U.S. v. Artez

• Decision Date: 17 November 2004
• Docket Number: No. 03-4166.,03-4166.
• Citation: 389 F.3d 1106
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Friedrich Peter ARTEZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1106

389 F.3d 1106

UNITED STATES of America, Plaintiff-Appellant, v. Friedrich Peter ARTEZ, Defendant-Appellee.

No. 03-4166.

United States Court of Appeals, Tenth Circuit.

November 17, 2004.

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Michael S. Lee, Assistant United States Attorney (Paul M. Warner, United States Attorney, with him on the briefs), Salt Lake City, UT, for Plaintiff-Appellant.

Jeanne T. Lund, Draper, UT, for Defendant-Appellee.

Before EBEL, ANDERSON, and SEYMOUR, Circuit Judges.

EBEL, Circuit Judge.

Friedrich Peter Artez ("Defendant") was indicted for possession of an unregistered short barrel shotgun, in violation of 26 U.S.C. §§ 5861(d) and 5871. Defendant moved to suppress the shotgun as the fruit of an unlawful search of his home. The district court granted Defendant's motion to suppress, concluding that the search warrant was invalid because not supported by probable cause and that the good faith exception of United States v. Leon, 468 U.S. 897 (1984), did not apply. The government appealed. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and we REVERSE the judgment of the district court and REMAND for further proceedings.

BACKGROUND

In December 2000, Deputy Sheriff Scott Van Wagoner of the Salt Lake County Sheriff's Office was contacted by a confidential informant ("CI") who claimed to have information regarding an alleged methamphetamine dealer named Fred Artez ("Defendant"). The CI drove with Van Wagoner and identified a home located at 1127 East 9430 South in Sandy City, Utah as the home of Defendant. The CI explained to Van Wagoner that he could not purchase methamphetamine directly from Defendant but that he could purchase it from Defendant through an unwitting informant ("UI").

Van Wagoner verified that Defendant owned the home located at 1127 East 9430 South in Sandy City, Utah and that Defendant owned two of the vehicles parked in front of the home. Van Wagoner also contacted the Sandy City Neighborhood Narcotics Unit and learned that they had received a call within the last two months from an unidentified male claiming that his wife was purchasing methamphetamine from the residence at 1127 East 9430 South. Van Wagoner also discovered through the Sandy City records that several other people, all of whom had narcotics-related criminal histories, lived at or frequented the residence. One of these individuals had an active arrest warrant for possession of drug paraphernalia. Van Wagoner also discovered that Artez had been arrested twice, once for larceny and once for driving under the influence of alcohol.

With the CI's assistance, Van Wagoner executed two controlled purchases of methamphetamine. The two purchases were conducted within approximately two weeks of each other and were accomplished in essentially the same manner. Van Wagoner (either himself or with the assistance of another agent) searched the CI and his or her vehicle for money and contraband. Finding none, Van Wagoner gave the CI county funds, accompanied the CI to the residence of the UI, and watched as the CI knocked on the front door and made contact with the UI. Van Wagoner watched the UI exit the residence and get into the CI's car, and he followed the UI to 1127 East 9430 South.¹ Van Wagoner watched the UI exit the vehicle, initiate contact with an occupant of the residence, and enter the residence. After approximately twenty minutes, Van Wagoner watched the UI exit the suspect residence and get into the vehicle, followed the UI back to his or her home, and watched the UI enter his or her home. Van Wagoner then watched the CI exit the UI's home. Van Wagoner followed the CI to a prearranged location, where the CI handed Van Wagoner a quantity of suspected methamphetamine and said that he or she had "purchased it from [Defendant] through the unwitting." Van Wagoner again searched the CI for money and contraband and found nothing. Van Wagoner later field tested the substance to verify that it was, in fact, methamphetamine.

Following the two controlled purchases, Van Wagoner conducted several brief surveillances of the suspect residence, each of which lasted for approximately thirty minutes. He noticed during these surveillances that several people arrived and stayed for a short period of time. During his surveillance, he stayed a distance away from the residence because the CI had informed him that Defendant kept surveillance cameras outside his residence. Based on his training and experience, Van Wagoner found the activity he observed indicative of narcotics distribution.

Van Wagoner prepared an affidavit for a search warrant which relayed all of this information. Van Wagoner also indicated in the affidavit that the CI was an admitted narcotics user and that the CI had given Van Wagoner some details about the pricing, packaging, and effects of methamphetamine, which convinced Van Wagoner that the CI was knowledgeable about such things. Van Wagoner stated in the affidavit that he considered the CI to be reliable because the CI had never been in custody and came forward out of his or her concern for the safety of the community.

A warrant for the search of Defendant's home was issued based on Van Wagoner's affidavit.² Officers conducted a search of Defendant's home pursuant to that warrant. They discovered and seized drug paraphernalia and quantities of marijuana and methamphetamine. They also discovered and seized a short barrel shotgun and a variety of other firearms. Based on this evidence, Defendant was charged with possession of a short barrel shotgun in violation of 26 U.S.C. §§ 5861(d) and 5871. Defendant moved to suppress the evidence. The district court granted that motion, holding that the warrant was not supported by probable cause and that the Leon good faith exception did not apply. The government timely filed this appeal.

DISCUSSION

A. Probable Cause

1. Standards of Review

A magistrate judge's task in determining whether probable cause exists to support a search warrant "is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, 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, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). "Finely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate's decision." Id. at 235, 103 S.Ct. 2317.

A magistrate judge's decision to issue a warrant is entitled to "great deference." Id. at 236, 103 S.Ct. 2317; United States v. Tuter, 240 F.3d 1292, 1295 (10th Cir.2001). Accordingly, we need only ask whether, under the totality of the circumstances presented in the affidavit, the magistrate judge had a "substantial basis" for determining that probable cause existed. Gates, 462 U.S. at 238-39, 103 S.Ct. 2317; Tuter, 240 F.3d at 1295.

We review de novo the district court's determination of probable cause and review its findings of historical fact for clear error. Tuter, 240 F.3d at 1295.

2. Analysis

In Illinois v. Gates, the Supreme Court adopted a "totality of the circumstances" test to determine when information from an anonymous or confidential informant can establish probable cause. 462 U.S. at 238, 103 S.Ct. 2317; accord Tuter, 240 F.3d at 1295. The Court explained that an informant's "veracity, reliability, and basis of knowledge are all highly relevant in determining the value of his report." Gates, 462 U.S. at 230, 103 S.Ct. 2317 (internal quotations omitted). However, "a deficiency in one [factor] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Id. at 233, 103 S.Ct. 2317. Specifically, "[w]hen there is sufficient independent corroboration of an informant's information, there is no need to establish the veracity of the informant." United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir.2000).

We conclude in this case that the information contained in the search warrant affidavit sufficiently corroborated the confidential informant's tip. We address each of the corroborating items of evidence in turn.

a. The Controlled Purchases

A tip from an anonymous or confidential informant that narcotics are being distributed at a particular location may be corroborated through the arrangement of a controlled purchase at the suspect location. The common formalities observed by police officers when conducting such controlled purchases are as follows: the police search the informant (and his vehicle, if appropriate) for money and contraband prior to the buy; give the informant money with which to purchase the narcotics;³ transport the informant to the suspect residence (or follow the informant to the residence); watch the informant enter the suspect residence, disappear while inside the suspect residence, and emerge from the suspect residence; search the informant upon exiting the suspect residence; and receive the narcotics from the informant. See, e.g., Avery, 295 F.3d at 1165; Cook, 949 F.2d at 292; United States v. Wood, 695 F.2d 459, 463 (10th Cir.1982); United States v. Pinson, 321 F.3d 558, 560-61 (6th Cir.2003), cert. denied, 540 U.S. 912, 124 S.Ct. 292, 157 L.Ed.2d 203 (2003); United States v. Pennington, 287 F.3d 739, 742 (8th Cir.2002); United States v. Genao, 281 F.3d 305, 307 (1st Cir.2002); United States v. McKinney, 143 F.3d 325, 327 (7th Cir.1998); United States v. Gibson, 123 F.3d 1121, 1123 (8th Cir.1997); United States v. Beck, 122 F.3d 676, 678 (8th Cir.1997); United States v. Khounsavanh, 113 F.3d 279, 282 (1st Cir.1997); United States v. Smith, 9 F.3d 1007, 1009 (2d Cir.1993); United States v. Harper, 802 F.2d 115, 120 (5th Cir.1986); United States v. Rodgers, 732 F.2d 625,...