Appeal from the United States District Court for the District of New Mexico (D.C. No. CR-06-2262-JB).
The opinion of the court was delivered by: Lucero, Circuit Judge.
Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and McCONNELL, Circuit Judge.
Enrique Quezada-Enriquez appeals from his conviction of possession of a firearm by an illegal alien, a charge that arose out of the discovery of a pistol and ammunition during a search of his residence. He contests the constitutionality of the warrant authorizing this search. The warrant was supported by a tip from a reliable confidential informant that Quezada-Enriquez kept a firearm, but officers were unable to corroborate any information suggesting Quezada-Enriquez actually possessed a gun. The supporting affidavit did not disclose the basis of the informant's knowledge.
We do not address the thorny issue of whether the search warrant for Quezada-Enriquez's house was supported by probable cause because we conclude that officers executed the search in good faith. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm Quezada-Enriquez's conviction.
Special Agent Frank Ortiz of the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") applied for a warrant on September 25, 2006, in the United States District Court for the District of New Mexico to search Quezada- Enriquez's residence. In support of his application, Agent Ortiz swore an affidavit containing the following facts.
Ortiz received information from a confidential informant who claimed to have seen "Enrique Quesada"*fn2 with a loaded black nine-millimeter pistol that he kept in his vehicle and in his home. The informant told Ortiz that QuezadaEnriquez was an undocumented immigrant of Mexican nationality; described Quezada-Enriquez's age and physical appearance; identified the make, model, and license plate of his vehicle (a Chevrolet Tahoe); and provided the address of his residence. Ortiz avers that this informant was "a credible and reliable ATF documented confidential informant (CI), who is not working off criminal or other charges and who's [sic] information in the past has led to the seizure of various quantities of illegal narcotic substances, amounts of U.S. currency, firearms and ammunition." No further explanation of the informant's relationship to QuezadaEnriquez is provided in the affidavit.
After receiving this tip, Ortiz and other law enforcement officers surveilled the address provided by the informant. Parked outside the location, they saw a Chevrolet Tahoe matching the description provided. By searching several databases, ATF agents determined that an individual named Enrique QuezadaEnriquez had previously been deported and had no current legal status in the United States. A New Mexico Department of Motor Vehicles database identified Enrique Quezada as an alias for an Enrique Quezada-Enriquez with the same date of birth as the individual identified in the immigration database. Another database inquiry showed that an Enrique Quezada paid utility bills at the address provided by the informant. Agents showed the informant a picture of QuezadaEnriquez obtained from these record checks, and the informant confirmed that the individual depicted was the one he described in his initial tip.
A United States Magistrate Judge issued the warrant on September 25, and it was executed the following day. In doing so, agents entered the residence at the noted address and discovered a .45 caliber semi-automatic pistol in the kitchen and matching ammunition in the bedroom. Quezada-Enriquez was arrested and admitted to agents that he was in the country illegally. He was later charged with one count of firearm possession by an illegal immigrant in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2).
Quezada-Enriquez moved to suppress all evidence obtained as a result of the search of his home, arguing that the search violated the Fourth Amendment because the warrant was unsupported by probable cause and did not fall under the good faith exception to the exclusionary rule. After a hearing, the district court denied this motion, and Quezada-Enriquez pleaded guilty to the sole charge against him, pursuant to an agreement that allowed him to "withdraw his guilty plea" should he prevail on his appeal of the suppression issue. Fed. R. Crim. P. 11(a)(2). He now appeals.
We must first determine whether Quezada-Enriquez's challenge to his conviction is moot in light of his deportation from the United States following that conviction. Under Article III of the Constitution, we may hear only cases involving a live case or controversy, and this requirement adheres at all stages of judicial proceedings. United States v. Meyers, 200 F.3d 715, 718 (10th Cir. 2000). Once it becomes impossible for a court to grant effectual relief, a live controversy does not exist, and a case is moot. United States v. Hahn, 359 F.3d 1315, 1323 (10th Cir. 2004) (en banc).
Quezada-Enriquez pleaded guilty on the condition that he could appeal the denial of suppression and would be allowed to withdraw his plea were the appeal successful. Based on this language in the plea agreement, the government asserts that Quezada-Enriquez would have to return to this country to withdraw his plea should he prevail on appeal. But because he is forbidden from reentering the United States by the immigration laws, see 8 ...