U.S. v. Mathis, No. 02-7138.

• Decision Date: 11 February 2004
• Docket Number: No. 02-7138.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Douglas Victor MATHIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

357 F.3d 1200

UNITED STATES of America, Plaintiff-Appellee, v. Douglas Victor MATHIS, Defendant-Appellant.

No. 02-7138.

United States Court of Appeals, Tenth Circuit.

February 11, 2004.

COPYRIGHT MATERIAL OMITTED

Jeffrey A. Gallant (Sheldon J. Sperling, United States Attorney, with him on the brief), Assistant United States Attorney for the Plaintiff-Appellee.

Eddie Christian, Jr., (Dan George, Sallisaw, Oklahoma with him on the briefs), Fort Smith, Arkansas for the Defendant-Appellant.

Before KELLY, LUCERO, and McKAY, Circuit Judges.

LUCERO, Circuit Judge.

At issue in this case are several claims of error regarding the issuance of a search warrant, which include the sufficiency and reliability of an affidavit containing multiple layers of hearsay as a basis for the search warrant. The district court rejected the defendant's arguments, including that the warrant improperly relied upon unreliable and stale hearsay, and found instead that the magistrate had a substantial basis to find probable cause to issue a warrant to search the defendant's residence. We take the district court's position on the issues and, exercising jurisdiction pursuant to 28 U.S.C. § 1291, affirm.

I

On March 9, 2001, a warrant was executed at defendant Douglas Mathis's residence authorizing a search for records and other evidence of his purported illegal activities including distribution of methamphetamine and possession of stolen vehicles. During the execution of the warrant, law enforcement agents observed Mathis run out the back door of the residence and drop a small pouch from his hand; authorities also found drug paraphernalia at the residence. Robert Walden, an investigator for the District Attorney and the affiant for the first search warrant, then requested a second warrant to search Mathis's residence for evidence of possession and distribution of methamphetamine. The second warrant was executed the same day and, as a result of evidence obtained under these warrants, Mathis was arrested.

Mathis was indicted June 13, 2002 by a federal grand jury; the three count indictment charged him with drug and firearms violations, including the manufacture, distribution, and use of methamphetamine. Mathis moved to suppress the evidence obtained pursuant to the two warrants, alleging that the information upon which the magistrate judge relied in issuing the first warrant was stale and based on impermissible hearsay and, therefore, that the warrant issued without probable cause.

Specifically, Mathis alleged that the probable cause supporting the first search warrant rested almost entirely upon information from four confidential cooperating witnesses (CW # 1-4). According to Mathis, the information provided by those cooperating witnesses was stale, inconsistent, and filtered through an unknown number of law enforcement agents before reaching the affiant, Walden. As a result, Mathis claimed the magistrate who issued the warrants had no substantial basis upon which to accept the cooperating witnesses' information, and without such a basis, the first search warrant lacked probable cause. Because the first search warrant was not based on probable cause, Mathis continued, any evidence obtained under the second warrant was tainted and must also be suppressed.

After filing the motion to suppress, Mathis also filed a motion to compel disclosure of the identity of the confidential informants who provided information to Walden. The district court held hearings on both motions and conducted an in camera inspection of documents which revealed the identities of the informants at issue. When the court denied both motions, Mathis conditionally pled guilty to Count Two of the indictment, possession with intent to distribute methamphetamine. He was sentenced to ninety-six months in prison, followed by forty-eight months of supervised release. Mathis appeals to this court, arguing that the district court erred both in denying his motion to suppress the evidence and in denying his motion to reveal the identities of the confidential informants.

II

We consider: (1) whether the first search warrant lacked probable cause due to hearsay and staleness problems such that all evidence obtained under either search warrant should be suppressed, see Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); and (2) if due to alleged inconsistencies between the accounts of two of the cooperating witnesses, the prosecution must reveal the identities of those witnesses to Mathis in order to allow him to mount an effective defense, see Roviaro v. United States, 353 U.S. 53, 61-62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

A

The United States Constitution requires that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation." U.S. Const., amend IV. While the phrase "probable cause" is not self-defining the Supreme Court has described the probable cause inquiry as a "commonsense, practical question" to be informed by the totality of the circumstances present in any particular case. Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Mathis initially argues that the first search warrant lacked probable cause because the affidavit underlying the search warrant was based upon unknown layers of hearsay. The problem, Mathis contends, is that Walden did not receive the information he described in the affidavit from the cooperating witnesses directly; rather, each cooperating witness related his or her tale to other law enforcement agents who then passed along the information to Walden. Mathis claims the magistrate's reliance on Walden's testimony regarding information relayed through multiple layers of hearsay resulted in the issuance of a search warrant unsupported by probable cause.

As Mathis concedes, hearsay evidence may form the basis for a probable cause determination. See, e.g., Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Snow, 919 F.2d 1458, 1460 (10th Cir. 1990). Moreover, we have previously recognized that multiple layers of hearsay may support a finding of probable cause for a search warrant. United States v. $149,442.43 in U.S. Currency, 965 F.2d 868, 874 n. 3 (10th Cir.1992). Despite this clear precedent, Mathis insists that in this case the affiant, Walden, was not sufficiently proximate to the investigation to effectively corroborate the hearsay evidence to which he attested. Mathis reasons that because Walden had not independently verified the information provided by law enforcement agents, and because he did not personally obtain the tips from the cooperating witnesses, he could not personally be aware of, or accountable for, the accuracy of the information contained in his sworn affidavit. Therefore, Mathis urges, Walden's oath was meaningless and as a consequence, the magistrate erred in relying upon the hearsay contained in the affidavit.

To bolster his argument, Mathis points to the Court's discussion in Jones:

In testing the sufficiency of probable cause for an officer's action even without a warrant, we have held that he may rely upon information received through an informant, rather than upon his direct observation, so long as the informant's statement is reasonably corroborated by other matters within the officer's knowledge.

Jones, 362 U.S. at 269, 80 S.Ct. 725. Mathis's reliance on Jones is misplaced. Jones did not require an officer to corroborate information received from an informant through personal observation as Mathis would have us hold. Rather, an officer simply must have knowledge of other matters that reasonably corroborate the informant's statements. Mathis's contention that Walden did not have sufficient personal knowledge of corroborating information thus fails.

Next we consider the argument that because an unknown number of law enforcement agents were involved in transmitting the informant's tips from the witnesses to Walden, the magistrate judge had no basis for determining the reliability (or in one instance, the identity¹) of these links in the hearsay chain, and thus, no substantial basis upon which to conclude the underlying tips were reliable. We restate that multiple layers of hearsay may form the basis of a finding of probable cause. $149,442.43 in U.S. Currency, 965 F.2d at 874 n. 3. Moreover, it is not necessary to reveal the identities of the individuals providing information to the police; hearsay from unknown or unnamed individuals has been recognized as acceptable support for a finding of probable cause. See, e.g., Gates, 462 U.S. at 237-238, 103 S.Ct. 2317 (approving of anonymous citizen tips).

Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964), decided shortly after Jones, also directly undercuts Mathis's argument. In Rugendorf, the defendant, on facts similar to those presently before us, attacked a search warrant as invalid because the affidavit upon which it was based contained hearsay from confidential informants passed to the affiant by other law enforcement agents. 376 U.S. at 529-531, 84 S.Ct. 825. Without explicitly analyzing each of the multiple layers of hearsay present, the Court concluded that a valid probable cause determination requires only a substantial basis to find that evidence of a crime was probably present in the place to be searched. Id. at 533, 84 S.Ct. 825; accord United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (regarding hearsay from police officers: "[o]bservations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number."); Snow, 919 F.2d at 1460 (finding that hearsay evidence from other police officers' informants, bolstered in part with separate corroboration, was sufficient to support probable cause). On these authorities, we reject Mathis's contention that the hearsay evidence in this case was...