The Evidence Was in the Cards

by | August 18, 2022

United States v. Orozco, 2022 WL 2912313 (4th Cir. 2022)

David Orozco had a really bad day when he was paid to drive a car with over $100,000 in drug-tainted cash hidden in a secret dashboard compartment. Two deputies sat in separate patrol cars at an intersection where cars had to slow down to cross a set of train tracks. As passing cars slowed, the deputies ran the license plates to check for warrants. When Orozco passed by in a blue Lexus sedan, the deputies found that the registered owner had a suspended driver’s license. The two deputies followed and stopped Orozco after he swerved across the centerline twice.

When the deputies walked up to Orozco, he said he didn’t have a driver’s license, instead offering a Mexican consular identification card that identified him as David Sierra Orozco. Orozco had a smartphone in his lap displaying a GPS navigation app. When the deputies asked him where he was going, Orozco quickly shut down the GPS app. He couldn’t tell them where he was going, but eventually he looked toward some nearby fields and said he was looking for farm work. Orozco was shaking nervously and “sweating profusely” despite the car’s blasting air conditioning. The deputies saw the dashboard was not flush and bore toolmarks, suggesting someone had previously pried it open.

The deputies called for a drug detector dog team. While one deputy ran Orozco’s identification, the other spoke with Orozco, who consented to a search of the car. The detector dog alerted to the driver side door and the dashboard, near the toolmarks. Officers opened a not-so-secret compartment and found grocery bags filled with $111,252 in cash. Orozco quickly volunteered that he had been paid to drive the car, stating the money was not his. The deputies arrested Orozco. A drug detector dog alerted to the odor of controlled substances on the money itself during a scent lineup.

Then things got worse for Orozco. A search at the station revealed a folded-up $100 bill in Orozco’s shoe. As a deputy unfolded it, five micro-SD cards fell out onto the floor. Orozco quickly swooped down, scooped up two of the cards and shoved them into his mouth. The deputy managed to recover one SD card, though chewed and inoperable, from Orozco’s mouth. Orozco swallowed the other.

“Intentionally destroying an item before it can be examined would permit someone to believe the item is inculpatory.”

The deputies obtained a search warrant for the smartphone and the three undamaged SD cards. The warrant authorized a search for “records of illegal drug activities, documents, photographs, and other evidence of drug trafficking.” If only. When detectives analyzing the SD cards immediately found child pornography, they obtained a second warrant. Two of the SD cards contained several hundred images and videos of child pornography. A third warrant was then issued for the smartphone; its internal temporary storage contained five child pornography images.

Orozco was tried by a jury and sentenced to 12 years. He appealed, claiming the initial affidavit for the search warrant did not recite facts adequate to establish probable cause that the SD cards contained evidence of drug crimes. The court held that “applying the appropriately deferential, commonsensical standard of review, we conclude that the warrant passes muster on all counts.” In fact, the court noted, “This case presents a model example of a proper investigation under the Fourth Amendment.” I concur.

Orozco argued the deputies did not connect the SD cards with drug trafficking. He claimed the affidavit should have said: “In my training and experience, drug dealers keep evidence of their crimes on their micro-SD cards or on their electronic media in general.” However, the court looked at the common-sense inferences that arose from Orozco’s hiding the SC cards in a folded $100 bill inside his shoe: “That alone is suspicious and might reveal a connection between those SD cards and Orozco’s ongoing criminal conduct.” When the court coupled that inference with the fact that Orozco tried to destroy them by scooping them up, shoving them in his mouth and chewing them, the court determined “Orozco’s attempt to destroy the SD cards provided a substantial factual basis that allowed the magistrate to reasonably infer that the SD cards contained evidence that Orozco was trafficking drugs.” Ultimately, the court concluded that “intentionally destroying an item before it can be examined would permit someone to believe the item is inculpatory.”

The court also held there was probable cause to search the smart phone. The affidavit related that Orozco was using the phone for navigation at the time he was transporting the money. That fact alone was sufficient for the judge issuing the warrant to believe Orozco’s phone would contain evidence of drug trafficking.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

More Posts
Share this post:

The Briefing – Your source for the latest blog articles, leadership resources and more