CA8: (1) In drug conspiracy case, the govt overcame staleness because of ongoing crime; (2) Issuance of SW in D.Neb. by non-cross designated USMJ in N.D.Iowa was subject to GFE

First, the search warrant in this drug conspiracy case wasn’t stale, although a long time had elasped during and between the times recorded in the affidavit of things that happened. While the evidence wasn’t strong, the deference accorded the issuing judge’s finding supports probable cause. Second, the particular USMJ that issued this search warrant in Nebraska was from the Northern District of Iowa but was not the one cross-designated to work in both districts. The good faith exception applied to that. A violation of Rule 41 isn’t necessarily a constitutional violation. Still the good faith exception applies. United States v. Ortiz-Cervantes, 2017 U.S. App. LEXIS 15818 (8th Cir. Aug. 21, 2017):

A. Probable Cause

. . .

The first controlled buy that connected Ortiz-Cervantes to the conspiracy occurred on September 24, 2013—almost eight months before the search warrant was issued and the search was conducted—and the proffer interview in November 2013 identified Ortiz-Cervantes as selling methamphetamine more than a year before the search. However, just before the tenth and final controlled buy—which occurred the same day agents applied for and executed the search warrant—Orellana stopped at the 3308 Santa Rita Court residence on his way to Gonzalez’s residence, immediately before Gonzalez met the undercover officer.

“‘In investigations of ongoing narcotics operations, intervals of weeks or months between the last described act and the application for a warrant [do] not necessarily make the information stale,’” Jeanetta, 533 F.3d at 655 (quoting United States v. Ortiz, 143 F.3d 728, 732-33 (2d Cir. 1998)), and a “lapse of time is least important when the suspected criminal activity is continuing in nature and when the property is not likely to be destroyed or dissipated,” United States v. Lemon, 590 F.3d 612, 614 (8th Cir. 2010) (quoting United States v. Horn, 187 F.3d 781, 786 (8th Cir. 1999)). Though drugs “‘can be easily concealed and moved about,’” United States v. Button, 653 F.2d 319, 325 (8th Cir. 1981) (quoting Ashley v. State, 241 N.E.2d 264, 269 (Ind. 1968)), the facts here demonstrate “a continuing pattern of behavior” sufficient to establish probable cause even with months-old information, Palega, 556 F.3d at 715. A series of controlled buys spanning from months to hours before the application for a search warrant supported the agents’ inference that Gonzalez, Orellana, and Ortiz-Cervantes had an ongoing conspiracy to sell methamphetamine and at least some transactions occurred at the 3308 Santa Rita Court residence. See, e.g., United States v. Colbert, 828 F.3d 718, 727 (8th Cir. 2016) (reasoning information obtained several months before the application for a search warrant was not stale where there was evidence of an ongoing criminal enterprise as recently as three weeks before the warrant application).

The evidence tying 3308 Santa Rita Court to the conspiracy was not the strongest—communications with Ortiz-Cervantes before some controlled buys, but not all of them, visits to the residence Ortiz-Cervantes shared with Orellana’s brother’s family, and a statement Ortiz-Cervantes sold methamphetamine from the residence more than a year before the search—but was sufficient to create “a fair probability that contraband or evidence of a crime [would] be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). “[W]e accord ‘substantial deference’ to the judicial officer’s finding,” and the district court was correct in denying Ortiz-Cervantes’s motion to suppress the evidence for lack of probable cause. United States v. Garcia-Hernandez, 682 F.3d 767, 771 (8th Cir. 2012) (quoting United States v. Buchanan, 574 F.3d 554, 561 (8th Cir. 2009)).

. . .

B. Cross-Designation of the Magistrate Judge

. . .

A search warrant issued by an improperly cross-designated magistrate judge is a violation of Federal Rule of Criminal Procedure 41, but “[a] Rule 41 violation ‘is not per se an unreasonable search and seizure in violation of the Fourth Amendment.’” United States v. Horton, Nos. 16-3976, 16-3982, 2017 WL 3122073, at *4 (8th Cir. July 24, 2017) (quoting United States v. Welch, 811 F.3d 275, 280 (8th Cir.), cert. denied, 136 S. Ct. 2476 (2016)). “Absent a constitutional infirmity, the exclusionary rule is applied only to violations of Federal Rule 41 that prejudice a defendant or show reckless disregard of proper procedure.” United States v. Hyten, 5 F.3d 1154, 1157 (8th Cir. 1993). Ortiz-Cervantes does not claim to be prejudiced by the technical violation where—as discussed above—a magistrate judge followed normal procedures and found probable cause, and the search was executed within the bounds of the warrant. Yet when a magistrate judge issues a search warrant outside his jurisdiction, that search warrant is “invalid at its inception and therefore the constitutional equivalent of a warrantless search.” Horton, 2017 WL 3122073, at *4 (finding a warrant issued by a judge in the Eastern District of Virginia for use of a Network Investigative Technique to collect information from computers located around the country void ab initio). Though the issuance of a warrant by an improperly cross-designated magistrate may lead to a constitutional violation, the evidence does not necessarily need to be suppressed.

Evidence obtained due to a violation of the Fourth Amendment generally is inadmissible in a criminal trial under the exclusionary rule—a “judicially created rule” that is “‘designed to safeguard Fourth Amendment rights generally through its deterrent effect’”—but the Supreme Court has “repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth Amendment violation.” Herring v. United States, 555 U.S. 135, 139-41 (2009) (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)). Evidence obtained in violation of the Fourth Amendment is admissible if the officers executing an invalid search warrant did so in good faith. See United States v. Leon, 468 U.S. 897, 918-19 (1984). “Under the good-faith exception, evidence seized pursuant to a search warrant issued by a magistrate that is later determined to be invalid, will not be suppressed if the executing officer’s reliance upon the warrant was objectively reasonable.” United States v. Proell, 485 F.3d 427, 430 (8th Cir. 2007).

. . .

We reiterate the requirements of 28 U.S.C. § 631(a) must be followed when cross-designating federal magistrate judges. Because the magistrate judge and the officers involved in this warrant believed in good faith the magistrate judge was properly cross-designated, the evidence obtained as a result of the search was admissible against Ortiz-Cervantes.

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