                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2305
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
v.                                     * District Court for the
                                       * District of South Dakota.
Ekueta Palega,                         *
also known as “Q” Palega,              *
                                       *
            Defendant - Appellant.     *
                                       *
                                  ___________

                             Submitted: December 11, 2008
                                Filed: February 18, 2009
                                 ___________

Before COLLOTON and SHEPHERD, Circuit Judges, and GOLDBERG, Judge.1
                          ___________


GOLDBERG, Judge.

      In 2007, Ekueta Palega was convicted of conspiracy and possession of
methamphetamine with intent to distribute. Prior to his arrest, on December 1, 2006,
law enforcement officers attempted to execute a search warrant issued by Magistrate



1
The Honorable Richard W. Goldberg, Judge, United States Court of International
Trade, sitting by designation.
Judge Mark A. Moreno2 two days prior. The warrant authorized the search of the
residence of Morris Palega a/k/a “Q” and Eddie Castro a/k/a “Eddie Burnette,” as well
as their persons, including urine samples. The location of the residence in the warrant
was given through a physical description; no specific address was provided. When
law enforcement officers arrived at the residence described, Ekueta Palega, the
Defendant, was present. At that time, they discovered that Morris Palega and “Q”
were not the same person. “Q” was a nickname for Ekueta Palega, the Defendant, and
Morris Palega, the proper name listed on the warrant, is his brother. The residence
described in the warrant belonged to Ekueta Palega, and not Morris Palega. After
discussion with Magistrate Judge Moreno, the officers proceeded to search Ekueta
Palega’s residence and obtained a urine sample from him. Seven days later, a second
warrant was requested and granted for a backpack and three locked safes, which were
discovered during the December 1 search.


       Prior to trial, Palega moved to suppress his statements and the evidence seized
from his residence on December 1 and December 8, 2006 on Fourth and Fifth
Amendment grounds. The motion was denied and the statements and evidence were
presented to the jury. Palega now appeals the admission of the statements and
evidence, as well as the sentence he received. Because Palega is, in fact, Q and
because the correct residence was searched, we affirm the district court’s3 decision to
uphold the search warrant, and the decision to admit the urine sample. We also affirm
the drug quantity used by the district court to determine Palega’s sentence. However,
because the forfeiture amount was incorrectly stated in the order, the Court remands
for correction of this error.



2
 The Honorable Mark A. Moreno, United States Magistrate Judge for the District
of South Dakota.
3
 The Honorable Charles B. Kornmann, United States District Judge for the District
of South Dakota.
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    I. The Validity of the Warrant


A. Description of the Residence in the Warrant
        Palega argues that since the authorities failed to stop the search and seek a new
warrant after discovering the discrepancy in the names listed in the warrant, the
district court should have suppressed all evidence seized during the search, all
statements made by Ekueta Palega, and all evidence found in later searches as fruits
of the poisonous tree.4 However, it is sufficient that the description of the premises
in the warrant is such that the officer can, with reasonable effort, ascertain and identify
the place intended, and avoid mistakenly searching the wrong premises. United States
v. Gamboa, 439 F.3d 796, 806 (8th Cir. 2006). Importantly, warrants have been
upheld “where one part of the description of the premises to be searched is inaccurate,
but the description has other parts which identify the place to be searched with
particularity.” United States v. Gitcho, 601 F.2d 369, 371 (8th Cir. 1979).


       Here, the description of the residence in the warrant provided enough accuracy
to locate the intended structure, regardless of the owner’s name specified. Individual
statements given in the warrant affidavit described, both physically and with sufficient
directions, the residence in question. In addition, two agents had previously
conducted surveillance on this particular house. Photographs of the residence
searched were taken both pre-surveillance and at the time the search warrant was
executed. This case is unlike Maryland v. Garrison, 480 U.S. 79 (1987), where the
search of an apartment was properly ceased after it was discovered that it was the
incorrect apartment. Here, the correct residence was searched and there was no need
to amend the warrant prior to executing the search.




4
 At issue is the warrant for Palega’s residence, since the warrant for his person was
not executed.
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       The incorrect first name listed in the warrant is a negligible error. The full
name listed on the warrant was “Morris Palega, also known as Q.” However, Ekueta
Palega, not Morris Palega, is the individual known as Q. On December 1, while the
warrant was being executed, an officer that had previously been called to the residence
identified Defendant as the man he thought was Morris Palega. There was simply
confusion regarding Defendant’s first name. Q is the individual whose residence the
law enforcement officers sought to search, and Defendant is Q. Innocent mistakes or
negligence alone are insufficient to void a warrant. Franks v. Delaware, 438 U.S. 154,
171 (1978). Palega does not allege that the error in the first name was more than
negligence or an innocent mistake. Despite the incorrect first name, the residence
itself was adequately identified and described in the warrant affidavit; thus, the
probability of a mistaken search was negated. Quite simply, the residence that the
officers intended to be searched was searched.


B. Probable Cause
       Palega also contends that there was insufficient probable cause for the warrant
because the warrant affidavit did not provide sufficient information to determine the
reliability or credibility of the informants, and because the information provided was
otherwise stale. Probable cause exists when “there is a fair probability that contraband
or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S.
213, 214 (1983). This requires consideration of the totality of the circumstances and
considerable deference is given to the district court’s determination of probable cause.
Gamboa, 439 F.3d at 805. In analyzing the totality of the circumstances, an
informant’s veracity, reliability, and basis of knowledge are all relevant and important
factors. Gates, 462 U.S. at 230. “The core question in assessing probable cause based
upon information supplied by an informant is whether the information is reliable.”
United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993). A “disclosure in the
affidavit that the informant was an admitted participant in the crime and therefore an
eyewitness to most of the acts constituting the crime as described in the affidavit” is


                                          -4-
one manner to determine the credibility and reliability of an informant. United States
v. Long, 449 F.2d 288, 293 (8th Cir. 1971).


       Here, the warrant affidavit includes statements from at least one informant who
indicated that he had bought methamphetamine directly from Q, which implicates the
informant in the crime. There were additional statements from other informants
indicating that they were aware that Q sold drugs, or that Q was the provider to their
drug dealer. Several of the sources described the residence of Q as the residence that
was then listed in the warrant and also described Q physically. In only one instance
did an informant, as described in the affidavit, refer to the drug dealer as “Morris
Palega” and not as “Q”; however he provided a physical description that is similar to
that of the Defendant. Because these informants admitted to participating in drug
crimes themselves, their credibility stems from this participation and the first-hand
accounts of their interactions with or knowledge of the Defendant. Additionally,
Officer Baldwin’s surveillance of Q’s residence on two separate occasions revealed
an unusual frequency of short term visitors late at night. The statements of the
informants and the surveillance, when taken collectively, indicated that there was a
fair probability that the residence described would contain contraband. The totality
of the circumstances thus provided probable cause for the search warrant.


       Palega’s argument that the information in the warrant affidavit is stale and
outdated is similarly misplaced. Regarding the information presented to the
magistrate judge, it is material that “the facts in an affidavit supporting a search
warrant must be sufficiently close in time to the issuance of the warrant and the
subsequent search conducted so that probable cause can be said to exist as of the time
of the search and not simply as of some time in the past.” United States v. Wagner,
989 F.2d 69, 75 (2d Cir. 1993). While some of the information provided in the
warrant affidavit was more than two years old, there was also information as recent
as five days prior to the warrant application. In short, the affidavit describes a

                                         -5-
continuing pattern of behavior, and when taken as a whole, the information is not
stale.


   II.   Palega’s Consent to the Urine Sample


       Palega separately seeks to suppress his urine sample as well as statements made
to Officer Baldwin alleging that they were obtained in violation of his Miranda rights
under the Fifth Amendment. When his Miranda rights were first read to him at 9:09
a.m. on the morning of the search, Palega stated that he did not want to speak and
requested an attorney. There are two versions as to what occurred next. Officer
Baldwin testified that Palega was then handcuffed and remained in the kitchen.
According to Agent Estes’s and Officer Baldwin’s testimony, after 30 minutes had
elapsed, Palega requested to speak to Baldwin. Palega indicated that he understood
his Miranda rights and he had now decided to waive them. Palega signed the waiver
at 9:51 a.m. According to Baldwin’s version of the events, he questioned Palega for
approximately an hour. Palega then indicated that he needed to urinate. Baldwin
asked if he would consent to give a urine sample and Palega verbally consented. After
the sample was collected and after discussing the issue with the magistrate judge,
Baldwin also obtained written consent from Palega. At that time, Baldwin had told
Palega that he would throw away the sample if Palega chose not to give his written
consent. Palega rejected the offer and gave his written consent.


       FBI Agent Mackey testified to a different version of events. He stated that he
spoke with Magistrate Judge Moreno on the phone to discuss the issue with the
warrant at approximately 9:35 a.m. At that time, the magistrate judge indicated that
the officers should obtain written consent from Palega for the urine sample. Palega
argues that this discrepancy in testimony indicates that the urine sample was obtained
prior to the waiver of his Miranda rights at 9:51 a.m., and after he had invoked his
right to remain silent and his right to counsel at 9:10 a.m.

                                         -6-
       The Supreme Court has held that “when an accused has invoked his right to
have counsel present during custodial interrogation, a valid waiver of that right cannot
be established by showing only that he responded to further police-initiated custodial
interrogation even if he has been advised of his rights.” Edwards v. Arizona, 451 U.S.
477, 484 (1981). Authorities cannot further interrogate the accused without counsel,
unless the accused initiates further communication with the police. Id. at 484-85.
Here, Palega independently reinitiated communication with Baldwin after first
invoking his Miranda rights. He also stated he understood his rights and wished to
waive them. His consent for the urine sample was obtained lawfully, and his
statements were not obtained in violation of Miranda.


       With respect to the discrepancy in the time line of events, the magistrate and the
district court impliedly adopted Officer Baldwin’s version of the events in denying the
motion to suppress. As a factual finding, this is reviewed for clear error. United States
v. Pruett, 501 F.3d 976, 979 (8th Cir. 2007). Both Agent Estes and Officer Baldwin
corroborated the same version of the events. Palega never affirmatively disputed
Baldwin’s or Estes’s testimony at the district court level. Accordingly, there is no
clear error in the findings made by the district court.


   III.   Sentencing Issues


A. Drug Amount
       Palega disputes the use of informant Phillip Burnette’s testimony for sentencing
purposes stating that he had witnessed Palega with a “big bag” of methamphetamine,
which was “about 8 inches high and 14 inches around” weighing “approximately two
pounds” (907.2 grams). When questioned as to the basis of his weight estimation, he
stated, “I really don’t know, sir. I never weighed that much in my life. I seen it.”
Burnette testified that he had previously weighed up to approximately 7 grams of
                                          -7-
methamphetamine. On cross-examination, he also testified that he was simply
speculating as to the weight of the bag. The court found that Palega was accountable
for at least 1.5 kilograms of methamphetamine, based on evidence of 1152.74 grams
that Palega does not dispute on appeal, plus the amount to which Burnette testified.


      This Court reviews a sentencing court’s finding of fact regarding the quantity
of drugs for clear error. United States v. Atkins, 250 F.3d 1203, 1211 (8th Cir. 2001).
This Court shall only disturb the sentencing court’s determination should the entire
record “definitively and firmly convince[] us that a mistake has been made.” United
States v. Titlbach, 300 F.3d 919, 923 (8th Cir. 2002). In determining the drug
quantity, the district court may consider any relevant information “provided that the
information has sufficient indicia of reliability to support its probable accuracy.” U.S.
Sentencing Guidelines Manual § 6A1.3(a) (2007); see United States v. Vinton, 429
F.3d 811, 817 (8th Cir. 2005). Where the amount of drugs seized does not reflect the
scale of the offense, “the court shall approximate the quantity of the controlled
substance.” U.S. Sentencing Guidelines Manual § 2D1.1, cmt. n. 12 (2007).


      The district court included Burnette’s two pound estimate in calculating the
base offense level for sentencing. Although Burnette was speculating as to the exact
weight of the bag, it was not unreasonable for the district court to conclude Burnette’s
calculation to be reliable given the size of the bag in question. The court’s
determination is sufficiently supported by the testimony given. Thus, the district court
did not clearly err by incorporating this amount into the final base offense level
calculation.


B. Forfeiture Amount
      Regarding the forfeiture amount, both parties agree that the correct amount
should be $3,338.00. When the district court imposed the sentence, it incorrectly


                                          -8-
stated the forfeiture amount as $3,628.80, which was an erroneous amount listed in
one of the indictments. This error should also be corrected on remand.


     For the foregoing reasons, the Court affirms Defendant’s conviction, but
remands the case to the district court for correction of the forfeiture amount.
                      ______________________________




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