Filed: Jun. 23, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4354 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HECTOR JAVIER CARABALLO, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Henry Coke Morgan, Jr., Senior District Judge. (4:08-cr-00035-HCM-TEM-1) Submitted: June 1, 2010 Decided: June 23, 2010 Before KING and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4354 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HECTOR JAVIER CARABALLO, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Henry Coke Morgan, Jr., Senior District Judge. (4:08-cr-00035-HCM-TEM-1) Submitted: June 1, 2010 Decided: June 23, 2010 Before KING and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per c..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4354
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HECTOR JAVIER CARABALLO,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:08-cr-00035-HCM-TEM-1)
Submitted: June 1, 2010 Decided: June 23, 2010
Before KING and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Larry M. Dash, Assistant Federal Public Defenders,
Norfolk, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Katherine Lee Martin, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hector Javier Caraballo appeals his conviction and
sentence on three counts of bank robbery and two counts of
attempted bank robbery, in violation of 18 U.S.C. § 2113 (2006);
and eight counts of use of a firearm during a crime of violence,
in violation of 18 U.S.C. § 924(c) (2006). Caraballo contends
that the district court erred in denying his motion to suppress
evidence that was recovered from his residence because the
search warrant affidavit did not establish probable cause that
evidence would be located at his home. Because the good faith
exception recognized in United States v. Leon, 468 U.S. 897
(1984) applies, we affirm.
I.
On January 14, 2007, Scott Baber, a Special Agent with
the Federal Bureau of Investigation (FBI), was contacted by
local law enforcement officers in York County and Henrico
County, Virginia, for assistance with investigating a bank
robber responsible for eight robberies and attempted robberies
between November 7, 2006 and December 21, 2007.
In each robbery, the robber would enter the subject
bank near closing time, typically on Friday or Saturday, and
direct a teller or bank employee at gunpoint to take him behind
the teller counter. On several occasions, the robber would
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simply jump up on the teller counter and demand that the tellers
empty their drawers. In total, the robber had stolen more than
$100,000.
The robber was described as a white or Hispanic male
between 5’6” and 5’8”. The robber often donned a fake beard and
spoke with a thick Hispanic accent. Witnesses stated that the
robber carried a silver revolver and a camouflage bag covered in
a rubbery surface. Surveillance photographs revealed the
subject wearing a baseball cap, white tennis shoes and blue
jeans, and carrying the silver revolver. In these surveillance
photos, the robber was clad in either a blue-checkered flannel
jacket or blue-hooded sweatshirt.
Witnesses described the robber as escaping in several
different vehicles. First, in a robbery on March 5, 2007,
witnesses reported seeing the robber exit in a gold-colored
four-door sedan with the license plate JZW 4618. Next, during a
robbery in September 2007 a witness described the robber as
fleeing in a 1986-87 two-door gray Honda Civic. During a bank
robbery on November 10, 2007, witnesses described the robber as
fleeing in a dark blue Chevrolet Impala. Finally, two witnesses
to a robbery on December 21, 2007, described the car as a dark
blue sedan.
Several weeks after Agent Baber began his
investigation, he was contacted regarding an attempted bank
3
robbery in Hopewell, Virginia. On that occasion, an unknown
individual approached the front door of the Bank of McKinney
but, because the bank had just closed, the individual was forced
to leave. Surveillance video showed that the individual wore
clothing that matched that of the robber and left the scene in
an older two-door gray Honda or Toyota with what appeared to be
temporary window tint.
Despite the number of robberies, the robber left
behind no DNA evidence at any scene, although he did leave shoe
impressions at three banks. Because of the lack of suspects,
the FBI held a joint press conference in early March 2008 with
local law enforcement, presenting surveillance photos of the
robber and the dates and times of the robberies. A reward of
$20,000 was offered for information leading to an arrest.
The night of the press conference, Baber received a
call from an informant * claiming that she recognized the robber
as Hector Javier Caraballo. The informant agreed to a face-to-
face interview the next day and explained that Caraballo met the
physical description of the robber: he was Puerto Rican and
spoke English with a heavy accent. The informant stated that
she recognized Caraballo because of the clothing worn in the
surveillance photos as well as his posture and build.
*
Although not identified in the search warrant affidavit,
the informant was in fact Caraballo’s ex-wife.
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The informant also explained that Caraballo had a
history of violence and drug abuse and had not held a job since
2003 or 2004. The informant supplied photographs of Caraballo
wearing clothing similar to that of the robber, including a
blue-checkered flannel jacket with a gray hood, blue jeans, and
white tennis shoes.
Based upon this information, Baber conducted a brief
surveillance of Caraballo. On the morning of March 6, Baber
photographed a gray two-door 1988 Toyota Corolla in Caraballo’s
assigned parking space at his apartment complex. Witnesses from
two of the robberies were shown pictures of the car and stated
that it looked like the one they had seen. In an interview with
the registered owner of the Corolla, Baber learned that the
owner had sold the car to Caraballo in March 2007.
Later that day, Baber photographed a dark blue, 2000
Chevrolet Impala belonging to a friend of Caraballo. Witnesses
from two of the robberies stated that the car looked like the
one they had seen.
Buttressed by these witness statements, Baber and
local law enforcement began detailed surveillance of Caraballo.
While under surveillance, Caraballo followed a set pattern. He
would depart his residence in the morning in his Corolla and
drive to the rear of a nearby building. While there, he would
place window tinting film on his car windows and enter
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Interstate 64 westbound toward Mechanicsville. On the way,
Caraballo would exit the interstate and put on a new license
plate. Caraballo would then reenter the interstate and exit at
Mechanicsville. While in Mechanicsville, Caraballo would drive
back and forth on Route 360, stopping in parking lots adjacent
to two different banks but never exiting his car. After several
hours, Caraballo would drive back home. During two of the
trips, Caraballo used the license plate JZW 4618—the same
license plate reported by a witness at one of the robberies.
Based upon this evidence, Agent Baber prepared a
delayed notification search warrant for Caraballo’s vehicle.
The warrant was executed at 1:00 a.m. on March 25, 2008. The
search yielded no evidence implicating Caraballo in the
robberies, including either the window tinting or the license
plates. Later that morning, the FBI arrested Caraballo as he
left his residence. Agent Baber then applied for a search
warrant for Caraballo’s residence based upon the information
recounted above. The affidavit was identical to the affidavit
filed for the search of the car, with the addition of a single
paragraph:
On March 25, 2008, at approximately 1:00 am, a delayed
notification search warrant was executed on the gray
Two door Toyota Corolla associated with the listed
individual. No items of evidentiary value were
located in the vehicle. Specifically, the stolen
license plate, and the press on window tint were not
located in the vehicle. At 7:00 am Hector Caraballo
6
was arrested exiting [his residence]. It is your
affiant’s belief based upon this search and the
surveillance of the individual that these items and
other evidence, fruits, and instrumentalities of the
bank robberies are located in the apartment associated
with Hector Caraballo . . .
(J.A. at 41.)
A federal magistrate judge approved the warrant, and
the FBI conducted the search later on March 25. In contrast to
the search of the Corolla, this search yielded evidence tying
Caraballo to the robberies, including a black wig and fake
beard, fake nose and costume makeup, baseball hats matching
those worn during several robberies, a blue checkered flannel
jacket, black gloves, multiple license plates, window tinting
film, a camouflage bag that appeared to be stained with bank
dye, United States currency stained with red dye, and a .38
caliber silver revolver.
On April 15, 2008, a federal grand jury sitting in the
Eastern District of Virginia indicted Caraballo on three counts
of bank robbery and two counts of attempted bank robbery, in
violation of 18 U.S.C. § 2113, eight counts of use of a firearm
during a crime of violence, in violation of 18 U.S.C. §924(c),
and one count of being an unlawful user in possession of a
firearm, in violation of §922(g)(1)(3).
On July 1, 2008, Caraballo filed a motion to suppress
the evidence recovered from his home, which the district court
7
denied orally on October 20, 2008. In denying the motion, the
district court concluded “very clearly” that there was “probable
cause to issue the warrant to search the home.” The district
court further concluded that probable cause existed “when they
observed the defendant coming in and out of the home using the
cars that have been also identified.” Thus, in the district
court’s view, “the officer could have gotten warrants for the
car and the house at the same time if he wanted to.” The
district court reiterated that there was “certainly” probable
cause at the time the warrant was issued for the house, and that
there was “no doubt in the Court’s mind about that.”
A jury later convicted Caraballo on all but the
§ 922(g) count and, on March 30, 2009, the district court
sentenced Caraballo to 2,292 months imprisonment. Caraballo
filed a timely notice of appeal.
II.
On appeal, Caraballo contests only the denial of the
motion to suppress, arguing that the search warrant affidavit
fails to establish probable cause and that the warrant is so
bare bones as to preclude use of the Leon good faith exception.
We will use our discretion to “proceed to the good faith
exception without first deciding whether the warrant was
supported by probable cause.” United States v. Legg, 18 F.3d
8
240, 243 (4th Cir. 1994). Where, like here, “there are no facts
in dispute, the applicability of the Leon exception . . . is
purely a legal conclusion.” United States v. DeQuasie,
373 F.3d
509, 520 (4th Cir. 2004).
“Generally, evidence seized in violation of the Fourth
Amendment is subject to suppression under the exclusionary
rule,” United States v. Andrews, 577 F.3d 231, 235 (4th Cir.
2009), the purpose of which is “to deter future unlawful police
conduct,” United States v. Calandra,
414 U.S. 338, 347 (1974).
The deterrence objective, however, “is not achieved through the
suppression of evidence obtained by ‘an officer acting with
objective good faith’ within the scope of a search warrant
issued by a magistrate.”
Perez, 393 F.3d at 461 (quoting
Leon,
468 U.S. at 920); see United States v. Mowatt,
513 F.3d 395, 404
(4th Cir. 2008) (“[I]t is the magistrate's responsibility to
determine whether probable cause exists, and officers cannot be
expected to second-guess that determination in close cases.”).
Thus, the Leon Court created an exception to the exclusionary
rule, permitting the use of evidence “obtained by officers
acting in reasonable reliance on a search warrant issued by a
detached and neutral magistrate but ultimately found to be
unsupported by probable cause.”
Leon, 468 U.S. at 900.
Accordingly, “under Leon’s good faith exception, evidence
obtained pursuant to a search warrant issued by a neutral
9
magistrate does not need to be excluded if the officer’s
reliance on the warrant was ‘objectively reasonable.’” Id.
(quoting Leon, 468 U.S. at 922).
The Leon Court cautioned that an officer’s reliance on
a warrant would not qualify as “objectively reasonable,”
however, in four circumstances: where (1) probable cause is
based on statements in an affidavit that are knowingly or
recklessly false; (2) the magistrate fails to perform a neutral
and detached function and instead merely rubber stamps the
warrant; (3) the affidavit is so lacking in indicia of probable
cause as to render official belief in its existence entirely
unreasonable; or (4) the warrant was so facially deficient that
the executing officer could not reasonably have assumed it was
valid. United States v. Gary, 528 F.3d 324, 329 (4th Cir. 2008)
(internal quotation marks omitted) (citing
Leon, 468 U.S. at
914-15).
In this case, Caraballo contends that the third
circumstance identified by the Leon court is satisfied. We
disagree. The warrant affidavit in this case was very detailed,
discussing the beginning of the investigation, the in-depth tip
from the anonymous informant, and the corroboration of the tip.
The affidavit set forth that Caraballo had access to two of the
vehicles matching witness descriptions and that his physical
description matched that of the robber. The informant likewise
10
provided photographs showing Caraballo in attire matching the
robber: the blue-checkered flannel hooded jacket. In addition,
the affidavit set forth that, on two occasions, Caraballo was
seen putting on a license plate that matched the plate on the
getaway car from one of the robberies. The affidavit discussed
in detail the surveillance of Caraballo, in which he would drive
long distances, change the appearance of his vehicle en route
with window tint and new license plates, and perform
reconnaissance on a street where two banks were located.
Finally, the warrant affidavit specified that no evidence—i.e.,
the additional license plates or window tint—was recovered from
Caraballo’s vehicle, suggesting that those materials were likely
in his house. And, the affidavit set forth that the home was
indeed Caraballo’s—the informant provided his home address,
which Agent Baber corroborated by witnessing Caraballo enter and
leave the residence over the course of the surveillance.
In United States v. Lalor, 996 F.2d 1578, 1582 (4th
Cir. 1993) we applied the good faith exception even though the
affidavit in question was “devoid of any basis” to infer that
evidence would be at the defendant’s residence. In contrast, in
this case the affidavit sets forth information suggesting that a
search of the residence would reveal at least the license plates
and window tinting, which were likely instrumentalities of the
bank robberies. Moreover, as in Lalor, “two judicial officers
11
have determined that the affidavit provided probable cause to
search.” Id. at 1583.
This case thus stands in stark contrast to United
States v. Wilhelm, 80 F.3d 116 (4th Cir. 1996), in which we
rejected application of the Leon good faith exception due to the
“bare bones nature of the affidavit” and the fact that the
“state magistrate could not have acted as other than a rubber
stamp.”
Id. at 121. The affidavit in Wilhelm relied on an
“unknown, unavailable informant without significant [police]
corroboration,”
id. at 123, and we explained our concern that
“[u]pholding th[e] warrant would ratify police use of an
unknown, unproven informant—with little or no corroboration—to
justify searching someone’s home,”
id. at 120. In this case,
the officers relied on a heavily detailed tip and spent more
than one week of detailed surveillance to corroborate the tip as
well as witness accounts from the robberies.
Accordingly, because the Leon good faith exception
applies in this case, the district court correctly denied the
motion to suppress.
III.
For the foregoing reasons, we affirm the district
court's judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
12
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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