United States v. Augustine

• Decision Date: 19 February 2014
• Docket Number: No. 12–3269.,12–3269.
• Citation: 742 F.3d 1258
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Dennis AUGUSTINE, Defendant–Appellant.

742 F.3d 1258

UNITED STATES of America, Plaintiff–Appellee,

v.Dennis AUGUSTINE, Defendant–Appellant.

No. 12–3269.

United States Court of Appeals, Tenth Circuit.

Feb. 19, 2014.

Ann Marie Taliaferro of Brown Bradshaw & Moffat, LLP, Salt Lake City, UT, for Defendant–Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Topeka, KS, for Plaintiff–Appellee.

Before LUCERO, McKAY, and MATHESON, Circuit Judges.

McKAY, Circuit Judge.

Defendant Dennis Augustine was convicted on two counts of conspiracy to distribute methamphetamine. Prior to trial, he filed two separate motions to suppress evidence. The first motion was to quash a warrant to search Defendant's residence and to suppress evidence found in that search which led directly to his arrest. The second motion was to suppress Defendant's statements to law enforcement officials after his arrest. The district court issued a memorandum and order denying both motions. It denied the motion to quash and suppress evidence found in the search of Defendant's residence by applying the good-faith exception to the exclusionary rule, declining to reach a determination regarding whether probable cause existed to search the residence. The district court denied the motion to suppress Defendant's statements based on its factual findings regarding the circumstances of Defendant's interrogation. After the subsequent trial, the jury found Defendant guilty on both counts of conspiracy. On appeal, we consider the denial of both motions, starting with the motion relating to the search of Defendant's residence.

In appealing the denial of his motion regarding the search of his residence, Defendant challenges the district court's application of the good-faith exception to the exclusionary rule and renews his claim that the affidavit supporting the search warrant was insufficient to show probable cause to search his residence. The following evidence was submitted in the affidavit to the state court judge who issued the warrant.

In November 2011, the Salina/Saline County Drug Task Force began conducting an investigation into drug trafficking activity in Saline County, Kansas. The investigation identified an individual named Kevin Ashcraft as a distributor of methamphetamine in the county. A wire tap on Mr. Ashcraft's telephone allowed investigators to determine that another individual named Lisandro Clara–Fernandez was Mr. Ashcraft's supplier.

A “pen register/telephone ping order” was subsequently acquired for a telephone number being used by Mr. Clara–Fernandez. (Appellant's Opening Br., App. C at 8 (capitalization standardized).) With this order, investigators began “pinging” Mr. Clara–Fernandez's telephone to track his geographical location. ( Id. at 8–9 (capitalization standardized).) Through a combination of physical surveillance and telephone pinging, investigators established that, in addition to meeting with Mr. Ashcraft, Mr. Clara–Fernandez had parked his car outside a residence at 904 North Tenth Street on two different occasions—once in front of the residence, and a second time behind the residence where investigators witnessed Mr. Clara–Fernandez conversing with an unidentified white male.

Eventually, investigators arranged for surveillance of a drug transaction between Mr. Ashcraft and Mr. Clara–Fernandez. Upon witnessing the transaction, law enforcementofficials arrested Mr. Ashcraft and Mr. Clara–Fernandez. When asked during an interview subsequent to his arrest whether he knew of anyone else in Salina whom Mr. Clara–Fernandez would be supplying with drugs, Mr. Ashcraft replied, “Dennis Augustine on North Tenth Street.” ( Id. at 13 (capitalization standardized).) Mr. Ashcraft further stated he and Defendant had a mutual acquaintance who had introduced them to Mr. Clara–Fernandez. When asked if Mr. Clara–Fernandez had any reason to visit Defendant's residence, Mr. Ashcraft answered, “Just to drop off to him.” ( Id.) A subsequent computer check for 904 North Tenth Street indicated Defendant had active water service at that address.

The affidavit also included information concerning Defendant's criminal history, particularly mentioning Defendant was previously convicted for a drug-related crime in the 1990s. Additionally, it included information regarding the training and experience in drug investigations of the affiant, who was a lieutenant in the Salina Police Department. Finally, the affidavit included statements regarding the affiant's knowledge of certain behaviors common among drug dealers, including their tendency to secrete contraband, proceeds of drug sales and records of their transactions within their residences, and their tendency to possess paraphernalia used in weighing and packaging controlled substances.

“In reviewing the denial of a motion to suppress, this court views the evidence in the light most favorable to the government and upholds the district court's factual findings unless clearly erroneous.” United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir.2000). However, “[d]eterminations relating to the sufficiency of a search warrant and the applicability of the good-faith exception are conclusions of law ... which this court reviews de novo.” Id. Because the district court did not make a decision regarding whether probable cause existed to search Defendant's residence, we begin, like the district court, with the question of the applicability of the good-faith exception to the exclusionary rule.

Under the good-faith exception to the exclusionary rule, “[i]f a warrant is not supported by probable cause, the evidence seized pursuant to the warrant need not be suppressed if the executing officer acted with an objective good-faith belief that the warrant was properly issued by a neutral magistrate.” United States v. Campbell, 603 F.3d 1218, 1225 (10th Cir.2010) (internal quotation marks omitted). An executing officer is generally presumed to be acting in good-faith reliance upon a warrant. Id. at 1230. However, this presumption is not absolute. There are four situations in which the presumption of good faith and, consequently, the good-faith exception to the exclusionary rule do not apply: (1) when “the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known was false if not for his ‘reckless disregard of the truth’ ”; (2) when the “ ‘issuing magistrate wholly abandon[s her] judicial role’ ”; (3) when “the affidavit in support of the warrant is ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable’ ”; and (4) when “a warrant is so facially deficient that the executing officer could not reasonably believe it was valid.” Danhauer, 229 F.3d at 1007 (quoting United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)) (alteration in original). Here, Defendant argues the good-faith exception to the exclusionary rule does not apply to the execution of the warrant to search Defendant's residence because “the affidavitin support of the warrant [was] ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” Id. (quoting Leon, 468 U.S. at 923, 104 S.Ct. 3430).

“[G]ood faith may exist when a minimal nexus between the place to be searched and the suspected criminal activity is established.” United States v. Gonzales, 399 F.3d 1225, 1231 (10th Cir.2005). An officer's reliance on a warrant is not reasonable when the underlying documents are “devoid of factual support.” Campbell, 603 F.3d at 1230. However, the “minimal nexus requirement does not require that hard evidence or personal knowledge of illegal activity link a Defendant's suspected unlawful activity to his home.” Id. at 1231 (internal quotation marks omitted). “On the contrary, an affidavit establishes a sufficient nexus when it describes circumstances which would warrant a person of reasonable caution in the belief that the articles sought are at a particular place.” Id. (internal quotations marks omitted). In this case, we cannot agree with Defendant that the affidavit was so lacking in indicia of probable cause and so devoid of factual support as to prevent application of the good-faith exception to the exclusionary rule. Indeed, the affidavit readily satisfies the minimal nexus requirement.

The information in the affidavit indicated Defendant was receiving drugs from Mr. Clara–Fernandez, whose asserted status as a drug supplier was corroborated by information in the affidavit. The information linking Defendant to Mr. Clara–Fernandez came from Mr. Ashcraft, a known informant, who could be held accountable if his allegations against Defendant proved to be untrue. Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (stating that when the identities of informants are known, their “reputation[s] can be assessed and [they] can be held responsible if [their] allegations turn out to be fabricated”). Mr. Ashcraft made statements against his own penal interest by admitting to drug transactions beyond those of which law enforcement had knowledge, thereby further bolstering his credibility. See United States v. Allen, 297 F.3d 790, 794 (8th Cir.2002) (indicating that an informant's credibility was enhanced because “his statements were against penal interest”). Furthermore, the affidavit showed that relevant details provided by Mr. Ashcraft were corroborated by the police. For instance, the affidavit demonstrated that police corroborated Mr. Ashcraft's claim that Defendant lived on North Tenth Street. The affidavit also showed that police observed Mr. Clara–Fernandez at Defendant's residence on two separate occasions. See id. (stating that an informant's credibility was established when “his statements were against his penal interest and ... the police were able to corroborate some of the information he provided”)....