US v. Hector Caraballo

Filing 920100623

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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