FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA 

No. 05-30506 Plaintiff-Appellee,

D.C. CR-04-00301-

v.  012-MJP

ARMANDO GARCIA-VILLALBA, OPINION

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted

July 6, 2009—Seattle, Washington

Filed November 2, 2009

Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge O’Scannlain

14745
COUNSEL

Brooks Holland, Gonzaga University School of Law, Spokane, Washington, argued the cause for the defendantappellant and filed the briefs.

Michael S. Morgan, Assistant United States Attorney, Seattle,

Washington, argued the cause for the plaintiff-appellee and

filed the brief. Jeffrey C. Sullivan, United States Attorney,

was on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We venture into the world of organized crime to evaluate

the legality of a wiretap and a search of a stash house for illegal drugs. 

I

A

This case is about a wiretap that led to the takedown of a

sophisticated drug-trafficking organization. Run by members

of the Garcia-Villalba family, the drug ring operated in rural

Washington. Couriers made drug runs by car to Arizona,

where they picked up narcotics that had been smuggled into

the United States from Mexico. The vehicles contained secret

“stash compartments” designed to ferry the drugs back to

Washington undetected. There, the couriers were met by

higher-ups in the organization, who unloaded and distributed

the drugs. Armando Garcia-Villalba (“Armando”) was one

such distributor.

In 2003, the Drug Enforcement Agency (“DEA”) began an

investigation which Paul Hackett, a Spanish-speaking DEA

UNITED STATES v. GARCIA-VILLALBA 14749
agent, spearheaded by going undercover. Using a confidential

informant, Hackett managed to get introduced to Alejandro

Delgadillo-Uribe, apparently a front-line dealer. Over the following months, Hackett became a reliable customer. He purchased significant quantities of methamphetamine on five

separate occasions. Later, he bought heroin and cocaine.

During the business relationship, Hackett obtained

Delgadillo-Uribe’s cell phone number. That number, and two

others allegedly used by Delgadillo-Uribe, became the focus

of the investigation. In August 2003, when Hackett had been

dealing with Delgadillo for about eight months, a magistrate

judge authorized a pen register and trap-and-trace device to be

used on all three phone numbers. A pen register and trap-andtrace device are used to record the numbers dialed from a particular telephone number, but do not allow the listener to

overhear the contents of the communication. The initial

authorization expired in October 2003, but two additional

magistrate judges extended it until April 2004. 

Using information gleaned from the pen register and trapand-trace device, Hackett identified several of DelgadilloUribe’s associates. There, however, the investigation

appeared to stall. In March 2004, the DEA sought authorization to wiretap one of Delgadillo-Uribe’s phones. In support

of the wiretap application, Agent Hackett submitted an affidavit to United States District Judge Robert Lasnik. Hackett’s

affidavit cited the limits of the information provided by physical and aerial surveillance, the pen register, and confidential

informants. The affidavit also explained why alternative

investigatory techniques, such as trash searches, search warrants, grand jury subpoenas, and interviews, were rejected as

impractical. Judge Lasnik granted the application and authorized the wiretap, which we will refer to as the “TCT1” wiretap. 

The TCT1 wiretap, which was in effect for two months,

intercepted over 2,700 calls. As the investigation continued to

14750 UNITED STATES v. GARCIA-VILLALBA
unfold, the DEA sought and obtained another wiretap on a

phone allegedly used by a man named Anthony Tanguma (the

“TCT2” wiretap). After a confidential informant linked

Delgadillo-Uribe to another man named Andres AyonCorrales, the DEA sought and obtained a third wiretap (the

“TCT3” wiretap) on a cell phone allegedly used by AyonCorrales. The toll records for Ayon-Corrales’ phones, in turn,

revealed a fourth cell phone that was connected to Cecilio

Garcia-Villalba (“Cecilio”), a brother of the defendant in this

case. 

Sensing they were about to break the conspiracy wide open,

the DEA sought authorization for a fourth wiretap on

Cecilio’s phone (the “TCT4” wiretap). In support of the TCT4

application, Hackett submitted another affidavit, spanning

thirty-one pages, which described the status of the investigation and explained the need for a wiretap. The district court

approved the TCT4 wiretap, which generated information

linking Armando to narcotics trafficking. The legality of the

TCT4 wiretap is the central issue in this appeal.

Based on information obtained from the four wiretaps,

Agent Hackett sought a warrant to search four separate structures that he believed were being used as stash houses. One

of the four structures was a residence located on Dunbar Road

in Mount Vernon, Washington. Hackett’s affidavit in support

of the warrant application alleged that the Dunbar Road residence, called the “choza,” was a key “stash house” for narcotics and money. A magistrate judge concluded that the

affidavit established probable cause that narcotics would be

found at the Dunbar Road residence and signed the warrant.

Agents executed the search warrants in July 2004. Inside

the “choza,” they came upon a safe containing heroin,

cocaine, and methamphetamine. Agents also found digital and

gram scales, sandwich bags, magazines for firearms, ammunition, drug ledgers, wire transfer receipts, bills, and receipts.

UNITED STATES v. GARCIA-VILLALBA 14751
Following the searches, agents arrested members of the

Garcia-Villalba organization, including Armando.

B

A grand jury in the Western District of Washington

indicted Armando on forty-six counts. He was charged with

conspiracy to distribute methamphetamine, heroin and

cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),

and 846. He was also charged with possession of heroin,

cocaine and methamphetamine with intent to distribute (21

U.S.C. § 841(a)(1), (b)(1)(A)), use of a communication facility to facilitate a drug offense (21 U.S.C. § 843(b)), and distribution of cocaine.

Prior to trial, Armando moved to suppress the evidence

obtained from the TCT4 wiretap and the contraband recovered from the Dunbar Road residence. After an evidentiary

hearing, the district court denied the motion to suppress the

wiretap evidence. It also concluded that the search of the

“choza” was not supported by probable cause, but nevertheless denied the motion to suppress because the officers relied

in good faith on the search warrant. After a jury trial,

Armando was convicted and sentenced to the mandatory

minimum of 120 months in prison followed by five years of

supervised release.

Armando’s original appellate counsel filed an Anders brief,

asserting that no meritorious issues were presented on appeal.

Counsel also moved to withdraw. A motions panel of our

court granted the motion to withdraw, but struck the Anders

brief, identified arguable issues, and appointed new counsel.

Armando’s new appellate counsel filed this timely appeal.1

1We have disposed of issues regarding the district court’s denial of

Jesus Garcia-Villalba’s motion to suppress in a separate memorandum disposition filed concurrently with this opinion. 

14752 UNITED STATES v. GARCIA-VILLALBA
II

On appeal, Armando takes no issue with anything that

occurred during the trial. Rather, he challenges the denial of

his pretrial motions to suppress. In particular, he claims that

the government did not adequately demonstrate necessity for

the wiretap. He also insists that the search of the Dunbar Road

residence was not supported by probable cause and that the

officers did not rely in good faith on the magistrate’s approval

of the warrant. We address these contentions in turn.

A

[1] Title III of the Omnibus Crime Control and Safe Streets

Act of 1968, 18 U.S.C. §§ 2510-2520, allows law enforcement agencies to conduct electronic surveillance of suspected

criminal activities. This authority is not a blank check; aside

from demonstrating probable cause, see 18 U.S.C.

§ 2518(3)(a), “the government must prove necessity” before

it resorts to a wiretap. United States v. Gonzalez, Inc., 412

F.3d 1102, 1110 (9th Cir. 2005). “The purpose of the necessity requirement is to ensure that wiretapping is not resorted

to in situations where traditional investigative techniques

would suffice to expose the crime.” United States v. Carneiro,

861 F.2d 1171, 1176 (9th Cir. 1988). 

To this end, a wiretap application must contain, among

other things, “a full and complete statement as to whether or

not other investigative procedures have been tried and failed

or why they reasonably appear to be unlikely to succeed if

tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c). The

judge may grant the application if he determines, among other

requirements, that “normal investigative procedures have

been tried and have failed or reasonably appear to be unlikely

to succeed if tried or to be too dangerous.” Id. § 2518(3)(c).

[2] We have held “that the wiretap should not ordinarily be

the initial step in the investigation, but that law enforcement

UNITED STATES v. GARCIA-VILLALBA 14753
officials need not exhaust every conceivable alternative

before obtaining a wiretap.” United States v. McGuire, 307

F.3d 1192, 1196-97 (9th Cir. 2002) (footnote omitted). The

necessity requirement “can be satisfied by a showing in the

application that ordinary investigative procedures, employed

in good faith, would likely be ineffective in the particular

case.” Id. at 1196. “The necessity for the wiretap is evaluated

in light of the government’s need not merely to collect some

evidence, but to develop an effective case against those

involved in the conspiracy.” United States v. Decoud, 456

F.3d 996, 1007 (9th Cir. 2006) (internal quotation marks and

citation omitted). An “effective case” means “evidence of

guilt beyond a reasonable doubt, not merely evidence sufficient to secure an indictment.” McGuire, 307 F.3d at 1198

(internal quotation marks omitted).

Our review takes place in two related steps. First, we must

“review de novo whether the application for wiretapping was

submitted in compliance with 18 U.S.C. § 2518(1)(c),” and

then must review “the issuing court’s decision that the wiretaps were necessary for an abuse of discretion.” Id. at 1197.

“When reviewing necessity we employ a ‘common sense’

approach to evaluate the reasonableness of the government’s

good faith efforts to use traditional investigative tactics or its

decision to forego such tactics based on the unlikelihood of

their success or the probable risk of danger involved with

their use.” Gonzalez, Inc., 412 F.3d at 1112.

1

[3] We begin by evaluating whether the affidavit contains

“a full and complete statement as to whether or not other

investigative procedures have been tried and failed or why

they reasonably appear to be unlikely to succeed if tried or to

be too dangerous.” 18 U.S.C. § 2518(1)(c). 

[4] After reviewing Hackett’s thirty-one page affidavit, we

are persuaded that it does contain such a statement. According

14754 UNITED STATES v. GARCIA-VILLALBA
to the affidavit, the DEA used a pen register and trap-andtrace device on Cecilio’s cell phone (the subject of the later

TCT4 wiretap) for sixty days, and analyzed two months’

worth of toll records. These methods revealed substantial

numbers of calls between Cecilio’s cell phone and known

drug traffickers but, as the affidavit explains, did not reveal

the subject-matter of those conversations. Although we are

aware that “the use of pen registers alone is insufficient to

establish necessity for a wiretap,” Gonzalez, Inc., 412 F.3d at

1113, the government’s extensive use of other forms of electronic surveillance prior to seeking a wiretap weighs heavily

in its favor.

[5] Hackett’s affidavit describes efforts to conduct physical

surveillance on individuals identified through calls listed on

Cecilio’s cell phone. Attempts to follow Cecilio had been

unsuccessful due to difficulties in locating him and the rural,

open location of his residence. The affidavit additionally

reports that “[o]n several occasions, law enforcement agents

have attempted to find and surveil [Cecilio] by either following Alejandro Delgadillo-Uribe en route to meetings with

other sources, or by attempting to decipher coded terminology

from intercepted telephone conversations regarding meeting

places used by them.” According to the affidavit, DelgadilloUribe and his associates employed countersurveillance techniques that successfully frustrated these efforts. We have

upheld wiretaps in situations, like this one, where the affidavit

explains in reasonable, case-specific detail why physical surveillance efforts have been unsuccessful. See, e.g., United

States v. Staves, 383 F.3d 977, 981-82 (9th Cir. 2004); United

States v. Canales Gomez, 358 F.3d 1221, 1224-25 (9th Cir.

2004).

[6] The affidavit also explains in “case-specific detail,”

United States v. Rivera, 527 F.3d 891, 900 (9th Cir. 2008),

why alternative investigatory techniques, such as trash

searches, search warrants, subpoenas, arrests of target subjects, and interviews, were rejected. Trash searches at

UNITED STATES v. GARCIA-VILLALBA 14755
Cecilio’s residence were impractical because the residence “is

situated on the side of a hill in a sparsely populated, open

rural area with few trees or bushes.” Additional search warrants, grand jury subpoenas, arrests, and interviews would

“effectively terminate the investigation without achieving the

objective of identifying, and obtaining evidence against, other

participants.” In addition, such tactics could “cause members

of both organizations, including [Cecilio], to flee and to

destroy evidence.” We have approved affidavits containing

comparably detailed recitals. See, e.g., Canales Gomez, 358

F.3d at 1224 (approving an affidavit from an experienced

agent that “relayed in great detail how the investigators had

used, or contemplated using . . . confidential informants,

physical surveillance, pen registers, trap and trace devices,

telephone toll analysis, search warrants, interviews, grand jury

subpoenas, trash searches, consensual recordings, police

reports and arrest records, financial investigations, and mail

cover requests”).2

[7] The affidavit also details, again in a case-specific manner, why the use of confidential informants, used successfully

on individuals associated with the earlier wiretaps, would not

work with Cecilio. The affidavit reports: “Since the [earlier

wiretaps], no confidential informants have been developed

who can penetrate the Garcia organization. I was not intro2Armando criticizes the government’s physical surveillance efforts,

asserting that “[m]any viable options existed for effective surveillance of

Cecilio, even at his residence.” He suggests that the government should

have affixed a camera to a telephone pole near Cecilio’s residence, as it

had done during its surveillance of the Dunbar Road residence. Armando

cites grand jury testimony demonstrating that such a technique would have

been feasible. 

We are not persuaded that the affidavit should have included a discussion of such a technique. Our precedent does not require an affidavit to

discuss and to dismiss all possible forms of physical surveillance. See,

e.g., Staves, 383 F.3d at 982 (“Law enforcement officials need not exhaust

every conceivable investigative technique before seeking a wiretap

order.”). 

14756 UNITED STATES v. GARCIA-VILLALBA
duced to any of Alejandro Delgadillo-Uribe’s sources of supply . . . nor have I been introduced to many of the

distributors.” In addition, the affidavit points out that

Delgadillo-Uribe had been arrested and was not cooperating,

closing off a previously valuable source of intelligence, while

associates of Delgadillo-Uribe who had also been arrested

“were lower-level violators who did not have contact with

Alejandro Delgadillo-Uribe’s sources of supply, such as

[Cecilio].” 

Armando criticizes these explanations as “fleeting and passive,” arguing that the affidavit failed meaningfully to explain

why confidential informants could not be used to infiltrate the

Garcia-Villalba organization. We disagree. Though, as

always, more information could have been included, we are

persuaded that Hackett’s affidavit contains “reasonable detail”

and is sufficiently case-specific to pass muster under our precedent. Indeed, in Rivera, we rejected an argument strikingly

similar to the one that Armando now urges us to adopt: 

Defendants contend that the affidavit should have

provided more detail, such as why a confidential

source was considered to be in too much danger, why

other confidential sources were unwilling or too

scared to infiltrate the Rivera organization, and why

the government chose to deport a confidential source

and a source of information. However, we have not

required such a level of detail in a wiretap application.

Rivera, 527 F.3d at 899 (emphasis added). Like the affidavit

at issue in Rivera, “the affidavit here did more than recite the

inherent limitations of using confidential informants; it

explained in reasonable detail why each confidential source or

source of information was unable or unlikely to succeed in

achieving the goals of the . . . investigation.” Id.

[8] We recognize that some language in the affidavit may

be conclusory or merely describe the inherent limitations of

UNITED STATES v. GARCIA-VILLALBA 14757
certain investigatory techniques, but this is not decisive. See

United States v. Torres, 908 F.2d 1417, 1423 (9th Cir. 1990)

(“The presence of conclusory language in the affidavit will

not negate a finding of necessity if the affidavit, as a whole,

alleges sufficient facts demonstrating necessity.”); see also

United States v. Fernandez, 388 F.3d 1199, 1237 (9th Cir.

2004). The affidavit as a whole speaks in case-specific language, and we are persuaded that it contains “a full and complete statement as to whether or not investigative procedures

have been tried and failed or why they reasonably appear to

be unlikely to succeed if tried or to be too dangerous.” 18

U.S.C. § 2518(1)(c).

2

[9] Satisfied that Hackett’s affidavit is sufficiently detailed,

we turn to whether the issuing judge abused his discretion in

finding that the TCT4 wiretap was necessary. Employing “a

‘common sense’ approach,” we must “evaluate the reasonableness of the government’s good faith efforts to use traditional investigative tactics or its decision to forego such

tactics based on the unlikelihood of their success or the probable risk of danger involved with their use.” Gonzalez, Inc.,

412 F.3d at 1112.

Our decision in McGuire guides us. There, FBI agents

sought to wiretap phones used by the “Montana Freemen,” a

group of vigilantes bent on taking down the United States

government. McGuire, 307 F.3d at 1195. In upholding the

wiretap, we emphasized that “the government is entitled to

more leeway in its investigative methods when it pursues a

conspiracy.” Id. at 1198. “Like the Hydra of Greek mythology,” we reasoned, “the conspiracy may survive the destruction

of its parts unless the conspiracy is completely destroyed.” Id.

at 1197-98. Noting that “[i]t is one of the first duties of every

government to extirpate gangs of thieves,” id. at 1198 n.3

(quoting 4 Thomas Babington Macaulay, History of England

14758 UNITED STATES v. GARCIA-VILLALBA
205 (1855)), we upheld the district court’s approval of the

wiretap application.

Here, Agent Hackett, working undercover, was introduced

only to a front-line dealer, not to the leaders behind the

scenes. Without a wiretap designed to unveil the leaders, the

DEA may have been limited to a street level war, cutting off

one head of the Hydra only to watch another grow to replace

it. Sophisticated drug conspiracies often rely on separation

and limited contact between street level dealers and higherups, meaning that traditional investigative techniques sometimes cannot end the threat that such organizations pose to

public safety. A wiretap, which targets communications, is

well-suited to unmasking the leaders of a narcotics-trafficking

organization.3

Indeed, the characteristics of the Garcia-Villalba organization created particular difficulties for DEA investigators. As

in McGuire, “agents could not have conducted on-site surveillance” of the organization’s property “because of its remote,

rural location.” Id. at 1197. DEA agents lurking about

Cecilio’s residence would have raised suspicions and possibly

sabotaged the investigation. In addition, “[f]ederal agents

would have had difficulty infiltrating the group” because “of

the [Garcia-Villalba organization]’s close-knit nature.” Id.

These problems made a wiretap particularly appropriate in

this situation.

[10] Our precedent confirms this conclusion. In Torres, we

upheld a necessity finding because: “1) continued surveillance

was not feasible due to appellants’ use of countersurveillance;

2) the use of a search warrant or grand jury proceeding would

alert appellants of an ongoing investigation; 3) informants and

3We need not and do not suggest that investigation of a drug conspiracy

necessarily justifies a wiretap. The rules must be applied to the facts in

each case with an individualized judgment to be made by the judicial officer to whom the proposed warrant is presented. 

UNITED STATES v. GARCIA-VILLALBA 14759
undercover agents could not determine the source of [the]

drugs.” Torres, 908 F.2d at 1422. Similarly, here, Hackett’s

affidavit detailed the difficulties of continued physical surveillance, the problems with alerting the defendants to the

investigation by serving search warrants or grand jury subpoenas, and the government’s desire to identify the “role of all

participants in [the] offenses.” 

Gonzalez, Inc., in which we upheld a district court’s finding

that the government had not shown necessity, does not require

a contrary conclusion. There, before applying for a wiretap,

the government had used: “(1) five-days-worth of pen register

analysis; (2) an equally short use of trap-and-trace analysis;

and (3) limited physical surveillance of the Blake Avenue

office.” Gonzalez, Inc., 412 F.3d at 1112. Here, by contrast,

the government used pen register and trap and trace data for

months, not days. In addition, the government conducted significantly more extensive physical surveillance.

[11] For these reasons, the district court did not abuse its

discretion in finding that the wiretap was necessary.

3

Before concluding our discussion of the wiretap, we pause

to address Armando’s general objection to the affidavit: that

it improperly employed a “cascading theory of necessity.”

According to Armando, “with each wiretap order obtained

and employed successfully during the investigation, the need

for the next wiretap more and more was presumed and other

investigative methods more and more were discounted as

inconvenient or inefficient.” Armando asserts that by “the

time of the application for a wiretap on TCT4, the allegations

of necessity had become largely conclusory statements that

improperly attempted to fold the showing of necessity to

wiretap TCT1 into the application to wiretap TCT4.”

[12] Because our precedent is not clear on what constitutes

a “cascading theory of necessity,” we take this opportunity to

14760 UNITED STATES v. GARCIA-VILLALBA
clarify our law. Armando is correct that “the government is

not free to transfer a statutory showing of necessity from one

application to another—even within the same investigation.”

Gonzalez, Inc., 412 F.3d at 1115. We have “held that an issuing judge may not examine various wiretap applications

together when deciding whether a new application meets the

statutory necessity requirement.” Id. Rather, “[e]ach wiretap

application must separately satisfy the necessity requirement.”

Id.

[13] This does not mean, however, that a district court must

view a wiretap application in a vacuum. Although the government may not rely on the conclusion that a previous wiretap

was necessary to justify the current application, historical

facts from previous applications, particularly those within the

same investigation, will almost always be relevant. So will

previous investigatory tactics, so long as they bear on whether

the government has adequately shown necessity within the

current application. If these facts are incorporated into the latest affidavit, the issuing judge may examine them. For example, the government may rely on past failed attempts to

infiltrate an organization, detailed in past affidavits, as evidence that future attempts would be fruitless. Nothing in our

precedent prohibits an affidavit from employing such a technique, which is designed merely to save time, not to piggyback an earlier showing of necessity into a later affidavit. The

key question will always be whether the wiretap application

separately satisfies the necessity requirement.

[14] Here, the TCT4 application separately satisfied the

requirement. The government used the pen register and trapand-trace device on Cecilio’s cell phone, not merely on the

cell phones associated with the prior wiretaps. In addition, the

affidavit details efforts to surveil Cecilio himself, not merely

unconnected individuals associated with earlier wiretaps.

These TCT4-specific facts distinguish this case from Carneiro, 861 F.2d at 1180-81, where we invalidated a wiretap

“because the later applications did not show that particularUNITED STATES v. GARCIA-VILLALBA 14761
ized investigative actions were targeted, without success, at

each later suspect.” Gonzalez, Inc., 412 F.3d at 1115 (describing the factual basis for Carneiro’s holding). Indeed,

Hackett’s affidavit’s references to earlier investigative efforts,

as the government points out, largely incorporate “by reference the historical facts described in earlier affidavits to the

issuing judge.” 

[15] Accordingly, the district court properly denied Armando’s motion to suppress the evidence obtained from the TCT4

wiretap.4

B

Satisfied that the district court did not abuse its discretion

in approving the government’s wiretap application, we turn to

Armando’s argument that the district court should have suppressed the evidence obtained from the search of the Dunbar

Road residence. The district court concluded that the government did not have probable cause to search the residence. It

4

In a pro se opening brief filed before the appointment of new appellate

counsel, Armando challenges his 120-month sentence. According to

Armando, “because the jury convicted him of a conspiracy with multiple

possible objects, but without specifying which of those multiple objects

[Armando] was guilty of conspiracy to commit, the district court erred by

not sentencing [Armando] based on the charged object carrying the lightest maximum statutory penalty.” Armando thinks that the “charged object

carrying the lightest maximum statutory penalty” was the use of “communication facilit[ies to] facilitat[e] the commission of” a drug offense,”

which carries a statutory maximum of forty-eight months. 21 U.S.C.

§§ 843(b), (d)(1). 

We are unpersuaded. Armando was not charged with conspiracy to use

a communications facility; he was charged with a conspiracy to distribute

drugs. In other words, the use of a communications facility was not the

object of the conspiracy; it was an overt act committed in furtherance of

the conspiracy, the object of which, of course, was to distribute controlled

substances. The jury specifically found that Armando conspired to distribute narcotics in sufficient quantities to require imposition of the statutory

minimum of 120 months. 

14762 UNITED STATES v. GARCIA-VILLALBA
nevertheless refused to suppress the evidence because it

thought that the “good faith” exception applied. On appeal,

the government challenges the first determination; Armando

attacks the second.

The government argues that the district court erred by finding no probable cause to believe that contraband would be

found at the Dunbar Road residence.5 In the government’s

view, Agent Hackett’s affidavit in support of the search warrant adequately connected narcotics trafficking to the “choza”

at Dunbar Road.

[16] The Fourth Amendment requires that all warrants be

supported by probable cause. U.S. Const. amend. IV. “Probable cause means only a ‘fair probability,’ not certainty, and

requires consideration of the totality of the circumstances.”

United States v. Hill, 459 F.3d 966, 970 (9th Cir. 2006) (internal citation omitted). Accordingly, the question here is

whether Agent Hackett’s affidavit established a “fair probability” that the choza was being used as a stash house. 

Significantly, a magistrate judge initially found in favor of

the government on this issue and granted the requested warrant. Only later, on review, did the district judge reverse the

magistrate’s initial finding. Our precedent requires us to

decide, however, whether the magistrate judge who granted

the warrant, not the district judge who decided the suppression motion, “clear[ly] err[ed]” in finding probable cause. Id.

Thus, we must “review the magistrate’s conclusion that probable cause existed to issue an arrest warrant independently

without deferring to the district court’s contrary conclusion.”

Castillo, 866 F.2d at 1076; see also Illinois v. Gates, 462 U.S.

213, 238-39 (1983) (“[T]he duty of a reviewing court is sim5Although the government did not file a cross-appeal, we may nonetheless consider its argument that probable cause existed. See United States

v. Castillo, 866 F.2d 1071, 1076 n.2 (9th Cir. 1988) (“[A]n appellee may

rely on any argument asserted below in support of the judgment.”). 

UNITED STATES v. GARCIA-VILLALBA 14763
ply to ensure that the magistrate had a ‘substantial basis for

. . . conclud[ing]’ that probable cause existed.” (internal citation omitted)).

We discern no clear error in the magistrate judge’s conclusion. Hackett’s affidavit begins by listing Hackett’s professional experience and his personal experience with the

investigation. It also asserts that “[p]ersons involved in drug

trafficking conceal in their residences and businesses caches

of drugs.” Then, the affidavit spends ten pages discussing the

information obtained through electronic surveillance. Paragraph (15) of the affidavit, on which the government primarily relies, reads as follows:

The DEA also has determined that [Cecilio,

Armando], and Octaviano Armenta-Aceves use [the]

Dunbar Road, Mount Vernon, Washington [residence], as a “stash house” or storage location for

narcotics and or money for the organization. This

location, known as the “choza” or shack, has been

referred to by the organization’s members on numerous intercepted telephone calls, often after [Cecilio]

receives an order for controlled substances. Surveillance units have followed vehicles of organization

members travel from their residences to the “choza”

immediately after [Cecilio] gave an order to deliver

a controlled substance to a customer. Further, the

subscriber of . . . the telephone at the “choza,” is

Thomas Summers, a member of the drug trafficking

organization.

Other sections of the affidavit describe phone calls mentioning the “choza.” The district court, in contrast to the magistrate judge, found these assertions “conclusory.” According to

the district court, the affidavit was insufficient “to link this

residence with the drug activity.” 

Given the deference that we and the district court owe to

the magistrate judge who issued the warrant, the district court

14764 UNITED STATES v. GARCIA-VILLALBA
erred in finding that the government did not show probable

cause. To be sure, some assertions in the affidavit plainly are

conclusory, particularly the one that reads: “The DEA also

has determined that [Cecilio, Armando], and Octaviano

Armenta-Aceves use 17900 Dunbar Road, Mount Vernon,

Washington, as a ‘stash house’ or storage location for narcotics and or money for the organization.” The rest of the paragraph, however, fills in missing details. The affidavit asserts

that intercepted telephone calls expressly referred to the

“choza” as the location where they met and where they went

to bring and to pick up drugs; that surveillance units followed

organization members to 17900 Dunbar Road immediately

after the wiretap picked up impending news of a transaction;

and that the telephone number at 17900 Dunbar Road

belonged to Thomas Summers, a member of the organization.

[17] These assertions establish a substantial basis for the

magistrate judge’s conclusion. In its affidavit, the government

represented that DEA agents actually saw members of the

organization frequent 17900 Dunbar Road immediately after

hearing news on the wiretap of an impending drug transaction. When read together with the rest of the affidavit, which

contains extensive information about multiple narcotics transactions involving those same members of the organization,

these assertions establish a “fair probability,” if not a certainty, that 17900 Dunbar Road was used to store drugs. After

all, confirmed drug traffickers traveled to 17900 Dunbar Road

shortly after the commencement of a sale. From those facts,

it is reasonable to infer that the location was used to store

drugs immediately before or after a sale.

We have found a “sufficient nexus” between drug dealing

activities and a defendant’s residence in similar situations.

See, e.g., United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir.

1993) (upholding a finding of probable cause to search the

defendant’s residence when the affidavit detailed many sales

of cocaine involving the defendant, but did not show that any

of the sales were consummated at the residence); United

UNITED STATES v. GARCIA-VILLALBA 14765
States v. Hollis, 490 F.3d 1149, 1153 (9th Cir. 2007) (upholding a search when “the affidavit rested primarily on the police

officers’ own observation of the controlled drug transaction

between Hollis and the witness and the surveillance of Hollis’s subsequent movements, which led to the North Hoyt

apartment”); Fernandez, 388 F.3d at 1254 (“Agent Spencer’s

statements about the likelihood that the Rambler residence

contained contraband or evidence relevant to the crimes

charged, which were based on his own professional experience of the Mexican Mafia, combined with the information

from the wiretaps, were sufficient to give the magistrate judge

a substantial basis to conclude that the items sought were at

the residence.”).

[18] Because we are convinced that the district court erred

in finding that the warrant was not supported by probable

cause, we do not address whether the agents relied on the warrant in good faith. Accordingly, we are satisfied that the district court properly denied Armando’s motion to suppress,

although we base our conclusion on different grounds.6

III

For the foregoing reasons, the district court’s orders denying Armando’s motions to suppress are 

AFFIRMED.

6Because we believe that probable cause exists, we do not reach the

government’s argument that Armando lacked standing to challenge the

search. We may bypass this issue, which is not jurisdictional. See United

States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986) (holding that the term

“standing” as “used in Fourth Amendment jurisprudence . . . does not

present a jurisdictional question”). 

14766 UNITED STATES v. GARCIA-VILLALBA