876 F2d 897 United States v. Aispuro-Bueno
876 F.2d 897
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
Alejandro AISPURO-BUENO, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
Submitted* March 22, 1989.
Decided June 6, 1989.
Before CHOY, ALARCON and CANBY, Circuit Judges.
Aispuro-Bueno entered a conditional plea of guilty to an indictment charging him with possession with intent to distribute heroin. He was sentenced to five years incarceration followed by a special parole term of four years. He appeals the district court's denial of his motion to suppress evidence seized pursuant to a search warrant. Aispuro-Bueno contends that the two affidavits submitted in support of the search warrant were insufficient to uphold a finding of probable cause that there was contraband or evidence at the Aumsville residence of Aispuro-Bueno. We affirm.
On May 26, 1987, Salem Police Officer Timothy Diede (Diede) applied for and obtained a search warrant from the court authorizing the search of several residences in Salem, Oregon, a residence in Monmouth, Oregon, ten vehicles and all the outbuildings of those residences. The warrant was based on a lengthy affidavit by Diede outlining his four-month investigation into the import and distribution of narcotics in the Salem area by a group led by Faustino Zavala-Aispuro.
Diede's affidavit disclosed that the police kept a pen register for Zavala-Aispuro's residence. The register showed that twelve telephone calls were placed from it to Aispuro-Bueno's residence at 180 Lancaster Drive, N.E. during a two week period. An informant overheard Zavala-Aispuro and another member of the group discussing the storage of large sums of cash at the residence of another member. The police recorded that cars belonging to Zavala-Aispuro and other group members were present off and on at 180 Lancaster Drive. Furthermore, twenty-four hours before requesting the warrant, Diede contacted the informant who told him that all of the group members were still involved in the sale and possession of controlled substances supplied by Zavala-Aispuro. The original affidavit, submitted on May 26, 1987, concluded with a list of residences and vehicles to be searched, including 180 Lancaster Drive.
On May 27, 1987, Diede learned that Aispuro-Bueno had moved and filed an amended affidavit pursuant to which the court granted Diede a search warrant for an Aumsville residence and a search was conducted pursuant to this warrant which led to the indictment.
In the amended affidavit, Diede related that following the issuance of the original warrant to search 180 Lancaster Drive, he sought confirmation of Aispuro-Bueno's continued residence. Diede's check of Electric Company records revealed that Aispuro-Bueno had switched his service to 8326 W. Stayton Road, Aumsville, Marion County, Oregon. State Police Detective Mouery confirmed that Aispuro-Bueno now lived at this address. Diede stated that he knew through past training and experience that narcotics users and dealers and co-conspirators of these dealers keep records which they would logically take with them when they moved. He also noted that it was his experience that such people frequently moved in order to escape detection. Diede further noted that one of the informants had knowledge that drug dealers were storing narcotics in smaller communities like Aumsville, due to the increased police pressure being put on drug dealers within Salem. Diede requested a warrant to search the residence of Aispuro-Bueno and his wife at 8326 W. Stayton Road, Aumsville, instead of 180 Lancaster Drive. The amended affidavit was signed and submitted May 27, 1987.
The recitation of facts contained in the affidavits establishes a fair probability the evidence would be found on the premises searched. See United States v. Fannin, 817 F.2d 1379, 1382 (9th Cir.1987) (fair probability exists that drugs will be found at the residence of one suspected of being part of a drug trafficking ring). This conclusion is further supported by Diede's opinion that evidence would be found at the residence being searched. See id. (magistrate may rely on conclusions of experienced law enforcement official regarding where evidence of crime is likely to be found).
Further, the relevance of searching Aispuro-Bueno's residence is set out in the affidavits. He had been observed by an informant in the act of buying and selling drugs and had been named as one of the main sellers of drugs for Zavala-Aispuro in an ongoing scheme to import, sell and distribute narcotics. An informant heard Zavala-Aispuro discuss Aispuro-Bueno's home as a site for storing narcotics. The police discovered that Aispuro-Bueno had moved to an outlying area at the same time the police received information that drug dealers in Salem were attempting to avoid detection by hiding their caches in such areas.
Viewing Aispuro-Bueno's move in the context of the totality of the circumstances, the magistrate correctly recognized the nexus between the Aispuro-Bueno residence and the contraband to be seized. See United States v. Michaelian, 803 F.2d 1042, 1044-45 (9th Cir.1986).
The claim of staleness is without merit. Twenty-four hours before requesting the warrant the police received confirmation from the informant that Aispuro-Bueno was still involved in the ongoing narcotics scheme. See United States v. Rabe, 848 F.2d 994 (9th Cir.1988) (police properly relied upon some two-year old information to establish probable cause when there was also current information tending to show ongoing criminal activity.)
On the totality of these circumstances, the court had substantial basis on which to conclude that probable cause existed. See Illinois v. Gates, 462 U.S. 213, 236; Rabe, 848 F.2d at 997; Michaelian, 803 F.2d at 1044-45.