Opinion
Crim. Action No: SA-05-CR-714-XR.
December 14, 2006
ORDER
On this day, the Court considered Defendant De Leon's motion to suppress (docket no. 48. The Motion to Suppress is DENIED.
FINDINGS OF FACT
1. On or about November 3 or 4, 2005, San Antonio Police Detective Erasmo Martinez received information from a confidential informant that Harman Velasquez was involved in the trafficking of drugs.
2. On November 4, surveillance was conducted at Velasquez's home. During that surveillance Velasquez was observed driving his vehicle to the 1600 block of Menefee Street, San Antonio, Texas. There are at least two houses on this block (a stucco house on the left — 1619 Menefee and a brick residence on the right — 1613 Menefee). The homes are located next to each other. They are both owned by members of the De Leon family. The two houses look different, have separate driveways, and each has its own mailbox with the address identified on the side of the mailbox. The two homes, however, are not separated from each other by any fence or wall. Velasquez was seen initially entering a gate on the left (1619), but then he pulled up to a gate on the right (1613). Velasquez was then seen entering the stucco house (1619 Menefee).
3. After Velasquez left 1619 Menefee his vehicle was later intercepted on Highway 87 by San Antonio police officers and two kilograms of cocaine were found in his car. Velasquez agreed to cooperate with law enforcement officers, and he thereafter informed them he obtained the cocaine from Max on Menefee Street. Velasquez did not identify any street address. Stated differently, he did not say whether he obtained the drugs from Max at 1613 Menefee Street or 1619 Menefee Street.
4. Based on this information, Detective Martinez conducted some research in SAPD records and municipal court records. His research found that a Max De Leon was known to use an address of 1613 Menefee. Detective Martinez also drove by the 1600 block of Menefee and saw a mailbox that had the numbers 1613.
5. Based on the above information Martinez drafted an affidavit in support of a search warrant. That affidavit (Exhibit 5) states, in part, the following:
Det. Erasmo A. Martinez . . . says: That he has good reason to believe and does believe that a certain place in Bexar County, Texas described as a one story wood frame stucco style residence, located at, known as and numbered as 1613 Menefee . . . and being the premises under the control and in charge of Max De Leon is a place where a controlled substance, to wit: Cocaine, is unlawfully possessed. . . . On November 05, 2005, at approximately 1345 hours, surveillance units observed Herman Velasquez leave his residence . . . and was followed to 1613 Menefee in San Antonio, Texas. Detective Martinez requested intelligence information for that location and learned that there had been narcotics related investigations there in the past. . . . Herman Velasquez was [later] arrested for the narcotics violation and voluntarily advised Detective Jaime Aleman that he had picked up the kilograms of cocaine from an individual known to him as Max De Leon at 1613 Menefee. Detective Martinez has accessed SAPD records and identified an individual by that name as a resident of that location. Herman Velasquez also advised that the kilograms of cocaine were produced by De Leon from within the attached garage of the residence. . . . Herman Velasquez voluntarily stated that he had been to 1613 Menefee on another occasion in the past when he also picked up several kilograms of cocaine for further delivery. . . . Herman Velasquez also voluntarily stated that he in turn would deliver the monies that he had received to Max De Leon at 1613 Menefee. . . .
6. A municipal judge signed the warrant on November 5 at midnight. Approximately 20 minutes later a team of SAPD officers and DEA agents approached 1619 Menefee (the stucco house Velasquez was seen entering earlier). Defendant Maximino De Leon answered the door. He was advised by the police that they had a search warrant, he was secured and also read his Miranda rights. The police officers conducted a protective sweep of the home. No contraband was identified during the protective sweep. De Leon was asked whether he had any narcotics that he wanted to give up, and De Leon informed Detective Aleman that a small amount of cocaine would be found in a pair of pants located in a bedroom. De Leon escorted Detective Aleman to that bedroom and one gram of cocaine was secured.
7. Approximately five minutes after entry into the home had been made, one of the officers became aware that the house they were in (1619 Menefee) had a different address from that identified in the warrant (1613 Menefee). Detective Martinez called out to the team to stop any search efforts.
8. Detective Martinez then drafted a new affidavit (Exhibit 6), went back to the city magistrate and obtained a new warrant with the address of 1619 Menefee. This second warrant was signed by the magistrate at 2:01 a.m.
9. Detective Martinez returned to 1619 Menefee, read the new warrant, and the assembled team again conducted their search.
10. No search of the residence or adjoining garage occurred between the time Detective Martinez instructed the assembled police officers and DEA to stop searching and the time the second warrant was read to De Leon.
11. At the time Detective Martinez obtained the first warrant he had a good faith belief that the stucco house was the home Velasquez entered and obtained narcotics from De Leon. Detective Martinez also had a good faith belief (albeit incorrect) that the street address for the stucco home was 1613 Menefee.
12. After the second warrant was read and a search conducted several guns, scales, press, mold and cash were found.
CONCLUSIONS OF LAW
1. Any finding of fact herein above which also constitutes a conclusion of law is adopted as a conclusion of law. Any conclusion of law herein made which also constitutes a finding of fact is hereby adopted as a finding of fact.
2. Although the first warrant contained an incorrect address, the warrant was still valid. There was probable cause to search the stucco home. Detective Martinez was the affiant as well as the executing officer of the warrant. He observed Velasquez enter the stucco home, in the affidavit he described a stucco home. Velasquez admitted to obtaining drugs from a house on Menefee. The team that assembled to execute the warrant went to the correct home. The brick residence next door was not entered into or searched by the officers. See U.S. v. Lusk, 176 F.3d 479 (5th Cir. 1999) ("search warrant's listing of the wrong address did not render it so facially deficient that the officers would have been unreasonable in presuming the warrant valid and that there was no possibility that the officers would have searched the wrong house. The officers acted in good faith when executing the warrant, and the district court's denial of the motion to suppress evidence and Lusk's confession was not error"); U.S. v. Gordon, 901 F.2d 48 (5th Cir. 1990).
3. The error in the warrant does not invalidate the search because it was made within the good-faith exception to the exclusionary rule. U.S. v. Leon, 468 U.S. 897 (1984); U.S. v. Castaneda, 273 F. 3d 1094 (5th Cir. 2001); U.S. v. De Leon-Reyna, 930 F. 2d 396, 400-01 (5th Cir. 1991) ("good faith exception applies to cases in which a police officer errs, but nevertheless maintains a good faith and objectively reasonable belief").
4. Defendant argues that Detective Martinez intentionally lied in his affidavit. Defendant argues that Velasquez never provided a specific street address to the law enforcement officers who questioned Velasquez. Defendant argues that Detective Martinez inserted 1613 Menefee into the affidavit and improperly attributed that fact to Velasquez. It is true that Velasquez never identified a specific address, he merely mentioned that he received the drugs from Max on Menefee Street. Nevertheless, Detective Martinez saw Velasquez enter the stucco home and described that home in the warrant. He merely inserted 1613 only after he received the results of his additional research. This error does not invalidate the Leon exception. See e.g. U.S. v. Sauls, 192 Fed. Appx. 298 (5th Cir. 2006) (CI's information was supplemented by information supplied by the affiant's own investigation; "This information, in its totality, supported a good faith conclusion by an objectively reasonable officer that the affidavit on which the warrant was based was adequate to establish probable cause. See United States v. Shugart, 117 F.3d 838, 843-44 (5th Cir. 1997) (holding that certain "technical errors" in "applications for search warrants do not undermine" the objectively reasonable good faith reliance of law enforcement))."
CONCLUSION
Defendant's motion to suppress (docket no. 48) is DENIED.