United States v. Harris , 343 F. App'x 378 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
September 9, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-3034
(D.C. No. 2:06-CR-20131-KHV-1)
MAURICE HARRIS, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY, Chief Judge, BRORBY, Senior Circuit Judge, and HARTZ,
Circuit Judge.
Maurice Harris was charged with one count of distributing 50 grams or
more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and one count of
maintaining a residence for the purpose of distributing cocaine base, in violation
of 21 U.S.C. § 856(a)(1) and (2). Before trial the district court denied
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Mr. Harris’s motion to suppress evidence obtained in the search of his residence.
Mr. Harris was found guilty of both charges by a jury and sentenced to 324
months’ imprisonment. He appeals his conviction, contending that the search
warrant issued by a Kansas state-court judge and relied on by the Kansas City,
Kansas, police in searching his residence was not supported by probable cause,
resulting in a violation of the Fourth Amendment.
Mr. Harris argues that the information in the affidavit supporting the
warrant was stale when the warrant was issued and that details of three controlled
sales to a confidential informant were lacking, as were details about complaints
received by the police concerning activity at the residence. He also objects to
references in the affidavit to his past murder conviction and to past drug charges
against him that had been dismissed.
In reviewing the legality of a search warrant, the district court and this
court owe considerable deference to the issuing judge’s finding of probable cause
to support a warrant. See United States v. Hatfield, 333 F.3d 1189, 1193 n.1
(10th Cir. 2003). “The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the circumstances set forth in
the affidavit before him, . . . there is a fair probability that contraband or evidence
of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213,
238 (1983). As a reviewing court, our duty “is simply to ensure that the
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magistrate had a substantial basis for concluding that probable cause existed.” Id.
(internal quotation marks and alterations omitted).
With respect to Mr. Harris’s staleness objection, we agree with the district
court that even though some of the background information in the affidavit
regarding his criminal history and older complaints of drug activity at the house
were somewhat out-of-date, that information was sufficiently updated with details
of recent complaints and the three controlled buys, the last buy occurring within
48 hours of the issuance of the warrant. See United States v. Cantu, 405 F.3d
1173, 1178 (10th Cir. 2005) (“otherwise stale information may be refreshed by
more recent events”).
The affidavit contained information relating to Mr. Harris’s criminal past,
including an arrest for drug-related activities; reference to public records
establishing him as the owner of the target residence; complaints of suspected
illegal activity at the residence (one as recent as six weeks before the warrant
issued); reference to three controlled buys at the residence, arranged through a
confidential police informant (one occurring within 48 hours of the warrant); the
affiant’s reasons for believing that the informant was reliable; and specific details
of the last controlled buy. A reasonable reading of the affidavit as a whole
reveals a substantial basis for the state-court judge to have issued the warrant
based on the fair probability that evidence of crime would be found at
Mr. Harris’s residence. See United States v. Artez, 389 F.3d 1106, 1115
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(10th Cir. 2004) (rejecting challenge to validity of warrant when information
therein included tips from confidential and anonymous informants, successful
execution of two controlled buys, surveillance indicating a series of visitors
staying for short periods of time, and the drug-related criminal histories of four
inhabitants of or visitors to the suspect residence).
Finally, Mr. Harris argues that because certain state-law technicalities were
not observed with regard to filing the warrant, his rights have been substantially
affected and the evidence gained pursuant to the warrant therefore should have
been suppressed. But “the fact that the arrest, search, or seizure may have
violated state law is irrelevant as long as the standards developed under the
Federal Constitution were not offended.” United States v. Le, 173 F.3d 1258,
1265 (10th Cir. 1999) (internal quotation marks and alteration omitted).
Because there was no violation of the United States Constitution here, the
judgment of the district court is AFFIRMED.
Entered for the Court
Harris L Hartz
Circuit Judge
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