                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALSJanuary 25, 2013
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 12-4051
 v.                                            (D.C. No. 2:10-CR-00864-DS-2)
                                                          (D. Utah)
 VICTOR ALFONSO SEBREROS-
 CASTRO,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, and BALDOCK, Circuit Judges, and JOHNSON **, District
Judge. ***


      Defendant-Appellant Victor Alfonso Sebreros-Castro entered a conditional

plea of guilty to one count of possession of methamphetamine with intent to


      *
        This order and judgment is not binding precedent, except under the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 William P. Johnson, United States District Court, District
of New Mexico, sitting by designation.
      ***
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
distribute, 21 U.S.C. § 841(a)(1), reserving the right to appeal the denial of his

motion to suppress. He was sentenced to 87 months’ imprisonment and 4 years’

supervised release. On appeal, Mr. Sebreros-Castro argues that the district court

erred in failing to suppress the incriminating statements he made after the

unlawful entry of his apartment. The problem in this case is that an arrest warrant

was issued using a search warrant template. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.



                                    Background

       On September 2, 2010, a Utah Highway Patrol (UHP) trooper learned from

an FBI agent that a silver BMW, traveling Southbound through Tremonton, Utah,

was suspected of transporting narcotics. III R. 11–12. The trooper located the

BMW, gave pursuit, and stopped the vehicle for speeding. Id. at 14–15. Mr.

Sebreros-Castro and Abel Beltran-Lopez were inside the BMW, and neither had

proper identification. Id. at 16. After a consensual search of the vehicle revealed

no contraband, the trooper let the occupants leave but impounded the vehicle. Id.

at 95; Aplt. Br. 4.

      Several days later, DEA agents informed another UHP trooper that,

according to a confidential source, Mr. Sebreros-Castro had been delivering

methamphetamine when he was stopped on September 2, and that one to two

pounds of methamphetamine were inside the vehicle. Aplee. Br. 2–3. Troopers

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again searched the impounded vehicle, and found one pound of methamphetamine

hidden in the vehicle’s gas tank. Id. at 3.

      On September 9, 2010, the trooper obtained a warrant via Utah’s e-Warrant

System. III R. 32–33. At the suppression hearing held March 17, 2011, the

trooper explained that Utah’s electronic warrant system

      is an already-designed warrant that you go in under their blocks that
      are presented, you fill out the pertinent information, you submit that
      information, it goes to review it through an attorney, and then submit
      it to a judge, and the on-call judge at the time reviews the
      information, approves or denies that warrant, and submits it back
      through the system, which notifies me whether it was approved or
      not, which allows me to then print off the warrant from the field.

Id. at 33. He testified that he followed these steps on September 9, and received

back a copy of the warrant, “[t]he purpose of [which] was an arrest warrant for

the two individuals located on the premises described in th[e] warrant.” Id. at

32–33. The warrant, however, was captioned “Search Warrant No. 1055531.” II

R. 4. By its text alone, the warrant seemed to authorize a search of the premises

for an “Arrest Warrant for . . . Victor Alfonso Sebreros Castro.” Id. The

accompanying affidavit was also captioned “Affidavit for Search Warrant.” Id. at

7. However, the affidavit indicated that its purpose was “to establish probable

cause for the Arrest of . . . Victor Alfonso Sebreros Castro.” Id. at 9.

      The trooper entered the specified premises with the warrant and arrested

Mr. Sebreros-Castro. III R. 36. Following arrest, Mr. Sebreros-Castro made

incriminating statements during a police-initiated interview. Id. at 48–52.

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      Before the district court, Mr. Sebreros-Castro moved to suppress all

evidence obtained from the initial traffic stop and the unlawful entry of his

apartment, including his incriminating statements. United States v. Sebreros-

Castro, No. 2:10CR864 DS, 2011 WL 5325291, at *1 (D. Utah Nov. 3, 2011).

The court denied the motion on all grounds. Id. at *4. With respect to Mr.

Sebreros-Castro’s argument that the trooper unlawfully entered his apartment, the

court held that the trooper acted pursuant to a valid arrest warrant because “there

was probable cause for a warrant and th[e] warrant was properly issued by the

appropriate authority.” Id. at *3. The court found that the warrant “had the

purpose to be an arrest warrant,” even though it was “improperly labeled as

‘Search Warrant 1055531,’” and that “a reasonable person would read the warrant

as an arrest warrant mistakenly formatted in the template of a search warrant.”

Id. at *1–3. Mr. Sebreros-Castro timely appealed. I R. 82.



                                     Discussion

      When reviewing a district court’s denial of a motion to suppress, we view

the evidence in the light most favorable to the prevailing party and we accept the

district court’s factual findings unless they are clearly erroneous. United States v.

Ruiz, 664 F.3d 833, 838 (10th Cir. 2012). We review de novo the ultimate

determination of reasonableness under the Fourth Amendment. Id.

      On appeal, Mr. Sebreros-Castro argues that his incriminating statements

                                         -4-
should be suppressed because the trooper unlawfully entered his apartment. Aplt.

Br. 6. He specifically contends that the district court erred in construing the

defective search warrant as a valid arrest warrant. Id. at 6–11. We disagree.

       As the district court noted, the requirements of the Fourth Amendment,

“like all constitutional requirements, are practical and not abstract.” United

States v. Ventresca, 380 U.S. 102, 108 (1965). We have held that “practical

accuracy rather than technical precision” controls whether a warrant is valid.

United States v. Ortega-Jimenez, 232 F.3d 1325, 1328 (10th Cir. 2000) (quoting

United States v. Simpson, 152 F.3d 1241, 1248 (10th Cir. 1998)). The district

court thus concluded that “the warrant was obviously intended to be an arrest

warrant.” Sebreros-Castro, 2011 WL 5325291, at *3. Any other

interpretation—e.g., that the warrant authorized a search of the residence for an

arrest warrant—makes little practical sense. Such an interpretation also

contradicts the trooper’s testimony, which the district court credited, that “[t]he

purpose of th[e] warrant was an arrest warrant.” III R. 32; see Sebreros-Castro,

2011 WL 5325291, at *1 (“The warrant . . . had the purpose to be an arrest

warrant . . . .”).

       The government suggests that, pursuant to our decisions in Ortega-Jimenez

and Simpson, we may look to the unincorporated affidavit to clarify that the

purpose of the warrant was to arrest Mr. Sebreros-Castro. Aplee. Br. 8–12. Mr.

Sebreros-Castro disagrees, arguing that the government has misconstrued Ortega-

                                         -5-
Jimenez and Simpson, and that these decisions allow us to look to an

unincorporated affidavit to clarify a term within a warrant, but not the warrant

itself. Aplt. R. Br. 2–6. We are unable to find support for the distinction Mr.

Sebreros-Castro draws. However, we need not reach this point because, as

discussed above, a “practical” reading supports the district court’s conclusion.

      Mr. Sebreros-Castro also argues that the warrant fails to particularize the

item, i.e. himself, to be seized. Aplt. Br. 11. Here, Mr. Sebreros-Castro cites

Groh v. Ramirez, 540 U.S. 551, 558 (2004), where the Supreme Court invalidated

a search warrant for failing to specify the items to be seized within a house. We

again disagree, and find that Groh weighs in the government’s favor. In order to

comply with the Fourth Amendment, a warrant must “contain the defendant’s

name or, if it is unknown, a name or description by which the defendant can be

identified with reasonable certainty.” Fed. R. Crim. P. 4(b)(1)(A). This

requirement was met because the arrest warrant, although based on a search

warrant template, 1 includes Mr. Sebreros-Castro’s name and date of birth. See II


      1
          The government observes that

             [t]here is no question that the form of the warrant in this case
      was ill-suited to an arrest warrant. It was the product of an e-warrant
      system that uses a pre-designed search warrant template and only
      allows officers to modify information in designated fields. Given the
      inflexibility of the system, state officers would be better served by
      seeking a traditional warrant, rather than attempting to shoehorn an
      arrest warrant into an e-warrant designed for searches.


                                         -6-
R. 4. Moreover, in Groh, the Court distinguished between “a mere technical

mistake or typographical error” and a warrant that “did not describe the items to

be seized at all,” 540 U.S. at 558, and as indicated above, the error here was in

the nature of a “technical mistake.”

      Finally, for the first time in his reply brief, Mr. Sebreros-Castro contends

that, even if construed as an arrest warrant, the warrant was invalid because there

was no probable cause to believe that he committed a crime. Aplt. R. Br. 6–9.

Mr. Sebreros-Castro urges us to find that he raised this point in his opening brief,

id. at 6, but a careful review confirms that the only discussion of probable cause

relates to the lack of probable cause to believe that an arrest warrant would be

found within the premises. See Aplt. Br. 9. We therefore find this argument

waived. Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012).

      AFFIRMED.

                                       Entered for the Court



                                       Paul J. Kelly, Jr.
                                       Circuit Judge




Aplee. Br. 8. To the extent that a search warrant template is being used to craft
applications for arrest warrants without modification, we agree.

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