United States of America v. Eric Antonio Espinoza

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERIC ANTONIO ESPINOZA,
Defendant-Appellant.
No. 22-30154
D.C. No. 1:21-cr-00043-SPW-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted September 15, 2023
Seattle, Washington
Before: W. FLETCHER, R. NELSON, and COLLINS, Circuit Judges.
Following the district court’s denial of his motion to suppress, Defendant-
Appellant Eric Antonio Espinoza entered a conditional plea of guilty to a single
count of possession of methamphetamine with intent to distribute, reserving his
right to appeal that adverse order. See F ED. R. CRIM . P. 11(a)(2). On appeal,
Espinoza contends that there was insufficient probable cause to support the state
court search warrant of the residence at which he was staying. We review a district
court’s denial of a suppression motion de novo, and its underlying factual findings
* This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
FILED
MAR 4 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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for clear error. United States v. Brown, 563 F.3d 410, 414 (9th Cir. 2009). We
affirm.
A warrant is supported by probable cause if, “under the totality of the
circumstances, it reveals ‘a fair probability that contraband or evidence of a crime
will be found in a particular place.’” United States v. Garay, 938 F.3d 1108, 1113
(9th Cir. 2019) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)); see also
United States v. Perkins, 850 F.3d 1109, 1119 (9th Cir. 2017). “[P]robable cause
requires only a probability or substantial chance of criminal activity, not an actual
showing of such activity.” Gates, 462 U.S. at 243 n.13; see also United States v.
Flores, 802 F.3d 1028, 1044 (9th Cir. 2015) (noting that the probable cause
standard is “less even than a preponderance of the evidence”). We conclude that
the facts recounted in the affidavit supporting the challenged search warrant were
sufficient to establish the requisite “fair probability” that evidence of crime would
be found at the subject residence.
In the warrant affidavit, the attesting officer stated that in May 2021 he had
received a tip that the subject residence was being used by “numerous individuals”
who were engaged in “the distribution of dangerous drugs” on behalf of a Phoenix-
based drug trafficking organization. The tip was corroborated in the penultimate
week of May when members of a Montana task force investigating that
organization “were able to purchase substantial methamphetamine” from two

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persons who, after the transaction, were surveilled back to the subject residence.
See United States v. Luong, 470 F.3d 898, 903 (9th Cir. 2006) (noting that
unsourced information in a warrant affidavit may be entitled to weight when it
predicts “future actions” that “are subsequently corroborated by the police”).
Thereafter, on June 1, the affiant and other officers conducted surveillance on
another individual whom a tip suggested was involved with the organization. They
saw that individual engage in a suspicious transaction with a person known by the
task force “to be a large[] distributor of dangerous drugs within the Billings area.”
The affiant believed that the transaction was a drug deal “due to the brief duration
of the meeting” and the task force’s knowledge of the distributor. After the
transaction concluded, the individual was also surveilled back to the subject
residence. The officers were able to verify that this individual was staying at the
subject residence (rather than merely visiting it momentarily) because he was later
observed leaving, shopping at a local grocery store, and then returning to and
unlocking the door of the subject residence. The affiant further stated that, based
on his training and experience, he believed that evidence of drug trafficking
activity would be found in a residence that was being used by the target
organization. See United States v. Milner, 962 F.2d 908, 913 (9th Cir. 1992)
(“Police may use their experience, special training, and expertise to determine that
probable cause existed.”); United States v. Underwood, 725 F.3d 1076, 1082 (9th

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Cir. 2013) (noting that “drug traffickers often keep evidence of their trafficking
activities . . . at their homes”).
Although not overwhelming, these facts are sufficient to establish a “fair
probability” that the subject residence was then being used for drug trafficking and
that evidence of such activity would be found within it. The state court warrant
based on the affidavit was therefore supported by probable cause. On that basis,
we affirm the district court’s denial of Espinoza’s motion to suppress.
AFFIRMED.

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