                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  November 1, 2013
                      UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                   TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                      No. 12-7084
                                               (D.C. No. 6:12-CR-00007-JHP-1)
 LEE MARTIN DE LA TORRE, a/k/a                           (E.D. Okla.)
 Lee Harlan De La Torre,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, MATHESON, Circuit Judges, and BLACKBURN **, District
Judge.


      Defendant-Appellant Lee Martin De La Torre entered a conditional plea of

guilty to possession of an unregistered firearm, 26 U.S.C. §§ 5861(d), 5845, &

5871, and was sentenced to 18 months’ imprisonment and three years’ supervised

release. He now appeals the denial of his motion to suppress. Our jurisdiction

arises under 28 U.S.C. § 1291, and we affirm.


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
        The Honorable Robert E. Blackburn, U.S. District Court Judge, District
of Colorado, sitting by designation.
                                    Background

      On September 27, 2011, a coalition of officers from the Oklahoma Drug

Task Force and the Tulsa Police Department executed a search warrant on a

residence in Broken Arrow, Oklahoma. The warrant sought evidence in an

investigation unrelated to Mr. De La Torre. Investigator Elizabeth Crockett

(“investigator”) was present during the search; Mr. De La Torre was also present.

      During the search, officers discovered a bag with white powdery residue in

a bedroom. The residue field tested positive for methamphetamine. Later that

day, the officers obtained a search warrant based upon probable cause of

possession and consumption of methamphetamine. The affidavit authored by the

investigator listed a litany of items allegedly related to the crime of possession,

ranging from the apparent (“paraphernalia”) to the peripheral (“foreign travel

schedules”), and this was incorporated into the warrant. 1 R. 32, 35.

      Approximately one hour after the issuance of the warrant, the investigator

returned to the residence and served the warrant on Mr. De La Torre. In the same

bedroom in which the first bag was found, officers discovered another bag with

white powdery residue and various articles of drug paraphernalia. Additionally,

officers discovered three improvised explosive devices—one labeled “F*** YOU

BOOM”—along with fireworks in a bedroom closet.

      Mr. De La Torre moved to suppress evidence of the explosive devices,

arguing that the second search violated the Fourth Amendment. That motion was

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referred to a magistrate judge, who recommended denial because, although the

investigator “mismatched” the offense of possession with items authorized for

seizure in both the affidavit and warrant, the good-faith exception to the

exclusionary rule supplanted the warrant’s overbreadth. Id. at 45-46. The district

court adopted the magistrate’s recommendation. 1 R. 69.



                                     Discussion

      On appeal, Mr. De La Torre argues that suppression was warranted because

the second search warrant violated the Fourth Amendment’s particularity

requirement. 1 The government disagrees but also relies on the good-fath

exception.

      The Fourth Amendment provides that no warrant shall issue unless it

“particularly describ[es] the . . . things to be seized.” U.S. Const. amend. IV.

Generally, the remedy for a violation of the Fourth Amendment is exclusion of

evidence unconstitutionally seized. United States v. McCane, 573 F.3d 1037,

1042 (10th Cir. 2009). However, the exclusionary rule is a judicially created

remedy, not a constitutional mandate. Id. The sole purpose of the exclusionary

rule is to deter police misconduct, and evidence obtained under a warrant should

      1
        In his motion to suppress, Mr. De La Torre also argued that the warrant
was not supported by probable cause. 1 R. 14. On appeal, Mr. De La Torre’s
particularity argument subsumes his probable cause argument. Aplt. Br. 21-22.
This appeal is resolved solely by considering the good-faith exception as it
applies to the particularity of the warrant.

                                        -3-
be suppressed only in the “unusual case” in which that purpose will be furthered.

United States v. Riccardi, 405 F.3d 852, 863 (10th Cir. 2005). Under United

States v. Leon, 468 U.S. 897, 924-25 (1984), where officers obtain and execute in

“objective good faith” a search warrant issued by a “detached and neutral

magistrate,” there is nothing to deter. United States v. Nolan, 199 F.3d 1180,

1184 (10th Cir. 1999). Courts have the discretion to decide a case under Leon’s

good-faith exception rather than on the merits. Leon, 468 U.S. at 924-25.

Several of our cases have done so. See, e.g., United States v. Gonzales, 399 F.3d

1225, 1228 (10th Cir. 2005); United States v. Rowland, 145 F.3d 1194, 1206 n.8

(10th Cir. 1998); cf. United States v. Otero, 563 F.3d 1127, 1136 (10th Cir. 2009)

(Baldock, J., concurring). We review the applicability of the good-faith exception

de novo. Nolan, 199 F.3d at 1184.

      Mr. De La Torre argues that the warrant that led to the discovery of the

explosives was so deficient that the executing officers could not reasonably

presume it to be valid. Aplt. Br. 29-30. He further argues that the warrant lacked

guidelines and references to specific crimes that would allow the officers to

distinguish between what evidence was and was not to be seized. Id. Finally, he

contends that the executing officers should have known that by “omitting the

affidavit’s description of an isolated possession of methamphetamine residue” the

warrant allowed a search that was limitless in scope. Id. at 31.

      We disagree. Even if a warrant is facially invalid, the reviewing court

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“must also review the text of the warrant and the circumstances of the search to

ascertain whether the agents might have reasonably presumed it to be valid.”

United States v. Leary, 846 F.2d 592, 607 (10th Cir. 1988) (internal quotations

and brackets omitted). In this case, both the warrant and affidavit provide

guidance in that they limit the myriad items listed to those “constitut[ing]

evidence of” one crime: “Possession and Consumption of . . . Methamphetamine.”

1 R. 35 (search warrant); 1 R. 32 (affidavit). Moreover, the same officer,

Investigator Crockett, obtained and executed the warrant suggesting good-faith

reliance that the warrant authorized seizure of evidence for which probable cause

had been established earlier that day.

A.    Text of the Warrant

      In United States v. Otero, 563 F.3d 1127 (10th Cir. 2009), we addressed a

similar situation. In Otero, the search warrant authorized the seizure of items in

two different sections: (1) “ITEMS TO BE SEIZED,” and (2) “COMPUTER

ITEMS TO BE SEIZED.” Id. at 1129-30. The first section carefully “limit[ed]

the search to evidence of specific crimes” of which the defendant was suspected,

namely mail and credit card theft. Id. at 1132. In contrast, the section regarding

computer items had “no limiting instruction whatsoever.” Id. This second

section purported to allow seizure of “[a]ny and all” information contained in the

defendant’s computer and made no effort to incorporate the limitations set out in

the first section. Id. at 1132-33. This court held that the second section

                                         -5-
authorized a “wide-ranging search” of the defendant’s computer and was therefore

invalid. Id. at 1133.

      However, this overbreadth did not necessitate suppression of evidence

obtained from the defendant’s computer given Leon’s good-faith exception. Id.

Despite the second section’s unlimited language, “one can see how a reasonable

officer might have thought that the limitations in the first portion of [the warrant]

would be read to also apply to the second portion.” Id. at 1134. The officer who

searched the computer therefore “understood his search as being limited to

evidence of mail and credit card theft.” Id. Given this understanding, the

warrant’s overbreadth did not constitute a “flagrant or deliberate violation of

rights” that the exclusionary rule served to deter. Id. (quoting Herring v. United

States, 555 U.S. 135, 143 (2009)).

      Here, the facts are similar. Although the warrant incorporated the

affidavit’s boilerplate language (allowing seizure of evidence related to any

conceivable drug crime), the warrant’s preamble, setting forth probable cause,

authorized the seizure of evidence of only one crime—“Possession and

Consumption of . . . Methamphetamine.” 1 R. 35. One can easily see how a

reasonable officer could conclude that the authorized search, though purporting to

extend to an exhaustive array of items, was limited to the only offense described.

Id. So understood, the breadth of the items listed would not necessarily lead a

reasonable officer to conclude that the warrant authorized an impermissible

                                         -6-
“general” search.

B.      Circumstances of the Search

        The circumstances surrounding the second search, including the

investigator’s participation in obtaining and executing the warrant, also suggest

good faith. Good faith is indicated where “the officers executing the warrant

were involved in the investigation throughout, and one of them wrote the affidavit

to support the application.” Otero, 563 F.3d at 1135 (citing Riccardi, 405 F.3d at

864).

        Here, the investigator was present for the original discovery and authored

the affidavit stating probable cause that Mr. De La Torre continued in unlawful

possession of methamphetamine. 1 R. 32-33. The investigator returned to the

residence an hour later to execute the search. Although the warrant omitted a

reference to the discovery of the original bag with methamphetamine residue, the

affidavit did describe that discovery. We conclude that reasonable officers in this

situation would have reason to believe the warrant was valid, consider themselves

authorized to search only for evidence of the crime for which they had probable

cause, and would seize only those items that they believed the warrant and plain-

view doctrine authorized. 2



        2
         Mr. De La Torre does not challenge the magistrate’s conclusion that “the
nature of the immediate danger posed by the explosive devices certainly justified
their seizure.” 1 R. 47.

                                         -7-
AFFIRMED.



            Entered for the Court


            Paul J. Kelly, Jr.
            Circuit Judge




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