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United States v. Zamudio

United States Court of Appeals, Seventh Circuit

November 20, 2018

United States of America, Plaintiff-Appellant,
v.
Juan Zamudio, Defendant-Appellee.

          Argued October 23, 2018

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:16-cr-00251-TWP - Tanya Walton Pratt, Judge.

          Before Kanne, Hamilton, and St. Eve, Circuit Judges.

          ST. EVE, CIRCUIT JUDGE.

         A grand jury returned a third superseding indictment charging defendant Juan Zamudio with participating in a drug-trafficking conspiracy after law enforcement executed a search warrant at his home seizing approximately 11 kilograms of methamphetamine, a loaded gun, and a cell phone used to make intercepted calls, among other items. Prior to trial, the district court granted Zamudio's motion to suppress the seized items. The government brings this interlocutory appeal arguing that the district court erred in granting Zamudio's motion to suppress the evidence seized at Zamudio's home pursuant to a search warrant. We agree and reverse.

         I. Background

         In February 2016, the FBI's Safe Streets Gang Task Force began investigating numerous individuals in Indianapolis, Indiana for drug-related activities. The investigation led to judicial authorization to intercept calls from ten different cell phones. During its authorized surveillance, the government intercepted phone calls between the apparent head of the drug-trafficking conspiracy, Jose Zamudio, and his brother Juan Zamudio. (For the sake of clarity, we will refer to defendant as "Zamudio" and to his brother as "Jose.")

         Approximately nine months later, the government applied for a search warrant to search 34 separate locations, including Zamudio's residence at 64 N. Tremont Street in Indianapolis. That same day, the magistrate judge approved the application for the search warrant. FBI Special Agent Tim Bates prepared the application and 84-page affidavit, in which he set forth three specific instances of Zamudio's participation in the drug-trafficking conspiracy.

         First, in October 2016, Jose called Zamudio to discuss a potential methamphetamine sale to co-defendant Jeffrey Rush. After the call, Zamudio texted Rush and identified himself as a contact for future drug transactions. Rush texted back stating he wanted to purchase two pounds of methamphetamine. Zamudio and Rush then planned to meet at a Kroger grocery store. When they met, surveillance officers observed Rush exit a vehicle and enter Zamudio's vehicle. Then, Rush exited Zamudio's vehicle with a "basketball-sized red box."

         Next, a week after the Kroger transaction, surveillance officers observed Rush and co-defendant Jeremy Perdue enter Jose's residence and exit a few minutes later. Rush and Perdue then went to a Long John Silver's restaurant across the street from where Zamudio worked and met with co-defendant Joseph Coltharp. When Coltharp left the restaurant, police pulled him over for a traffic violation, and, after searching his vehicle, found a package of narcotics on the vehicle's floorboard. In the interim, Zamudio reported back to his brother that the drug transaction had been completed and that he had collected $15, 000 from Rush and Perdue.

         Last, in November 2016, co-defendant Adrian Bennett called Jose's phone, but Zamudio answered. Bennett and Zamudio discussed a shipment of marijuana. Bennett told Zamudio that he had "some change" (drug proceeds) and also needed "more of his usual" (marijuana). In addition, Bennett stated that he needed "some ice cream" (methamphetamine). Zamudio relayed this information to his brother and then told Bennett to stop by. Bennett said he would do so in an hour.

         Agent Bates averred Zamudio's other drug-trafficking activities, including that he had his own customer base in addition to working at the direction of his brother. Further, Agent Bates's affidavit identified Zamudio's address as 64 N. Tremont Street, that he paid utilities at this address, and that his vehicle was routinely parked there overnight. Missing from the affidavit-and the reason for this appeal-was information that drug-trafficking activity actually took place at Zamudio's residence. Nevertheless, Agent Bates stated that based on his experience and training, drug traffickers "generally store their drug-related paraphernalia in the residences or the curtilage of their residences/' and "drug traffickers generally maintain records relating to their drug trafficking activities in their residences or the curtilage of their residences." He further averred that "[t]ypically, drug traffickers possess firearms and other dangerous weapons at their residence to protect their profits, supply of drugs, and themselves from others who might attempt to forcibly take the trafficker's profits or supply of drugs."

         II. Discussion

         The government argues that the district court erred in granting Zamudio's motion to suppress because the search warrant established sufficient probable cause to search Zamudio's home. Although Zamudio conceded at oral argument that Agent Bates's affidavit was sufficient to indicate probable cause that he was engaged in a drug-trafficking operation, he argues-as ...


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