NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 4 2024

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 22-30154

Plaintiff-Appellee, D.C. No. 1:21-cr-00043-SPW-1

v.

MEMORANDUM*

ERIC ANTONIO ESPINOZA,

Defendant-Appellant.

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 FED. 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. 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

2 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

3 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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