United States v. Perez Soto

U.S. Court of Appeals for the First Circuit
United States v. Perez Soto, 80 F.4th 50 (1st Cir. 2023)

United States v. Perez Soto

Opinion

          United States Court of Appeals
                     For the First Circuit


No. 20-1018

                   UNITED STATES OF AMERICA,

                           Appellee,

                               v.

       VALENTIN DELO PEREZ SOTO, a/k/a Miguel Martinez,
   a/k/a Miguelin Valentine Sanchez, a/k/a Harold Gutierrez,
             a/k/a Miguel Angel Sanchez Caraballo,

                     Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Landya McCafferty, U.S. District Judge]


                             Before

                  Kayatta, Lynch, and Howard,
                        Circuit Judges.


     Paul M. Glickman, with whom Glickman LLC was on brief, for
appellant.
     Seth R. Aframe, Assistant United States Attorney, with whom
John J. Farley, Acting United States Attorney, was on brief, for
appellee.


                        August 16, 2023
            HOWARD,      Circuit       Judge.         Valentin    Delo       Perez   Soto

challenges his jury convictions for distribution of controlled

substances (fentanyl and heroin) and possession of controlled

substances       with   intent    to     distribute       (heroin,       cocaine,     and

oxycodone), arguing primarily that certain statements made by the

prosecutor during the government's closing argument at trial were

improper   and     deprived      him   of    a   fair    trial.         He   secondarily

challenges the denial of his motion to suppress copious drug

evidence obtained by law enforcement during a search, pursuant to

warrant,    of    his   apartment.          After     careful     consideration,      we

affirm.

                                       I. FACTS

            The    factual    background         is     drawn    from    the    district

court's factual findings on Perez Soto's motion to suppress and

from the undisputed record.

            A New Hampshire state trooper, James O'Leary, who was

assigned to a task force that investigated fraud relating to the

New Hampshire Department of Motor Vehicles ("DMV"), testified at

the suppression hearing as the government's primary witness.                           In

2015, Trooper O'Leary received information from the DMV that the

address of 138 Pearl Street, Apartment 402, in Manchester, New

Hampshire ("Apartment 402") had been used for a fraudulent driver's

license    application     for     one      "Miguel     Sanchez."        When    Trooper

O'Leary ran a criminal records check, he identified an individual


                                         - 2 -
associated with that name who had been convicted for passport fraud

in federal district court in 1996.          Nearly a decade later, in June

2015,    "Miguel   Sanchez"   was    again     arrested,    this     time   on

prostitution-related     charges.       The     booking    photographs      and

fingerprints taken      after the    prostitution-related      arrest were

consistent with those of the 1996 passport fraud arrest.                 Those

photographs were also consistent with the photograph for the

fraudulent   driver's    license    application    that    Trooper    O'Leary

received.    "Miguel Sanchez" is none other than the defendant-

appellant in this case, whose real name is Valentin Delo Perez

Soto.

            On October 28, 2015, Trooper O'Leary applied for a

warrant to search Apartment 402 in connection with the suspected

fraud.    New Hampshire Circuit Court Judge Gerald J. Boyle found

probable cause to believe that Apartment 402 contained evidence of

the crimes of tampering with public records and of identity fraud.

Judge Boyle issued a warrant (the "Boyle Warrant") authorizing the

search of the Apartment.      As the district court summarized in its

order denying Perez Soto's motion to suppress:

            Attachment B of the Boyle Warrant permitted
            the officers to seize "[a]ll records, in
            whatever form, and tangible objects that
            constitute      evidence,     fruits,      or
            instrumentalities"     of   the     following
            categories of evidence: (1) evidence related
            to the production or counterfeiting of
            government    documents;   (2)     legitimate
            government documents, such as passports,


                                    - 3 -
          driver’s licenses, and Social Security cards;
          (3) records related to the acquisition of
          fraudulent    government     documents;    (4)
          financial records; (5) cash or items of value
          made or derived from the production of
          government documents; (6) evidence related to
          the identity of any co-conspirators; (7)
          photographs; (8) personal electronic devices
          containing evidence related to identity fraud;
          (9) records related to the occupancy of
          Apartment 402; and (10) computer equipment and
          safes and locked containers, which may contain
          evidence of identity fraud.

On November 2, 2015, Trooper O'Leary, along with Sergeant Andrew

Player (his supervisor), Trooper Shane Larkin, and New Hampshire

Probation and Parole Officer Mark O'Donoghue,1 entered Apartment

402 to execute the Boyle Warrant.

          The   officers   found    items   that   they   believed   were

evidence of drug crimes, including a large number of cell phones,

a scale, and wrapped bundles of cash amounting to $40,000.            The


     1 Trooper Larkin (a member of the State Police Narcotics Unit
and an FBI-coordinated Gang Task Force) and Officer O'Donoghue (a
member of the Gang Task Force) had separately been investigating
Perez Soto for drug-related activity unrelated to the identity
fraud investigation; their investigation had involved a series of
controlled buys of fentanyl and heroin. Both of them testified
that they understood the scope of the search that day to be limited
to documents.    Trooper Larkin testified that the search, as
explained to him, was for "documents, receipts, passports, any
type of documentation relating to the identity of the individual
they were trying to identify."        Trooper Larkin and Officer
O'Donoghue had initially connected with Trooper O'Leary when a
deconflicting of addresses revealed that they were investigating
Perez Soto's address and were therefore familiar with the area.
Officer O'Donoghue participated in the search of Apartment 402 for
only a short period of time, because he was called out for an
unrelated matter from which he did not return, and he did not seize
any items.


                                   - 4 -
officers then stopped their search and applied for another warrant

to search for evidence of drug crimes.

             A different New Hampshire circuit court judge, Judge

William Lyons, initially denied that application for lack of

probable cause.     The officers then continued their original search

for evidence of identity fraud under the Boyle Warrant.                Trooper

Larkin, opening a kitchen cabinet next to the oven, saw that it

was stuffed with a number of plastic shopping bags.                 Inside one

of those bags, Trooper Larkin found a small box, which contained

a substance that appeared to be heroin (55 fingers or 550 grams),

along with cocaine, blue pills (containing oxycodone), and a small

amount of marijuana.

             The officers once again stopped their search and applied

for a warrant to search for evidence of drug crimes, based on this

new evidence, which Judge Lyons now granted (the "Lyons Warrant").

After   resuming    their    search,     the    officers   found    additional

evidence of drug crimes and identity fraud.

             Perez Soto was federally indicted on three counts of

drug distribution, based on one controlled buy of fentanyl and two

controlled buys of heroin, and on one count of possession (of

heroin, cocaine, and oxycodone) with intent to distribute, based

on the drug evidence seized from his apartment.             Perez Soto filed

a   motion   to   suppress   all   the   drug   evidence   seized    from   his




                                    - 5 -
apartment, arguing, inter alia, that the initial search was nothing

more than an improper effort to search for drug evidence.

           The district court denied the motion, holding that so

long as the officers limited their search to areas where an

individual could hide documents relating to identity fraud, as

they did, it was immaterial whether the officers executing the

search suspected that they might find drug evidence.         The district

court, considering the location of the box inside the plastic bag

within   the   kitchen   cabinet,   concluded   that   the   officers   had

properly limited their search to areas within the scope of the

Boyle Warrant, and it denied Perez Soto's motion to suppress.

This evidence was admitted at trial.

           At trial, the prosecutor called as witnesses detective

Jeffrey Harrington of the Manchester Police Department, Officer

O'Donoghue, Sergeant Player, Trooper Larkin, and Trooper O'Leary.

Detective Harrington testified that he was on a task force with

the FBI that, in early 2015, began investigating the defendant for

possible drug crimes.      As part of the investigation, Harrington

and an FBI agent instructed a confidential informant to purchase

drugs from the defendant on three occasions.       Harrington testified

as to the procedures for each controlled buy and described how the

informant successfully purchased fentanyl and heroin from the

defendant.     Officer O'Donoghue's testimony focused on his role as

the confidential informant's parole officer.            Officers Player,


                                    - 6 -
Larkin, and O'Leary testified as to the search of the defendant's

apartment, where they found $40,000 in cash, multiple scales and

cell phones, and drugs (mainly, 55 fingers of fentanyl) inside the

box in the kitchen cabinet, as well as identification documents.

The government also called Anna Weaver, criminalist at the New

Hampshire forensic lab's drug chemistry unit, to testify about her

testing of the drugs seized and their chain of custody.

             The    defense     called    as     witnesses     Jacinta     Dion,   the

landlord     of     the     defendant's        apartment,      and    Bonnie   Ives,

correctional officer with the Hillsborough County Department of

Corrections.        Ms. Dion testified about the setup of the building

and   how   tenants       and   visitors    might       be   able    to   access   the

apartments.        Ms. Ives testified regarding how inmates are searched

when they enter the correctional facility where she works, and how

some contraband might still get in despite those searches.                         The

defense sought to draw a contrast with the less invasive searches

that were performed on the confidential informant as part of the

controlled buys, in support of the theory that the informant could

have incriminated the defendant by hiding contraband.

             In    closing,     the   government        summarized    the   evidence

against     Perez    Soto    and   responded       to   the    argument     that   the

confidential informant might have "outsmarted" his law enforcement

handlers and framed the defendant.                The defense then argued that

the   beyond-a-reasonable-doubt            standard      was   not   met    primarily


                                         - 7 -
because the informant had motive and opportunity to hide drugs in

his person so as to incriminate Perez Soto.

                                  II. ANALYSES

   A. Plain Error Review of Alleged Improper Closing Argument

            Perez     Soto's    main   argument   is     that    his       convictions

should be set aside on the basis of what he alleges were five

improper statements the prosecutor (who was not appellate counsel)

made     during    closing     argument   at    trial.          We    have    vacated

convictions based on improper closing arguments by prosecutors,

most recently in United States v. Canty, 
37 F.4th 775
 (1st Cir.

2022).      Because    no    objection    was   made     to   any      of    the   five

statements, plain error review applies.                  See United States v.

Kasenge, 
660 F.3d 537, 541
 (1st Cir. 2011).

            Perez Soto, then, must show that "(1) that an error

occurred (2) which was clear or obvious and which not only (3)

affected     the    defendant's     substantial    rights,           but    also    (4)

seriously impaired the fairness, integrity, or public reputation

of [the] proceedings."          Canty, 
37 F.4th at 790
 (quoting United

States v. Solís-Vásquez, 
10 F.4th 59, 64
 (1st Cir. 2021)).                          The

third prong requires defendants to "show a reasonable probability

that, but for the error, the outcome of the proceeding would have

been different." Rosales-Mireles v. United States, 
138 S. Ct. 1897, 1904-05
 (2018) (internal quotation marks omitted).




                                       - 8 -
              Even   had    the   objection    been   preserved,    where   the

argument is based on improper prosecutorial statements, "reversal

would be necessary only if, in light of the entire record, the

remarks in the prosecutor's closing argument have 'so poisoned the

well that the trial's outcome was likely affected.'"               Kasenge, 
660 F.3d at 542
 (quoting United States v. Henderson, 
320 F.3d 92, 107

(1st Cir. 2003)).          This analysis involves, inter alia, "(1) the

severity of the prosecutor's misconduct, including whether it was

deliberate or accidental; (2) the context in which the misconduct

occurred; (3) whether the judge gave curative instructions and the

likely effect of such instructions; and (4) the strength of the

evidence against the defendant[]."            Canty, 
37 F.4th at 791
; United

States v. Nelson-Rodriguez, 
319 F.3d 12, 38
 (1st Cir. 2003).

              Perez Soto argues that five statements were improper,

both individually and in their collective impact.              We set forth

and label the statements in the order in which they were made.

See, e.g., United States v. Glover, 
558 F.3d 71, 76
 (1st Cir.

2009).       The first three statements occurred at the beginning of

the government's closing argument, the fourth occurred in the

middle, and the fifth occurred at the end.

         •    "Miguel Sanchez was a high-volume seller of
              dangerous drugs in New Hampshire's biggest
              city." ("Statement One")

         •    "Today, more than two years later, is the
              defendant's day of reckoning. It is time for
              justice and you, members of the jury, are the


                                      - 9 -
           ones in a position      to   administer   it."
           ("Statement Two")

       •   "Ladies and gentlemen, while this is a very
           serious case, it's not a complicated case.
           The government has presented far more than
           enough evidence than you will need to find
           beyond a reasonable doubt that the defendant
           committed each of the crimes with which he is
           charged." ("Statement Three")

       •   "The defense attorney apparently wants you to
           believe that the CI, who he likes to call El
           Pollo, or Chicken Wing, and who he wants you
           to believe is a drug-addled roofer with
           virtually no money, masterminded this plot and
           outsmarted all of the highly trained FBI
           agents,   state   troopers,  and   other   law
           enforcement    officers   working   on    each
           controlled buy and whose very job it was to
           prevent that from happening." ("Statement
           Four")

       •   "So in closing I just want to say, members of
           the jury, the police have done their duty by
           investigating and solving this crime.     The
           Department of Justice has done its duty by
           bringing you the evidence that proves the
           defendant committed the crime. Now it's time
           for you to do your duty as jurors. Find the
           defendant guilty of the crime of distribution
           of controlled substances in Counts One, Two,
           and Three and possession of more than 100
           grams of heroin with intent to distribute as
           charged in Count Four." ("Statement Five")

           Perez Soto focuses on the final statement, Statement

Five, arguing that it "egregiously violated [his] constitutional

rights by telling the jury that the government had solved the

crime, brought the defendant to justice, and now it was the jury's

duty to convict."    Perez Soto's argument as to Statement Five

involves both a claim of improper vouching as well as a claim that


                              - 10 -
the prosecution improperly suggested to the jury that its duty was

to convict.     The first aspect of this argument is not serious; the

second one is.

            The improper vouching aspect is without merit.           We have

explained that "[i]mproper vouching encompasses statements by the

prosecutor that 'place[] the prestige of [the prosecutor's] office

behind    the   government's   case.'"      United     States   v.   Vázquez-

Larrauri, 
778 F.3d 276, 283
 (1st Cir. 2015) (quoting United States

v. Perez-Ruiz, 
353 F.3d 1, 9
 (1st Cir. 2003)).           The "precise line

between improper vouching and permissible argument is a 'hazy

one.'"     
Id.
 (quoting United States v. Vizcarrondo-Casanova, 
763 F.3d 89, 96
 (1st Cir. 2014)).        We have identified certain forms

of improper vouching, including "when the prosecutor tells the

jury     that   the   prosecutor   takes    personal    responsibility    or

ownership of the case and thus directly places the government's

credibility at issue," id. at 284, as well as "when the prosecutor

imparts her personal belief in a witness's veracity or in the

defendant's guilt," id. (quotations and alterations omitted).            The

prosecutor here did not place any personal imprimatur on the

government's case or make any special assurance regarding its

reliability.     Although the prosecutor conveyed that the police and

the Department of Justice had "done [their] duty," the statement

was generic and abstract and did not in any clear way place the




                                   - 11 -
prestige of the prosecutor's office behind the strength of this

particular case.

          We do find much more serious the portion of Statement

Five urging the jurors to do "their duty" followed by the statement

"find the defendant guilty".   In United States v. Young, 
470 U.S. 1
 (1985), the Supreme Court held that a prosecutor had improperly

urged a jury to "do its job."        
Id. at 18
.   "[T]hat kind of

pressure, whether by the prosecutor or defense counsel, has no

place in the administration of criminal justice."    
Id.
   However,

the Court held that the misconduct did not constitute plain error

warranting reversal.   
Id. at 20
.   In United States v. Mandelbaum,

803 F.2d 42, 43
 (1st Cir. 1986), we similarly did not reverse

despite the prosecutor's saying during closing argument:

          I think, ladies and gentlemen, that when you
          finish examining all these materials, you will
          be able to find, I suggest to you, that there
          is ample evidence there for you to find beyond
          any reasonable doubt that [the defendant] did
          in fact commit the acts that the government
          charges her with.      And I would ask you,
          therefore, to do your duty and return a
          verdict of guilty. Thank you.

We held in that case that, although the remark was improper, it

did not lead to reversible error because (1) the comment was

"isolated" and did not appear to be part of any "intentional effort

to influence the jury in an improper way"; (2) "it was not flagrant

in its effect"; (3) it was not contemporaneously objected to by




                               - 12 -
the defense; and (4) the government's evidence was strong in the

case.    See 
id. at 45
.

               Our approach here is a bit different, as we cannot say

that the prosecutor did not intentionally seek to cause the jurors

to see their job as convicting.            We bypass the first two prongs

of    plain   error   review    and    address    the   third   prong:   whether

defendant's substantial rights were affected.                Perez Soto has not

shown that the statement likely affected the outcome of this case.

The    evidence   against      Perez    Soto    was   very   strong,   as   three

controlled buys were conducted and substantial amounts of illegal

drugs were seized from his apartment.             Any potential impact on the

jury was lessened by the judge's instructing it that arguments and

statements by the lawyers are not evidence.                  And the suggestion

that the jury should do its duty was made only in closing and did

not reflect a theme sounded from the start of trial as in Canty.

See Canty, 
37 F.4th at 792
 ("The emotional appeal to the jury to

be other than finders of fact as to guilt was extensive, and was

repeated at opening, closing, and at rebuttal.").                  "There is no

reason to believe that this isolated remark would affect the jurors

in such a way that they would be unable to appraise the evidence

in a fair and objective manner."           Mandelbaum, 
803 F.2d at 45
.

              Statement Two was similarly flawed.            The prosecutor said

that it was the "defendant's day of reckoning," that it was "time

for justice," and that "you, members of the jury, are the ones in


                                       - 13 -
a position to administer it."             In United States v. De La Paz-

Rentas, 
613 F.3d 18
 (1st Cir. 2010), the prosecutor said to the

jury, "Your chance today right now is to do justice, and justice

is nothing more than on the highway there comes an intersection

between the truth and the ability to do something about it."                    
Id. at 25
.   We likened the prosecutor's language to the "do your duty"

rhetoric, as it could be "used to convey the idea to the jury that

their job is to convict."         
Id. at 26
.     Statement Two may plausibly

be interpreted as making the same suggestion, and the government

admits     that    the   "propriety      of   this   comment     is    at     least

questionable."      But, even in combination with Statement Five, it

does not warrant vacating the conviction.                The evidence of guilt

was strong, and Perez Soto has not shown that these improper

statements led the jury to convict or influenced the conviction.

See Young, 
470 U.S. at 19-20
.

            Prosecutors     are    warned,     though,    not   to    adopt    such

rhetoric    when    addressing     the   jury,    because    jurors    may    feel

pressured by the suggestion, coming from a place of authority,

that their role in the process is not to act as independent

arbiters but simply to rubber-stamp the government's exemplary

work and therefore convict.         Such exhortations may ultimately lead

to reversed convictions.          In this case, there is no indication

that the prosecutor was a neophyte -- which underscores the need

for this warning.


                                     - 14 -
           In    Statement    Four,       the    prosecutor   responded        to   the

defense counsel's attack on the confidential informant as the

mastermind of a false accusation.                The prosecutor argued that it

would be absurd for its confidential informant to have masterminded

a plot to incriminate Perez Soto that "outsmarted all of the highly

trained FBI agents, state troopers, and other law enforcement."

Perez Soto argues this constitutes improper vouching.                      Not so.

The prosecutor referred to the officers' training, not to suggest

that the jury should take their view of the case upon authority or

belief,   but,   rather,     to    make    the    counterargument       that    their

confidential     informant        could    not    plausibly     have    faked       the

controlled buys without their knowledge.                 That statement was a

"'logical counter to the assertions of defense counsel' that the

CI[] [was] not credible."          United States v. Gentles, 
619 F.3d 75, 85
 (1st Cir. 2010) (quoting United States v. Perez-Ruiz, 
353 F.3d 1, 10
 (1st Cir. 2003)); see also 
id. at 84
 ("[W]e tend to refrain

from concluding that prosecutors improperly vouch for a witness

when their remarks are made in an attempt to counter harmful

allegations by the defense.").

           In    Statement    Three,       the     prosecutor    said    that       the

"government has presented far more than enough evidence than you

will need to find beyond a reasonable doubt that the defendant

committed each of the crimes with which he is charged."                  There was

nothing improper in this statement.               See Mandelbaum, 803 F.2d at


                                      - 15 -
43.   "[T]he prosecutor may suggest what the jury should find from

the evidence before it."      United States v. Sosa, 
777 F.3d 1279, 1297
 (11th Cir. 2015) (quoting United States v. Bernal-Benitez,

594 F.3d 1303, 1315
 (11th Cir. 2010)).

            Finally, Statement One, in which the prosecutor said

that "Miguel Sanchez was a high-volume seller of dangerous drugs

in New Hampshire's biggest city," was also not improper.             Perez

Soto argues that there was no testimony that he was a "high-volume

seller   of    dangerous   drugs,"   nor   that   Manchester   was   "New

Hampshire's biggest city."       Quoting Arrieta-Aggresot v. United

States, 
3 F.3d 525
, 527 (1st Cir. 1993), he argues that the

statement "only serve[d] to inflame the passions and prejudices of

the jury and interject issues beyond the guilt or innocence of the

accused."     The statement suggested to the jury, Perez Soto posits,

that it had to convict him to protect the residents of the largest

city in New Hampshire.

            "It is a truism that prosecutors cannot refer to facts

not in evidence.      But they can 'ask jurors to draw reasonable

inferences from the evidence.'"      United States v. Ponzo, 
853 F.3d 558, 583
 (1st Cir. 2017) (internal citation omitted) (quoting

United States v. Meadows, 
571 F.3d 131, 145
 (1st Cir. 2009)).

That Perez Soto was a high-volume seller could be inferred, without

much difficulty, from the physical evidence presented: in a single




                                 - 16 -
kitchen cabinet, he had stashed away $40,000 in cash and 55 fingers

(550 grams) of heroin, among other evidence.

            As to the statement about Manchester, even though that

particular fact was not in evidence, it is difficult to see how

the statement prejudiced Perez Soto, as opposed to simply referring

to   Manchester   by   its   name    or   generically    as    a   city   in   New

Hampshire.    Putting aside the fact that the statement is true,

whether or not Manchester was at the time the largest city in New

Hampshire    appears   largely      inconsequential     when    placed    in   the

context of the closing argument as a whole or in the context of

the overall case against Perez Soto.

                  B. Denial of the Motion to Suppress

            As to the denial of a motion to suppress, we review

"findings of fact for clear error and conclusions of law, including

whether a particular set of facts constitutes probable cause, de

novo."   United States v. Belton, 
520 F.3d 80, 82
 (1st Cir. 2008).

"To prevail, [the appellant] must show that no reasonable view of

the evidence supports the denial of the motion to suppress."                   
Id.

            "In determining whether it is reasonable to search a

particular    container      for    an    object,   'search        warrants    and

affidavits should be considered in a commonsense manner, and

hypertechnical readings should be avoided.'"                  United States v.

Rogers, 
521 F.3d 5, 10
 (1st Cir. 2008) (quoting United States v.

Bonner, 
808 F.2d 864, 868
 (1st Cir. 1986)).                   "[A]ny container


                                     - 17 -
situated within residential premises which are the subject of a

validly-issued warrant may be searched if it is reasonable to

believe    that     the   container    could    conceal    items     of    the   kind

portrayed in the warrant."         
Id.
 at 9-10 (quoting United States v.

Gray, 
814 F.2d 49, 51
 (1st Cir. 1987)).

               We have also recognized, "[a]s to document searches

especially, the easily concealed nature of the evidence means that

quite broad searches are permitted."             United States v. Giannetta,

909 F.2d 571, 577
 (1st Cir. 1990).              When executing a warrant to

search for documentary evidence, the officers may "search anywhere

such documents could be hidden, which would include pockets in

clothing, boxes, file cabinets and files."                
Id.

               And indeed, over 30 years ago, the Supreme Court in

Horton v. California, 
496 U.S. 128
 (1990), held that "[t]he fact

that an officer is interested in an item of evidence and fully

expects to find it in the course of a search should not invalidate

its seizure if the search is confined in area and duration by the

terms     of    a   warrant   or   a    valid   exception       to   the    warrant

requirement."       
Id. at 138
; see also United States v. Ribeiro, 
397 F.3d 43, 52-53
 (1st Cir. 2005) (referencing Horton in denying a

motion to suppress drug evidence seized during a document search).

               Perez Soto argues two points to us: that the search was

not lawful because it was "so clearly pretextual, occurring after

the law enforcement had already completed the three drug buys with


                                       - 18 -
the confidential information"; and that it was "improper for law

enforcement to continue their search for drugs after the state

court had explicitly rejected their application for a search

warrant to search for drug evidence."

          The "pretext" argument fails under the law we have just

cited.   In Ribeiro, we rejected a similar argument, that the

documentary search warrant there was "a mere pretense because the

police intended to search for drugs from the outset."     
397 F.3d at 52
.   We held that "as long as the search was within the scope

of the warrant, it is no matter that the officers may have hoped

to find drugs."    
Id.
   Perez Soto does not argue that the Boyle

Warrant lacked probable cause.   Kitchen cabinets, plastic storage

bags, and the box found inside one of them were all places where

evidence of identity fraud, sought under the warrant, was likely

to be hidden.   A commonsense reading of the warrant indicates that

it was appropriate to search those containers, see Rogers, 
521 F.3d at 9-10
, and Perez Soto cites no case law that militates

against this result.     Otherwise, fraudsters could insulate the

evidence of their fraud from any search merely by storing that

evidence in bags and boxes placed in kitchen cabinets.

          It does defendant-appellant no good to argue that two of

the law enforcement officers who helped search the apartment for

evidence of identity fraud had participated in controlled drug

buys as part of their drug-related investigation of him.       The


                              - 19 -
investigation into identity fraud, led by Trooper O'Leary, had

proceeded      independently      from       the      controlled-substances

investigation, and there was ample probable cause to support the

issuance of the Boyle warrant, authorizing a search for documents,

without any reference to that other investigation.              Indeed, the

catalyst for the identity-fraud investigation was the DMV, not law

enforcement.    As explained in United States v. Ewain, 
88 F.3d 689, 695
   (9th   Cir.   1996),   "[n]ow   that   Horton    has   eliminated   the

'inadvertent' discovery limitation . . . it no longer matters that

the invited-along officer was looking for what he found, which

thing was not described in the warrant.            What matters is whether

the officers looked in places or in ways not permitted by the

warrant."

             For the same reason, we reject the argument that it was

improper for law enforcement to continue their search after Judge

Lyons had rejected their first application for a search warrant to

search for drugs.        The record is clear that the officers kept

their search within the parameters of the Boyle Warrant.           We affirm

the denial of Perez Soto's motion to suppress.



             Affirmed.




                                  - 20 -


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