United States v. Zamudio, No. 18-1529 (7th Cir. 2018)
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An FBI investigation into Indianapolis drug‐trafficking included judicial authorization to intercept calls from 10 cell phones. During its authorized surveillance, the government intercepted calls between the apparent head of the drug‐trafficking conspiracy and his brother, Zamudio. The government obtained a search warrant to search 34 locations, including Zamudio’s residence. Agent Bates prepared the application and 84‐page affidavit, including three specific instances of Zamudio’s participation in the drug‐trafficking conspiracy. The affidavit identified Zamudio’s address, that he paid utilities at this address, and that his vehicle was routinely parked there overnight, but did not include information that drug‐trafficking activity actually took place at Zamudio’s residence. Bates stated that based on his experience and training, drug traffickers generally store their drug‐related paraphernalia and maintain records relating to drug-trafficking in the residences or the curtilage of their residences, and typically possess dangerous weapons at their residence to protect their profits, supply of drugs, and themselves. The search yielded approximately 11 kilograms of methamphetamine, a loaded gun, and a cell phone used to make intercepted calls. Zamudio was charged with participating in a drug‐trafficking conspiracy. The district court granted Zamudio’s motion to suppress the seized items. The Seventh Circuit reversed. The issuing judge reasonably drew the inference that indicia of drug‐trafficking would be found at Zamudio’s home; the evidence was enough to create a fair probability that Zamudio’s home contained evidence of a crime.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 18 1529 UNITED STATES OF AMERICA, Plaintiff Appellant, v. JUAN ZAMUDIO, Defendant Appellee. ____________________ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:16 cr 00251 TWP — Tanya Walton Pratt, Judge. ____________________ ARGUED OCTOBER 23, 2018 — DECIDED NOVEMBER 20, 2018 ____________________ Before KANNE, HAMILTON, and ST. EVE, Circuit Judges. ST. EVE, Circuit Judge. A grand jury returned a third su perseding indictment charging defendant Juan Zamudio with participating in a drug tra cking conspiracy after law enforcement executed a search warrant at his home seizing approximately 11 kilograms of methamphetamine, a loaded gun, and a cell phone used to make intercepted calls, among other items. Prior to trial, the district court granted Zamudio’s motion to suppress the seized items. The gov 2 No. 18 1529 ernment brings this interlocutory appeal arguing that the district court erred in granting Zamudio’s motion to sup press the evidence seized at Zamudio’s home pursuant to a search warrant. We agree and reverse. I. Background In February 2016, the FBI’s Safe Streets Gang Task Force began investigating numerous individuals in Indianapolis, Indiana for drug related activities. The investigation led to judicial authorization to intercept calls from ten different cell phones. During its authorized surveillance, the government intercepted phone calls between the apparent head of the drug trafficking conspiracy, Jose Zamudio, and his brother Juan Zamudio. (For the sake of clarity, we will refer to de fendant as “Zamudio” and to his brother as “Jose.”) Approximately nine months later, the government ap plied for a search warrant to search 34 separate locations, including Zamudio’s residence at 64 N. Tremont Street in Indianapolis. That same day, the magistrate judge approved the application for the search warrant. FBI Special Agent Tim Bates prepared the application and 84 page affidavit, in which he set forth three specific instances of Zamudio’s par ticipation in the drug trafficking conspiracy. First, in October 2016, Jose called Zamudio to discuss a potential methamphetamine sale to co defendant Jeffrey Rush. After the call, Zamudio texted Rush and identified himself as a contact for future drug transactions. Rush texted back stating he wanted to purchase two pounds of metham phetamine. Zamudio and Rush then planned to meet at a Kroger grocery store. When they met, surveillance officers observed Rush exit a vehicle and enter Zamudio’s vehicle. No. 18 1529 3 Then, Rush exited Zamudio’s vehicle with a “basketball sized red box.” Next, a week after the Kroger transaction, surveillance of ficers observed Rush and co defendant Jeremy Perdue enter Jose’s residence and exit a few minutes later. Rush and Per due then went to a Long John Silver’s restaurant across the street from where Zamudio worked and met with co defendant Joseph Coltharp. When Coltharp left the restau rant, police pulled him over for a traffic violation, and, after searching his vehicle, found a package of narcotics on the vehicle’s floorboard. In the interim, Zamudio reported back to his brother that the drug transaction had been completed and that he had collected $15,000 from Rush and Perdue. Last, in November 2016, co defendant Adrian Bennett called Jose’s phone, but Zamudio answered. Bennett and Zamudio discussed a shipment of marijuana. Bennett told Zamudio that he had “some change” (drug proceeds) and also needed “more of his usual” (marijuana). In addition, Bennett stated that he needed “some ice cream” (metham phetamine). Zamudio relayed this information to his brother and then told Bennett to stop by. Bennett said he would do so in an hour. Agent Bates averred Zamudio’s other drug trafficking ac tivities, including that he had his own customer base in ad dition to working at the direction of his brother. Further, Agent Bates’s affidavit identified Zamudio’s address as 64 N. Tremont Street, that he paid utilities at this address, and that his vehicle was routinely parked there overnight. Miss ing from the affidavit—and the reason for this appeal—was information that drug trafficking activity actually took place at Zamudio’s residence. Nevertheless, Agent Bates stated 4 No. 18 1529 that based on his experience and training, drug traffickers “generally store their drug related paraphernalia in the resi dences or the curtilage of their residences,” and “drug traf fickers generally maintain records relating to their drug traf ficking activities in their residences or the curtilage of their residences.” He further averred that “[t]ypically, drug traf fickers possess firearms and other dangerous weapons at their residence to protect their profits, supply of drugs, and themselves from others who might attempt to forcibly take the trafficker’s profits or supply of drugs.” II. Discussion The government argues that the district court erred in granting Zamudio’s motion to suppress because the search warrant established su cient probable cause to search Zamudio’s home. Although Zamudio conceded at oral ar gument that Agent Bates’s a davit was su cient to indicate probable cause that he was engaged in a drug tra cking op eration, he argues—as the district court concluded—that there was not a su cient nexus between the criminal con duct and his home. We review de novo a district court’s determination of probable cause and give great deference to the judgment of the magistrate judge who issued the warrant. United States v. Haynes, 882 F.3d 662, 665 (7th Cir. 2018) (per curiam); United States v. Fifer, 863 F.3d 759, 764 (7th Cir. 2017); see also Illinois v. Gates, 462 U.S. 213, 238–39 (1983) (“the duty of a reviewing court is simply to ensure that the magistrate had a substan tial basis for … conclud[ing] that probable cause existed”) (internal quotations omitted). Probable cause for a search warrant exists when the supporting a davit presents a total set of circumstances creating a “fair probability” that evi No. 18 1529 5 dence of a crime will be found. Gates, 462 U.S. at 238; United States v. Bradford, 905 F.3d 497, 503 (7th Cir. 2018). This circuit has consistently held that, for a search war rant, probable cause “does not require direct evidence link ing a crime to a particular place.” United States v. Anderson, 450 F.3d 294, 303 (7th Cir. 2006); see also United States v. Aljabari, 626 F.3d 940, 944 (7th Cir. 2010) (“we have made clear that direct evidence linking a crime to a particular place, while certainly helpful, is not essential to establish probable cause to search that place”); United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir. 1991) (“Warrants may be issued even in the absence of ‘direct evidence linking criminal ob jects to a particular site.’”) (citation omitted). Rather, issuing judges may draw reasonable inferences about where evi dence is likely to be found based on the nature of the evi dence and the o ense. United States v. Orozco, 576 F.3d 745, 749 (7th Cir. 2009); Lamon, 930 F.3d at 1188. Thus, an a da vit submitted in support of a warrant application “need only contain facts that, given the nature of the evidence sought and the crime alleged, allow for a reasonable inference that there is a fair probability that evidence will be found in a particular place.” Aljabari, 626 F.3d at 944. “In the case of drug dealers,” this circuit has recognized, “evidence is likely to be found where the dealers live.” Lamon, 930 F.2d at 1188; see also Haynes, 882 F.3d at 666 (“judges may permissibly in fer that evidence of drug dealing is ‘likely to be found where the dealer[ ] live[s]’”) (citation omitted). Accordingly, our inquiry is whether Agent Bates’s a davit gave the magistrate judge su cient information sug gesting a “fair probability” that evidence of a crime would be found at Zamudio’s home. It did. As Zamudio admitted 6 No. 18 1529 at oral argument, the a davit established a reasonable probability that he had engaged in a drug tra cking opera tion. Accord United States v. Correa, F.3d , 2018 WL 5780728, at *8 (7th Cir. Nov. 5, 2018) (“[I]f o cers have prob able cause to arrest someone, there is a good chance they al so have probable cause to search his home for evidence”). Agent Bates had been an FBI Special Agent since January 2009, had participated in federal electronic wiretap investi gations, had been involved in drug investigations and searches, and was familiar with the ways narcotics tra ckers conducted their business. Based on Agent Bates’s experience and training, he asserted that drug tra ckers generally store their drug related paraphernalia and maintain records relat ing to their drug tra cking at their residences—a fact we too have recognized. See Lamon, 930 F.2d at 1188. He further swore that drug dealers commonly store large sums of drug money and evidence of financial transactions from drug sales in their residences. Drug tra ckers, according to Agent Bates, also typically possess firearms at their residences to protect their profits and drug supplies. Under the circumstances, the issuing judge reasonably drew the inference that indicia of drug tra cking would be found at Zamudio’s home. Orozco, 576 F.3d at 749 (“a magis trate evaluating a warrant application is entitled to take an o cer’s experience into account in determining whether probable cause exists”); see also United States v. Kelly, 772 F.3d 1072, 1080 (7th Cir. 2014) (law enforcement’s statement “that drug dealers are likely to keep contraband in their residenc es” and purchase of drugs at di erent location created a “fair probability” that law enforcement would find drugs at the residence). This conclusion is consistent with our opinion No. 18 1529 7 in Orozco where the only support for the link between a high ranking gang member and the likelihood of locating drug dealing evidence at his home was the FBI agent’s belief informed by his ten years of experience investigating drug tra cking crimes. Id. at 749. In Orozco, we concluded that the issuing magistrate judge was entitled to credit the FBI agent’s lengthy experience and high degree of confidence that the sought after evidence was likely to be found at the defendant’s home. Id. at 750. Similarly, at the time he execut ed the a davit, Agent Bates had years of experience in in vestigating narcotics tra ckers and how they conduct their business. He stated that drug tra ckers commonly conceal large sums of money and possess firearms at their residenc es, along with drug related paraphernalia. Zamudio believes this ruling will endorse a categorical approach that in every case where a drug trafficker is in volved, we will uphold a finding of probable cause to search the drug trafficker’s residence. We have repeatedly rejected that approach, see, e.g., United States v. Wiley, 475 F.3d 908, 916 (7th Cir. 2007), and we do again now. In the end, proba ble cause is a practical, common sense decision best left to the magistrate judge issuing the search warrant. See Gates, 462 U.S. at 239. On a final note, although the district court based its deci sion, in part, on errors in the affidavit where Zamudio’s name was transposed with his brother’s name, on appeal, Zamudio does not base his arguments on any resultant con fusion. Indeed, despite the occasional name switching, there was no confusion as to materially outcome determinative facts: Zamudio participated in the drug trafficking conspira cy; he lived at 64 N. Tremont Street; and, based on Agent 8 No. 18 1529 Bates’s training and experience, drug traffickers store drug related items at their residences. This was enough to create a fair probability that Zamudio’s home contained evidence of a crime. Because we conclude that there was probable cause to search Zamudio’s residence, we need not address whether the good faith exception to the exclusionary rule applies. III. Conclusion We therefore REVERSE the district court’s decision and REMAND for further proceedings consistent with this opinion.
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