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Media Alerts - United States v. Robert Garcia--Tenth Circuit
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February 27, 2013
  United States v. Robert Garcia--Tenth Circuit
Tenth Circuit affirms trial court's denial of defendant's motion to suppress evidence collected during a search based on a warrant that contained the incorrect address and was executed nine days after it was issued.

Area(s) of Law:
Criminal law

Issue(s) Presented:
Whether a search warrant is invalid where the warrant was executed nine days after it was issued and thus was considered stale, and whether the warrant is invalid because the address for the property to be searched on the warrant did not match the actual address of the place to be searched.

Brief Summary:
Relying on information from a confidential informant, Agent Latin applied for a search warrant of Robert Garcia's home on probable cause that Garcia was trafficking methamphetamine. While the affidavit for the warrant included a photograph of the property to be searched, the warrant actually listed an incorrect address for Garcia's property. The warrant was executed nine days after it was issued. Garcia appealed the trial judge's denial of his motion to suppress on grounds that the warrant did not state with particularity the place to be searched and was stale because the government did not execute it for nine days. The court rejected both arguments because Agent Latin had personal knowledge of the property as well as a photograph depicting the property that was included with the affidavit. Moreover, while nine days is a lengthy period of time, it did not exceed the ten-day rule.

Extended Summary:
On information provided from a confidential informant, Agent Hiram Latin of the Alamogordo Department of Public Safety's Narcotic Enforcement Unit was led to believe that there was a large quantity of methamphetamine consistent with trafficking at Robert Garcia's home. The informant described the residence as a single-wide mobile home without an address but bearing the number thirty-two on its west end. Along with this information, Agent Latin included in his affidavit for the warrant a photograph of the residence. However, Agent Latin mistakenly identified Garcia's residence as 1220 Mescalero Street (which is not another mobile home but an actual structural house), instead of the proper address, 1220 Mescalero Street Number 32. Along with this mistake, the warrant was not executed for nine days after it was issued, despite the judge's instruction to conduct the search "forthwith."

The police executed the warrant at 1220 Mescalero Street Number 32, assuming that the mobile home bearing the number 32 was Garcia's residence and relying on the photograph taken of the residence that was attached to the affidavit. Several bags of methamphetamine were discovered, along with marijuana, prescription medications, $30,000 in cash, drug paraphernalia, security cameras, ledgers, and other various drug-related items.

Garcia moved to suppress the evidence obtained during the search on account that the warrant was stale when it was executed nine days after being issued, and that the warrant did not state with particularity the things to be searched, as the warrant bore the wrong address. The trial judge denied the motion, and Garcia later pled guilty to possession with intent to distribute.

On appeal, Garcia advanced his staleness argument in two parts. First, the warrant was stale because the statements provided by the confidential informant did not provide probable cause to believe that the items to be seized would still be in his home when the search was conducted. Secondly, the warrant was stale because the issuing judge gave instructions to execute the warrant "forthwith," and the government failed to justify its nine-day delay.

Relying on one case over twenty-five years old, the court rejected Garcia's first argument, stating that the property was likely to remain in Garcia's residence for a long time because he is a trafficker and because the affidavit "recites facts indicating ongoing, continuous criminal activity." Thus, the warrant remained valid although it was executed nine days after it was issued - or twelve days after the confidential informant provided information to Agent Latin.

The court also rejected Garcia's second argument of staleness on account of the judge's language to execute the warrant "forthwith." Before its amendment in 1972, Fed. R. Crim. P. 41 required warrants to be executed within ten days of issuance and commanded officers to execute the warrant forthwith. Historically, the term "forthwith" in this regard is understood to be a requirement for officers to execute the warrant as soon as they reasonably could. However, the rule was amended and the "forthwith" language was removed, thus leaving only the ten day time limit. This amendment was interpreted by the court as a "move away from interpreting 'forthwith' as a substantive command" and is now only "a belated echo of a medieval royal command." Thus, the court treated the use of "forthwith" as just form language rather than an instruction commanding special haste.

Garcia's second argument regarding the description of the wrong premises, was also rejected by the court. Although the opinion's author stated that "obtaining a correct warrant may have been a better choice, particularly here because there was ample time to do so," the court was not persuaded that the error was sufficient to warrant suppression. Because the affidavit included a photograph of the property and Agent Latin had personal knowledge of the property, the court stated that "the issuing judge clearly intended for the officers to search the residence described and depicted in the warrant application [and that] there was never any doubt about which residence police should search." Thus, Garcia's argument was rejected and the court affirmed the trial court's order denying Garcia's motion to suppress.

To read the full opinion, please visit:

Judges Lucero, Hartz, and O'Brien

Judge O'Brien

Date of Opinion:
February 13, 2013

Docket Number:


Leon Schydlower, El Paso, Texas, for Defendant-Appellant

David N. Williams, Assistant United States Attorney, District of New Mexico (Kenneth J. Gonzales, United States Attorney, Raul Torrez, Assistant United States Attorney, on the brief) Albuquerque, NM, Plaintiff-Appellee

Case Alert Author:
Charles B. Kraft, UNM School of Law, Class of 2013

Case Alert Circuit Supervisor:
Interim Dean Barbara Bergman, UNM School of Law

Edited: 03/03/2013 at 12:13 PM by Dawinder Sidhu

    Posted By: Dawinder Sidhu @ 02/27/2013 12:22 PM     10th Circuit  

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