant’s confidential informant which secured the search warrant, statements were intentionally or recklessly false. See United arguing that no one could have observed Baraza store any States v. Giacalone, 853 F.2d 470, 477 (6th Cir. 1988) drugs or money at 5492 Florida and thus that the warrant was (holding that the defendants’ affidavits did not amount to a based on intentionally or recklessly false information. substantial showing that the government affiant, and not the Rodriguez-Suazo also contends that either the informant does informants, made intentionally or recklessly false statements). not exist or McNamara falsified the information about the Rodriguez-Suazo’s affidavit stating that he never stored drug informant in the affidavit. Thus, McNamara either was not proceeds at 5492 Florida and that he did not know anyone truthful or was reckless in his disregard for the truth by named Raymie Baraza is hardly the “substantial preliminary relying on the informant to swear out a warrant. showing” required under Franks. Franks, 438 U.S. at 155. Even if some of the information contained in the search When a defendant attempts to show that an affidavit for a warrant ultimately could be shown to be false, Rodriguez- search warrant contained false information, the defendant Suazo provided no evidence that Officer McNamara must make a “substantial preliminary showing that a false intentionally or recklessly misrepresented facts in order to statement knowingly and intentionally, or with reckless secure the search warrant. Rodriguez-Suazo’s statement in disregard for the truth, was included by the affiant in the his affidavit that no one had entered 5492 Florida within the warrant affidavit, and if the allegedly false statement is forty-eight hours preceding the signing of the search warrant, necessary to the finding of probable cause,” the court must even if believed, does not equate to proof that the affiant lied conduct a hearing on the issue upon the defendant’s request. or was recklessly indifferent to the truth. The warrant Franks v. Delaware, 438 U.S. 154, 155-56 (1978). If at the affidavit does not suggest that the confidential informant hearing, the defendant can show by a preponderance of the personally saw anyone enter 5492 Florida after he witnessed evidence that the affiant either knowingly or with reckless the drug deal with Baraza, rather his information suggests that disregard included a false statement in the affidavit, then any based on past conduct, the proceeds of the recent sale likely evidence and fruits of the search would be excluded. Id. at would be stored at the Florida address. Under these 156. This substantial showing is necessary because a circumstances it cannot be said that the district court clearly challenge to the veracity of the search warrant affidavit must overcome the presumption that the affidavit is valid. Id. at

No. 01-2590 United States v. Rodriguez-Suazo 17 18 United States v. Rodriguez-Suazo No. 01-2590

erred in determining that the affiant neither lied nor recklessly by the reliable confidential informant, there is no evidence falsified the affidavit in order to secure a search warrant.8 from which we could conclude that the magistrate merely acted as a “rubber stamp” for the police officers’ misconduct. Rodriguez-Suazo’s belief that the magistrate was not Id. at 914. neutral and detached does not require suppression of the evidence because Rodriguez-Suazo fails to offer any evidence As for his final attempt to show that the search warrant’s to support this claim. See Feldman, 606 F.2d at 679 n.11 issuance was unconstitutional, Rodriguez-Suazo contends that (stating that the defendant has the burden of proof to show this situation falls within another exception to the Leon good- that evidence should be excluded). Moreover, the faith doctrine, that the police officers’ reliance on the warrant exclusionary rule is designed to prevent police, not was unreasonable because the warrant obviously was not magistrate, misconduct and thus, as the Court stated in Leon: supported by probable cause. Having concluded that the affidavit established probable cause, we do not need to reach To the extent that proponents of exclusion rely on its this argument. See Davidson, 936 F.2d at 860. behavioral effects on judges and magistrates in these areas, their reliance is misplaced. . . . [T]here exists no 2. Search of the GMC Truck and Rodriguez-Suazo evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or In a motion to suppress evidence and on appeal, Rodriguez- that lawlessness among these actors requires application Suazo argues that his traffic stop and subsequent arrest were of the extreme sanction of exclusion. . . . [M]ost warrantless seizures without probable cause in violation of his important, we discern no basis, and are offered none, for Fourth Amendment rights. Rodriguez-Suazo argues that at believing that exclusion of evidence seized pursuant to a the time of the traffic stop, the officers did not have a search warrant will have a significant deterrent effect on the warrant and that they lacked probable cause to make the stop issuing judge or magistrate. because Rodriguez-Suazo had not violated any traffic laws. Moreover, he contends that the search of his vehicle was Leon, 468 U.S. at 916 (footnotes omitted). Because the focus unlawful because he had not given the officers consent to of this rule is to prevent police misconduct, exclusion should search it. Rodriguez-Suazo continues his argument, asserting be ordered only if the police officer knew or should “be that even if the officers were permitted to make the initial charged with knowledge that the search was unconstitutional stop, they did not have the necessary reasonable suspicion to under the Fourth Amendment” or that the magistrate detain Rodriguez-Suazo after their search failed to uncover abandoned his or her neutral and detached function. Id. at any drugs. Because the search warrant was limited in scope 919 (internal quotation omitted). In light of the extensive to evidence of drug trafficking, once the officers failed to find affidavit containing specific information personally observed any incriminating evidence of drug activity, Rodriguez-Suazo argues that they were obligated to release him. 8 W e also do not find persuasive Rodriguez-Suazo’s argument that the Whether the officers had a search warrant at the time of the district court erroneously denied his request for an in-camera examination stop is disputed by the parties. At the hearing on the of the confidential informant. We have previously decided that we will suppression motion, Rodriguez-Suazo argued that during the not mand ate a preliminary in camera examination of the informant simp ly morning traffic stop, the officers did not yet have a search because the defendant alleges that the affidavit co ntains falsehoods. See warrant and did not know the information that would be Giacalone, 853 F.2d at 476.

No. 01-2590 United States v. Rodriguez-Suazo 19 20 United States v. Rodriguez-Suazo No. 01-2590

contained therein. However, when Rodriguez-Suazo was information that ultimately was included in the affidavit and asked by the district court whether he had any evidence to the warrant. Armed with the information contained in the substantiate his claim, Rodriguez-Suazo admitted that he had affidavit and warrant, the officers would have had the none. Rodriguez-Suazo then explained that he needed an necessary probable cause to insulate the search from a evidentiary hearing to pursue this claim further. In denying successful suppression motion. See generally Hill, 195 F.3d the motion to suppress, the district court indicated that it at 273 (“One of the exceptions to the requirement that the would reconsider the issue of whether suppression of the government obtain a warrant before searching private vehicle search was warranted if Rodriguez-Suazo could come property is the ‘automobile exception,’ which excuses the forth with some evidence tending to show that the officers police from obtaining a warrant when they have probable lacked a warrant at the time of the search. To date, cause to believe that a vehicle they have stopped contains Rodriguez-Suazo has not proffered any evidence tending to evidence of a crime.”). In the search warrant affidavit, show that the officers did not have a warrant at the time of the McNamara claims that the informant relayed to McNamara traffic stop.9 the information regarding the recent drug sale by October 30, 2000, at the latest, which necessarily means that on the day of Rodriguez-Suazo’s arguments that this court should treat the search, October 31, 2000, at least McNamara was aware the traffic stop as a warrantless search are unpersuasive. of its contents. See generally United States v. Woods, 544 While Rodriguez-Suazo attempts to show a constitutional F.2d 242, 260 (6th Cir. 1976) (noting that for assessing violation by asserting that there was no warrant at the time of whether probable cause exists, this court “mutually impute[s] the traffic stop, he has no evidence in support of his the knowledge of all the agents working together on the scene contention, and thus, fails to meet his burden for suppression and in communication with each other”). Based on of the evidence. See Feldman, 606 F.2d at 679 n.11. Without McNamara’s knowledge, it would not be clear error for the any evidence to support such a claim, we cannot say that it district court to conclude that the officers conducting the was clear error for the district court to conclude that the search were apprised of the warrant’s contents when they officers had a search warrant at the time of the stop and search stopped Rodriguez-Suazo. of Rodriguez-Suazo and his vehicle. See Garza, 10 F.3d at 1245 (noting that the court “must accept the findings of fact As of result of our conclusion that the district court was not upon which the district court relied in dealing with clearly erroneous in its determination that the police had a suppression of evidence unless those findings are clearly warrant, Rodriguez-Suazo’s arguments that his detention was erroneous”). unlawful once the stop failed to reveal evidence of drug trafficking must also fail. The warrant specifically permitted Even if Rodriguez-Suazo were able to show that the the seizure of documents, including passports and records officers searched him without a warrant, he has not offered identifying his address. After turning over his driver’s license any evidence to show that when the officers stopped with the name Reynaldo Michel Figueroa, Rodriguez-Suazo Rodriguez-Suazo in his truck, they were not aware of all the admitted that he was an illegal Mexican immigrant. Once the police had this confession, the police had probable cause to detain and arrest Rodriguez-Suazo, albeit for a different crime 9 than originally expected under the search warrant. Rodriguez-Suazo’s own affidavit fails to substantiate his argume nt. His affidavit fails to state either that the vehicle search took place in the morning or that the search tra nspired witho ut a warrant.

No. 01-2590 United States v. Rodriguez-Suazo 21

III. CONCLUSION For the foregoing reasons, we AFFIRM the decision of the district court denying Rodriguez-Suazo’s motions to suppress evidence.