United States v. Varnell ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 30 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-5018
(D.C. No. 97-CR-148-C)
PHILLIP VARNELL, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA , KELLY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Phillip Varnell entered a conditional guilty plea to conspiracy to
possess with intent to distribute marijuana, a violation of 21 U.S.C. §§ 846,
841(a)(1) and (b)(1)(B). He appeals the district court’s order denying his pretrial
motion to suppress the evidence found in a search of his residence on the ground
that the search warrant was not supported by probable cause. He also objects to
the prosecution’s proposed use of witnesses as violative of the federal gratuity
statute. We have jurisdiction under 28 U.S.C. §1291 and affirm.
Defendant asserts that the affidavit in support of the search warrant does
not state that contraband was observed either on defendant’s person or at his
residence. Therefore, he argues, probable cause was lacking for a reasonable
belief that evidence of a crime would be found at his residence.
Our review of the district court’s factual findings is for clear error.
See United States v. Myers , 106 F.3d 936, 939 (10th Cir. 1997). “[T]he
reasonableness of a search and seizure under the Fourth Amendment is a question
of law which we review de novo.” Id. To determine whether there was a
substantial basis for a finding of probable cause we examine the totality of the
circumstances. See Illinois v. Gates , 462 U.S. 213, 238 (1983). A reviewing
court should “‘determine whether there is substantial evidence in the record
supporting the magistrate’s decision to issue a warrant.’” United States v.
Glover , 104 F.3d 1570, 1577 (10th Cir. 1997) (quoting Massachusetts v. Upton ,
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466 U.S. 727, 728 (1984)). Great deference is paid to the magistrate’s
determination of probable cause. See id.Here, the affiant, a Special Agent with the Drug Enforcement
Administration, began the affidavit with an account of his extensive experience in
drug detection. He then stated that drug dealers often maintain books and records
pertaining to the distribution of controlled substances, as well as large amounts of
currency, among other things, in their residences or businesses. “This court has
held that [a] magistrate is entitled to rely on the expert opinions of officers when
supporting factual information is supplied in the affidavit.” Id. at 1578 (quotation
omitted).
The affidavit described information related by a reliable confidential source
concerning defendant’s involvement in drug trafficking at his residence. On two
occasions, the confidential source observed an individual named Stegal emerge
from defendant’s residence carrying a one-pound block of frozen marijuana. See
App., affidavit, paras. 3, 5. The confidential source also related conversations
with defendant regarding defendant’s drug trafficking business. See id. paras. 6,
22, 23, 25, 26. Those conversations indicated that defendant was engaged in an
ongoing drug trafficking conspiracy. Accordingly, the totality of the evidence
contained in the affidavit supports the conclusion that there was a fair probability
evidence of an illegal drug conspiracy would be found at defendant’s residence.
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For his second argument, defendant challenges the prosecution’s intent to
call as witnesses his co-defendants who were promised a reduced charge or
prosecutorial immunity if they testified against him. Relying solely on United
States v. Singleton , 144 F.3d 1343 (10th Cir. 1998), he claims the prosecution
violated 18 U.S.C. § 201(c)(2). Singleton , however, was reversed, and we are
bound by the en banc ruling that § 201 does not prohibit a prosecutor, acting as an
agent of the government, from making “a concession normally granted by the
government in exchange for testimony.” See United States v. Singleton , 165 F.3d
1297, 1302 (10th Cir.) (en banc), cert. denied , 119 S. Ct. 2371 (1999).
The judgment of the district court is AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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