US v. Hector Caraballo

Filing 920100623

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4354 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HECTOR JAVIER CARABALLO, Defendant Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Henry Coke Morgan, Jr., Senior District Judge. (4:08-cr-00035-HCM-TEM-1) Submitted: June 1, 2010 Decided: June 23, 2010 Before KING and Circuit Judge. DAVIS, Circuit Judges, and HAMILTON, Senior Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Frances H. Pratt, Larry M. Dash, Assistant Federal Public Defenders, Norfolk, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Katherine Lee Martin, Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Hector sentence on Javier Caraballo of bank appeals robbery his and conviction two counts and of three counts attempted bank robbery, in violation of 18 U.S.C. 2113 (2006); and eight counts of use of a firearm during a crime of violence, in violation of 18 U.S.C. 924(c) (2006). Caraballo contends that the district court erred in denying his motion to suppress evidence that was recovered from his residence because the search warrant affidavit did not establish probable cause that evidence would be located at his home. exception recognized in United States Because the good faith v. Leon, 468 U.S. 897 (1984) applies, we affirm. I. On January 14, 2007, Scott Baber, a Special Agent with the Federal law Bureau of Investigation officers assistance in (FBI), York with was contacted and by local County, enforcement for County Henrico a bank Virginia, investigating robber responsible for eight robberies and attempted robberies between November 7, 2006 and December 21, 2007. In each robbery, the robber would enter the subject bank near closing time, typically on Friday or Saturday, and direct a teller or bank employee at gunpoint to take him behind the teller counter. On several 2 occasions, the robber would simply jump up on the teller counter and demand that the tellers empty their drawers. $100,000. The robber was described as a white or Hispanic male between 5'6" and 5'8". The robber often donned a fake beard and Witnesses stated that the In total, the robber had stolen more than spoke with a thick Hispanic accent. robber carried a silver revolver and a camouflage bag covered in a rubbery surface. a Surveillance cap, photographs tennis revealed and the blue subject wearing baseball white shoes jeans, and carrying the silver revolver. In these surveillance photos, the robber was clad in either a blue-checkered flannel jacket or blue-hooded sweatshirt. Witnesses described the robber as escaping in several different witnesses vehicles. reported First, seeing in a robbery exit on in March a 5, 2007, the robber gold-colored four-door sedan with the license plate JZW 4618. robbery in September 2007 a witness described Next, during a the robber as fleeing in a 1986-87 two-door gray Honda Civic. During a bank robbery on November 10, 2007, witnesses described the robber as fleeing in a dark blue Chevrolet Impala. Finally, two witnesses to a robbery on December 21, 2007, described the car as a dark blue sedan. Several investigation, he weeks was after Agent regarding Baber an began his bank contacted 3 attempted robbery in Hopewell, Virginia. On that occasion, an unknown individual approached the front door of the Bank of McKinney but, because the bank had just closed, the individual was forced to leave. Surveillance video showed that the individual wore clothing that matched that of the robber and left the scene in an older two-door gray Honda or Toyota with what appeared to be temporary window tint. Despite the number of robberies, the robber left behind no DNA evidence at any scene, although he did leave shoe impressions at three banks. Because of the lack of suspects, the FBI held a joint press conference in early March 2008 with local law enforcement, presenting surveillance photos of the robber and the dates and times of the robberies. A reward of $20,000 was offered for information leading to an arrest. The night of the press conference, Baber received a call from an informant * claiming that she recognized the robber as Hector Javier Caraballo. The informant agreed to a face-to- face interview the next day and explained that Caraballo met the physical description of the robber: spoke English with a heavy accent. he was Puerto Rican and The informant stated that she recognized Caraballo because of the clothing worn in the surveillance photos as well as his posture and build. Although not identified in the search warrant affidavit, the informant was in fact Caraballo's ex-wife. 4 * The informant also explained that Caraballo had a history of violence and drug abuse and had not held a job since 2003 or 2004. wearing The informant supplied photographs of Caraballo similar to that of the robber, including a clothing blue-checkered flannel jacket with a gray hood, blue jeans, and white tennis shoes. Based upon this information, Baber conducted a brief surveillance of Caraballo. On the morning of March 6, Baber photographed a gray two-door 1988 Toyota Corolla in Caraballo's assigned parking space at his apartment complex. Witnesses from two of the robberies were shown pictures of the car and stated that it looked like the one they had seen. the registered owner of the Corolla, In an interview with learned that the Baber owner had sold the car to Caraballo in March 2007. Later that day, Baber photographed a dark blue, 2000 Chevrolet Impala belonging to a friend of Caraballo. Witnesses from two of the robberies stated that the car looked like the one they had seen. Buttressed by these witness statements, Baber and local law enforcement began detailed surveillance of Caraballo. While under surveillance, Caraballo followed a set pattern. He would depart his residence in the morning in his Corolla and drive to the rear of a nearby building. place window tinting film on 5 his While there, he would windows and enter car Interstate 64 westbound toward Mechanicsville. On the way, Caraballo would exit the interstate and put on a new license plate. Caraballo would then reenter the interstate and exit at While in Mechanicsville, Caraballo would drive Mechanicsville. back and forth on Route 360, stopping in parking lots adjacent to two different banks but never exiting his car. hours, trips, Caraballo Caraballo would used drive the back home. plate After several two of the same During JZW license 4618--the license plate reported by a witness at one of the robberies. Based delayed upon this search evidence, warrant Agent for Baber prepared a notification Caraballo's vehicle. The the The warrant was executed at 1:00 a.m. on March 25, 2008. search yielded no evidence implicating Caraballo in robberies, including either the window tinting or the license plates. left his Later that morning, the FBI arrested Caraballo as he residence. for Agent Baber then based applied upon for a search warrant Caraballo's residence the information recounted above. The affidavit was identical to the affidavit filed for the search of the car, with the addition of a single paragraph: On March 25, 2008, at approximately 1:00 am, a delayed notification search warrant was executed on the gray Two door Toyota Corolla associated with the listed individual. No items of evidentiary value were located in the vehicle. Specifically, the stolen license plate, and the press on window tint were not located in the vehicle. At 7:00 am Hector Caraballo 6 was arrested exiting [his residence]. It is your affiant's belief based upon this search and the surveillance of the individual that these items and other evidence, fruits, and instrumentalities of the bank robberies are located in the apartment associated with Hector Caraballo . . . (J.A. at 41.) A federal magistrate judge approved the warrant, and the FBI conducted the search later on March 25. In contrast to the search of the Corolla, this search yielded evidence tying Caraballo beard, to the nose robberies, and costume including makeup, a black wig hats and fake fake baseball matching those worn during several robberies, a blue checkered flannel jacket, black gloves, multiple license plates, window tinting film, a camouflage bag that appeared to be stained with bank dye, United States currency stained with red dye, and a .38 caliber silver revolver. On April 15, 2008, a federal grand jury sitting in the Eastern District of Virginia indicted Caraballo on three counts of bank robbery and two counts of attempted bank robbery, in violation of 18 U.S.C. 2113, eight counts of use of a firearm during a crime of violence, in violation of 18 U.S.C. 924(c), and one count of being an unlawful user in possession of a firearm, in violation of 922(g)(1)(3). On July 1, 2008, Caraballo filed a motion to suppress the evidence recovered from his home, which the district court 7 denied orally on October 20, 2008. In denying the motion, the district court concluded "very clearly" that there was "probable cause to issue the warrant to search the home." The district court further concluded that probable cause existed "when they observed the defendant coming in and out of the home using the cars that have been also identified." Thus, in the district court's view, "the officer could have gotten warrants for the car and the house at the same time if he wanted to." The district court reiterated that there was "certainly" probable cause at the time the warrant was issued for the house, and that there was "no doubt in the Court's mind about that." A 922(g) sentenced jury later on to convicted March 2,292 30, months Caraballo 2009, on all but the court count and, the district Caraballo imprisonment. Caraballo filed a timely notice of appeal. II. On appeal, Caraballo contests only the denial of the motion to suppress, arguing that the search warrant affidavit fails to establish probable cause and that the warrant is so bare bones as to preclude use of the Leon good faith exception. We will use our discretion first to "proceed whether to the the good warrant faith was exception without deciding supported by probable cause." United States v. Legg, 18 F.3d 8 240, 243 (4th Cir. 1994). Where, like here, "there are no facts in dispute, the applicability of the Leon exception . . . is purely a legal conclusion." 509, 520 (4th Cir. 2004). "Generally, evidence seized in violation of the Fourth Amendment is subject to suppression under the exclusionary United States v. DeQuasie, 373 F.3d rule," United States v. Andrews, 577 F.3d 231, 235 (4th Cir. 2009), the purpose of which is "to deter future unlawful police conduct," United States v. Calandra, 414 U.S. 338, 347 (1974). The deterrence objective, however, "is not achieved through the suppression objective of evidence faith' obtained the by `an officer of a acting with good within scope search warrant issued by a magistrate." Perez, 393 F.3d at 461 (quoting Leon, 468 U.S. at 920); see United States v. Mowatt, 513 F.3d 395, 404 (4th Cir. 2008) ("[I]t is the magistrate's responsibility to determine whether probable cause exists, and officers cannot be expected to second-guess that determination in close cases."). Thus, the Leon Court created an exception to the exclusionary rule, permitting the use of evidence "obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral by magistrate cause." good but ultimately Leon, faith 468 found U.S. at to be unsupported Accordingly, obtained probable 900. "under to Leon's a exception, issued by a evidence neutral pursuant search 9 warrant magistrate reliance on does the not need to be excluded if the officer's Id. warrant was `objectively reasonable.'" (quoting Leon, 468 U.S. at 922). The Leon Court cautioned that an officer's reliance on a warrant would not qualify as "objectively reasonable," however, in four circumstances: based on statements in an where (1) probable cause is that are knowingly or affidavit recklessly false; (2) the magistrate fails to perform a neutral and detached function and instead merely rubber stamps the warrant; (3) the affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) the warrant was so facially deficient that the executing officer could not reasonably have assumed it was valid. United States v. Gary, 528 F.3d 324, 329 (4th Cir. 2008) (internal quotation marks omitted) (citing Leon, 468 U.S. at 914-15). In circumstance disagree. this case, by Caraballo the Leon contends court is that the third We identified satisfied. The warrant affidavit in this case was very detailed, discussing the beginning of the investigation, the in-depth tip from the anonymous informant, and the corroboration of the tip. The affidavit set forth that Caraballo had access to two of the vehicles matching witness descriptions and that his physical description matched that of the robber. 10 The informant likewise provided photographs showing Caraballo in attire matching the robber: the blue-checkered flannel hooded jacket. In addition, the affidavit set forth that, on two occasions, Caraballo was seen putting on a license plate that matched the plate on the getaway car from one of the robberies. The affidavit discussed in detail the surveillance of Caraballo, in which he would drive long distances, change the appearance of his vehicle en route with window tint on a and new license where two plates, banks and were perform located. reconnaissance street Finally, the warrant affidavit specified that no evidence--i.e., the additional license plates or window tint--was recovered from Caraballo's vehicle, suggesting that those materials were likely in his house. indeed And, the affidavit set forth that the home was informant provided his home address, Caraballo's--the which Agent Baber corroborated by witnessing Caraballo enter and leave the residence over the course of the surveillance. In United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993) we applied the good faith exception even though the affidavit in question was "devoid of any basis" to infer that evidence would be at the defendant's residence. In contrast, in this case the affidavit sets forth information suggesting that a search of the residence would reveal at least the license plates and window tinting, which were likely instrumentalities of the bank robberies. Moreover, as in Lalor, "two judicial officers 11 have determined that the affidavit provided probable cause to search." Id. at 1583. This case thus stands in stark contrast to United States v. Wilhelm, 80 F.3d 116 (4th Cir. 1996), in which we rejected application of the Leon good faith exception due to the "bare bones nature of the affidavit" and the fact that the "state magistrate could not have acted as other than a rubber stamp." "unknown, Id. at 121. unavailable The affidavit in Wilhelm relied on an informant without significant [police] corroboration," id. at 123, and we explained our concern that "[u]pholding th[e] warrant would ratify police use of an unknown, unproven informant--with little or no corroboration--to justify searching someone's home," id. at 120. In this case, the officers relied on a heavily detailed tip and spent more than one week of detailed surveillance to corroborate the tip as well as witness accounts from the robberies. Accordingly, because the Leon good faith exception applies in this case, the district court correctly denied the motion to suppress. III. For the foregoing reasons, we affirm the district court's judgment. facts and legal We dispense with oral argument because the contentions are 12 adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 13

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