Argued and Submitted, Seattle, Washington February 6, 2014.
Appeal from the United States District Court for the District of Idaho. D.C. No. 1:11-cr-00240BLW-1. B. Lynn Winmill, Chief District Judge, Presiding.
The panel affirmed the district court's denial of a motion to suppress a shotgun seized during the execution of a search warrant in a case in which the defendant argued that reckless omissions by the search warrant affiant fatally undermined the magistrate judge's finding of probable cause.
The panel wrote that the failure to disclose to the magistrate judge at the time of the warrant hearing drug-related information that raises serious concerns about a witness's credibility is a serious breach of the duty the officer owed to the court. The panel also assumed, without deciding, that two witness's eyewitness statements, standing alone, were not sufficient to support probable cause. The panel affirmed because there was corroboration that the crime being investigated had actually occurred, as well as some specific indication that the identification of the defendant from a photo lineup was sufficiently reliable.
Dissenting, Judge Gould could not agree that there was independent corroboration of a witness's identification of the defendant, sufficient to overcome serious concerns about the witness's credibility.
Randall S. Barnum (argued), Barnum Law, PLLC, Boise, Idaho, for Defendant-Appellant.
Wendy J. Olson and Christian S. Nafzger (argued), Office of the United States Attorney, Boise, Idaho, for Plaintiff-Appellee.
Before: Raymond C. Fisher, Ronald M. Gould, and Morgan Christen, Circuit Judges. Opinion by Judge Christen; Dissent by Judge Gould.
CHRISTEN, Circuit Judge:
An early-morning shooting, a mysterious alias, and a problematic eyewitness identification led police to the home of Martin Cantu Ruiz, where they found a gun he wasn't supposed to have. Ruiz appeals his conviction for Unlawful Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1), contending that the district court erred by denying his motion to suppress a shotgun seized during the execution of a search warrant at his residence. Ruiz argues that reckless omissions by the search warrant affiant fatally undermined the magistrate judge's finding of probable cause. We have jurisdiction under 28 U.S.C. § 1291, and affirm the district court's denial of Ruiz's motion to suppress.
BACKGROUND AND PRIOR PROCEEDINGS
Early on March 21, 2011, police responded to a call from a trailer home in Payette, Idaho. When officers arrived, they found that a man who lived there, Emmett Mills, had been shot in the knee. Detective John Plaza spoke with Mills briefly before he was taken to the hospital.
Mills told the detective he was at home with his girlfriend, Charlene Scales, when he heard a knock on the door at around 4:20 in the morning. The person at the door identified himself as " McDog."  Mills opened the door and " McDog" asked for Jessica, but Mills said Jessica wasn't there. Mills described " McDog" as a larger Hispanic male in his thirties with short hair and a black sweatshirt. Mills also saw another, smaller man standing nearby wearing a white clown mask and holding an assault rifle. Mills said the gun looked similar to an AK-47. A neighbor watching from her window also saw a man in a white " Halloween" mask standing near the trailer.
The man who knocked, " McDog," tried to force his way inside the trailer, and a struggle ensued between Mills and " McDog." Scales was seated at a computer, where she could observe the confrontation through a crack between the trailer door and the wall where the door's hinges were attached. Like Mills, Scales spoke with Detective Plaza immediately after the shooting. She told the detective that she witnessed the scuffle, heard the intruder identify himself as " McDog," and saw him try to force his way inside. She described " McDog" as a Hispanic male wearing dark clothes. Scales also reported hearing the popping of the assault rifle as it fired twice. Mills, Scales, and the neighbor all agreed that there had been two shots. After Mills was hit in the left knee by one of the bullets, the assailants fled. Police later found two spent casings outside the front door of the trailer that were consistent with a semiautomatic pistol, not an assault rifle. While searching the area near the front door, Detective Plaza noted that a railing near the door to the home was " pulled away from the house" where it looked like someone had been " pushed."
Detective Plaza sensed that Scales was evasive when she spoke with police that
morning, as if she were hiding something. The police officers obtained consent to search the trailer and found a handgun as well as methamphetamine and a pipe with burnt residue, suggesting that one or more of the home's occupants used drugs. Detective Plaza later testified that Scales and others led him to believe that the items belonged to two other people who had stayed in the back bedroom the previous evening.
Detective Plaza soon learned that the narcotics division of the Payette Police Department was investigating Scales for suspected involvement in drug sales from the trailer. Later on the day of the shooting, an undercover officer associated with the narcotics investigation contacted Scales and made a controlled buy of methamphetamine at the trailer. Caught in the act, Scales and police officers discussed arranging " consideration for her [criminal] charges" if she assisted with future narcotics investigations as a confidential informant. The officers told her that she would not receive extra consideration for providing information ...