U.S. v. Colonna, 03-4074.

Citation360 F.3d 1169
Decision Date09 February 2004
Docket NumberNo. 03-4074.,03-4074.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jack Neil COLONNA, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Michael S. Lee, Assistant United States Attorney (and Paul M. Warner, United States Attorney, on the brief), Salt Lake City, UT, for Plaintiff-Appellee.

Vanessa Ramos-Smith, Yengich, Rich & Xaiz, Salt Lake City, UT, for Defendant-Appellant.

Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and BRISCOE, Circuit Judge.

PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant Jack N. Colonna was convicted by a jury of possession of firearms and ammunition by a convicted felon (Counts 1 & 2), 18 U.S.C. § 922(g)(1), and possession of marijuana (Count 3), 21 U.S.C. § 844. He was sentenced to 46 months imprisonment followed by three years supervised release. Mr. Colonna argues on appeal that (1) the affidavit supporting the warrant application was insufficient to support a finding of probable cause in view of the district court's findings that several assertions in the affidavit were false, inaccurate, or misleading; (2) the affidavit lacked a proper factual basis for nighttime entry and a no-knock provision; (3) the district court abused its discretion in refusing to dismiss Count 3 of the superceding indictment for preindictment delay, and refusing to sever Count 3; and (4) the evidence is insufficient to support the convictions on Counts 1 and 2. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

Background

On June 14, 2000, Deputy Brian Weidmer of the Salt Lake County Sheriff's Office sought a warrant to search Mr. Colonna's home. Attached to the warrant application was a supporting affidavit articulating Weidmer's basis for believing that Mr. Colonna was using his home as a drug distribution center. The affidavit noted the following:

¶ 10: Deputy Heinz Kopp told Deputy Weidmer that Mr. Colonna — whom Deputy Weidmer knew was a convicted felon — had bragged to Deputy Kopp about owning a handgun.

¶ 11: Deputy Weidmer saw Mr. Colonna covertly watching an unrelated drug bust in West Valley City in a manner that suggested that Mr. Colonna himself had something at stake in the drug bust.

¶ 12: A confidential informant (CI# 2) told Deputy Joel Knighton, who had previously received reliable information from CI# 2, that CI# 2 had watched Mr. Colonna make a drug delivery in Kearns, Utah.

¶ 13: Deputy Weidmer observed four men in a car waiting outside Mr. Colonna's home for several minutes. The men were led into Mr. Colonna's house after being met by him in his yard, after Colonna looked over his fence and up and down the street.

¶ 16: During a "trash cover," Deputy Weidmer removed the contents of a garbage container placed on the street in front of Mr. Colonna's home, and discovered two burnt roach ends of suspected marijuana cigarettes, a "twist" torn from the corner of a plastic baggie, a plastic baggie with a corner torn from it, and an empty container of Zig Zag cigarette papers.

¶ 17: Mr. Colonna had been arrested twenty-four times in Salt Lake City for various offenses and been convicted of two felonies.

I R. Doc 36.

A Utah state court judge issued the warrant, and a SWAT team executed the warrant shortly before 3:00 a.m. on June 22, 2000, after making a forcible, no-knock entry. During the search, officers discovered four firearms and several boxes of ammunition in the top drawer of a dresser inside Mr. Colonna's bedroom. Officers also found a marijuana pipe in another drawer of the same dresser,1 and discovered marijuana in an adjacent night stand. In the family room, the officers found ammunition inside a bureau drawer.

Mr. Colonna was arrested and charged in a two-count indictment with possession of firearms by a convicted felon and possession of ammunition by a convicted felon, 18 U.S.C. § 922(g)(1). The district court denied a motion to suppress after holding a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). On August 21, 2002 — almost two years after the original indictment was filed, and five days before trial was scheduled — the government filed a superceding indictment adding a charge of possession of marijuana. Mr. Colonna's motion to dismiss or sever the marijuana count was denied.

Discussion
A. Sufficiency of the Affidavit.

Mr. Colonna argues the district court erred in failing to grant his motion to suppress (1) because the affidavit lacked probable cause on its face; and (2) because of "numerous falsehoods contained in the search warrant." Mr. Colonna also argues that the good faith exception to a defective warrant does not apply. Because the affidavit here supports a finding of probable cause despite its "numerous falsehoods," it also supports a probable cause finding on its face, and it is not necessary to apply the good faith exception.

In reviewing the denial of a motion to suppress, this court considers the totality of the circumstances and views the evidence in the light most favorable to the government. United States v. Higgins, 282 F.3d 1261, 1269 (10th Cir.2002). We accept the district court's factual findings unless they are clearly erroneous, although the ultimate determination of reasonableness under the Fourth Amendment is reviewed de novo. Id.

In the district court, Mr. Colonna pointed to five alleged falsehoods: (1) that Deputy Kopp told Deputy Weidmer that Mr. Colonna had bragged about owning or having guns, I R. Doc. 36 ¶ 10; (2) that Deputy Weidmer conducted a criminal history check of Mr. Colonna in early 2000, id. ¶¶ 10, 17; (3) that Mr. Colonna covertly watched the unrelated drug bust, id. ¶ 11; (4) that the garbage can belonging to Mr. Colonna was not on Mr. Colonna's property when removed, id. ¶ 16; and (5) that Deputy Weidmer had information from CI# 2, id. ¶ 12. The district court found that the first statement was indeed a deliberate falsehood; it found that the second, third, and fifth statements "were, at the least, inaccurate or misleading," and refused to consider them. I R. Doc. 67 at 4.

"It is a violation of the Fourth Amendment for an affiant to knowingly and intentionally, or with reckless disregard for the truth, make a false statement in an affidavit. Where a false statement is made in an affidavit for a search warrant, the search warrant must be voided if the affidavit's remaining content is insufficient to establish probable cause." United States v. Basham, 268 F.3d 1199, 1204 (10th Cir.2001) (citing Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)) However, a misstatement in an affidavit that is merely the result of simple negligence or inadvertence, as opposed to reckless disregard for the truth, does not invalidate a warrant. Franks, 438 U.S. at 171-72, 98 S.Ct. 2674.

Contrary to Mr. Colonna's view, the district court did not find that statements two, three and five (above) were "made with reckless disregard for the truth." Aplt. Br. at 11 (citing D. Ct. Order Denying Def.'s Mot. to Suppress, I R. Doc. 67 at 4). Instead, the district court merely found that the statements "were, at the least, inaccurate or misleading." This finding alone did not bar the court from considering those assertions in its determination of probable cause, for the inaccuracies could still be the product of negligence or innocent mistake. To the extent that the district court implicitly found a reckless disregard for the truth in those assertions and therefore did not consider them, the assertions concerning the evidence obtained from the trash cover support probable cause.

Mr. Colonna argues that "in light of all the falsehoods and statements made with reckless disregard for the truth, the district court clearly erred in believing the testimony of the officers with regard to the trash cover — the one item in the search warrant that the court relied upon to support probable cause." Aplt. Br. at 19. Thus, the only question is whether the district court committed clear error in finding that the trash can was on the street, and not on Mr. Colonna's property, when the officers conducted the trash cover. See California v. Greenwood, 486 U.S. 35, 41, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (no reasonable expectation of privacy in garbage left out on the street).2

Mr. Colonna presented evidence that Harry Haughan, one of Mr. Colonna's neighbors, claimed to have observed Deputy Weidmer and Deputies Yvette Zayes and Rex Mulholland as they retrieved a garbage can from Mr. Colonna's property in early June 2000. Mr. Haughan failed to respond to a subpoena but stated in an affidavit and told Mr. Colonna's investigator that he had observed the three officers remove Mr. Colonna's garbage can from Mr. Colonna's property. Mr. Haughan had been living with his mother across the street from Mr. Colonna at the time of the trash cover, and did not personally know Mr. Colonna or his wife.

Deputies Weidmer and Zayes (two of the three officers involved in the trash cover) testified that the trash can was on the street in front of Colonna's home. See III R. at 138, 188. The district court credited their testimony. I R. Doc. 67 at 4.

Mr. Colonna argues that the district court's finding crediting the deputies' testimony was clearly erroneous because Mr. Haughan's version is in clear conflict with that of the officers, and because other assertions made by Deputy Weidmer in the affidavit were untrue. "[A] finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). We cannot duplicate the factfinding role of the trial court and "[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly...

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