* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### APR 20 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ERENIO CARRANCO PEREZ, Defendant-Appellant. No. 96-1216 (District of Colorado) (D.C. No. 95-CR-19-S)

ORDER AND JUDGMENT *

Before TACHA , LUCERO, and MURPHY , Circuit Judges.

Defendant Erenio C. Perez was found guilty of vario us drug trafficking and firearm charges. He appeals his convictions, argui ng the district court erred in denying his motion to suppress evidence seized purs uant to four search warrants. This court affirms.-2- I. BACKGROUND In October 1994, the Colorado Springs Police Department began working with agents from the Drug Enforcement Administratio n (DEA) after receiving information from a confidential informant that seve ral individuals, including an individual later identified as Defendant, were memb ers of a methamphetamine and ephedrine trafficking organization in Colorado Springs. On November 20, 1994, at the direction of officers, the informant a nd another individual made a controlled buy of methamphetamine from Defendant. On December 31, 1994, a detective from the Sheriff’ s Department in Fremont County, Colorado, came upon a large U-haul truck stuck in a ditch. The truck contained approximately twenty-one barrels of ephedrine, a precursor chemical used to manufacture methamphetamine. The driver of the truck, Ricardo Perez, was arrested and interviewed by DEA agents and Colorado Springs police. Ricardo told the officers that he and his brother, Defendant, were involved in distributing methamphetamine in the Colorado Spring s area. Ricardo further told the officers about two properties, one located in C uster County and the other located in Fremont County, Colorado, where drugs an d ephedrine were stored. The next day, January 1, 1995, the officers obtaine d search warrants for the properties and, with Ricardo’s aid, executed the wa rrants.-3-

During the search of the Custer property, officers found methamphetamine, other illicit drugs, ammunition, firearms, a bulletproof vest, and a vehicle with two hidden compartments. In an RV on the Custer pr operty, officers found $84,000 in cash, firearms, and a triple beam scale. While searching the Fremont property, officers found numerous barrels of ephedr ine, a firearm, and ammunition. On the same day the search warrants for the Custer and Fremont properties were executed, Defendant was arrested by Colorado S prings police after leaving his residence at 5820 Del Rey Drive in a yellow Int ernational Scout with temporary license tags. The vehicle was impounded and a detective later obtained a search warrant for both the vehicle and the resid ence. During the search of the vehicle, officers found throwing stars, a night vis ion scope, a firearm, and $7000 in cash. In the residence, officers found an empty barrel with the name and address of the Chemins Company, $6580 in cash, and torn records regarding the purchase of the Custer property.
II. MOTION TO SUPPRESS Defendant raises several arguments under the FourthAmendment to support his challenge of the district court’s denial of his motion to suppress the evidence seized during the searches of the Custer property, the Fremont property, the1 The government asserts, and the district court agre ed, that Defendant does

not have standing to challenge the searches of the Custer and Fremont properties. The Custer property was purchased in the names of L ourdes Aragon, Defendant’s girlfriend and codefendant; Estella Gonzales, Ricar do Perez’s wife; and Jose Reyes. The Fremont property was purchased by Defen dant and Ricardo Perez, using their aliases. In the Fourth Amendment conte xt, the term “standing” is not used in its “‘traditional sense as a constitutional ly- or prudentially-based jurisdictional bar,’” but rather refers to whether a defendant has shown that his own Fourth Amendment rights were violated by the ch allenged search and seizure. United States v. Marchant , 55 F.3d 509, 512 (10th Cir. 1995) (quoting United States v. Eylicio-Montoya , 18 F.3d 845, 850 n.3 (10th Cir. 1994)). This court need not address the government’s argument th at Defendant has no standing to challenge the searches because we find that, eve n assuming Defendant does have standing, the search warrants were valid. See United States v. Scarborough , 128 F.3d 1373, 1377 n.2 (10th Cir. 1997). -4- vehicle, and his residence. 1 The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, a nd the persons or things to be seized.” U.S. Const. amend. IV. On appeal from the denial of a motion to suppress, this court views the evidence in the light most favorable to the governm ent and accepts the district court’s factual findings unless clearly erroneous. See United States v. Richardson , 86 F.3d 1537, 1543 (10th Cir.), cert. denied, 117 S. Ct. 588 (1996). The ultimate determination of the reasonableness of a search, however, is reviewed de novo. See id.
A. Probable Cause-5-

Defendant argues that none of the four search warrants were supported by probable cause. In determining the existence of pr obable cause, the issuing magistrate must decide whether, given the totality of the circumstances, “‘there is a fair probability that contraband or evidence of acrime will be found in a particular place.’” United States v. Janus Indus. , 48 F.3d 1548, 1552 (10th Cir. 1995) (quoting Illinois v. Gates , 462 U.S. 213, 238 (1983)). This court affords great deference to the magistrate’s probable cause determination and will uphold that determination so long as the magistrate had a substantial basis for concluding that probable cause existed. See id. at 1553. Defendant asserts the affidavits in support of the search warrants “are nothing but bare bones affidavits.” Deputy Clinesm ith from the Fremont County Sheriff’s Office provided the affidavit in support of the search warrants for the Custer and Fremont properties. In his affidavit, D eputy Clinesmith stated that he arrested Ricardo Perez on December 31, 1994, after observing barrels of ephedrine in the truck Ricardo was driving, and was present when DEA agents interviewed Ricardo later that night. Deputy Cline smith further stated Ricardo told the agents that he was taking the ephedrine to a ranch in Fremont County, where numerous other barrels were stored, and that various illicit drugs and assault weapons were stored on property located in Custer County. Deputy Clinesmith also testified that the DEA agents and a n agent from the Bureau of-6-

Alcohol, Tobacco, and Firearms (BATF) confirmed that Ricardo’s statements were consistent with their investigations. Finally , Deputy Clinesmith stated that Ricardo had a criminal record for drug and firearm charges and that Ricardo was Defendant’s brother. With respect to the Scout and the residence, Detect ive Niski, a detective with the Metro Vice/Narcotics Unit of the Colorado Springs Police Department, provided the affidavit in support of the search war rants. In his affidavit, Detective Niski discussed at some length a controll ed buy of methamphetamine from Defendant on November 20, 1994. During this c ontrolled buy, Detective Niski observed a confidential informant and anotherindividual meet with Defendant at a store parking lot, where methampheta mine was exchanged. Detective Niski stated that other detectives observ ed Defendant leave his residence in a GMC Jimmy and drive to the parking l ot. Detective Niski also stated that he spoke with Ricardo Perez on December31, 1994, after Ricardo was arrested. Ricardo told Detective Niski that he and his brother, Defendant, were involved in the distribution of methamphetamine in the Colorado Springs area; that Defendant had paid $200,000 for the barrels of ephedrine found in the U-haul truck; and that he had been at Defendant’s residenc e approximately one week earlier and believed Defendant was in possession of drugs and cash. Detective Niski also stated in his affidavit that Defendant w as arrested after he and another-7-

individual left Defendant’s residence in a yellow I nternational Scout vehicle. Detective Niski further testified that the vehicle was impounded and that a drugsniffing dog “alerted on both passenger doors and the rear bumper of the vehicle.” He also stated that on January 1, 1995, an FBI agen t arrested and interviewed an individual by the name of Valdamar Lansky, who stat ed that he supplied Defendant with ephedrine and made a delivery the ni ght before. A Dial Number Recorder indicated that early in the morning on Jan uary 1, two calls were placed from Defendant’s residence to Mr. Lansky’s residenc e. Finally, Detective Niski stated that in his experience, drug dealers often k eep weapons and cash on hand and use their personal vehicles to transport and st ore drugs, drug paraphernalia, and drug transaction records. After carefully reviewing the affidavits, this court concludes the magistrate had a substantial basis for determining that probab le cause existed to search the two properties, the vehicle, and Defendant’s reside nce. Based on Ricardo’s statements to the officers, which were corroboratedby DEA and BATF investigations, the magistrate certainly had a subs tantial basis for concluding there was a “fair probability” that contraband woul d be found on the Custer and Fremont properties. In light of the police dog’s r eaction to the vehicle and Detective Niski’s statements that drug dealers ofte n store drug-related items in their vehicles, probable cause existed to search th e vehicle. Although Defendant-8-

argues that Detective Niski’s statements “regarding his experience and training and his conjecture as to what drug dealers do” shou ld not be taken into account in determining whether probable cause existed to searc h the vehicle and Defendant’s residence, this court has consistently held that an agent’s experience and training is entitled to consideration. See, e.g. , United States v. Wicks , 995 F.2d 964, 972 (10th Cir. 1993). Probable cause also existed to search Defendant’s r esidence. Less than two months before the search of his residence, Defendant was observed leaving the residence and driving to a store parking lot, where he sold methamphetamine to a confidential informant and another individual. A r easonable inference from this transaction is that Defendant stored methamphetamin e at his residence. Cf. United States v. Shomo , 786 F.2d 981, 984 (10th Cir. 1986) (concluding, w here defendant was seen leaving his residence with a fir earm, that there was a reasonable probability he kept the firearm at his r esidence, and stating “[t]he magistrate was not required to rule out every otherpossible alternative”). Although Defendant suggests the information was sta le, the passage of time between the controlled buy and the search is not fatal, as the affidavit indicates Defendant was involved in an “ongoing, continuous c riminal activity.” Id. Ricardo’s statement to the officers that he had bee n at Defendant’s residence one week before his arrest and that he believed Defenda nt was in possession of cash-9-

and drugs further supports the existence of probabl e cause to search the residence. This court therefore concludes there was probable c ause to support the four search

warrants. B. Overbreadth of Warrants Defendant also argues that all four warrants are fa cially overbroad because they fail to list the items to be seized with suffi cient particularity. “The Fourth Amendment’s requirement that a warrant particularlydescribe the things to be seized prevents a general, exploratory rummaging in a person’s belongings . . . . As to what is to be taken, nothing is left to the d iscretion of the officer executing the warrant.” Janus Indus. , 48 F.3d at 1553 (internal quotations omitted). T he description of items is “sufficiently particular wh en it enables the searcher to reasonably ascertain and identify the things author ized to be seized.” Id. at 1554. “Broad and generic terms of description may be vali d when the terms are as specific as the circumstances and nature of the act ivity under investigation permit.” Richardson , 86 F.3d at 1544 (internal quotations omitted). T his court reviews de novo the legal question of whether a sea rch warrant is overbroad. See Janus Indus. , 48 F.3d at 1554. The search warrants for the Custer and Fremont prop erties provided that officers could search for and seize the following i tems: drug paraphernalia, records of ownership and occupancy, books, records, receipts, notes, ledgers, money, and otherpapers relating to2 Relying on United States v. Leary , 846 F.2d 592 (10th Cir. 1988),

Defendant argues that the facial overbreadth of the search warrants was not cured by resort to the affidavits because the warrants di d not incorporate the affidavits by reference and the affidavits were not attached t o the warrants. In Leary , the -10- the transportation, ordering, sales and distributio n of controlled substances, firearms, ammunition, receipts of sale of firearms, any and all controlled substance[s] to include methamph etamine, precursor[] chemicals for the manufacture of contro lled substances and any equipment and glass[ware] used in the manuf acture of controlled substances. The search warrants for the vehicle and residence r eferenced Attachment B, which listed twelve categories of items that office rs could search for and seize, including controlled substances, currency, records of drug transactions, weapons, financial records, computers used for keeping drug transaction records, precursor chemicals, and cooking utensils and glassware used in the manufacture of methamphetamine. This list is in conformity with D etective Niski’s statements as to what drug traffickers typically keep in their ho mes and vehicles. This court has “upheld search warrants cast in comp arably broad terms, where the subject of the search was a drug traffick ing or drug dealing business, and where circumstances permitted only a more gener al listing of the items to be seized.” Wicks , 995 F.2d at 973 (collecting cases); see also Richardson , 86 F.3d at 1544; Janus Indus. , 48 F.3d at 1554. We therefore conclude the four search warrants were valid because they described the item s to be seized with as much particularity as possible given the circumstances. 2court held that the particularity of an affidavit m ay cure an overbroad search

warrant if the affidavit is physically connected to the warrant and the warrant expressly refers to the affidavit and incorporates it by reference. See id. at 603. Because this court concludes the search warrants we re not overbroad on their face, we need not address this argument. Defendant also appears to argue that in addition to disregarding the affidavits, this court should not consider Attachme nt B in evaluating the facial overbreadth of the search warrants for the vehicle and the residence because Attachment B was not physically attached to the war rants when the warrants were executed. Attachment B was physically attached to the warrants when Detective Niski applied for the warrants, and the warrants sp ecifically referred to Attachment B. Although the record indicates Attach ment B was no longer physically attached to the warrants at the time of execution, it is unclear whether Attachment B was available to the executing officer s. Detective Niski, who applied for the warrants, was one of the officers w ho conducted the searches of the vehicle and residence. Defendant does not argu e that the executing officers exceeded the scope of the items listed in Attachmen t B in conducting their searches and seizing items from the vehicle and the residence. Moreover, from the record it appears that Defendant was not presen t during either of the searches and thus could not have reviewed Attachment B priorto the officers conducting the searches. Under the circumstances, it is appro priate to consider Attachment B in determining whether the search warrants satisfy the particularity requirements of the Fourth Amendment. -11- The judgment of the United States District Court fo r the District of Colorado is AFFIRMED

. ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge