United States v. Morin ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 11, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 05-3352
v. (District of K ansas)
(D.C. No. 05-CR-10019-M LB)
CLA RK A. M O RIN ,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, HOL LOW AY, and M cKAY, Circuit Judges.
I. Introduction
On M ay 3, 2005, a four-count second superseding indictment charged Clark
A. M orin with violations of Titles 18 and 21 of the United States Code. M orin
moved to suppress evidence seized by police during a search of his residence,
contending the w arrant that authorized the search was improper. After a
suppression hearing, the United States District Court for the District of Kansas
*
This order and judgment is not binding precedent, except under the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.
denied M orin’s motion to suppress. M orin pleaded guilty to possession of
methamphetamine w ith intent to distribute in violation of 21 U.S.C. § 841(a)(1),
but preserved his right to appeal the district court’s order denying his motion to
suppress. On appeal, M orin argues the affidavit supporting the search warrant
suffered from material omissions, was misleading, and failed to establish a
connection betw een the alleged illegal activity and M orin’s residence. He
therefore claims the warrant authorizing the search of his home was not supported
by probable cause and evidence seized during that search must be suppressed.
W e assert jurisdiction pursuant to 28 U.S.C. § 1291. After examining the
sufficiency of the search warrant affidavit based on the totality of the
circumstances, we conclude the district court did not err when it denied M orin’s
motion to suppress. W e therefore affirm.
II. Background
On December 22, 2004, Kansas Bureau of Investigation Agent Ronnie
Light applied for a warrant to search M orin’s residence located at 1829 New
M exico R oad in Iola, Kansas. In his affidavit and application, Light averred there
was probable cause to believe M orin possessed and was distributing
methamphetamine from his home. He cited four information sources in support
of this belief: (1) reliable source #1 (“RS#1”) and (2) reliable source #2
(“RS#2”), both of whom supplied information to Detective Shannon M oore of the
City of Iola Police Department, who then relayed the information to Light; (3)
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Juanita Sinclair, whom Light interviewed after her arrest for possession of
methamphetamine and non-drug offenses; and (4) a confidential informant, later
revealed to be Saber Granger, who participated in a controlled buy of
methamphetamine from a person alleged to be M orin.
Based on Light’s application and affidavit, the District Court of Allen
County, Kansas found probable cause and issued a search warrant for M orin’s
residence. Kansas law enforcement officers executed the warrant on December
22, 2004. In M orin’s residence, officers discovered and seized methamphetamine,
marijuana, drug paraphernalia, a drug ledger, large amounts of cash, and an array
of firearms. A grand jury charged M orin in a four-count second superceding
indictment. The second count of the indictment alleged M orin possessed with the
intent to distribute approximately 84.9 grams of methamphetamine in violation of
21 U.S.C. § 841(a)(1).
M orin filed motions to suppress the evidence seized from his residence,
arguing the warrant authorizing the search of his residence was not supported by
probable cause. The district court held a hearing to consider M orin’s motion to
suppress and later denied the motion in a written memorandum and order. Upon
review , the court concluded the affidavit as a whole “provided a reasonable basis
for the state court judge to determine with ‘fair probability’ that evidence of a
crime would be found at [M orin’s] house.” United States v. M orin, No. 05-
10019-01 M LB, at 5 (D. Kan. 2005) (order denying motion to suppress). After
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the district court’s ruling, M orin entered a conditional plea of guilty to possession
with intent to distribute methamphetamine, preserving for appeal the district
court’s denial of his motion to suppress.
III. Analysis
On appeal, M orin argues the warrant authorizing the search of his residence
was not supported by probable cause because the affidavit supporting the warrant
contained material omissions and misleading statements. He further argues the
affidavit failed to establish a sufficient nexus between the alleged criminal
activity and M orin’s residence. Lastly, M orin argues the good faith exception to
the exclusionary rule, established in United States v. Leon, 468 U.S. 897 (1984),
does not apply. He therefore contends the evidence obtained from the search
must be suppressed.
In reviewing a district court’s denial of a motion to suppress, we accept the
district court’s factual findings unless they are clearly erroneous and review
questions of law de novo. United States v. Gonzales, 399 F.3d 1225, 1228 (10th
Cir. 2005). W hether a warrant is supported by probable cause is a question of
law. Id. “In determining w hether a warrant is supported by probable cause, we
assess the sufficiency of a supporting affidavit based on the totality of the
circumstances.” United States v. Cantu, 405 F.3d 1173, 1176 (10th Cir. 2005);
see Illinois v. Gates, 462 U.S. 213, 238 (1983). This court gives great deference
to a magistrate’s determination of probable cause, and “[o]ur review is limited to
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ensuring that the magistrate’s determination had a substantial basis.” Cantu, 405
F.3d at 1176–77.
A. Allegations of M aterial Omissions and M isleading Statem ents
M orin argues the affidavit supporting the search warrant contained several
material omissions and misleading statements. Under the standard set forth in
Franks v. Delaware, a defendant seeking to challenge the veracity of a search
warrant affidavit must allege deliberate falsehood or reckless disregard for the
truth. 438 U.S. 154, 155–56 (1978). M orin, however, does not claim the
purported flaws in the affidavit are deliberate falsehoods or products of the
affiant’s reckless disregard for the truth. His appeal therefore does not assert a
Franks argument. Accordingly, our examination of M orin’s argument is limited
to ensuring the alleged omissions and misleading statements did not undermine
the state court judge’s probable cause determination such that it could no longer
be said to have a substantial basis. See Cantu, 405 F.3d at 1176–77.
M orin claims affiant Light omitted material information from his search
warrant affidavit when he failed to note confidential informant Granger was a
recently arrested methamphetamine user who agreed to be an informant in the
hope that he would receive leniency from prosecutors. In reviewing the omission
of a confidential informant’s criminal history, courts ask whether the judge
issuing the warrant still would have found probable cause if the affidavit had
discussed the informant’s criminal history in more detail. United States v. Avery,
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295 F.3d 1158, 1168 (10th Cir. 2002). This court has observed that when an
affidavit informs a judge a confidential informant has used drugs, it puts the
judge on notice the informant is “not a model citizen.” Id. M oreover, we have
noted judges issuing search warrants “often know, even without an explicit
discussion of criminal history, that many confidential informants suffer from
generally unsavory character and may only be assisting police to avoid
prosecution for their own crimes.” Id. (quotation omitted). In this case, the
affidavit informed the state court judge Granger had purchased methamphetamine
from M orin in the past. Combined with the judge’s presumed background
knowledge about confidential informants, the information in the affidavit was
sufficient to alert the court Granger was a drug user who may have been
cooperating with police for self-serving reasons. W e therefore conclude the
affidavit’s failure to give a more thorough recitation of Granger’s background did
not impair the substantial basis for the state court’s probable cause determination.
M orin also claims it was misleading to characterize RS#1 and RS#2 as
“reliable” sources when Light admitted he had never used either source in the
past, and when only one of the two sources had previously provided information
to law enforcement authorities. In assessing the credibility of information from
an anonymous source, a court must take into account “all the circumstances set
forth in the affidavit.” Gates, 462 U.S. at 238. It may not simply accept an
affiant’s portrayal of the source as “reliable” or “credible.” Id. at 239 (noting an
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affiant’s statement that he has received reliable information from a credible
source, standing alone, is insufficient to establish probable cause). Thus, when
the state court evaluated the credibility of information obtained from RS#1 and
RS#2, it was required to focus on the totality of the circumstances described by
the affidavit, not the mere use of the w ord “reliable.” A ccordingly, the affiant’s
use of the adjective “reliable” did not undercut the substantial basis for the state
court’s probable cause determination.
M orin further argues the affidavit’s description of the controlled buy
between confidential informant Granger and M orin was misleading. In relevant
part, the affidavit states:
The CI [confidential informant Granger] was followed by officers
involved with the controlled purchase. At approximately 1:30 a.m.
Affiant was informed that M ORIN wanted the CI to meet on the
highway (US 169 Hwy). Affiant was informed that M ORIN would
by [sic] driving his maroon Ford Ranger truck. At 1:35 a.m. the CI
met with M ORIN near the intersection of 1600 St. and M innesota Rd.
M ORIN arrived at the meeting place prior to the CI’s arrival. SA
B OTTS recorded the conversation from the wireless transmitter. At
approximately 1:39 a.m. SA COM M ONS observed a vehicle later
identified as M ORINS [sic] Ford Ranger truck leave the meeting
place and proceed west on M innesota Rd. Affiant observed the
vehicle believed to be occupied by M orin turn and proceed south on
US-169 Hwy. Affiant proceeded north on US-169 Hwy, and
observed the CI drive back to the prearranged meeting place.
ROA vol. I, tab 17, attachment 1 at 4. M orin claims the affidavit is written so as
to imply the affiant witnessed M orin participating in the drug transaction, when in
fact, no law enforcement officer positively identified M orin during the controlled
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buy. The phrasing of the affidavit, however, belies M orin’s argument. The
affidavit states one law enforcement officer saw a vehicle “later identified” as
belonging to M orin leave the location of the controlled buy, and states the affiant
saw a vehicle “believed to be occupied by M orin” turn and drive down the
highway. These descriptions make clear law enforcement officers did not
positively identify M orin at the time of the controlled buy. W e thus conclude the
wording of the affidavit did not affect the substantial basis for the state court’s
probable cause determination.
B. Nexus Between Alleged Illegal Activity and M orin’s Residence
In addition to his claim that the search warrant affidavit is marred by
material omissions and misleading statements, M orin stresses confidential
informant Granger was the only source identified in the affidavit to allege illegal
activity occurred in M orin’s residence. He argues the information supplied by
Granger, considered in the context of the alleged material omissions and
misleading statements described above, is insufficient to demonstrate a
connection between the alleged criminal activity and the place to be
searched— M orin’s residence. Therefore, M orin contends, the affidavit did not
establish probable cause to search M orin’s home.
Probable cause exists w hen facts presented in a supporting affidavit “w ould
warrant a man of reasonable caution to believe that evidence of a crime will be
found at the place to be searched.” United States v. Nolan, 199 F.3d 1180, 1183
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(10th Cir. 1999) (quotation omitted). It thus “requires a nexus between suspected
criminal activity and the place to be searched.” United States v. Corral-Corral,
899 F.2d 927, 937 (10th Cir. 1990). A court reviewing an application for a search
warrant must “make a practical, common-sense decision” whether the supporting
affidavit demonstrates “a fair probability that contraband or evidence of a crime
will be found in a particular place.” Gates, 462 U.S. at 238. The court “may
draw reasonable inferences from the material provided in the warrant
application.” United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir. 1998).
As noted above, “the duty of a reviewing court is simply to ensure that the
magistrate had a substantial basis for concluding that probable cause existed.”
Gates, 462 U.S. at 238–39 (quotation and alterations omitted).
After examining the search warrant affidavit with these standards in mind,
we conclude there was a substantial basis to support the state court’s probable
cause determination. The affidavit established a connection between alleged
illegal drug activities and M orin’s residence when it stated that various identified
sources claimed M orin sold methamphetamine from his house, sometimes
manufactured methamphetamine, and equipped his house with firearms and an
infrared video surveillance system. ROA vol. I, tab 17, attachment 1 at 2–5. The
nexus was furthered by the sources’ statements that M orin’s unattached garage
had painted windows, an exhaust system, and was subject to traffic and activity.
Id. It was permissible for the state court, drawing reasonable inferences from
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these statements, to conclude there was a fair probability that contraband or
evidence of a crime would be found at M orin’s residence. Accordingly, the state
court had a substantial basis for its probable cause determination.
In sum, the district court did not err when it denied M orin’s motion to
suppress evidence seized from his residence. In light of our conclusion, it is
unnecessary to discuss the Leon good faith exception to the exclusionary rule.
IV. Conclusion
For the foregoing reasons, we affirm the district court’s denial of M orin’s
suppression motion.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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