United States v. Pulliam

• Decision Date: 08 April 2014
• Docket Number: No. 13–1026.,13–1026.
• Citation: 748 F.3d 967
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Keith Scott PULLIAM, a/k/a Keith Scott Drew, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

748 F.3d 967

UNITED STATES of America, Plaintiff–Appellee,

v.Keith Scott PULLIAM, a/k/a Keith Scott Drew, Defendant–Appellant.

No. 13–1026.

United States Court of Appeals,

Tenth Circuit.

April 8, 2014.

Submitted on the briefs: Boston H. Stanton, Jr., Attorney at Law, Denver, CO, for Defendant–Appellant.

John F. Walsh, United States Attorney, James C. Murphy and Kurt J. Bohn, Assistant U.S. Attorneys, Denver, CO, for Plaintiff–Appellee.

Before BRISCOE Chief Judge, O'BRIEN, and PHILLIPS, Circuit Judges.

O'BRIEN, Circuit Judge.

Keith Scott Pulliam was indicted on charges of being a felon in possession of a firearm and being an armed career criminal. He moved to suppress the fruits—several firearms—of a search of his home. Pertinent to this appeal, he claimed the application for the search warrant, issued by a state court judge, did not demonstrate probable cause and the search by state officers was unreasonably executed. After the district judge denied his suppression motion he pled guilty under a plea agreement, which reserved his right to appeal from the denial. The judge accepted the plea and sentenced Pulliam to imprisonment for 75 months. Exercising his reserved right, Pulliam now brings this appeal. We affirm.

BACKGROUND

Colorado police officers executed the search warrant issued by a Colorado state court judge. After the search was complete, they left the warrant itself and an inventory of the property taken. The inventory was hand written on the back of the warrant. The officers did not leave the attachments to the warrant: the affidavit submitted to obtain the warrant (Attachment A) or the list of items to be seized. (Attachment B).¹

DISCUSSION

Pulliam contends the evidence from the search should be suppressed because (1) the search warrant was issued without a showing of probable cause; (2) the warrant lacked the particularity required by the Fourth Amendment; and (3) police failed to give him a complete copy of the search warrant as required under Fed.R.Crim.P. 41(f) and the terms of the warrant.

“[T]he ultimate determination of reasonableness under the Fourth Amendment is a question of law,” an issue we review de novo. United States v. Basham, 268 F.3d 1199, 1203 (10th Cir.2001). However, as part of our de novo review, we “accept[ ] the district court's factual findings unless they are clearly erroneous” and “view[ ] the evidence in the light most favorable to the government.” Id. “A finding of fact is ‘clearly erroneous' if it is without factual support in the record or if the appellate court, after reviewing all the evidence, is left with a definite and firm conviction that a mistake has been made.” Manning v. United States, 146 F.3d 808, 812 (10th Cir.1998). We “must uphold any district court finding that is permissible in light of the evidence.” Id. at 813.

A. Constitutional Issues

1. Probable Cause

Pulliam argues the warrant application was deficient because it contained unreliable and uncorroborated statements from an informant who was untested and dishonest. In Pulliam's view, these statements failed to establish probable cause to search. The district judge disagreed; so do we.

Although our review of the district judge's analysis of the validity of the warrant is de novo, both this Court and the district court must accord “great deference” to the probable-cause assessment of the state court judge who issued the warrant. United States v. Biglow, 562 F.3d 1272, 1280–81 (10th Cir.2009). Our review is limited to “ensur[ing] the Government's affidavit provided a substantial basis” for the issuance of the warrant. Id. at 1281 (quotation marks omitted). Accordingly, even in a “doubtful or marginal case,” we defer “to the [magistrate's] determination of probable cause.” Id. at 1282.

Probable cause refers to “a probability or substantial chance of criminal activity,” id. at 1281, based on the “ ‘commonsense’ [and] ‘practical considerations of everyday life.’ ” Id. at 1281 (quoting Illinois v. Gates, 462 U.S. 213, 230–31, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). When assessing probable cause, we look to the totality of the circumstances as detailed in the affidavit accompanying the application for the search warrant. Gates, 462 U.S. at 230, 103 S.Ct. 2317;see id. at 236, 103 S.Ct. 2317.

To the extent the application relies on the statements of an informant, we pay close attention to the veracity, reliability, and basis of knowledge of the informant about the target of the proposed search. Id. at 230, 103 S.Ct. 2317. Here, the affidavit supporting the application for the warrant was based on the statements of an informant who demonstrated sufficient veracity, reliability, and basis of knowledge. As the district judge noted, the identity of the informant, Andre Herring, was known to the police at the time he made his statements.² Police encountered him as a suspect in a burglary. In addition to taking police to his own home to recover stolen property, he volunteered to provide information about the others involved in the burglary in return for lenience. Based on his assertions that stolen property could be found at a particular address, police searched the location and discovered the items, just as Herring had predicted. Herring was released to uncover more information about the stolen items. When he returned, he gave the police another address where stolen items could be found. When the police searched this address, they again discovered stolen property. Later, Herring told officers a revolver from another burglary could be found at Pulliam's residence. The affidavit for the warrant named Herring as the informant and described how his tips had reliably led police to contraband in the past. As regards to information specifically pertaining to Pulliam, the affidavit also set forth the basis for Herring's personal knowledge of Pulliam's possession of guns. The affidavit included Herring's detailed description of his sale of a handgun to Pulliam and that he had witnessed Pulliam in possession of firearms on several occasions. The issuing judge obviously considered Herring's statements sufficiently reliable for a search warrant. The reviewing district judge concluded they gave the issuing judge a substantial basis, see Biglow, 562 F.3d at 1280–81, to conclude there was probable cause to search Pulliam's home. See Florida v. J.L., 529 U.S. 266, 271, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (corroboration allows police to “test the informant's knowledge [and] credibility” therebyensuring reliability); see also United States v. Hauk, 412 F.3d 1179, 1188 (10th Cir.2005) (discussing the special concerns attendant to the statements whose identity is not known). Indeed, under these circumstances, Pulliam's characterization of Herring as “new” and “untested” is unwarranted. (Appellant Br. 11.) We see no error.

2. Particularity

Pulliam's argument that the warrant violated the Fourth Amendment's particularity requirement has two prongs: (1) the warrant did not sufficiently (particularly) describe the items to be seized, and (2) the copy of the warrant given to him impermissibly omitted the attachment containing the list of places to be searched and items to be seized.

The Fourth Amendment requires warrants to “particularly describ[e] the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV. The Fourth Amendment's “particularity requirement ensures that a search is confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause.” Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir.1985). “A description is sufficiently particular when it enables the searcher to reasonably ascertain and identify the things authorized to be seized.” United States v. Riccardi, 405 F.3d 852, 862 (10th Cir.2005) (citation omitted). “[A] warrant that describes the items to be seized in broad or generic terms may be valid when the description is as specific as the circumstances and the nature of the activity under investigation permit.” Id. (citation omitted). And the warrant may cross-reference other documents, such as the affidavit in support of the application, to satisfy the particularity requirement. United States v. Cooper, 654 F.3d 1104, 1126 (10th Cir.2011).

Here, the warrant to search Pulliam's home expressly referred to Attachment B to describe the targets of the search. Attachment B detailed the following targets:

1. Any and all firearms and ammunition.

2. Any and all firearm manufacturer packing materials receipts and transfer documents.

3. All items of indicia for proof of ownership and occupancy for the address identified as 1935 Carmel Dr 103, which is located in the City of Colorado Springs, County of El Paso and State of Colorado is a first floor apartment within a multi-family dwelling....

(R. Vol. 1 at 48.) The district judge concluded Attachment B was sufficiently particular “because defendant is a convicted felon ... [m]eaning that any and all firearms he possesses constitute a crime.” (R. Vol. 2 at 148 (quotation marks omitted).) We agree. The police knew of Pulliam's felony conviction when they sought the warrant and disclosed his status to the state court judge in their application for the search warrant. Since Pulliam was a felon, and both the police and the issuing judge knew it, any guns in his possession were contraband. No specific description of a gun was necessary.

Pulliam also claims the copy of the warrant provided to him after the search violated the Fourth Amendment's particularity requirements because it lacked “Attachment B,” which particularly described the items to be seized. According to him, disclosure is necessary to allow the person or persons targeted by the warrant to ensure police adhere to the scope of the searches and seizures identified in the warrant. In support he cites Ramirez v. Butte–Silver Bow County, 298 F.3d 1022, 1026–27 (9th Cir.2002), where the Ninth Circuit endorsed this rationale....