UNITED STATES COURT OF APPEALS TENTH CIRCUIT Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80257 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk December 1, 2000

TO: ALL RECIPIENTS OF THE OPINION
RE: 00-4025, United States v. Juan Ortega-Jimenez ; Armando Ortega-Jimenez Filed on November 22, 2000 The court’s slip opinion contains a clerical error on page 7, footnote two, second sentence of the footnote. The reference to the “good faith exception” is deleted from the sentence. The corrected footnote now reads as follows: The district court also rejected the government’s a rguments that the search was a valid search incident to arrest and th at the keys inevitably would have been discovered. Because we find that t he warrant authorized the search of the defendants and the whi te pickup truck, we need not address these issues. A copy of the corrected page 7 is attached. Sincerely, Patrick Fisher, Clerk of Court
By: Keith Nelson Deputy Clerk encl.* The Honorable John L. Kane, Jr., Senior District Ju dge for the District of

Colorado, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 22 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v. JUAN ORTEGA-JIMENEZ; ARMANDO ORTEGA-JIMENEZ,

Defendants - Appellees. No. 00-4025

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D. Ct. No. 98-CR-395-W)

Richard D. McKelvie, Assistant United States Attorn ey (Paul M. Warner, United States Attorney, with him on the brief), Office of the United States Attorney, Salt Lake City, Utah, for Plaintiff-Appellant. Dana M. Facemyer, Provo, Utah, for Appellee Armando Ortega-Jimenez, and Deloy M. Sallenback, Provo, Utah, for Appellee JuanOrtega-Jimenez.

Before TACHA and PORFILIO , Circuit Judges, and KANE , * District Judge.

TACHA , Circuit Judge.1 Because defendants Juan Ortega-Jimenez and Armando Ortega-Jimenez are

brothers and share the same last name, we will refe r to them by their first names. -2- The United States appeals the district court’s orde r suppressing evidence. We exercise jurisdiction pursuant to 18 U.S.C. § 37 31 and reverse and remand.
I. Facts The facts in this case are largely undisputed. In 1998, Detective Rich Ferguson was engaged in a narcotics investigation focused on Juan OrtegaJimenez. 1 On July 30, 1998, Detective Ferguson received a t ip from a confidential informant that Juan was using a partic ular storage unit to store and distribute marijuana and other controlled substance s. Based on that information, Detective Ferguson arranged for a K-9 unit trained in narcotics detection to be exposed to storage unit number ninety-seven. The d og sniffed six different storage units but alerted officers only to unit num ber ninety-seven. As a result, Detective Ferguson began drafting an a ffidavit for a search warrant to search storage unit number ninety-seven. He arranged for Detectives Knowles and Halladay to watch the storage unit whil e he was drafting the affidavit to ensure that no one entered the unit orremoved items from it prior to the execution of the warrant. Detectives Knowles a nd Halladay were familiar with the investigation and were informed that a lar ge quantity of drugs was in storage unit number ninety-seven, that a dog had al erted officers to that unit, and-3-

that the unit was being used by Juan Ortega-Jimenez . They were also aware that Juan was an illegal alien and subject to arrest. The Detectives began their surveillance at approxim ately 11:00 p.m. They were sitting about 300 feet away from storage unit number ninety-seven near the east exit from the storage units on the hood of an unmarked police car. They were wearing tee-shirts with a “Police” insignia onthe left breast and back and/or police windbreakers. At approximately 11:30, the D etectives observed a white pickup truck enter through the west entrance and pr oceed directly to unit number ninety-seven. The white pickup stopped directly infront of unit number ninetyseven in a manner that allowed the headlights to sh ine directly onto the door of the unit. The Detectives testified that, within seconds of ap proaching unit number ninety-seven, the driver of the white pickup truck appeared to notice them. The white pickup immediately backed out and proceeded t hrough the east exit in a hurried manner. The Detectives got inside their ca r. At that point, the pickup passed their car and the Detectives could see that there were two occupants. Detective Knowles recognized the passenger as Juan Ortega-Jimenez. The Detectives pursued and stopped the vehicle appr oximately two blocks from the storage units. Detective Halladay testifi ed that the reason for stopping Juan at that time was Juan’s illegal entry status. The Detectives obtained-4-

identification from the driver of the pickup truck, later identified as Juan’s brother Armando, and from Juan. After receiving th e identification, Detective Halladay returned to the police vehicle to run rout ine checks. During this time, Detective Halladay called Detective Ferguson who ad vised that Armando, like Juan, was an illegal alien subject to arrest. Dete ctive Ferguson instructed the Detectives to use caution because he had reason to believe that there might be a weapon inside the pickup truck. He further instruc ted the Detectives to move Juan, Armando, and the white pickup truck back to s torage unit number ninetyseven and to wait for him to arrive with the warrant. After receiving this information, the Detectives co nducted what they described as a Terrysearch of Juan, Armando, and the pickup truck. Th ey then placed Juan and Armando in custody, handcuffed them , and seated them on the curb. The Detectives found no weapons on either of the defendants or in the truck. During the Terrysearch, however, Detective Knowles took some keys from Juan’s pocket and placed them on the seat of the wh ite pickup truck. Approximately fifteen minutes later, at the Detecti ves’ request, a local police officer arrived at the scene. Detectives Ha lladay and Knowles informed the police officer that a search warrant was going to be executed on storage unit number ninety-seven and asked the officer to transp ort Juan and Armando back to the storage unit and wait for the warrant to arrive . Detective Knowles then drove-5-

the white pickup back to the storage unit where he left the keys in the ignition. Upon their return to the storage unit, Juan and Arm ando remained in the back of the police car while Detectives Halladay and Knowle s waited outside the police

car. Meanwhile, Detective Ferguson, who was still drafti ng the affidavit, was notified that Juan and Armando had been taken into custody. Ferguson included information about the stop and detention in his aff idavit. The affidavit states: [W]hile officers were holding surveillance on the a bove mentioned storage unit, Juan Jimenez and his brother, Armando , pulled up in front of storage unit #97 and were proceeding to ge t out of their vehicle. When they observed police officers watchi ng the storage unit, they then attempted to flee from the scene an d are currently being detained by police officers. Ferguson Aff. ¶ 7. Detective Ferguson’s affidavit further states: [I]t is your affiant’s experience that individuals secreting illicit narcotics and contraband in storage units often hav e these storage units rented in a fictitious person’s name. That f ailure to search the persons and vehicle being occupied by Juan and his brother Armando, a white pickup truck , will result in officers missing valuable evidence such as correspondence and keys to the storage units that will show possession or use. Ferguson Aff. ¶ 8 (emphasis added). The affidavit was signed by Detective Ferguson and the judge. At 12:30 a.m., the judge i ssued a search warrant authorizing the search of storage unit number ninety-seven “along with the persons and vehicles of individuals present and arr iving” at the storage unit. Detective Ferguson’s affidavit was neither attachedto nor specifically-6-

incorporated in the warrant. At approximately 12:50 a.m., Detective Ferguson arr ived with the search warrant and executed it. The Detectives picked the two locks on the storage unit and opened it. The search of the storage unit yiel ded a large quantity of controlled substances and paraphernalia associated with the distribution of controlled substances. Following the search of the storage unit, the Detectives conducted a further search of Juan, Armando, and th e white pickup truck. They found no evidence on the person of either Juan or A rmando. Their search of the pickup truck, however, yielded keys that fit the lo cks on the storage unit. The defendants moved to suppress the keys. The dis trict court upheld the investigative detention of the defendants. However , the court ordered the suppression of the keys on the basis that the warrant, which was signed at 12:30 a.m., only authorized the search of persons and veh icles “present and arriving.” The court concluded that, because the defendants ha d left the storage unit at approximately 11:30 p.m., and since they were at th e storage unit only because they had been moved there by police, the defendants could not fairly be considered “present” or “arriving.” As a result, the district court held that the warrant did not authorize the search of the defenda nts or their truck. Therefore,2 The district court also rejected the government’s a rguments that the search

was a valid search incident to arrest and that the keys inevitably would have been discovered. Because we find that the warrant autho rized the search of the defendants and the white pickup truck, we need not address these issues.

-7- the court ordered the suppression of the keys. 2 The United States filed this interlocutory appeal.

II. Discussion The scope of a warrant is a question of law which w e review de novo. United States v. Soussi , 29 F.3d 565, 568 (10th Cir. 1994). When interpre ting warrants, this court has adopted a standard of “pra ctical accuracy rather than technical precision.” United States v. Simpson , 152 F.3d 1241, 1248 (10th Cir. 1998) (citation and internal quotations omitted). Simpsonaddressed whether a particular warrant was invalidby being insufficiently particular. This court looked to th e affidavit to clarify the meaning of the warrant, id. , even though an affidavit not specifically incorpo rated in or physically attached to a warrant cannot cure a lackof particularity, see, e.g. , United States v. Dahlman , 13 F.3d 1391, 1395 (10th Cir. 1993). Important t o the holding of Simpsonwas the fact that the same officer both produced t he affidavit and executed the warrant. Simpson , 152 F.3d at 1248. Because the affidavit’s terms were clear, and because the affiant/executing officer knew those terms, the-8-

court concluded that the warrant was sufficiently p articular. Id. It would be anomalous to permit an officer’s knowle dge of the terms of the affidavit to cure a lack of particularity on the fa ce of a warrant but not permit the officer’s knowledge to clarify the practical meanin g of a term in a facially valid warrant. Because an affidavit can be used to demon strate that a warrant is not constitutionally invalid for lack of particularity when the same officer produces the affidavit and executes the warrant, an affidavi t also may be used to clarify with “practical accuracy” the meaning of a disputed term in a warrant when the same person is both affiant and executing officer. At issue in this case is the meaning of the term “p resent” in the warrant. While “present” in a warrant might technically be i nterpreted to mean those who are voluntarily present at the time the warrant is signed, technical precision is not the standard. We must determine the practical meaning of the term “present.” In his affidavit, Detective Ferguson clearly mentio ned the defendants by name, explained that officers had seen them drive u p to the storage unit, and stated that they were being detained at the storage unit by police officers at the time the affidavit was signed. He further describe d the necessity of searching specifically the defendants and their vehicle for e vidence of possession or use of the storage unit, particularly correspondence or ke ys. Given the specificity of the affidavit, the judge surely knew that the defendant s were present at the storage3 Because we find that the warrant authorized the sea rch of both the persons

of the defendants and their vehicle, we do not addr ess the permissibility of removing the keys from Juan’s pocket during the Terrysearch. The warrant authorized the search of both Juan and the truck. Whether the keys should have remained in Juan’s pocket or were permissibly place d in the truck, the Detectives inevitably would have discovered them. See, e.g. , United States v. Souza , 223 F.3d 1197, 1202 (10th Cir. 2000) (“[T]he exclusionary rule is inapplicable if the evidence inevitably would have been discovered by l awful means.”). -9- unit at the time the warrant was issued. A practic al reading of the term “present” must include those the judge knew actually were pre sentat that time. We find that the search of the truck and the defendants was within the scope of the
warrant. 3 Therefore, we hold that the keys are admissible. Accordingly, we REVERSE the suppression order of th e district court and REMAND for further proceedings consistent with this opinion.