United States v. Jose Castellanos

Filing

OPINION FILED - THE COURT: WILLIAM JAY RILEY, LAVENSKI R. SMITH and BOBBY E. SHEPHERD. William Jay Riley, Authoring Judge (PUBLISHED) [3679768] [09-1456]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 09-1456
___________
United States of America,

*
*
Appellee,
*
* Appeal from the United States
v.
* District Court for the
* Western District of Missouri.
Jose E. Castellanos, also known as
*
Jose Navarrete, also known as
*
Pescado, also known as
*
Fish, also known as Guillermo Lujan, *
*
Appellant.
*
__________
Submitted: February 12, 2010
Filed: July 1, 2010
___________
Before RILEY,1 Chief Judge, SMITH and SHEPHERD, Circuit Judges.
___________
RILEY, Chief Judge.
This is the second time this case has come before our court for review. In
United States v. Castellanos, 518 F.3d 965 (8th Cir. 2008) (Castellanos I), Castellanos
appealed the district court’s denial of his motion to suppress evidence obtained during
a post-warrant search of his residence, claiming the warrant was based upon an

1

The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.

Appellate Case: 09-1456

Page: 1

Date Filed: 07/01/2010 Entry ID: 3679768

unlawful pre-warrant search. We held a portion of the pre-warrant search was
unlawful, and we reversed in part and remanded for further proceedings. On remand,
the district court found the evidence obtained during the post-warrant search was
admissible under the independent source doctrine. Castellanos appeals, claiming the
government (1) waived the right to raise the independent source doctrine on remand,
and (2) failed to prove the warrant was based on an independent source.
I.

BACKGROUND
Law enforcement officers received information from a confidential informant
and other sources that Castellanos was in the United States illegally, Castellanos was
selling large quantities of methamphetamine from his trailer residence, and a member
of Castellanos’s family had been kidnapped and killed. On February 23, 2006, at
approximately 6:15 a.m., six law enforcement officers, including Detective Luis Ortiz
(Detective Ortiz) with the Kansas City, Missouri, Police Department, and Special
Agent Tracy Raggs (Agent Raggs) of U.S. Immigration and Customs Enforcement,
went to Castellanos’s residence.
Upon arrival, officers found the door partially open, and because they had
information about a possible kidnaping and murder, they entered the residence to
determine the welfare of the occupants. Finding no one inside, the officers exited to
the porch, where they observed Castellanos drive a pick-up truck into the residence’s
parking lot. When Castellanos saw the officers, he began to drive away. Agent Raggs
followed Castellanos in a car and stopped Castellanos for weaving his car. Detective
Ortiz was also present. The officers noticed Castellanos was intoxicated and had
urinated on himself. Initially, Castellanos refused to identify himself, but he
eventually provided the officers with the name Guillermo Lujan. Castellanos said he
had identification at home. Detective Ortiz asked Castellanos for consent to search
his trailer and pick-up truck, but Castellanos did not reply.

-2-

Appellate Case: 09-1456

Page: 2

Date Filed: 07/01/2010 Entry ID: 3679768

The officers drove Castellanos to his residence to verify his identity.
Castellanos opened the unlocked door of his residence, and Castellanos did not object
when Agent Raggs and Detective Ortiz followed him inside. Castellanos refused to
say his name and said “no” to Detective Ortiz’s request to search the residence. Agent
Raggs again asked Castellanos for his identification, and Castellanos “flipped his
hand” in the direction of his bedroom. Agent Raggs entered Castellanos’s bedroom
and searched a dresser and a chest of drawers, but did not locate any identification.
Agent Raggs did notice a notebook on the dresser with monetary figures written on
it, and saw similar papers in the living room, including a paper taped to the wall with
names, numbers and monetary figures. Agent Raggs testified the document on the
wall appeared to be a drug transaction ledger.
Eventually, Agent Raggs noticed a wallet on a bookshelf next to Castellanos,
and retrieved identification from the wallet bearing the name of Guillermo Lujan.
Agent Raggs asked Castellanos if his name were Guillermo Lujan, and Castellanos
repeatedly responded, “what’s on the ID?” Agent Raggs also asked Castellanos about
his immigration status, and Castellanos admitted he was in the country illegally.
Detective Ortiz decided to apply for a search warrant, and during the execution of the
warrant, law enforcement officers found evidence of drug dealing. Castellanos was
then charged with federal drug and firearm related offenses.
Castellanos filed a motion to suppress, claiming, among other things, that all
evidence found in execution of the search warrant should be suppressed because the
warrant was based upon observations of police during an unlawful search of
Castellanos’s home. The district court, adopting the magistrate judge’s report and
recommendation, granted Castellanos’s motion to suppress as to the search of
Castellanos’s pick-up truck for reasons unrelated to this opinion, and denied the
motion to suppress in all other respects.

-3-

Appellate Case: 09-1456

Page: 3

Date Filed: 07/01/2010 Entry ID: 3679768

Castellanos entered a conditional guilty plea to conspiracy to distribute 500
grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)
and 846, reserving the right to appeal the denial of his motion to suppress.
Castellanos then appealed to our court, claiming law enforcement officers illegally
entered and searched his home. Castellanos also argued, for the first time on appeal,
that “[e]ven if the warrantless entry into his home was reasonable, police had no
reasonable basis by which to conclude that [Castellanos] had impliedly consented to
a search of his bedroom for identification.”
We concluded the law enforcement officers lawfully entered Castellanos’s
residence, but Castellanos was too intoxicated to consent to a search of his bedroom.
Castellanos I, 518 F.3d at 970. We therefore reversed the district court’s denial of
Castellanos’s motion to suppress “with respect to the evidence seized from
Castellanos’s bedroom,” affirmed the district court’s ruling in all other respects, and
“remanded to the district court for further proceedings consistent with [our] opinion.”
Id. at 972.
On remand, Castellanos filed a supplemental motion to suppress, arguing the
government waived its right to raise the independent source doctrine. He also claimed
the scope of the remand should be limited to a determination, based on the existing
evidentiary record, whether evidence obtained following the search of Castellanos’s
bedroom constituted fruit of the poisonous tree. In response, the government
suggested the court hold a hearing to determine whether the police would have sought
the warrant even if the unlawful entry into the bedroom had not occurred, and whether
the information obtained through the unlawful entry impacted the court’s decision to
issue the search warrant. The magistrate judge found (1) the government did not
waive its right to assert the independent source doctrine, (2) redacting the information
obtained by police during the unlawful search of Castellanos’s bedroom did not affect
the probable cause of the affidavit used to obtain a search warrant, and (3) additional

-4-

Appellate Case: 09-1456

Page: 4

Date Filed: 07/01/2010 Entry ID: 3679768

evidence was needed to determine whether the illegal search motivated the officers
to procure a search warrant.
On December 1, 2008, the magistrate judge held an evidentiary hearing.
Detective Ortiz testified the records observed in the bedroom did not impact his
decision to seek a search warrant. Based upon Detective Ortiz’s testimony, the
magistrate judge drafted a second report, recommending the district court deny
Castellanos’s supplemental motion to suppress based upon a finding that “the officers
would have requested a search warrant even without having seen the logs which
appeared to be drug sales records in defendant’s bedroom.” On February 17, 2009,
the district court adopted the magistrate judge’s second report and recommendation,
and denied Castellanos’s supplemental motion to suppress.
Castellanos now appeals, claiming the government waived its right to rely on
the independent source doctrine because the government did not raise the doctrine in
the initial proceeding, and the district court lacked jurisdiction on remand to reopen
the evidentiary record and allow the government to litigate a new theory of
admissibility for the challenged evidence. In the alternative, Castellanos argues,
“[e]ven if the government did not waive the independent source exception,” the
government failed to prove Detective Ortiz would have included information
regarding the drug trafficking notations observed in the living room absent the
unlawful observation of similar notations in the bedroom.
II.

DISCUSSION
A.
Jurisdiction to Reopen the Evidentiary Record
The law of the case doctrine and the related concept of waiver are prudential
rather than jurisdictional, and neither rule is an absolute bar to appellate review. See
Kessler v. Nat’l Enters., Inc., 203 F.3d 1058, 1059 (8th Cir. 2000); Crocker v.
Piedmont Aviation, Inc., 49 F.3d 735, 739-40 (D.C. Cir. 1995). The district court,
therefore, did not lack jurisdiction to decide those issues left open by our mandate, see
-5-

Appellate Case: 09-1456

Page: 5

Date Filed: 07/01/2010 Entry ID: 3679768

United States v. Hessman, 493 F.3d 977, 981 (8th Cir. 2007) (noting a district court
is again vested with jurisdiction upon receipt of our judgment), nor did the district
court abuse its discretion by reopening the record to hold an evidentiary hearing, see
Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 552 (1983) (“On remand, the
decision on whether to reopen the record should be left to the sound discretion of the
trial court.”).
B.
Standard of Review
When reviewing a district court’s denial of a suppression motion, we review the
court’s factual findings for clear error and its legal conclusions de novo. See United
States v. Bell, 480 F.3d 860, 863 (8th Cir. 2007); United States v. Solomon, 432 F.3d
824, 827 (8th Cir. 2005). We will affirm the district court’s decision to deny a motion
to suppress unless it is unsupported by substantial evidence on the record; reflects an
erroneous view of applicable law; or after a thorough review of the record, we have
a definite and firm conviction that a mistake has been made. See Bell, 480 F.3d at
863.
C.

New Issue on Remand
1.
Earlier Proceedings
In order to determine the propriety of the district court’s actions on remand, we
must first consider what transpired in the earlier proceedings. First, Castellanos filed
a motion to suppress, which the district court denied in large part. Castellanos then
appealed, raising for the first time the issue that, “[e]ven if the warrantless entry into
his home was reasonable, police had no reasonable basis by which to conclude that
[Castellanos] had impliedly consented to a search of his bedroom for identification.”
Despite the apparent waiver of Castellanos’s argument as untimely, this court
adopted Castellanos’s position, and found Castellanos was too intoxicated to consent
to the officers’ entry into his bedroom. Castellanos I, 518 F.3d at 970. We then
reversed the district court “with respect to the evidence seized from Castellanos’s
-6-

Appellate Case: 09-1456

Page: 6

Date Filed: 07/01/2010 Entry ID: 3679768

bedroom,” and directed that “the evidence seized during the unlawful search of
Castellanos’s bedroom must be suppressed.” Id. at 972. We affirmed the district
court’s ruling in all other respects and remanded the case for further proceedings
consistent with our opinion. Id.
On remand, the court below was left with the task of deciphering our mandate
in Castellanos I. The magistrate judge recognized our court ordered all “evidence
seized during the unlawful search of Castellanos’s bedroom be suppressed,” when, in
fact, no evidence had actually been seized during the unlawful search. Instead, the
record demonstrates Agent Raggs observed a notebook in the bedroom with monetary
figures written on it. The magistrate judge concluded, “[b]ecause there is no evidence
to suppress . . ., it seems logical to conclude that the court of appeals intended the
analysis to go further, i.e., whether the suppression of that information would affect
the outcome.” Thus, the magistrate judge found the next step in the process must be
to determine whether officers would have had sufficient probable cause to obtain a
warrant absent the illegal search of the bedroom. The magistrate judge’s
interpretation of our indistinct holding was sound and “consistent with [our] opinion”
in Castellanos I, 518 F.3d at 972.
In conducting this analysis, the magistrate judge rejected Castellanos’s
contention the government waived the right to raise the independent source doctrine.
The magistrate judge recognized strict application of waiver principles, as applied to
Castellanos, would result in denial of relief because Castellanos himself had failed to
assert properly that the entry into his bedroom was illegal before the appeal. The
magistrate judge decided, “[b]ecause the government could not foresee the Eighth
Circuit’s ruling . . . the government has raised the independent source doctrine at the
earliest practicable time in this case and therefore has not waived its right to assert that
doctrine.” After an evidentiary hearing, the magistrate judge found the independent
source doctrine applied. Adopting the magistrate judge’s report and recommendation,

-7-

Appellate Case: 09-1456

Page: 7

Date Filed: 07/01/2010 Entry ID: 3679768

the district court denied Castellanos’s supplemental motion to suppress all the
evidence found pursuant to the search warrant.
2.
Law of the Case and the Mandate Rule
“‘Law of the case terminology is often employed to express the principle that
inferior tribunals are bound to honor the mandate of superior courts within a single
judicial system.’” United States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995) (quoting
18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice &
Procedure § 4478 (1981 & Supp. 1995)). “When an appellate court remands a case
to the district court, all issues decided by the appellate court become the law of the
case, and the district court on remand must ‘adhere to any limitations imposed on its
function . . . by the appellate court.’” Id. (quoting United States v. Cornelius, 968
F.2d 703, 705 (8th Cir. 1992)) (internal citation omitted). Absent “instructions to hold
further proceedings, a district court has no authority to re-examine an issue settled by
a higher court.” Bethea v. Levi Strauss & Co., 916 F.2d 453, 456 (8th Cir. 1990). In
contrast, “[w]hile a mandate is controlling as to matters within its compass, on the
remand a lower court is free as to other issues.” Sprague v. Ticonic Nat’l Bank, 307
U.S. 161, 168 (1939).
An application of this doctrine is visible in Cornelius, 968 F.2d at 704-06. In
that case, Cornelius appealed his sentence, and the government cross-appealed the
district court’s finding that Cornelius was not an armed career criminal under 18
U.S.C. § 924(e). Id. at 704. This court reversed and remanded for resentencing on the
issue raised in the government’s cross-appeal. Id. (discussing United States v.
Cornelius, 931 F.2d 490 (8th Cir. 1991)). At resentencing, Cornelius argued one of
his prior convictions was based on an invalid guilty plea and could not be used to
enhance his sentence for being an armed career criminal. Id. Cornelius also argued
two of the convictions were related cases and therefore could not be used to find he
was a career offender under United States Sentencing Guidelines § 4B1.1. Id. The
district court held it could not consider these new issues on remand. Id. at 704. This
-8-

Appellate Case: 09-1456

Page: 8

Date Filed: 07/01/2010 Entry ID: 3679768

court reversed because “[w]e did not limit the district court’s further determination of
whether Cornelius was an armed career criminal,” and “the district court was free to
consider any new arguments raised at the resentencing as to whether Cornelius was
an armed career criminal that could have been considered at the first hearing.” Id. at
706. However, we affirmed the district court’s “refus[al] to consider new evidence
relating to Cornelius’[s] sentence enhancement as a career offender because that
determination was not before the district court on remand.” Id.; cf. United States v.
Ticchiarelli, 171 F.3d 24, 32-33 (1st Cir. 1999) (finding defendant had not waived an
issue he raised for the first time during resentencing because the arguments were made
newly relevant by the court of appeals’ decision and the defendant did not have
“sufficient incentive to raise the issue in the prior proceedings”).
In the present case, our mandate left several issues open for the district court to
decide and expressly ordered the district court to hold further proceedings consistent
with our opinion. Castellanos I, 518 F.3d at 972. The district court limited its review
and only considered one ultimate issue—whether the information obtained during the
unlawful search of the bedroom impacted the validity of the search warrant. We agree
with the district court’s reading of our mandate, and we commend the district court,
and particularly the magistrate judge, for its cogent analysis and commitment to
following the ill-defined directives of this court.
3.

Waiver
a.
New Issue v. New Argument
Although lower courts are free to decide new issues left open on remand, this
court must also consider whether an issue not previously raised is deemed waived, and
therefore, not within the scope of remand. See Sprague, 307 U.S. at 168-69; United
States v. Husband, 312 F.3d 247, 250 & n.3 (7th Cir. 2002) (declaring “any issue that
could have been but was not raised on appeal is waived and thus not remanded”). Not
every new argument, or shift in approach, constitutes the raising of a new issue. See
Weitz Co. v. Lloyd’s of London, 574 F.3d 885, 890-91 (8th Cir. 2009); Universal
-9-

Appellate Case: 09-1456

Page: 9

Date Filed: 07/01/2010 Entry ID: 3679768

Title Ins. Co. v. United States, 942 F.2d 1311, 1314-15 (8th Cir. 1991). The
government argues it did not raise a new issue on remand, but merely continued to
advance the proposition “that the search warrant was based upon adequate probable
cause gained from lawful entry into the trailer.” This argument has merit.
In United States v. Duchi, 906 F.2d 1278, 1285 (8th Cir. 1990) (Duchi I), this
court “reverse[d] Duchi’s convictions on all counts because the evidence used to
convict him was the fruit of a warrantless entry without exigent circumstances.” We
noted the government was free to retry the appellant, but the government would have
to prove its case “without the benefit of the evidence gained from unconstitutionally
entering his home.” Id. On remand, the government attempted to argue, for the first
time, that the evidence was admissible under the inevitable discovery doctrine. See
United States v. Duchi, 944 F.2d 391, 392 (8th Cir. 1991) (Duchi II). The district
court ruled the government could not argue a new ground for the introduction of
evidence when this court already held that evidence had been illegally obtained. Id.
In Duchi II, our court affirmed the district court, in relevant part, declaring, “[t]he
Government may not advance during a second trial previously unasserted grounds for
the admissibility of evidence seized in a warrantless search which an appeals court has
concluded should have been suppressed on the basis of arguments made at the first
trial.” Id.
Castellanos cites Duchi II in his brief for the proposition that “if alternative
grounds for admission existed, then the Government should have presented those
theories in the prior case.” Id. at 393. However, Duchi II is distinguishable from
Castellanos’s case, and the reasoning of Duchi II supports the government’s position
on appeal. In Duchi I, 906 F.2d at 1285, our court announced the evidence at issue
had been illegally obtained and was inadmissible in the district court. We did not
remand for further proceedings on the issue of admissibility. See id. In contrast, in
Castellanos I, 518 F.3d at 972, this court found the evidence obtained in the bedroom
during the illegal search was inadmissible, but we did not make any findings as to the
-10-

Appellate Case: 09-1456

Page: 10

Date Filed: 07/01/2010 Entry ID: 3679768

admissibility of the remaining evidence found in Castellanos’s residence, and we
remanded for further proceedings, consistent with our opinion.
We agree with the proposition set forth in Duchi II that an “issue” addressed by
a court “is not the particular theory that would support the admission of evidence, but
the broader question concerning the admissibility itself.” Duchi II, 944 F.2d at 393.
Thus, the “issue” decided by this court in Duchi I was the overarching question of
“whether the search was constitutional,” not the narrower question of “whether
exigent circumstances justified the search.” Id. Applying this reasoning to
Castellanos’s case, the issue raised by the parties below and addressed by this court
in Castellanos I was the constitutionality of the entry and search of Castellanos’s
residence. The government then did not raise a new “issue” on remand when it argued
the evidence was admissible under the independent source doctrine, but merely
formulated a new argument in support of the position maintained by the government
in each proceeding.
b.
Application of the Waiver Doctrine to Castellanos
In his brief, Castellanos repeatedly cites cases which stand for the proposition
that issues not raised before the district court are waived, and therefore, cannot be
considered by this court on appeal. “The purpose of the rule is to inform promptly the
trial judge of possible errors so that he may have an opportunity to reconsider his
ruling and make any changes deemed desirable.” Morrow v. Greyhound Lines, Inc.,
541 F.2d 713, 724 (8th Cir. 1976). However, we are not currently faced with a
scenario where an issue has been raised for the first time on appeal. In this case, the
district court considered the independent source doctrine when it was raised before the
district court on remand. Therefore, the only purposes which would be served by
invoking the waiver doctrine here would be to prevent “piecemeal appeals,” see
United States v. Carter, 490 F.3d 641, 645 (8th Cir. 2007), and to promote judicial
efficiency, see Morris v. American Nat’l Can Corp., 988 F.2d 50, 52 (8th Cir. 1993).
Neither of these interests would be served by finding the government waived its use
-11-

Appellate Case: 09-1456

Page: 11

Date Filed: 07/01/2010 Entry ID: 3679768

of the independent source doctrine under the facts of this case. Cf. Universal Title,
942 F.2d at 1314 (noting appellate courts have the discretion to consider a new issue
on appeal when the proper resolution of the case is beyond any doubt, or if injustice
might otherwise result).
“The general rule is that, ‘where an argument could have been raised on an
initial appeal, it is inappropriate to consider that argument on a second appeal
following remand.’” Kessler, 203 F.3d at 1059. However, “appellate courts should
not enforce the rule punitively against appellees, because that would motivate
appellees to raise every possible alternative ground and to file every conceivable
protective cross-appeal, thereby needlessly increasing the scope and complexity of
initial appeals.” Id.; see also Crocker, 49 F.3d at 739-41; Field v. Mans, 157 F.3d 35,
41-42 (1st Cir. 1998). It is unclear when Castellanos believes the government should
have argued the independent source doctrine for the first time. Although the
government should be required to raise alternative theories for the admission of
evidence at the outset, the government cannot be expected to respond to arguments in
the district court which were not actually raised by the defendant until the appeal.
In Field, 157 F.3d at 37, 40-42, a bankruptcy court held in favor of the appellee,
and an appeal was pursued to the Bankruptcy Appellate Panel, and then to the First
Circuit. The First Circuit recognized that “to preserve an alternative theory, an
appellee might in some situations be required to raise the point in its appellate briefs.”
Id. at 41. However, the court declined to find the appellee waived an alternative
argument because it would be “extremely unrealistic” to expect appellee’s counsel to
argue “an alternate theory in support of the lower court’s judgment.” Id. The First
Circuit continued, “We are loath to find that [the appellee] waived the extension issue
merely by failing to file either a procedurally dubious cross-appeal in the district court
and in this court, or to brief and argue what, to any attorney, might have seemed an
entirely redundant point.” Id. at 41-42 (internal citation omitted).

-12-

Appellate Case: 09-1456

Page: 12

Date Filed: 07/01/2010 Entry ID: 3679768

Although parties should present alternative arguments whenever sound strategy
dictates, the government in this case was not required to anticipate every possible
outcome on appeal and formulate a responsive argument for each alternative. “[T]he
principle that a party who failed to raise an argument in its initial appeal is held to
have waived its right to raise that argument on remand or on a second appeal. . . . must
be limited to issues appropriate to be raised on appeal.” Robinson v. Johnson, 313
F.3d 128, 141 n.5 (3d Cir. 2002). “It does not require a party to raise an issue that had
not been previously treated or even raised in the district court.” Id. “Issues that arise
anew on remand are generally within the scope of the remand.” Husband, 312 F.3d
at 251 n.4; see also United States v. Morris, 259 F.3d 894, 898 (7th Cir. 2001) (“[O]n
remand and in the absence of special circumstances, a district court may address only
(1) the issues remanded, (2) issues arising for the first time on remand, or (3) issues
that were timely raised before the district and/or appellate courts but which remain
undecided.”).
Under the facts of this case, the application of the independent source doctrine
was an argument arising for the first time on remand. Cf. United States v. Khabeer,
410 F.3d 477, 483-84 (8th Cir. 2005) (remanding to the district court to consider the
application of the independent source doctrine for the first time); United States v.
Namer, 680 F.2d 1088, 1097-98 (5th Cir. 1982) (same). In Castellanos I, we
explicitly directed the district court to engage in further proceedings consistent with
our opinion. Implicit in that order was an expectation that the district court would
consider arguments raised by both parties as to how the exclusion of the information
obtained during the illegal search of the bedroom would impact the validity of the
search warrant. The government raised the independent source doctrine at the earliest
practicable time, and did not waive the application of the independent source doctrine
on remand. The district court did not err in relying upon the independent source
doctrine when denying Castellanos’s supplemental motion to suppress.

-13-

Appellate Case: 09-1456

Page: 13

Date Filed: 07/01/2010 Entry ID: 3679768

D.
Applicability of the Independent Source Doctrine
Castellanos argues the district court erred in finding Detective Ortiz would have
applied for the search warrant absent the illegal entry into the bedroom because “the
record did not establish that the information regarding the drug trafficking notations
on the paper in the living room was obtained independently of the unlawful
observations made by [Agent] Raggs during the search of [Castellanos’s] bedroom.”
We disagree.
In his second report and recommendation to the district court, the magistrate
judge listed various facts which supported Detective Ortiz’s decision to obtain a
warrant, separate and apart from either of the drug transaction ledgers observed in
Castellanos’s home, e.g., multiple confidential informants confirmed pertinent details
and Detective Ortiz presented his expert opinion on the applicable illegal drug
business. The magistrate judge emphasized one of the drug transaction ledgers had
been taped to the wall in the living room, kitchen, and dining room common area, and
was in plain view to anyone standing where Detective Ortiz was positioned in the
living room. Thus, the magistrate judge concluded the drug transaction ledger Agent
Raggs saw in the bedroom was duplicative, and Detective Ortiz would have applied
for the search warrant even if the drug transaction ledger had not been viewed in the
bedroom during the illegal search. The magistrate judge’s findings are supported by
substantial evidence in the record, and the district court did not clearly err in adopting
the magistrate judge’s factual findings. See United States v. Swope, 542 F.3d 609,
613 (8th Cir. 2008) (standard of review).
III.

CONCLUSION
We affirm the judgment of the district court.
______________________________

-14-

Appellate Case: 09-1456

Page: 14

Date Filed: 07/01/2010 Entry ID: 3679768