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United States v. Cordova

United States Court of Appeals, Tenth Circuit

July 6, 2015

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
OMERO CORDOVA, a/k/a Omar L. Cordova, Defendant - Appellant

Appeal from the United States District Court for the Western District of Oklahoma. (D.C. No. 5:13-CR-00137-HE-1).

J. Lance Hopkins, Tahlequah, Oklahoma for Appellant.

David McCrary, Assistant United States Attorney (Sanford C. Coats, United States Attorney, and Edward J. Kumiega, Assistant United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Appellee.

Before MATHESON, McKAY, and MORITZ, Circuit Judges.

OPINION

MORITZ, Circuit Judge

While executing a search warrant at Omero Cordova's home, law enforcement found marijuana, firearms, and drug paraphernalia, and Cordova admitted ownership of the items. Charged with various offenses, Cordova sought to suppress the evidence against him. Although the district court agreed the affidavit failed to provide probable cause, it denied Cordova's motion to suppress under the good faith exception to the warrant requirement. The court also rejected Cordova's separate motion to suppress his statements, concluding his confession was voluntary. A jury subsequently convicted Cordova of all six charges against him. Cordova appeals, challenging the district court's denial of his motions to suppress the evidence and his statements.

Exercising jurisdiction under 28 U.S.C. § 1291, we reverse. We conclude the affidavit contained so few facts implicating either Cordova or his current home that a reasonable officer could not have relied on the warrant in good faith. Because the government conceded at oral argument that if the good faith exception doesn't apply then Cordova's statements must also be suppressed as fruit of the poisonous tree, we need not address Cordova's second issue and we remand for further proceedings.

Factual and Procedural Background

On October 16, 2012, Chris Gabeau--an Oklahoma City police detective assigned to a Federal Bureau of Investigation task force--sought a search warrant for Omero Cordova's home at 2412 SW 78th  Street, Oklahoma City.

The first three pages of Detective Gabeau's affidavit contain general information about Gabeau, his qualifications and experience, and his conclusions regarding the traits and habits of drug dealers. The substantive portion of the affidavit begins on page four and is entitled " Details of Investigation." The first six paragraphs of those details contain information from an unidentified confidential source interviewed in October 2011, a year before the warrant's execution. The confidential source self-identified as a member of the Juarito gang, which is " heavily involved in narcotics trafficking" in the Oklahoma City area. The unnamed informant detailed specific sales of methamphetamine between the gang and " one of [its] main suppliers," Christopher Billingsley, within the previous two months. Oklahoma County Search Warrant Aff., Doc. 25-2, at 4. Notably, Cordova's name does not appear in the first six paragraphs of the substantive portion of the affidavit and the affidavit does not identify him as a member of the Juarito gang or as a participant in any of the sales the informant described.

The affidavit then switches gears and discusses an event that occurred some 21 months before the warrant's execution. According to the affidavit, state troopers discovered 70 pounds of marijuana in a vehicle bound for Oklahoma City in January 2011. The affidavit does not indicate who was driving the vehicle at the time of the traffic stop but states that law enforcement learned the marijuana " was supposed to be delivered to 8008 S Youngs Blvd to a subject in a black [C]orvette." Aff. at 4 (emphasis added). According to the affidavit, Cordova had listed 8008 S. Youngs Boulevard in Oklahoma City as his address on an October 2011 police form on which he reported a burglary. The affidavit concludes this paragraph by indicating that on an unspecified date, officers observed a black Corvette registered to Christopher Billingsley parked outside the Youngs Boulevard address.

Turning to somewhat more recent events, the affidavit detailed that in January 2012, approximately nine months before the warrant's execution, Cordova purchased a residence at 2412 SW 78th  Street, " using Cordova's mother . . . to actual [sic] purchase the home." Aff. at 4-5. The affidavit also indicated Cordova's mother purchased the home from a member of a family known by law enforcement to be involved in selling methamphetamine, cocaine HCL, and marijuana. The affiant further advised that " it is not uncommon" for drug traffickers to conceal vehicle, cell phone, and home purchases by using family members as straw buyers to avoid law enforcement detection.

But the affiant provided no specific information regarding whether or when the individual who sold the home had been involved in drug trafficking, except to say that the affiant had reviewed " several documents from other agencies including but not limited to: Oklahoma City Police Department, Drug Enforcement Agency and so forth stating numerous surveillance hours, wire interceptions, [and] Confidential Informants purchasing controlled substance from the [] family DTO." Aff. at 5.

The affidavit also noted that law enforcement sporadically surveilled 2412 SW 78th  Street during the summer and fall of 2012. Most notably, the affidavit indicated that approximately four months earlier, during the week of June 4, 2012, law enforcement officers watched as Billingsley drove up to the home in his black Corvette followed by a white Nissan Titan registered to Cordova. According to the affidavit, Billingsley got out of the car, opened the garage door, and then drove into the garage, shutting the door behind him. While the affidavit indicates that the Titan's " driver" left in a third car while Billingsley ...


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