United States v. John Orozco

In the

United States Court of Appeals

For the Seventh Circuit

No. 06-4235

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

JOHN O ROZCO ,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 CR 1164—Joan Humphrey Lefkow, Judge.

A RGUED S EPTEMBER 3, 2008—D ECIDED A UGUST 13, 2009

Before E ASTERBROOK, Chief Judge, and R OVNER and

S YKES, Circuit Judges.

S YKES, Circuit Judge. Federal agents arrested John

Orozco after they searched his home pursuant to a

warrant and found a gun and a digital scale with trace

amounts of cocaine. The government charged Orozco

with possessing a firearm after having been convicted of

a felony and conspiring to distribute more than five

kilograms of cocaine and marijuana. After a jury con-

2 No. 06-4235

victed him on both counts, the district judge sentenced

Orozco to 360 months in prison.

Orozco appeals his convictions and sentence, arguing

that the evidence obtained in the search should have

been suppressed, that the district judge improperly

admitted evidence relating to Orozco’s prior firearm

conviction, and that the judge should not have applied

a two-level sentencing guidelines enhancement for pos-

sessing a firearm in connection with a drug offense.

We find no merit in any of Orozco’s challenges and

affirm his convictions and sentence.

I. Background

In December 2002 federal agents applied for a warrant

to search Orozco’s residence near Aurora, Illinois, for

records relating to narcotics transactions and member-

ship lists for the Latin Kings gang. FBI Special Agent

Ken Burress submitted an affidavit in support of the

warrant, which stated that: (1) reliable gang sources told

Burress that Orozco was the second-in-command of the

Aurora Latin Kings gang and dealt in large quantities

of cocaine and marijuana; (2) several gang members

admitted purchasing drugs from Orozco; and (3) Burress

knew from his ten years of experience in narcotics in-

vestigations that high-ranking gang members often kept

detailed records of drug transactions and gang member-

ship lists in their homes. Based on this information, a

magistrate judge issued the search warrant.

Federal agents executed the warrant and found a Beretta

handgun, a box of ammunition, a magazine, two gun

No. 06-4235 3

holsters, and a digital scale with trace amounts of cocaine

in Orozco’s home. Orozco was subsequently arrested

and charged with possession of a firearm in violation of

18 U.S.C. § 922(g)(1) and conspiracy to distribute cocaine

and marijuana in violation of 21 U.S.C. § 846 and 18 U.S.C.

§ 2. Orozco moved to quash the search warrant and

suppress the evidence found at his home, claiming that

no probable cause existed for the search. The district

court agreed that the warrant was not supported by

probable cause, but permitted the admission of the evi-

dence at trial because the court found that the officers

had acted in good faith.

At trial Orozco argued that the gun belonged to his

wife, not him. FBI Special Agent Neal Ormerod testified

that he had found a gun holster in Orozco’s closet

while searching his residence and that a holster is pri-

marily used to carry a concealed firearm. On cross-exami-

nation Ormerod stated that the holster was set up for

a right-handed shooter. Defense counsel then asked

Agent Ormerod whether he knew that Orozco was left-

handed; Ormerod said he did not. Following this testi-

mony, the government requested permission to intro-

duce the testimony of Aurora Police Officer Dan Woods

to rebut the impression created by defense counsel that

Orozco could not have used the holster because he is left-

handed. The court granted permission over Orozco’s

objection. Officer Woods testified that in September 1994

he encountered Orozco under suspicious circumstances.

After a brief exchange between the two, Orozco put his

right hand under his shirt and grabbed at his waistband.

Woods ordered Orozco to place his hands on a nearby

4 No. 06-4235

vehicle so Woods could search him, but Orozco ran.

Woods gave chase and saw Orozco—using his right

hand—remove something from his waistband and toss it

to the ground. After Orozco was arrested, Officer Woods

retraced his steps and found a firearm on the ground

where Orozco had tossed the item he removed from

his waistband. Orozco was charged and convicted of

unlawful possession of the firearm. This evidence, the

government argued, showed that the gun discovered in

the search of Orozco’s home belonged to the left-handed

Orozco even though the holster was set up for a right-

handed shooter.

The jury convicted Orozco of both charges, and a judge

sentenced him to 360 months’ imprisonment on the

conspiracy count and a concurrent 120 months’ impris-

onment on the felon-in-possession count. In calculating

Orozco’s guidelines sentence, the judge imposed a two-

level enhancement for possession of a firearm in con-

nection with a drug offense. Orozco objected to the en-

hancement, claiming that there was no evidence that he

had possessed the gun in connection with a drug con-

spiracy. The judge held that the connection between

the two was a permissible inference and applied the

enhancement.

II. Discussion

A. Search Warrant

We first address Orozco’s claim that the evidence

obtained from the search of his home should have been

No. 06-4235 5

suppressed. The district judge held that while the search

warrant was not supported by probable cause, the evi-

dence was nevertheless admissible because the officers

acted in good faith. See United States v. Leon, 468 U.S. 897

(1984). Both parties take issue with the district court’s

ruling. Orozco agrees that no probable cause existed for

the search, but claims the district court erred in applying

the good-faith exception to the exclusionary rule.

The government contends that not only did the officers

executing the search rely on the warrant in good faith,

but the district court erred in holding that the search

warrant was not supported by probable cause.

Probable cause is a practical, nontechnical inquiry

that asks whether there is a fair probability, given the

totality of the circumstances, that evidence of a crime

will be found in a particular place. Illinois v. Gates, 462

U.S. 213, 238 (1983). “When, as here, an affidavit is the

only evidence presented to a judge to support a search

warrant, ‘the validity of the warrant rests solely on the

strength of the affidavit.’ ” United States v. Mykytiuk, 402

F.3d 773, 775 (7th Cir. 2005) (quoting United States v.

Peck, 317 F.3d 754, 755-56 (7th Cir. 2003)). The question

for us is whether Agent Burress’s affidavit adequately

established probable cause to search Orozco’s home

for narcotics and gang-related evidence. Our standard of

review requires us to give “great deference” to the decision

of the magistrate judge who issued the warrant and no

deference to the district court’s determination that proba-

ble cause was lacking. United States v. McIntire, 516

F.3d 576, 578 (7th Cir. 2008).

6 No. 06-4235

Agent Burress’s affidavit stated that according to

reliable sources, Orozco was the second-in-command

of the Aurora Latin Kings gang. In addition, several

cooperating gang members told Agent Burress that Orozco

was a large-scale drug trafficker and that they had pur-

chased drugs from Orozco in the recent past. Moreover,

Agent Burress asserted that in his ten years of experience,

he knew that high-ranking gang members often kept

membership lists, drug-transaction records, and other

evidence of gang- and drug-related activity in their

homes. Based on this information, the magistrate judge

issued the warrant to search Orozco’s home for

“[l]edgers/records related to narcotics transactions, gang

related indicia, photographs of gang members, led-

gers/records related to gang activity, indicia of residency

and real estate documents.”

The government concedes that the only support for

a link between Orozco’s home and the sought-after evi-

dence of drug dealing and gang activity was Agent

Burress’s belief—informed by his decade of experience

as a narcotics investigator—that Orozco, as second-in-

command of the Aurora Latin Kings gang, would keep

drug- and gang-related evidence at his home. The gov-

ernment claims this is sufficient to support probable

cause and cites our decision in United States v. Lamon for

support. 930 F.2d 1183 (7th Cir. 1991). In Lamon, an infor-

mant told police that Lamon routinely sold cocaine out

of his house and his car. Based on this information,

police obtained a warrant to search Lamon’s residence

and his car and found cocaine and drug-packaging materi-

als in both places. Id. at 1185. During the search, Lamon

No. 06-4235 7

told officers that the house was only his secondary resi-

dence; his primary residence was about a mile away. After

the search police returned to court and requested a

second warrant to search Lamon’s primary residence.

Admitting that the informant had only identified

Lamon’s secondary residence and his car as sites of drug

sales, the requesting officer asserted that in his “nine

years of investigating drug trafficking in the Milwaukee

area,” he knew that drug dealers often kept drugs and

records at their primary residence. Id. at 1186. The state

court issued a search warrant on this information. We

upheld the warrant, stating that the specific evidence

of drugs in Lamon’s second residence plus the officer’s

experience regarding drug dealers’ primary residences

supported the issuing court’s probable-cause determina-

tion.

The district judge thought Lamon was distinguishable

from the facts at issue here. It is true that in Lamon

the affidavit contained more than just the officer’s asser-

tion that drug dealers often kept drug evidence in their

homes; our opinion also emphasized that police had

already discovered drugs and drug-packaging materials

in Lamon’s secondary residence and in his car. Here, the

link between Orozco’s home and the gang and narcotics

evidence rests solely on Agent Burress’s assertion that

high-ranking gang members often keep evidence of gang

and drug activity in their homes. The district judge be-

lieved that the officer’s experience, without more, was not

sufficient to support probable cause to search Orozco’s

home.

8 No. 06-4235

We disagree. It is true that Agent Burress’s assertion

about the likelihood of locating evidence in the home of a

high-ranking gang member was not corroborated by

information specific to Orozco’s activities at his home.

But it is well established as a general matter that a magis-

trate evaluating a warrant application is entitled to take

an officer’s experience into account in determining

whether probable cause exists. Lamon, 930 F.2d at 1189.

“Warrants may be issued even in the absence of direct

evidence linking criminal objects to a particular site.” Id. at

1188 (internal quotation marks omitted). An issuing

magistrate “is entitled to draw reasonable inferences

about where evidence is likely to be kept, based on the

nature of the evidence and the type of offense,” and

specifically, “[i]n the case of drug dealers, evidence is

likely to be found where the dealers live.” Id. (internal

quotation marks omitted).

Orozco cites the Sixth Circuit’s decision in United States

v. Schultz, 14 F.3d 1093 (6th Cir. 1994), as support for his

argument that Burress’s affidavit was deficient. In that

case, an informant told the police that a man named

“Schultz” supplied him with drugs. Police determined

where Schultz lived and that he had prior convictions

for possession of marijuana. Police also discovered that

Schultz owned several safe-deposit boxes at a local

bank. Based on this information, an officer applied for

a warrant to search the safe-deposit boxes, asserting

that “[b]ased on his training and experience[,] . . . it is

not uncommon for the records, etc., of such [drug] dis-

tribution to be maintained in safe deposit boxes.” Id.

at 1097. The Sixth Circuit held that the affidavit was

insufficient to establish probable cause.

No. 06-4235 9

Burress’s affidavit was stronger than the affidavit at

issue in Schultz. The affidavit in Schultz said only that

it was “not uncommon,” in the agent’s experience, for

drug dealers to keep records of drug activity in safe-

deposit boxes. Here, in contrast, Burress swore that his

decade of experience as a narcotics investigator con-

vinced him that because Orozco was a high-ranking

gang member, evidence of drug trafficking and gang

activity “will be found” in his home. The issuing magis-

trate judge was entitled to credit Burress’s lengthy ex-

perience and high degree of confidence that the sought-

after evidence was very likely to be found in Orozco’s

home. Giving “great deference” to the decision of the

magistrate judge, McIntire, 516 F.3d at 578, we conclude

that Burress’s affidavit was sufficient to establish

probable cause to search Orozco’s home.

And were it not, we would otherwise agree with the

district court’s conclusion that the evidence obtained in

the search was admissible under the good-faith excep-

tion. The fruits of a search based on an invalid warrant

may be admitted at trial if the executing officer relied on

the invalid warrant in good faith. Leon, 468 U.S. at 922. “An

officer’s decision to obtain a warrant is prima facie evidence

that she was acting in good faith.” Mykytiuk, 402 F.3d at

777. The defendant can rebut the presumption of good faith

by showing that (1) the issuing judge abandoned his role as

a neutral and detached arbiter; (2) the officers were reck-

less or dishonest in preparing the supporting affidavit; or

(3) the affidavit was so lacking in probable cause that no

officer could have reasonably relied on it. Id. (citing Leon,

468 U.S. at 923). Orozco confines his argument to this last

10 No. 06-4235

point—he claims that no reasonable officer could have

believed Agent Burress’s affidavit was sufficient to estab-

lish probable cause.

We are not persuaded. We evaluate an officer’s good-

faith reliance with an analysis similar to the one used in

qualified-immunity cases and charge officers with knowl-

edge of well-established legal principles. United States v.

Koerth, 312 F.3d 862, 869 (7th Cir. 2002). We have not

“clearly held that a materially similar affidavit previously

failed to establish probable cause under facts that were

indistinguishable from those presented in the case at

hand.” Id. To the contrary, the facts in Lamon were quite

similar (though not identical) to those at issue here, and

we upheld the warrant in that case. Furthermore, there

is nothing on the face of this warrant that would cause

the executing officers to suspect that probable cause

was lacking. The district court correctly concluded that

Agent Burress acted in good faith when he executed the

search of Orozco’s home in reliance on the warrant. The

court therefore properly denied Orozco’s suppression

motion.

B. Evidence of Prior Conviction

Orozco next contends that the evidence relating to his

prior firearm conviction was inadmissible under Rule

404(b) of the Federal Rules of Evidence. We will uphold a

district judge’s Rule 404(b) ruling if (1) the evidence is

admitted for a purpose other than establishing the defen-

dant’s propensity to commit a crime; (2) the evidence is

similar enough and close enough in time to be relevant

No. 06-4235 11

to the matter at hand; (3) the evidence is sufficient to

support a jury finding that the defendant committed the

similar act; and (4) the probative value of the evidence

is not substantially outweighed by the danger of unfair

prejudice. See United States v. Dennis, 497 F.3d 765, 768

(7th Cir. 2007).

The district court applied these factors and concluded

that Officer Woods’s testimony was admissible under

Rule 404(b). We agree. First, the evidence was not

admitted to show Orozco’s propensity to commit crime; it

was admitted for the purpose of showing that Orozco

handles firearms with his right hand, not his left. Further-

more, Orozco opened the door to this evidence by cross-

examining Agent Ormerod about the fact that the holster

found in his closet was set up for a right-hand shooter.

See United States v. Bursey, 85 F.3d 293, 297 (7th Cir. 1996).

Once he did so, the government was free to introduce

evidence tending to show that although he was left-

handed, Orozco handles firearms with his right hand.

Moreover, the evidence was sufficiently similar to the

charged firearm offense to be relevant to the issues

being tried; Orozco’s prior and present gun offenses

both involved acts of unlawful possession. Orozco argues

that the act of tossing a gun while running from police

differs significantly from the act of pulling a gun from a

holster to shoot. While certainly not identical, they are

similar enough for purposes of Rule 404(b). See United

States v. Lloyd, 71 F.3d 1256, 1264-65 (7th Cir. 1995) (observ-

ing that we will not enforce the similarity requirement

too rigidly). The facts underlying Orozco’s prior convic-

tion demonstrate that Orozco carried a gun on his

12 No. 06-4235

right side and used his right hand to pull it out of his

waistband and toss it away; this evidence suggests—albeit

not conclusively—that Orozco handles guns with his

right hand despite being generally left-handed. The

evidence was clearly strong enough—Orozco pleaded

guilty in the earlier case—and its probative value was

not outweighed by the danger of unfair prejudice to

Orozco. Finally, the district judge issued a limiting in-

struction reminding the jury that this evidence could only

be considered on the question of whether Orozco used

his right hand to handle guns. Accordingly, the district

court did not abuse its discretion in admitting the evi-

dence relating to Orozco’s prior firearm conviction.

C. Sentence Enhancement

Finally, Orozco argues that the district court improperly

enhanced his sentence by two levels for possessing a

gun in connection with a drug offense. Section 2D1.1(b)(1)

of the sentencing guidelines instructs the sentencing

court to increase a defendant’s base offense level by

two levels “[i]f a dangerous weapon (including a firearm)

was possessed.” Application Note 3 clarifies that this

enhancement should not be applied if “it is clearly im-

probable that the weapon was connected with the offense.”

A burden-shifting approach determines if the § 2D1.1(b)(1)

enhancement applies. United States v. Bothun, 424 F.3d 582

(7th Cir. 2005). The government must first prove by a

preponderance of the evidence that the defendant pos-

sessed the gun; once it has done so, the burden shifts to

the defendant to show that it was “clearly improbable”

No. 06-4235 13

that the gun was connected to the underlying drug

offense. Id. at 586.

Here, the government plainly met its burden of proving

that Orozco possessed the gun found in his house; Orozco

failed to carry his burden of establishing that it was

“clearly improbable” that the gun was connected to the

charged drug conspiracy. Orozco points out that there

was no evidence that the gun was actually used in any

drug transaction, but this argument misses the point.

Agent Ormerod testified that he found the gun and

ammunition in Orozco’s home and the holster in his

bedroom. He also testified that agents found a digital

scale with traces of cocaine residue in the home,

suggesting that Orozco conducted drug transactions there.

That there was no evidence that Orozco actually used

the gun in connection with a drug transaction does not

make it “clearly improbable” that the gun was connected

to the underlying drug conspiracy. The district court

properly applied the § 2D1.1(b)(1) enhancement.

For the foregoing reasons, we A FFIRM the judgment of

the district court.

8-13-09