1

The Honorable Richard G. Kopf, United States District Judge for the District

of Nebraska, adopting the report and recommendations of the Honorable David L.

Piester, United States Magistrate Judge for the District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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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. *

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Submitted: October 23, 2009

 Filed: January 28, 2010

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Before BYE, BEAM, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

Jose Romo-Corrales appeals the district court’s1

 denial of his motion to

suppress evidence seized during two searches of his residence. For the following

reasons, we affirm.
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I.

During an on-going criminal investigation, members of the Tri-City Drug Task

Force—including Investigator Mark Dreher of the Grand Island Police

Department—had been collecting information 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 indicating that Fidel Emerjildo Martinez was

the utility subscriber for the residence at 315 East Dodge Street. 

Investigator Dreher subsequently learned 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 issued 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 had made rental payments for the residence

following the date that Martinez had violated the terms of his supervised release. 

On May 23, 2007, while surveilling 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 equipment, 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 completed a search warrant application

for 315 East Dodge Street, requesting that the warrant cover both the person of
2

Investigator Dreher testified that venue evidence is “[a]ny mail that would have

[Martinez’s] name on it,” including “mail, papers, [and] receipts.” (Mot. Supp. Hr’g

Tr. 13.)

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Martinez as well as venue 2

 items linking Martinez to the residence. The affidavit in

support of the warrant application contained information regarding Martinez’s arrest

warrant for his violation of supervised release, the landlord’s statement that Martinez

had paid rent at 315 East Dodge Street, and evidence that officers had recently

observed a man matching Martinez’s description 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 search of “the residence, outbuildings, and

curtilage of 315 East Dodge Street,” as well 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]ocumentation, 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 assembled 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 enforcement 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 residence, a “search team” began the search for

venue items connecting Martinez to the residence. While in the garage, and without

moving anything, Investigator Dreher discovered two, one-pound containers of
3

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.

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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 addressed 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 his flashlight behind a mirror hanging on the

wall above the sink and observed what he described as “torn sheet rock.” Believing

that the wall had been altered, Investigator Ackles removed the mirror and discovered

a hole in the sheet rock in which he discovered plastic bags filled with what he

believed to be more than a quarter pound of methamphetamine, several papers, and

a scale. Investigator Ackles immediately 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 contain drug residue—located behind the night stand. When

searching the laundry room for venue items, Investigator Javins discovered a digital

scale containing a liquid residue under 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 because of the cooler’s weight. Investigator

Javins opened the cooler, discovering that it was filled with a liquid that appeared to

contain methamphetamine crystals.4

 Investigator Javins also noticed a propane torch

and a can of denatured alcohol. At this point, Investigator Javins alerted Investigator

Dreher. 
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At approximately 8:00 a.m., when officers alerted Investigator Dreher to the

drug contraband and paraphernalia they had discovered, Investigator Dreher

immediately suspended the search until another 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 moved 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 adopted the magistrate judge’s R&R and denied

the motion. 

Romo-Corrales entered into a conditional 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-Corrales 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 district 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 question of whether the Fourth Amendment was

violated de novo. United States v. Williams, 577 F.3d 878, 880 (8th Cir. 2009). 
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A.

 First, Romo-Corrales alleges that the application for the first search warrant was

merely a subterfuge for obtaining authorization to conduct a search for drugs at 315

East Dodge Street. A valid warrant “must 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 in the place to be searched.” United States

v. Montgomery, 527 F.3d 682, 686 (8th Cir. 2008) (quotation omitted). In general,

an officer’s underlying motive for obtaining the 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 second, 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 search 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 legal justification’ for the search.” (quoting

Scott v. United States, 436 U.S. 128, 138 (1978))). 

However, a search warrant is invalid if: “(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 probable 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 affidavit 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
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the inclusion of such facts would not have “eliminated the existence of probable

cause”). 

Here, the officer’s failure to address the on-going drug investigation in the

affidavit did not destroy the probable cause necessary for the first search warrant. See

id. at 1072. The affidavit for the first search warrant included that: (1) an outstanding

arrest warrant existed for Martinez, (2) Martinez had been 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 information 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 residence—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 the drug investigation information in the

affidavit, this did not affect the probable 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 therefore any evidence discovered during the

search was fruit of the initial illegal search. Although the Fourth Amendment

prohibits “general, exploratory rummaging in a person’s belongings,” Coolidge v.

New Hampshire, 403 U.S. 443, 467 (1971), a lawful search 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.”). 
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Notably, even if the officers had exceeded the scope of the first search warrant

in examining the contents of the cooler, the inevitable discovery doctrine validated the

admission of the drug evidence. To prevail under the inevitable discovery doctrine,

the government must show: “(1) that there was a reasonable probability that the

evidence would have been discovered by lawful means in the absence of police

misconduct, and (2) that the government was actively pursuing a substantial,

alternative line of investigation at the time of the constitutional violation.” United

States v. Pruneda, 518 F.3d 597, 604 (8th Cir. 2008) (quotation omitted). Here, the

inevitable discovery doctrine applies because: (1) the drug evidence would have been

lawfully discovered through the execution of the second search warrant—which

specifically authorized a search for drug contraband, and (2) the drug evidence was

discovered while officers were lawfully searching for the venue evidence.

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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 identity of the owners or occupants of the

premises”). These types of paper documents 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 discovered drug evidence). Because 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 officers lawfully conducted the

search pursuant to the first search warrant when they searched these locations, and that

the evidence discovered there was not the fruit of an illegal search.5

 
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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 was admissible pursuant to the inevitable

discovery doctrine.

I write separately to express my concern over the kind of search at issue here.

Putting aside momentarily the issue of inevitable 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 probable cause implicitly carries

with it the limited authority to enter a dwelling 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 contemporaneous to arrest. For example, officers

“[p]ossessing an arrest warrant and probable cause to believe [the suspect is] in his

home [are] entitled to enter and to search anywhere in the house in which [the suspect]
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might be found.” Maryland v. Buie, 494 U.S. 325, 332-33 (1990). In addition, once

in the home, to protect officer safety and preserve evidence, officers may search the

person of an arrestee and the area within 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 infringing 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, officers 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 law enforcement officers were additionally

searching for indicia of occupancy, including “[d]ocumentation, receipts, or items of

venue which show Fidel E. Martinez’ possession or domain of the residence,” officers

acted within the scope of the warrant when executing the search. See United 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 requirement, means a fair probability that contraband

or evidence of a crime will be found in a particular place. See United States v. Horn,

187 F.3d 781, 785 (8th Cir. 1999) (emphasis added). In most cases, searching for

indicia of occupancy is justified by a need 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
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Martinez, but doing so was not contingent on finding him in any particular place. And

while the government's interest in connecting Martinez to the home to be searched was

slight, the intrusiveness of the search 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 for indicia of occupancy. For the reasons

stated in the majority opinion, suppression of the evidence was not necessary in this

case because law enforcement officers would have inevitably discovered the drug

contraband during the execution of the second warrant.

I therefore concur in the court’s judgment.

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