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United States v. Romero

United States Court of Appeals, Tenth Circuit

April 15, 2014

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
CARL ERNESTO ROMERO, Defendant - Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. No. 1:09-CR-01253-JB-1).

Edward O. Bustamante, Albuquerque, New Mexico, for Defendant - Appellant.

James R.W. Braun, Assistant United States Attorney, (Steven C. Yarbrough, Acting United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff - Appellee.

Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.

OPINION

HARTZ, Circuit Judge.

Defendant Carl Romero was convicted by a jury of assaulting and killing Naayaitch Friday. He challenges the district court's refusal to suppress evidence found after searches of the car he drove and his bedroom. We hold that the search warrant for the car was supported by probable cause and that investigating officers properly relied on his stepfather's consent to search his bedroom. Exercising jurisdiction

Page 902

under 12 U.S.C. § 1291, we affirm the district court's denial of his motions to suppress.

I. BACKGROUND

Mr. Friday's body was found in an arroyo off a dirt road on the San Ildefonso Pueblo in New Mexico on April 11, 2009. He had been shot in the chest and the chin. In his pocket was a receipt from a nearby casino sports bar that had been printed shortly before midnight of the night before. Because the scene had no shell casings and almost no blood, investigating agents inferred that he had been shot somewhere else and his body had been moved.

In the course of investigating the murder, FBI Special Agent Arlen Scholl applied for a warrant to search a green Chevrolet Cavalier. The affidavit in support of the warrant explained what Agent Scholl had discovered about Mr. Friday's whereabouts and activities before the murder. We summarize the affidavit. Except where otherwise noted, the affidavit's description of Mr. Friday's activities was based on information from his friend, Fabian Madrid, who was with him the night before his body was discovered.[1]

About 9:30 p.m. on April 10, Mr. Friday had been drinking and socializing with some friends at a Sonic Drive-in. They were joined by three men in a green Chevrolet Cavalier whom they had not met before. Another man arrived and displayed a gun, frightening Mr. Madrid, who ran behind a vehicle. The men in the Cavalier offered to let Mr. Madrid use their gun--a " long 'rifle type' gun" in their car--if he needed it, R., Vol. I at 79-80, but the incident was resolved without violence.

Eventually, Mr. Friday, Mr. Madrid, and the three men in the Cavalier decided to leave the drive-in and meet at a nearby casino. Mr. Friday rode in the Cavalier, while Mr. Madrid got a ride from some female friends. Surveillance video shows that the five men met at the casino and spent about half an hour in its sports bar before leaving together in the Cavalier; it also shows that about an hour later, at 12:35 a.m. on April 11, all five men returned to the casino parking lot. Casino security personnel spoke with them and wrote down the vehicle's license-plate number because they had observed it driving erratically. One of the security officers recognized the driver as a former casino employee but did not remember his name.

After the men left the Casino, Mr. Madrid was dropped off at a friend's house. He could not remember the exact time he left the car because by then he was " extremely intoxicated." Id. at 81. When he left, Mr. Friday had with him about $400 in cash and a full bottle of Crystal Palace Vodka. Mr. Madrid did not see Mr. Friday alive again. His body was found at 4:30 p.m. the next day in an arroyo about two miles from the house where Mr. Madrid had been dropped off. A nearly full bottle of Crystal Palace Vodka was between his legs and $118 was on his person. An autopsy revealed that Mr. Friday had been shot at close range with a shotgun.

The affidavit further described what Agent Scholl had learned about the Cavalier and its driver. The car was registered to Defendant's aunt, at the same ...


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