United States v. Cotto

995 F.3d 786

UNITED STATES of America, Plaintiff - Appellee,

v.Omil COTTO, also known as Omil Gomez, also known as Omil Alfredo Gomez, Defendant - Appellant.

No. 19-2182

United States Court of Appeals, Tenth Circuit.

FILED April 27, 2021

Meredith Esser, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Appellant.

Peter J. Eicker, Assistant United States Attorney (John C. Anderson, United States Attorney, with him on the brief), Office of the United States Attorney, Albuquerque, New Mexico.

Before TYMKOVICH, Chief Judge, MURPHY, and HARTZ, Circuit Judges.

TYMKOVICH, Chief Judge.

Omil Cotto was charged with three drug and gun-related offenses stemming from a road rage incident. Prior to trial, Cotto filed a motion to suppress evidence officers had obtained from a residence in Albuquerque, New Mexico. He argued (1) the affidavit supporting the warrant did not provide probable cause for the search of the house, and (2) provisions in the warrant authorizing seizure of "all firearm evidence" and "any cellphones" were overbroad. The district court denied the motion to suppress. Cotto then pleaded guilty to lesser charges but expressly preserved his right to appeal the court's order on the suppression motion.

We affirm the district court's denial of the motion to suppress. The good-faith exception to the exclusionary rule applies to the search and seizure here. The officers acted in objectively reasonable reliance on the warrant while conducting the search of the residence. And even if we assume the warrant's cell phone provision was overbroad, that provision can and should be severed from the remaining valid portions of the warrant.

I. Background

A. Factual Background

At 2:39 p.m. on May 31, 2018, the Bernallilo County Sheriff's Office received calls about shots fired during a road rage incident in Albuquerque, New Mexico. Detectives responded to the scene of the incident. Upon arriving, they found a woman sitting in a damaged, yellow Chevrolet Camaro. The woman identified herself and claimed she had been driving the yellow Camaro when a black SUV had struck her car, the SUV's driver fired a gun, and then the SUV sped off.

After speaking with the woman, the detectives checked surveillance footage from a nearby gas station that had captured the entire incident. In the video, a black SUV rear-ended the yellow Camaro. A male driver then exited the Camaro and fired several shots from a gun at the SUV, which fled the scene. Moments later a red Camaro arrived. The woman then got out of the red Camaro and helped the male driver move items from the yellow Camaro into her car. He got into the driver's seat of the red Camaro and drove off while she got into the yellow Camaro and waited for police to arrive.

The woman changed her story when she realized the detectives had obtained surveillance footage of the entire incident. These statements were consistent with what the detectives had observed in the video. She identified her male counterpart as Omil Cotto, her husband. The officers researched Cotto and found that he had been convicted of at least one prior felony. Then the detectives discovered an address on Apodaca Street S.W. in Albuquerque in the DMV database while running a check on his wife's license.

That same afternoon, officers responded to the Apodaca residence and found the red Camaro parked in front of the house with the license plate removed. While officers waited at the residence, a white Nissan arrived. Two males, one of them Cotto, exited the Nissan and entered the house. Soon thereafter they exited the house and went back to the Nissan. At this point, officers approached both individuals and took them into custody.

At 6:16 p.m., a detective interviewed the man with Cotto. The man who had been with Cotto identified himself as Cotto's brother-in-law. He and his wife lived at the Apodaca residence, along with his wife's father.¹ During the interview, Cotto's brother-in-law described to officers what had transpired over the past several hours. He had arrived home at about 4:00 p.m. and found Cotto's red Camaro parked outside and Cotto in the house. Cotto asked him for a ride to Cotto's house to pick up a different vehicle. When they arrived, Cotto went inside and retrieved a duffle bag containing a rifle. Cotto placed it in the Nissan and told him they needed to return to the Apodaca residence because he had forgotten the keys to his other vehicle there. After arriving back at the Apodaca residence, Cotto entered the house and left the bag inside. Cotto and his brother-in-law exited the house and prepared to leave again in the Nissan. This is when the police approached them.

The detective then interviewed Cotto's sister-in-law. She said Cotto had arrived at the house that afternoon, asking if he could drop off his daughter because he needed to go to the hospital with his wife. She also stated Cotto was carrying a red and black backpack when he initially arrived, but she was unsure what he had done with it.

While officers responded to the Apodaca residence and performed interviews, another detective had returned to the station to write an affidavit supporting a search warrant for the Apodaca residence. The affidavit included a description of the surveillance footage. It also included the following three statements:

• "Deputies on scene researched Omil Cotto[ ] and found him to be convicted of at least one felony crime within the last 10 years." R., Vol. I at 48.

• "Omil was later apprehended at [the Apodaca Residence] after he arrived as a passenger in a white Nissan." Id.

• "It should be noted that the red Chevy Camaro that Omil fled the scene in was also located at [the Apodaca residence]." Id.

The affidavit specifically requested the following:

• "Affiant requests permission to seize any and all firearm evidence to include pistols, revolvers, rifles, shotguns etc. as well as any spent casings, live ammunition, holsters etc." Id.

• "Affiant requests to seize any cellphones that may be in the home or its contents." Id.

At 6:32 p.m., as officers at the Apodaca residence interviewed Cotto's brother-in-law, the detective submitted his affidavit to a district attorney for review. Having received approval from the district attorney, he then submitted the warrant to a state judge of the Second Judicial District Court of Albuquerque. The state judge telephonically approved the warrant at 7:42 p.m. The final warrant authorized officers to "search forthwith the persons, vehicle, curtilage and place described in the affidavit" and "if the person or property be found there, to seize the person and property and hold for safekeeping until further Order of the Court." Id. at 46. The warrant expressly referenced and incorporated the affidavit.

Along with other officers, the same detective who wrote the affidavit then executed the warrant at the Apodaca residence. During the search, the detective found the red and black backpack. Inside, he found two large bundles wrapped in black tape. He believed them to be drugs and sought an amended warrant to seize the bundles. The state judge approved the amended warrant at 9:40 p.m. The substance in the bundles field-tested positive for methamphetamine.

During the search, the executing officers also found and seized a Glock pistol, the license plate of the red Camaro, and the rifle Cotto had brought in the duffle bag. Cotto subsequently waived his Miranda rights and made incriminating statements.

B. Procedural Background

A grand jury indicted Cotto on three charges: possession with intent to distribute over 500 grams of a mixture containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), discharge of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(iii), and a charge of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Before trial, Cotto moved to suppress evidence obtained during the search of the Apodaca residence. He argued the state judge had improperly approved the warrant for two reasons. First, the affidavit supporting the warrant did not establish probable cause. Second, the cell phone and firearm provisions of the warrant were overbroad, violating the Fourth Amendment's requirement that warrants "particularly describ[e] ... the persons or things to be seized." U.S. Const. amend. IV.

The district court denied the motion to suppress. The court concluded the warrant was supported by probable cause and, even if it was not, the good-faith exception to the warrant requirement applied. The district court also determined the provision authorizing seizure of "all firearm evidence" was not overbroad. And, because officers did not seize any cell phones during the search, the district court concluded it was irrelevant whether the cell phone provision was overbroad.

Following the district court's denial of his motion to suppress, Cotto pleaded guilty to possession with the intent to distribute 50 or more grams of methamphetamine ( 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) ) and discharge of a firearm during a drug offense ( 18 U.S.C. § 924(c) ). The plea agreement expressly permitted Cotto to appeal the district court's suppression decision.

II. Analysis

Cotto makes two arguments about why the district court erred in denying his motion to suppress. First, he contends the district court erred in concluding that the warrant authorizing officers to search and seize evidence from the Apodaca residence was supported by probable cause. Second, he maintains the district court erred in deciding that the warrant satisfied the Fourth Amendment's particularity requirement.

A. Standard of Review

When we review a district court's denial of a motion to suppress "we view the evidence in the light most favorable to the government, accept the district court's findings of fact unless clearly erroneous, and review de novo the ultimate...