APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Francisco A. Besosa, U.S. District Judge.
Liza L. Rosado-Rodríguez, Research and Writing Specialist, with whom Héctor E. Guzmá n-Silva, Jr., Federal Public Defender, and Héctor L. Ramos-Vega, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant.
Juan Carlos Reyes-Ramos, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
Before Lynch, Chief Judge, Torruella and Thompson, Circuit Judges.
TORRUELLA, Circuit Judge.
Defendant-Appellant Luis A. Guzmá n-Batista (" Guzmá n" ) appeals the district court's decision, following a de novo Franks hearing, rejecting the magistrate judge's report and recommendation and denying Guzmá n's motion to suppress evidence seized following a search of his home. Specifically, Guzmá n argues that the district court erred by failing to take into account certain facts which purportedly established that the agent's sworn statement in support of the warrant contained
false statements, and that without those statements, probable cause for the warrant was lacking. Because this argument effectively boils down to a credibility determination -- something the district court is in a much better position to evaluate than we are -- we affirm.
A. The Warrant and Subsequent Search
On October 17, 2012, Puerto Rico Police Agent Héctor L. Rivera-Torres (" Agent Rivera" ) applied for a search warrant in the Superior Court of Puerto Rico, Ponce Part. According to his sworn statement in support of the warrant, on October 9, 2012, at approximately 10:45 a.m., Agent Rivera arrived at the Los Pinos ward in Villalba, Puerto Rico in an unmarked car. He parked in front of unit #A-8, a white two-story residence with gray balcony columns, which was occupied by Adam Rodríguez León, a suspect in a marijuana investigation. After surveilling unit #A-8 for approximately one hour, Agent Rivera observed Guzmá n -- whom he recognized as a defendant accused of murder and on pre-trial release -- arrive on a " yellow four track" all-terrain vehicle (" ATV" ). Guzmá n entered unit #A-8 and was inside for approximately five minutes before coming out and returning to the ATV. Agent Rivera observed Guzmá n stand on the ATV, raise his sweater, remove a gray pistol from the front of his waistband, and move it to the back of his waistband. Guzmá n then started the ATV and drove away. Agent Rivera chose to follow Guzmá n and observed him make the first left-hand turn into the Apeadero ward, stop on the right hand side of the street, get off the ATV, cross the street, and enter the right side of a cream-colored wood and zinc residence with a rusted roof and Miami windows. Agent Rivera waited for approximately twenty minutes but Guzmá n never reemerged from the residence.
Based on his observation of Guzmá n's presence at a location thought to be involved in narcotics trafficking and his observation of the pistol, Agent Rivera sought a search warrant for the cream-colored wood and zinc home. The warrant was issued, and the subsequent search uncovered six 9mm bullets.
B. The Proceedings
Because Guzmá n was under indictment on state murder charges, his possession of the six 9mm bullets violated 18 U.S.C. § 922(n), and he was accordingly indicted on October 24, 2012. On January 8, 2013, Guzmá n filed a motion to suppress, alleging that the ammunition was discovered pursuant to a state search warrant filled with false statements, without which probable cause could not have been found. Specifically, Guzmá n argued that it was not possible for Agent Rivera to have observed him at unit #A-8 with the gun because he was wearing an electronic monitoring device as part of his pre-trial conditions for his state murder case and the device did not issue any out-of-range alerts during the time period in question. He therefore requested a Franks hearing.
Guzmá n's motion was referred to a magistrate judge for a report and ...