1 The Honorable Richard G. Kopf, United St ates District Judge for the District of Nebraska, adopting the report and r ecommendations of the Honorable David L. Piester, United States Magistrate Judge for the District of Nebraska. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-1072

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Jose Romo-Corrales, *
* Appellant. *

___________ Submitted: October 23, 2009 Filed: January 28, 2010

___________ Before BYE, BEAM, and SHEPHERD, Circuit Judges.

___________ SHEPHERD, Circuit Judge.

Jose Romo-Corrales appeals the district court’s 1 denial of his motion to suppress evidence seized during two search es of his residence. For the following reasons, we affirm.-2- I.

During an on-going criminal investigati on, members of the Tri-City Drug Task Force—including Investigator Mark Dreher of the Grand Island Police Department—had been collecting informati on regarding possible drug transactions in and around 315 East Dodge Street in Grand Island, Nebraska. Pursuant to an administrative subpoena in the drug investigation, Investigator Dreher received information from a local gas company indi cating that Fidel Emerjildo Martinez was the utility subscriber for the residence at 315 East Dodge Street.

Investigator Dreher subsequently lear ned that Martinez had been convicted of conspiracy to distribute methamphetamine in 2002, and was on supervised release after serving time in prison. Investigator Dreher also discovered that on February 26, 2007, Martinez’s probation officer had alerted authorities that Martinez could not be located and a warrant had recently been issu ed for his arrest. Investigator Dreher showed a photograph of Martinez to Todd Friesen, the landlord at 315 East Dodge Street. Friesen indicated that several men had recently moved into 315 East Dodge Street, and that the man in the photograph ha d made rental paymen ts for the residence following the date that Martinez had violatedthe terms of his supervised release.

On May 23, 2007, while surv eilling 315 East Dodge Street, Investigator Dreher and other officers observed a man—matching the description of Martinez—enter and leave the residence. The officers did not attempt to arrest Martinez because the officers were not wearing safety equipmen t, they had observed another person outside the residence, and Investigator Dreher felt the need to obtain a search warrant before proceeding.

On May 25, 2007, Investigator Dreher co mpleted a search warrant application for 315 East Dodge Street, requesting th at the warrant cover both the person of2 Investigator Dreher testified that venueevidence is “[a]ny mail that would have [Martinez’s] name on it,” including “mail, pa pers, [and] receipts.” (Mot. Supp. Hr’g Tr. 13.)
-3- Martinez as well as venue 2items linking Martinez to the residence. The affidavit in support of the warrant application containe d information regard ing Martinez’s arrest warrant for his violation of supervised rel ease, the landlord’s st atement that Martinez had paid rent at 315 East Dodge Street, and evidence that officers had recently observed a man matching Martinez’s descri ption entering and exiting the residence. The affidavit, however, did not include any information regarding the on-going drug investigation relating to 315 East Dodge.

A warrant was granted authorizing a searchof “the residence, outbuildings, and curtilage of 315 East Dodge Street,” as we ll as “all persons and any and all vehicles found on said property or persons at the time the warrant is served” for both the person of Fidel E. Martinez, and any “[d]ocum entation, receipts or items of venue which show Fidel E. Martinez’[s] possession or domain of the residence.” Prior to the execution of the warrant, investigators a ssembled for a briefing where Investigator Dreher emphasized that the warrant did not cover drug contraband. Investigator Dreher instructed the officers that if any drug evidence was discovered during the search, he was to be immediately notified.

On May 30, 2007, at approximately 7: 00 a.m., law enfor cement executed the warrant. First, a “tactical response team ” conducted an initial search for all persons in the residence and detained two men—one of whom was Jose Romo-Corrales. Once officers removed all persons from the residen ce, a “search team” be gan the search for venue items connecting Martinez to the resi dence. While in the garage, and without moving anything, Investigator Dreher discovered two, one -pound containers of3 MSM is a horse medication commonly used as a methamphetamine cutting agent. See United States v. Quintanar , 150 F.3d 902, 904 (8th Cir. 1998).

4 Subsequent to a field test, the liquid tested positive for methamphetamine.
-4- methylsulfonylmethane (MSM), 3 a hot plate, broken light bulbs, and several firearms. In the garage, Investigator Dreher also discovered a natural gas bill for 315 East Dodge Street that was addre ssed to Martinez, as well as other venue evidence linking Martinez to the residence.

Investigator Jason Ackles searched a bathroom in the residence. In the bathroom, Investigator Ackles shined hi s flashlight behind a mirror hanging on the wall above the sink and observed what he de scribed as “torn sheet rock.” Believing that the wall had been altere d, Investigator Ackles rem oved the mirror and discovered a hole in the sheet rock in which he di scovered plastic bags filled with what he believed to be more than a quarter pound of methamphetamine, several papers, and a scale. Investigator Ackles imme diately notified Investigator Dreher.

At the same time, Investigator Scott Javins was called to a bedroom where an officer had located a .40 caliber handgun under a mattress. In the bedroom, Investigator Javins found venue items in the drawer of a night stand and a baggie—appearing to contai n drug residue—located behi nd the night stand. When searching the laundry room for venue items, Investigator Javins discovered a digital scale containing a liquid residue unde r some laundry in a laundry hamper. Investigator Javins also located a food vacuum sealer. When leaving the laundry room, Investigator Javins accidently kicked a cooler sitting in the doorway and realized there was something inside becaus e of the cooler’s weight. Investigator Javins opened the cooler, discovering that it was filled with a liquid that appeared to contain methamphetamine crystals. 4Investigator Javins also noticed a propane torch and a can of denatured alcohol. At this poi nt, Investigator Javins alerted Investigator Dreher.-5- At approximately 8:00 a.m., when officer s alerted Investigator Dreher to the drug contraband and paraphernalia they had discove red, Investigator Dreher immediately suspended the search until anothe r search warrant could be issued for the contraband. Officers did not remove any of the suspected contraband located during the first search. A second search warrant was obtained based on the information in the first warrant, as well as the contraband discovered during the execution of the first search warrant. A second search was then conducted and the officers seized the drug evidence discovered during the initial search.

A federal grand jury returned a five count indictment against Romo-Corrales, and he subsequently move d to suppress the evidence discovered at 315 East Dodge Street during the two searches. Following an evidentiary hearing, the magistrate judge issued a Report and Recommendation (“R& R”), recommending the denial of the motion to suppress. The district court a dopted the magistrate judge’s R&R and denied the motion.

Romo-Corrales entered into a conditi onal plea agreement with the government in which he reserved the right to appeal the district court’s denial of his motion to suppress. In the conditional plea, Romo-C orrales pled guilty to two counts of the indictment—conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1), and criminal forfeiture, in violation of 21 U.S.C. § 853. The district court sentenced Romo-Corrales to 210 months imprisonment.

II.

Romo-Corrales claims that the distri ct court erred in denying his motion to suppress in that his Fourth Amendment rights were violated in two respects. When reviewing the denial of a motion to suppress, we review the district court’s factual findings for clear error and the legal ques tion of whether the Fourth Amendment was violated de novo. United States v. Williams , 577 F.3d 878, 880 (8th Cir. 2009).-6- A.

First, Romo-Corrales alleges that the application for the first search warrant was merely a subterfuge for obtaining authori zation to conduct a search for drugs at 315 East Dodge Street. A valid warrant “m ust be based upon a finding by a neutral and detached judicial officer that there is probable cause to believe that evidence, instrumentalities or fruits of a crime, [or] contraband . . . may be found in the place to be searched.” United States v. Proell , 485 F.3d 427, 430 (8th Cir. 2007) (quotation omitted). Probable cause is established when there is a “‘fair probability’ that the object of the search warrant may be found inthe place to be sear ched.” United States v. Montgomery , 527 F.3d 682, 686 (8th Cir. 2008) ( quotation omitted). In general, an officer’s underlying motive for obtaining th e warrant is irrelevant, as “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States , 517 U.S. 806, 813 (1996); see Horton v. California , 496 U.S. 128, 139 (1990) (finding that if the officer “has a valid warrant to search for one item and merely a suspicion concerning the sec ond, whether or not it amounts to probable cause, we fail to see why that suspicion should immunize the second item from seizure if it is found during a lawful s earch for the first”); see also United States v. Roggeman , 279 F.3d 573, 580 n.5 (8th Cir. 2002) (“[I]t is of no consequence ‘that the motivation for the search did not coincide with the lega l justification’ for the search.” (quoting Scott v. United States , 436 U.S. 128, 138 (1978))).

However, a search warrant is invalidif: “(1) a law enforcement officer knowingly and intentionally, or with reckless disregard for the truth, included a false statement in the warrant affidavit, and (2) without the false statement, the affidavit would not have established probabl e cause.” United States v. Neal , 528 F.3d 1069, 1072 (8th Cir. 2008) (citing Franks v. Delaware , 438 U.S. 154, 155-56 (1978)). Similarly, an officer may not submit an a ffidavit that deliberately omits information, which if included, would destroy a finding of probable cause. Id. at 1073 (holding that a warrant remained valid even though the affidavit omitted several facts because-7- the inclusion of such facts would not have “eliminated the existence of probable cause”).

Here, the officer’s failure to addre ss the on-going drug investigation in the affidavit did not destroy the probable cause n ecessary for the first search warrant. See id. at 1072. The affidavit for the first sear ch warrant included that: (1) an outstanding arrest warrant existed for Martinez, (2) Martinez had b een seen entering and exiting 315 East Dodge Street, and (3) Martinez was the utility subscriber and had paid rent at the residence. We find that this inform ation established a fair probability that either Martinez himself, or evidence connecting Martinez to 315 East Dodge Street, would be discovered during a search of the resi dence—establishing probable cause to search the residence for that type of evidence. The fact that the officers suspected drug activity at the residence is irrelevant to the probable cause inquiry for the search. Even though the officers did not include th e drug investigation information in the affidavit, this did not affect the probabl e cause that independently existed for the venue search of the residence. Therefore, we find that the first search warrant was valid regardless of any underlying motives of law enforcement.

B.

Romo-Corrales next alleges that the first search of the residence exceeded the scope of the search warrant and that th erefore any evidence discovered during the search was fruit of the initial illegal s earch. Although the Fourth Amendment prohibits “general, exploratory rummaging in a person’s belongi ngs,” Coolidge v. New Hampshire , 403 U.S. 443, 467 (1971), a lawful s earch includes all areas where the items listed in the warrant might be found, see Montgomery , 527 F.3d at 687 (“Police may lawfully search all buildings , containers, and vehicles on the property to be searched in which the contraband sought might be found.”).5 Notably, even if the officers had exceededthe scope of the first search warrant in examining the contents of the cooler, th e inevitable discovery doctrine validated the admission of the drug evidence. To prev ail under the inevitable discovery doctrine, the government must show: “(1) that ther e was a reasonable probability that the evidence would have been discovered by lawful means in the absence of police misconduct, and (2) that the governmen t was actively pursuing a substantial, alternative line of investigation at the tim e of the constitutional violation.” United States v. Pruneda , 518 F.3d 597, 604 (8th Cir. 2008) (quotation omitted). Here, the inevitable discovery doctrine applies becau se: (1) the drug evidence would have been lawfully discovered through the executi on of the second search warrant—which specifically authorized a search for drug contraband, and (2) the drug evidence was discovered while officers were lawfu lly searching for the venue evidence.
-8- Here, the warrant permitted officers to search for any indicia of Martinez’s connection to 315 East Dodge Street. Venue evidence includes items such as bills, receipts, and letters. See, e.g. , United States v. Timley , 443 F.3d 615, 623 (8th Cir. 2006) (“[A] warrant authorizing officers to seize anything related to indicia of occupancy is quite broad.”); United States v. Blakeney , 942 F.2d 1001, 1027 (6th Cir. 1991) (finding that “indicia of occupancy” includes “any document or other object that would tend to provide the true iden tity of the owners or occupants of the premises”). These types of paper documen ts can obviously fit into small spaces and containers and, therefore, could be hidden in numerous locations in a residence. See, e.g. , Blakeney , 942 F.2d at 1027-28 (finding that a warrant issued for “indicia of occupancy” and other documents and records permitted officers to search inside a suitcase—where they ultimately discovere d drug evidence). Becau se venue evidence could be located in the laundry hamper, garage, cooler, behind a mirror or picture, behind a dresser, and underneath the bed, we find that o fficers lawfully conducted the search pursuant to the first s earch warrant when they sear ched these locations, and that the evidence discovered there was notthe fruit of an illegal search. 5-9- III.

Accordingly, we affirm the judgment of the district court denying the motion to suppress.
BYE, Circuit Judge, concurring.

I concur in the decision of the panel, and agree the evidence discovered during the search of Romo-Corrales’ home wa s admissible pursuant to the inevitable discovery doctrine.

I write separately to expr ess my concern over the kind of search at issue here. Putting aside momentarily the issue of in evitable discovery, this case presents a difficult issue: whether the government may, in the course of hunting for a fugitive, search the home of a third party not only for the fugitive himself, but also for indicia of occupancy linking the fugitive to the home.

The relationship between an arrest warrant and a search warrant has been explored in numerous cases. For example, police acting on a valid arrest warrant may not enter the home of a third party without a valid search warrant–a requirement met by law enforcement here. United States v. Risse , 83 F.3d 212, 215 (8th Cir. 1996) (citing Steagald v. United States , 451 U.S. 204, 215-16, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981)). However, “an arrest warrant founded on proba ble cause implicitly carries with it the limited authority to enter a dwe lling in which the suspect lives when there is reason to believe the suspect is within.” Payton v. New York , 445 U.S. 573, 603 (1980). Once inside the home, the Fourth Amendment continues to govern the scope of searches in seizure conducted contemporan eous to arrest. For example, officers “[p]ossessing an arrest warrant and probable cau se to believe [the suspect is] in his home [are] entitled to enter and to search anywhere in the house in which [the suspect]-10- might be found.” Maryland v. Buie , 494 U.S. 325, 332-33 (1990). In addition, once in the home, to protect offi cer safety and preserve evid ence, officers may search the person of an arrestee and the area w ithin his immediate control. See Chimel v. California , 395 U.S. 752, 768 (1969).

My concern in this case stems from the fact that by granting law enforcement the authority to search not only for the fugitive himself, but also for indicia of occupancy by the fugitive, we risk infri nging more than necessary upon the privacy of innocent third parties. The scope of the search in this case illustrates these concerns. In executing the warrant, officer s searched under a mattress, behind a night stand, within a hamper of dirty clothing, inside a cooler, and, by removing a bathroom mirror from the wall, inside a wall. Quite obviously, most of these locations could not have hidden a fugitive. But because la w enforcement officers were additionally searching for indicia of occupancy, includi ng “[d]ocumentation, receipts, or items of venue which show Fidel E. Martinez’ posse ssion or domain of the residence,” officers acted within the scope of the warrant when executing the search. SeeUnited States v. Montgomery , 527 F.3d 682, 687 (8th Cir. 2008) (“Police may lawfully search all buildings, containers, and vehicles on the property to be searched in which the contraband sought might be found.”).

We have cautioned that “a warrant authorizing officers to seize anything related to indicia of occupancy is quite broad.” United States v. Timley , 443 F.3d 615, 623 (8th Cir. 2006). We have also stated that probable cause, within the meaning of the Fourth Amendment's warrant requireme nt, means a fair probability that contraband or evidence of a crime will be found in a particular place. SeeUnited States v. Horn , 187 F.3d 781, 785 (8th Cir. 1999) (emphasis a dded). In most cases, searching for indicia of occupancy is justified by a n eed to gather evidence linking particular persons to a crime scene. See, e.g. , United States v. Gamboa , 439 F.3d 796, 805 (8th Cir. 2006). Here, by contrast , it is far from clear why the government needed to link Martinez to the place to be searched. The government had an interest in arresting-11- Martinez, but doing so was not contingent on finding him in any particular place. And while the government's interest in connecti ng Martinez to the home to be searched was slight, the intrusiveness of the sear ch to third parties was substantial.

Fortunately, we need not resolve the thorny issue of whether the search warrant was supported by probable cause to search fo r indicia of occupancy. For the reasons stated in the majority opinion, suppression of the evidence was not necessary in this case because law enforcemen t officers would have inev itably discovered the drug contraband during the execution of the second warrant.

I therefore concur in the court’s judgment.

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