                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                     December 16, 2009
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                        TENTH CIRCUIT


 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                                No. 09-3054
                                                   (D. Ct. No. 2:06-20021-JWL-12)
 ALBERTO PEREZ-JACOME,                                         (D. Kan.)

                Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


       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)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

       Defendant-appellant Alberto Perez-Jacome was indicted in May 2009 along with

several other members of a narcotics distribution organization based out of the Kansas

City, Kansas area. He was convicted of multiple drug offenses and sentenced to 132

months’ imprisonment. Mr. Perez-Jacome now appeals his conviction, alleging the


       *
        This order and judgment is not binding precedent except under the doctrines of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.
district court erred in denying his motion to suppress. We have jurisdiction under 28

U.S.C. § 1291 and AFFIRM.

                                  I. BACKGROUND

      This case arises out of a forcible entry by law enforcement into Mr. Perez-

Jacome’s residence in Kansas City, Kansas on April 29, 2006. Drug Enforcement

Agency (“DEA”) agents were executing an arrest warrant for Hector Moreira, who had

been indicted in a narcotics conspiracy. They began investigating Mr. Moreira and his

narcotics distribution organization in May 2005.

      Throughout the course of their investigation, DEA agents surveilled various

addresses and vehicles in an effort to arrest Mr. Moreira. The agents also arranged for

controlled purchases of narcotics from Mr. Moreira by confidential sources. After several

failed attempts to apprehend Mr. Moreira, a new confidential source, Adam Israel,

successfully arranged a buy from him on April 18, 2006. Mr. Israel made the purchase at

an auto parts store at 18th Street and Central Avenue in Kansas City, Kansas from Mr.

Moreira’s cousin, Bayron Moreira. After the sale, agents followed Bayron to a residence

at 1814 Bunker Avenue, Kansas City, Kansas. Also present at the residence was a

maroon minivan registered to Mr. Perez-Jacome of that same address. At that time, there

was no sign of Mr. Moreira at the residence.

      On April 29, 2009, Mr. Israel advised agents that he had been to a house on

Bunker Avenue off 18th Street three times in the past two or three days, had seen Moreira

there, and believed Moreira was living there. Agents were able to match Mr. Israel’s

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description of the house to the residence at 1814 Bunker. Working together, DEA agents,

Kansas City, Kansas police, and United States Marshals set up surveillance at the

residence. Around 5:00 p.m. on April 29, 2009, the surveillance team saw Mr. Perez-

Jacome and Mr. Moreira arrive at the home in Mr. Perez-Jacome’s minivan. Both men

entered the residence.

       Agents immediately had Mr. Israel call and arrange a meeting with Mr. Moreira.

Mr. Israel told Mr. Moreira that he had something for him, and Mr. Moreira told him to

come to the Bunker Avenue residence, referring to it as “my house.” Mr. Moreira met

with Mr. Israel in the front yard, but reentered the home after he left.

       After they observed Mr. Moreira reenter the home, the arrest teams forcibly

entered the home by breaching the front door. Mr. Moreira was caught after fleeing out

the back door. Mr. Perez-Jacome, who was standing at the kitchen stove, was ordered to

the ground and handcuffed.

       While inside the residence, police noticed narcotics in plain view on the kitchen

table. Mr. Perez-Jacome was arrested, advised of his rights, and asked for consent to

search his residence. He signed a Spanish-translated consent to search. The subsequent

search revealed large quantities of cocaine, methamphetamine, marijuana, ecstasy, U.S.

currency, and firearms.

       Mr. Perez-Jacome was indicted on May 26, 2006, and filed a motion to suppress

on October 3, 2006. The motion alleged that the agents violated Mr. Perez-Jacome’s

Fourth Amendment rights by entering his home without a search warrant. Mr. Perez-

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Jacome sought suppression of all evidence and statements obtained as a result of the

illegal entry. The government argued that the entrance into Mr. Perez-Jacome’s home

was lawful because they reasonably believed Mr. Moreira lived there and had a warrant

for his arrest. The district court agreed with the government and denied Mr. Perez-

Jacome’s motion.

       Ultimately, Mr. Perez-Jacome proceeded to trial and was convicted by a jury of

conspiracy to possess with intent to distribute and to distribute methamphetamine,

cocaine, and marijuana; possession with intent to distribute methamphetamine; possession

with intent to distribute cocaine; and possession with intent to distribute marijuana. He

was sentenced on February 17, 2009, to 132 months’ imprisonment.

       Mr. Perez-Jacome now appeals the district court’s denial of his motion to suppress

and his conviction.

                                    II. DISCUSSION

       Mr. Perez-Jacome contends that the district court erred in holding that the entry

into his home by DEA agents was authorized by their possession of an arrest warrant for

another person under Payton v. New York, 445 U.S. 573 (1980). He argues that under

Steagald v. United States, 451 U.S. 204 (1981), the agents were required to obtain a

search warrant prior to entering his home.

       When reviewing the denial of a motion to suppress, we consider the totality of the

circumstances and view the evidence in the light most favorable to the government.

United States v. Gay, 240 F.3d 1222, 1225 (10th Cir. 2001). “We accept the district

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court’s factual findings unless clearly erroneous” and review its ultimate determination of

reasonableness under the Fourth Amendment de novo. Id.

        Decided just over one year apart, Steagald and Payton lay out the requirements for

an arrest made in a home. In Payton, the Supreme Court noted that despite special

constitutional protection for the home, “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, 445 U.S. at 603. We

have interpreted Payton to create a two-prong test for determining when an arrest warrant

alone is sufficient to justify entrance into a home: officers must establish a reasonable

basis for believing that the suspect “both (1) lived in the residence and (2) could be found

within at the time of entry.” Valdez v. McPheters, 172 F.3d 1220, 1225 (10th Cir. 1999).

        Mr. Perez-Jacome maintains, however, that Steagald and not Payton is controlling.

In Steagald, the Court held that when there is no reasonable basis for believing the

suspect lives in the residence both a search and an arrest warrant are required “to render

the . . . search reasonable.” Steagald, 451 U.S. at 222. The Supreme Court based this

holding on the weighty right “of presumptively innocent people to be secure in their

homes from unjustified, forcible intrusions by the Government.” Id. Nevertheless, the

Steagald Court upheld the validity of Payton. See id. at 221. “Whether Steagald or

Payton applies is resolved under the first prong of the Payton test.” Gay, 240 F.3d at

1226.

        The first prong of the Payton test requires that officers have a reasonable basis for

                                             -5-
believing that the suspect, in this case Mr. Moreira, lived in the home. The district court

found the agents’ belief that Mr. Moreira lived at 1814 Bunker to be objectively

reasonable. Based on the record, we agree.

       Agents testified at the suppression hearing that the confidential source, Mr. Israel,

informed agents that he had been to the home “approximately three times during the past

two or three days” and that he “believe[d] that Hector Moreira was living at that residence

now.” Mr. Israel also told agents that Mr. Moreira referred to the Bunker Avenue

residence as “my house” on April 29, 2009. Agents also observed Mr. Moreira enter the

home multiple times on April 29, 2006. Finally, the agents’ reliance on Mr. Israel’s tip

was reasonable because they were able to verify the information he provided by personal

visits to and surveillance of 1814 Bunker, and they apparently had face-to-face

discussions with Mr. Israel during which they could assess his reputation. See Florida v.

J.L., 529 U.S. 266, 270 (2000) (noting reputation of known informant can be assessed and

informant can be held responsible if allegations turn out to be fabrications).

       Because the first prong of the Payton analysis is met, the district court properly

determined that Payton, and not Steagald, is controlling. See Gay, 240 F.3d at 1226.

Furthermore, Mr. Perez-Jacome concedes that the agents reasonably believed that Mr.

Moreira could be found within the home at the time they executed the arrest warrant, and

thus the second prong of the Payton analysis is satisfied. Indeed, agents observed Mr.

Moreira enter the home immediately before they executed the warrant. Therefore, both

prongs of the Payton analysis are met. Because the entry into Mr. Perez-Jacome’s home

                                            -6-
was lawful under Payton, the district court properly denied Mr. Perez-Jacome’s motion to

suppress the evidence found in his home and his statement.

                                 III. CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s denial of Mr. Perez-

Jacome’s motion to suppress.

                                        ENTERED FOR THE COURT,



                                        Deanell Reece Tacha
                                        Circuit Judge




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