                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-1072
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Jose Romo-Corrales,                     *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: October 23, 2009
                                 Filed: January 28, 2010
                                 ___________

Before BYE, BEAM, and SHEPHERD, Circuit Judges.
                           ___________

SHEPHERD, Circuit Judge.

      Jose Romo-Corrales appeals the district court’s1 denial of his motion to
suppress evidence seized during two searches of his residence. For the following
reasons, we affirm.




      1
        The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, adopting the report and recommendations of the Honorable David L.
Piester, United States Magistrate Judge for the District of Nebraska.
                                          I.

       During an on-going criminal investigation, members of the Tri-City Drug Task
Force—including Investigator Mark Dreher of the Grand Island Police
Department—had been collecting information regarding possible drug transactions in
and around 315 East Dodge Street in Grand Island, Nebraska. Pursuant to an
administrative subpoena in the drug investigation, Investigator Dreher received
information from a local gas company indicating that Fidel Emerjildo Martinez was
the utility subscriber for the residence at 315 East Dodge Street.

       Investigator Dreher subsequently learned that Martinez had been convicted of
conspiracy to distribute methamphetamine in 2002, and was on supervised release
after serving time in prison. Investigator Dreher also discovered that on February 26,
2007, Martinez’s probation officer had alerted authorities that Martinez could not be
located and a warrant had recently been issued for his arrest. Investigator Dreher
showed a photograph of Martinez to Todd Friesen, the landlord at 315 East Dodge
Street. Friesen indicated that several men had recently moved into 315 East Dodge
Street, and that the man in the photograph had made rental payments for the residence
following the date that Martinez had violated the terms of his supervised release.

       On May 23, 2007, while surveilling 315 East Dodge Street, Investigator Dreher
and other officers observed a man—matching the description of Martinez—enter and
leave the residence. The officers did not attempt to arrest Martinez because the
officers were not wearing safety equipment, they had observed another person outside
the residence, and Investigator Dreher felt the need to obtain a search warrant before
proceeding.

      On May 25, 2007, Investigator Dreher completed a search warrant application
for 315 East Dodge Street, requesting that the warrant cover both the person of



                                         -2-
Martinez as well as venue 2 items linking Martinez to the residence. The affidavit in
support of the warrant application contained information regarding Martinez’s arrest
warrant for his violation of supervised release, the landlord’s statement that Martinez
had paid rent at 315 East Dodge Street, and evidence that officers had recently
observed a man matching Martinez’s description entering and exiting the residence.
The affidavit, however, did not include any information regarding the on-going drug
investigation relating to 315 East Dodge.

       A warrant was granted authorizing a search of “the residence, outbuildings, and
curtilage of 315 East Dodge Street,” as well as “all persons and any and all vehicles
found on said property or persons at the time the warrant is served” for both the
person of Fidel E. Martinez, and any “[d]ocumentation, receipts or items of venue
which show Fidel E. Martinez’[s] possession or domain of the residence.” Prior to the
execution of the warrant, investigators assembled for a briefing where Investigator
Dreher emphasized that the warrant did not cover drug contraband. Investigator
Dreher instructed the officers that if any drug evidence was discovered during the
search, he was to be immediately notified.

        On May 30, 2007, at approximately 7:00 a.m., law enforcement executed the
warrant. First, a “tactical response team” conducted an initial search for all persons
in the residence and detained two men—one of whom was Jose Romo-Corrales. Once
officers removed all persons from the residence, a “search team” began the search for
venue items connecting Martinez to the residence. While in the garage, and without
moving anything, Investigator Dreher discovered two, one-pound containers of




      2
        Investigator Dreher testified that venue evidence is “[a]ny mail that would have
[Martinez’s] name on it,” including “mail, papers, [and] receipts.” (Mot. Supp. Hr’g
Tr. 13.)

                                          -3-
methylsulfonylmethane (MSM),3 a hot plate, broken light bulbs, and several firearms.
In the garage, Investigator Dreher also discovered a natural gas bill for 315 East
Dodge Street that was addressed to Martinez, as well as other venue evidence linking
Martinez to the residence.

       Investigator Jason Ackles searched a bathroom in the residence. In the
bathroom, Investigator Ackles shined his flashlight behind a mirror hanging on the
wall above the sink and observed what he described as “torn sheet rock.” Believing
that the wall had been altered, Investigator Ackles removed the mirror and discovered
a hole in the sheet rock in which he discovered plastic bags filled with what he
believed to be more than a quarter pound of methamphetamine, several papers, and
a scale. Investigator Ackles immediately notified Investigator Dreher.

       At the same time, Investigator Scott Javins was called to a bedroom where an
officer had located a .40 caliber handgun under a mattress. In the bedroom,
Investigator Javins found venue items in the drawer of a night stand and a
baggie—appearing to contain drug residue—located behind the night stand. When
searching the laundry room for venue items, Investigator Javins discovered a digital
scale containing a liquid residue under some laundry in a laundry hamper.
Investigator Javins also located a food vacuum sealer. When leaving the laundry
room, Investigator Javins accidently kicked a cooler sitting in the doorway and
realized there was something inside because of the cooler’s weight. Investigator
Javins opened the cooler, discovering that it was filled with a liquid that appeared to
contain methamphetamine crystals.4 Investigator Javins also noticed a propane torch
and a can of denatured alcohol. At this point, Investigator Javins alerted Investigator
Dreher.


      3
       MSM is a horse medication commonly used as a methamphetamine cutting
agent. See United States v. Quintanar, 150 F.3d 902, 904 (8th Cir. 1998).
      4
       Subsequent to a field test, the liquid tested positive for methamphetamine.

                                         -4-
        At approximately 8:00 a.m., when officers alerted Investigator Dreher to the
drug contraband and paraphernalia they had discovered, Investigator Dreher
immediately suspended the search until another search warrant could be issued for the
contraband. Officers did not remove any of the suspected contraband located during
the first search. A second search warrant was obtained based on the information in
the first warrant, as well as the contraband discovered during the execution of the first
search warrant. A second search was then conducted and the officers seized the drug
evidence discovered during the initial search.

       A federal grand jury returned a five count indictment against Romo-Corrales,
and he subsequently moved to suppress the evidence discovered at 315 East Dodge
Street during the two searches. Following an evidentiary hearing, the magistrate judge
issued a Report and Recommendation (“R&R”), recommending the denial of the
motion to suppress. The district court adopted the magistrate judge’s R&R and denied
the motion.

       Romo-Corrales entered into a conditional plea agreement with the government
in which he reserved the right to appeal the district court’s denial of his motion to
suppress. In the conditional plea, Romo-Corrales pled guilty to two counts of the
indictment—conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §
841(a)(1), (b)(1), and criminal forfeiture, in violation of 21 U.S.C. § 853. The district
court sentenced Romo-Corrales to 210 months imprisonment.

                                           II.

       Romo-Corrales claims that the district court erred in denying his motion to
suppress in that his Fourth Amendment rights were violated in two respects. When
reviewing the denial of a motion to suppress, we review the district court’s factual
findings for clear error and the legal question of whether the Fourth Amendment was
violated de novo. United States v. Williams, 577 F.3d 878, 880 (8th Cir. 2009).


                                          -5-
                                            A.

          First, Romo-Corrales alleges that the application for the first search warrant was
merely a subterfuge for obtaining authorization to conduct a search for drugs at 315
East Dodge Street. A valid warrant “must be based upon a finding by a neutral and
detached judicial officer that there is probable cause to believe that evidence,
instrumentalities or fruits of a crime, [or] contraband . . . may be found in the place to
be searched.” United States v. Proell, 485 F.3d 427, 430 (8th Cir. 2007) (quotation
omitted). Probable cause is established when there is a “‘fair probability’ that the
object of the search warrant may be found in the place to be searched.” United States
v. Montgomery, 527 F.3d 682, 686 (8th Cir. 2008) (quotation omitted). In general,
an officer’s underlying motive for obtaining the warrant is irrelevant, as “[s]ubjective
intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”
Whren v. United States, 517 U.S. 806, 813 (1996); see Horton v. California, 496 U.S.
128, 139 (1990) (finding that if the officer “has a valid warrant to search for one item
and merely a suspicion concerning the second, whether or not it amounts to probable
cause, we fail to see why that suspicion should immunize the second item from seizure
if it is found during a lawful search for the first”); see also United States v. Roggeman,
279 F.3d 573, 580 n.5 (8th Cir. 2002) (“[I]t is of no consequence ‘that the motivation
for the search did not coincide with the legal justification’ for the search.” (quoting
Scott v. United States, 436 U.S. 128, 138 (1978))).

       However, a search warrant is invalid if: “(1) a law enforcement officer
knowingly and intentionally, or with reckless disregard for the truth, included a false
statement in the warrant affidavit, and (2) without the false statement, the affidavit
would not have established probable cause.” United States v. Neal, 528 F.3d 1069,
1072 (8th Cir. 2008) (citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978)).
Similarly, an officer may not submit an affidavit that deliberately omits information,
which if included, would destroy a finding of probable cause. Id. at 1073 (holding
that a warrant remained valid even though the affidavit omitted several facts because


                                            -6-
the inclusion of such facts would not have “eliminated the existence of probable
cause”).

        Here, the officer’s failure to address the on-going drug investigation in the
affidavit did not destroy the probable cause necessary for the first search warrant. See
id. at 1072. The affidavit for the first search warrant included that: (1) an outstanding
arrest warrant existed for Martinez, (2) Martinez had been seen entering and exiting
315 East Dodge Street, and (3) Martinez was the utility subscriber and had paid rent
at the residence. We find that this information established a fair probability that either
Martinez himself, or evidence connecting Martinez to 315 East Dodge Street, would
be discovered during a search of the residence—establishing probable cause to search
the residence for that type of evidence. The fact that the officers suspected drug
activity at the residence is irrelevant to the probable cause inquiry for the search.
Even though the officers did not include the drug investigation information in the
affidavit, this did not affect the probable cause that independently existed for the
venue search of the residence. Therefore, we find that the first search warrant was
valid regardless of any underlying motives of law enforcement.

                                           B.

       Romo-Corrales next alleges that the first search of the residence exceeded the
scope of the search warrant and that therefore any evidence discovered during the
search was fruit of the initial illegal search. Although the Fourth Amendment
prohibits “general, exploratory rummaging in a person’s belongings,” Coolidge v.
New Hampshire, 403 U.S. 443, 467 (1971), a lawful search includes all areas where
the items listed in the warrant might be found, see Montgomery, 527 F.3d at 687
(“Police may lawfully search all buildings, containers, and vehicles on the property
to be searched in which the contraband sought might be found.”).




                                           -7-
       Here, the warrant permitted officers to search for any indicia of Martinez’s
connection to 315 East Dodge Street. Venue evidence includes items such as bills,
receipts, and letters. See, e.g., United States v. Timley, 443 F.3d 615, 623 (8th Cir.
2006) (“[A] warrant authorizing officers to seize anything related to indicia of
occupancy is quite broad.”); United States v. Blakeney, 942 F.2d 1001, 1027 (6th Cir.
1991) (finding that “indicia of occupancy” includes “any document or other object
that would tend to provide the true identity of the owners or occupants of the
premises”). These types of paper documents can obviously fit into small spaces and
containers and, therefore, could be hidden in numerous locations in a residence. See,
e.g., Blakeney, 942 F.2d at 1027-28 (finding that a warrant issued for “indicia of
occupancy” and other documents and records permitted officers to search inside a
suitcase—where they ultimately discovered drug evidence). Because venue evidence
could be located in the laundry hamper, garage, cooler, behind a mirror or picture,
behind a dresser, and underneath the bed, we find that officers lawfully conducted the
search pursuant to the first search warrant when they searched these locations, and that
the evidence discovered there was not the fruit of an illegal search.5




      5
        Notably, even if the officers had exceeded the scope of the first search warrant
in examining the contents of the cooler, the inevitable discovery doctrine validated the
admission of the drug evidence. To prevail under the inevitable discovery doctrine,
the government must show: “(1) that there was a reasonable probability that the
evidence would have been discovered by lawful means in the absence of police
misconduct, and (2) that the government was actively pursuing a substantial,
alternative line of investigation at the time of the constitutional violation.” United
States v. Pruneda, 518 F.3d 597, 604 (8th Cir. 2008) (quotation omitted). Here, the
inevitable discovery doctrine applies because: (1) the drug evidence would have been
lawfully discovered through the execution of the second search warrant—which
specifically authorized a search for drug contraband, and (2) the drug evidence was
discovered while officers were lawfully searching for the venue evidence.

                                          -8-
                                          III.

      Accordingly, we affirm the judgment of the district court denying the motion
to suppress.

BYE, Circuit Judge, concurring.

      I concur in the decision of the panel, and agree the evidence discovered during
the search of Romo-Corrales’ home was admissible pursuant to the inevitable
discovery doctrine.

       I write separately to express my concern over the kind of search at issue here.
Putting aside momentarily the issue of inevitable discovery, this case presents a
difficult issue: whether the government may, in the course of hunting for a fugitive,
search the home of a third party not only for the fugitive himself, but also for indicia
of occupancy linking the fugitive to the home.

       The relationship between an arrest warrant and a search warrant has been
explored in numerous cases. For example, police acting on a valid arrest warrant may
not enter the home of a third party without a valid search warrant–a requirement met
by law enforcement here. United States v. Risse, 83 F.3d 212, 215 (8th Cir. 1996)
(citing Steagald v. United States, 451 U.S. 204, 215-16, 101 S.Ct. 1642, 68 L.Ed.2d
38 (1981)). However, “an arrest warrant founded on probable cause implicitly carries
with it the limited authority to enter a dwelling in which the suspect lives when there
is reason to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603
(1980). Once inside the home, the Fourth Amendment continues to govern the scope
of searches in seizure conducted contemporaneous to arrest. For example, officers
“[p]ossessing an arrest warrant and probable cause to believe [the suspect is] in his
home [are] entitled to enter and to search anywhere in the house in which [the suspect]


                                          -9-
might be found.” Maryland v. Buie, 494 U.S. 325, 332-33 (1990). In addition, once
in the home, to protect officer safety and preserve evidence, officers may search the
person of an arrestee and the area within his immediate control. See Chimel v.
California, 395 U.S. 752, 768 (1969).

       My concern in this case stems from the fact that by granting law enforcement
the authority to search not only for the fugitive himself, but also for indicia of
occupancy by the fugitive, we risk infringing more than necessary upon the privacy
of innocent third parties. The scope of the search in this case illustrates these
concerns. In executing the warrant, officers searched under a mattress, behind a night
stand, within a hamper of dirty clothing, inside a cooler, and, by removing a bathroom
mirror from the wall, inside a wall. Quite obviously, most of these locations could not
have hidden a fugitive. But because law enforcement officers were additionally
searching for indicia of occupancy, including “[d]ocumentation, receipts, or items of
venue which show Fidel E. Martinez’ possession or domain of the residence,” officers
acted within the scope of the warrant when executing the search. See United States
v. Montgomery, 527 F.3d 682, 687 (8th Cir. 2008) (“Police may lawfully search all
buildings, containers, and vehicles on the property to be searched in which the
contraband sought might be found.”).

       We have cautioned that “a warrant authorizing officers to seize anything related
to indicia of occupancy is quite broad.” United States v. Timley, 443 F.3d 615, 623
(8th Cir. 2006). We have also stated that probable cause, within the meaning of the
Fourth Amendment's warrant requirement, means a fair probability that contraband
or evidence of a crime will be found in a particular place. See United States v. Horn,
187 F.3d 781, 785 (8th Cir. 1999) (emphasis added). In most cases, searching for
indicia of occupancy is justified by a need to gather evidence linking particular
persons to a crime scene. See, e.g., United States v. Gamboa, 439 F.3d 796, 805 (8th
Cir. 2006). Here, by contrast, it is far from clear why the government needed to link
Martinez to the place to be searched. The government had an interest in arresting

                                         -10-
Martinez, but doing so was not contingent on finding him in any particular place. And
while the government's interest in connecting Martinez to the home to be searched was
slight, the intrusiveness of the search to third parties was substantial.

       Fortunately, we need not resolve the thorny issue of whether the search warrant
was supported by probable cause to search for indicia of occupancy. For the reasons
stated in the majority opinion, suppression of the evidence was not necessary in this
case because law enforcement officers would have inevitably discovered the drug
contraband during the execution of the second warrant.

      I therefore concur in the court’s judgment.
                       _____________________________




                                        -11-
