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United States of America v. Gustavo Morales-Ortiz

September 12, 2011


The opinion of the court was delivered by: Gene E. K. Pratter, J.


Gustavo Morales-Ortiz has been charged with possession with intent to distribute 50 grams or more of a mixture or substance containing methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B); possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1); and with possession of a firearm by an illegal alien in violation of 18 U.S.C. § 922(g)(5)(A).

Mr. Morales-Ortiz moves to suppress all evidence gathered pursuant to four search warrants issued by Pennsylvania authorities on the grounds that such warrants lacked sufficient information to support a finding of probable cause, and that the warrants used to search Mr. Morales-Ortiz's vehicles and residence contained either false material information or omitted relevant material information. The Court heard oral argument from counsel on July 21, 2011 and reviewed the legal authorities relied upon by the parties. As a result, for the reasons set forth below, Mr. Morales-Ortiz's Motion to Suppress Evidence is denied.


Mr. Morales-Ortiz apparently was caught up in searches that were conducted as part of an ongoing drug investigation, known as Operation Boomerang, that the Berks County Narcotics Task Force conducted during November 2010 in Reading, Pennsylvania. At 7:20 a.m. on November 5, 2010, a cooperating witness informed Investigator John Lackner of the City of Reading Police Department that "a Mexican male known to the [witness] as Gustavo" would be distributing a large quantity of methamphetamine at 8:00 a.m. in a Fern Avenue parking lot. The witness offered a physical description of "Gustavo," specified that he would be driving a mid-1990s red Honda Civic with Pennsylvania registration, and also gave a detailed description of "Gustavo's" residential address. At 7:59 a.m., officers, including Investigator Lackner, observed Mr. Morales-Ortiz arrive at the parking lot in a red Honda Civic, all as suggested by the cooperating witness.

Specifically, police noted that Mr. Morales-Ortiz was driving a red 1993 Honda Civic with Pennsylvania registration. After making contact with Mr. Morales-Ortiz, officers independently confirmed the accuracy of the cooperating witness's physical description of Mr. Morales-Ortiz. Once the officers made actual contact with Mr. Morales-Ortiz, they confirmed that the address on Mr. Morales-Ortiz's Pennsylvania driver's license also matched the cooperating witness's information. Mr. Morales-Ortiz himself verified to the officers that he currently lived at the address shown on his driver's license. Officers also then confirmed with the Immigration and Customs Enforcement Agency that Mr. Morales-Ortiz was a fugitive alien who was scheduled for deportation because of prior criminal convictions. All of this information was recounted in Investigator Lackner's probable cause affidavit.

Police detained Mr. Morales-Ortiz pending the application for a search warrant for the 1993 Honda Civic, which had been driven to Reading City Hall. While in police custody, Mr. Morales-Ortiz expressed concern that his vehicle doors remain locked. Investigator Lackner filed his affidavit of probable cause with a Berks County district justice seeking authorization to search Mr. Morales-Ortiz's 1993 Honda. The district justice issued a search warrant and officers executed the warrant, discovering in the Honda Civic large quantities of methamphetamine and cocaine, documents addressed to Mr. Morales-Ortiz, and $929 in currency. Later analysis determined that the officers seized approximately 147.8 grams of methamphetamine and approximately 347.8 grams of cocaine from the 1993 Honda.

Based upon the discovery of drugs in Mr. Morales-Ortiz's vehicle, officers then obtained a search warrant for Mr. Morales-Ortiz's apartment. Investigator Lackner's affidavit for this warrant restated the facts he had previously recounted in the affidavit for the warrant to search Mr. Morales-Ortiz's 1993 Honda. The affidavit also noted that the officers' search of the 1993 Honda resulted in the discovery of a "bulk quantity" of methamphetamine and cocaine and "numerous documents" referencing Mr. Morales-Ortiz's residence. Further, the affidavit stated that the purpose of this warrant for the residence was to search for evidence pertaining to the drugs discovered during the search of the 1993 Honda. An appropriate Commonwealth justice approved the warrant for the residence, and upon its execution, police used keys seized from Mr. Morales-Ortiz to unlock a locked closet in the house. This closet contained documents addressed to Mr. Morales-Ortiz, a loaded Colt .380 handgun, ammunition, a digital scale with suspected cocaine residue, and bulk quantities of suspected cocaine and methamphetamine.

Upon the discovery of these suspected narcotics, officers suspended their search and sought a third warrant -- the second such warrant for Mr. Morales-Ortiz's residence -- that specified controlled substances in the residence could be seized by the officers. After a district justice authorized this third warrant, officers resumed their search of Mr. Morales-Ortiz's apartment. Later analysis determined that officers seized approximately 98 grams of methamphetamine and approximately 150 grams of cocaine from Mr. Morales-Ortiz's residence.

When officers continued the search of Mr. Morales-Ortiz's residence, a narcotics detection K-9 unit dog alerted to the presence of narcotics in a black 2004 Acura TSX in Mr. Morales-Ortiz's garage. This prompted officers to seek and obtain a fourth warrant to search the 2004 Acura for controlled substances, and related items, including weapons. Pursuant to this fourth warrant, officers discovered a loaded Bryco .380 handgun during their search of the 2004 Acura.


Mr. Morales-Ortiz moved to invalidate the four warrants that the officers executed in their search of his residence and two vehicles.

An applicant for a warrant must present to the issuing authority facts sufficient to enable that official to make a determination of probable cause. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 564 (1971). This Court may not engage in a de novo review of the magistrate's determination that probable cause was presented. United States v. Whitner, 219 F.3d 289, 296 (3d Cir. 2000). Rather, the Court is constrained to approach the issuer's decision with "great deference" for purposes only to ensure that the issuing authority "had a substantial basis for concluding that probable cause existed." United States v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993). See also Illinois v. Gates, 462 U.S. 213, 236 (1983); Spinelli v. United States, 393 U.S. 410, 419 (1969); United States v. Kepner, 843 F.2d 755, 762 (3d Cir. 1988).

The Third Circuit Court of Appeals describes the "substantial basis" standard as requiring the reviewing court to "determine only whether the affidavit provides a sufficient basis for the decision the [issuing authority] actually made." United States v. Jones, 994 F.2d 1051, 1057 (3d Cir. 1993). When in doubt, then, the reviewing court should resolve the issue "largely" by acknowledging "the preference to be accorded to warrants." Gates, 462 U.S. 237 n.10 (citation omitted). Moreover, the Court is obliged to consider the "totality of the circumstances," including the affiant's training and experience, the information recounted and the practicality of the common sense ...

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