265 F.3d 1097 (10th Cir. 2001), 99-7078, United States v. Price

Docket Nº:99-7078
Citation:265 F.3d 1097
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSHUA PRICE, JR., also known as Lil' June, also known as June, also known as June Anderson, Defendant-Appellant.
Case Date:September 11, 2001
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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265 F.3d 1097 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JOSHUA PRICE, JR., also known as Lil' June, also known as June, also known as June Anderson, Defendant-Appellant.

No. 99-7078

United States Court of Appeals, Tenth Circuit

September 11, 2001

Appeal from the United States District Court for the Eastern District of Oklahoma

(D.C. No. 98-CR-10-S)

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Dennis A. Fries, Assistant United States Attorney, Eastern District of Oklahoma, (Bruce Green, United States Attorney, Eastern District of Oklahoma, with him on the briefs), Muskogee, Oklahoma, for Plaintiff/Appellee.

John M. Butler, Tulsa, Oklahoma, for Defendant/Appellant.

Before TACHA, Chief Judge, BRORBY, Senior Circuit Judge, and MURPHY, Circuit Judge.

MURPHY, Circuit Judge.

I. INTRODUCTION

Defendant-Appellant Joshua Price, Jr., appeals his various firearms, narcotics, and related convictions. Jurisdiction to consider Defendant's appeal arises under 28 U.S.C. § 1291. Because Defendant has not demonstrated reversible error, this court affirms his convictions.

II. FACTS AND PROCEDURAL HISTORY

On appeal this court views the evidence, and all reasonable inferences therefrom, in the light most favorable to the government. See United States v. Neal, 718 F.2d 1505, 1506-07 (10th Cir. 1983). In the summer of 1997, the Federal Bureau of Investigation ("FBI"), the United State's Marshall's Service, and the Muskogee Police Department were involved in a Task Force which investigated cocaine trafficking in the Muskogee, Oklahoma area. During this investigation, Defendant was identified as a suspect in cocaine trafficking. The Task Force gathered information on Defendant from informant Ebon Sekou Lurks. Lurks then assisted the Task Force by making numerous controlled drug purchases from Defendant.

During this time, Lurks was going through a divorce. Apparently angry that Lurks was awarded custody of their children, Lurks' wife informed Defendant that Lurks had been working as an informant for the FBI and that all of the drug transactions between Defendant and Lurks had been taped. One week later, Lurks was murdered.

The police suspected that Defendant was involved in the murder, and obtained a search warrant for the residence at which Defendant was believed to be staying. Upon executing the search warrant, the police found Price, a gun belonging to Price, and Price's blood-stained tennis shoe. DNA testing indicated a very high probability that the blood on Price's tennis shoe was from Lurks.

Defendant was indicted in the United States District Court for the Eastern District of Oklahoma for one count of conspiracy to distribute cocaine, 21 U.S.C. §§ 846 and 841(a)(1), six counts of distributing cocaine, 21 U.S.C. § 841(a)(1), twelve counts of the use of a communication facility in committing a felony, 21 U.S.C. § 843(b), and two counts of "possess[ing] in or affecting commerce" a firearm after having been convicted of a crime punishable by imprisonment for a term exceeding one year, 18 U.S.C. § 922(g). Before trial, the prosecution filed a motion to admit the out of court statements made by Lurks to FBI agents before Lurks was murdered. The prosecution argued that Defendant had waived any hearsay or Confrontation Clause objections to the statements by murdering Lurks and thus procuring Lurks' unavailability as a witness. The district court held a hearing on this and other pretrial motions. After the hearing, the district court entered a written order granting the prosecution's motion to admit

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Lurks' out of court statements. The order stated that the government had demonstrated by a preponderance of the evidence that Defendant had procured the unavailability of Lurks as a witness, and in so doing had waived his hearsay and Confrontation Clause objections to the out of court statements.

After a three day trial, the jury found Defendant guilty on all counts. Defendant was sentenced to the following terms of imprisonment: life for his conviction on one count of conspiracy to distribute cocaine; life for each of his six convictions for distributing cocaine; 48 months for each of his twelve convictions for the use of a communication facility in committing a felony; and 120 months for each of his two convictions for firearms possession. All the sentences were to run concurrently. Defendant has appealed his convictions and sentences to this court, advancing numerous arguments.

III. DISCUSSION

A. Motion to Suppress

Before trial Defendant filed a motion to suppress the evidence seized during the residence search, which included the blood-stained tennis shoe and the gun which was the basis of one of Defendant's firearms convictions. The motion was not supported by an accompanying brief, and the grounds for suppression were simply listed as follows:

1. The Affidavit upon which the search warrant issued was insufficient as a matter of law.

2. The issuing Judge incorrectly found probable cause for the issuance of the warrant in the Affidavit.

3. The Affidavit did not contain facts sufficient as a matter of law to establish probable cause.

4. The Search Warrant was invalid and improperly issued.

5. The Affidavit does not show or attempt to show any relationship between the premises and the objects seized.

Authority:

6. The search of the premises pursuant to the warrant and the issuance of the warrant violated the Defendant's rights under the Fourth Amendment to the United States Constitution and Rule 41 of the Federal Rules of Criminal Procedure.

7. Statements in the Affidavit relating to the premises in which the objects were found are mere conclusions based upon suspicions, with the grounds for suspicion left unstated.

The district court entered an order denying Defendant's motion to suppress, concluding that the search warrant was supported by probable cause and that, even if probable cause did not exist, exclusion of the evidence was not appropriate because the officers had acted in good faith in executing the warrant. See generally United States v. Leon, 468 U.S. 897 (1984). Unfortunately, Defendant's appellate briefing on this issue is as cursory as the motion to suppress filed in the district court. This court construes Defendant's appellate brief as making two suppression arguments: (1) the search warrant was not supported by probable cause, and (2) the search was invalid because of technical deficiencies in the warrant.

We review de novo the district court's probable cause determination. Our review of the magistrate judge's issuance of a search warrant, however, is more deferential: Our duty is to ensure that the magistrate judge had a substantial basis for concluding that the affidavit in support of the warrant established probable cause. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given

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all the circumstances set forth in the affidavit[,] there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Because of the strong preference for searches conducted pursuant to a warrant, the Supreme Court has instructed us to pay great deference to a magistrate judge's determination of probable cause.

United States v. Nolan, 199 F.3d 1180, 1182 (10th Cir. 1999) (quotations and citations omitted).

The government argues that even if probable cause to issue the search warrant was lacking, the evidence obtained during the search of the residence should not be excluded because the police officers acted in good faith and reasonable reliance on the warrant. In Leon, the Supreme Court held that when police officers act in good faith and reasonable reliance on a search warrant, the evidence obtained during the search should not be suppressed even if the warrant was lacking in probable cause. See Leon, 468 U.S. at 913. If this court determines that the officers acted in good faith reliance on the search warrant, it does not need to reach the issue of whether probable cause existed for the warrant. See United States v. McKneely, 6 F.3d 1447, 1453 (10th Cir. 1993). There is a presumption that when an officer acts upon a search warrant the officer is acting in good faith. See...

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