US v. Basham

• Decision Date: 22 October 2001
• Docket Number: No. 01-5016,01-5016
• Citation: 268 F.3d 1199
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHNNY RAY BASHAM, also known as Johnny Bashum, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1199

268 F.3d 1199 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHNNY RAY BASHAM, also known as Johnny Bashum, Defendant-Appellant.

No. 01-5016

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

October 22, 2001

Appeal from United States District Court for the Northern District of Oklahoma (D.C. No. 00-CR-107-K) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] R. Thomas Seymour, Tulsa, Oklahoma (Paul D. Brunton and Gina Cowley Crabtree, Tulsa, Oklahoma, on the brief), for the appellant.

Timothy L. Faerber, Assistant United States Attorney (Thomas Scott Woodward, United States Attorney, with him on the brief), Tulsa, Oklahoma, for the appellee.

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

BRISCOE, Circuit Judge.

Defendant Johnny Ray Basham appeals the denial of his motion to suppress and his subsequent convictions for possession with intent to distribute methamphetamine in violation of 21 U.S.C. 841(a)(1) and 21 U.S.C. 841(b)(1)(C), possession of a firearm during a drug trafficking crime in violation of 18 U.S.C. 924(c), and possession of firearm after former conviction of a felony in violation of 18 U.S.C. 922(g)(1) and 18 U.S.C. 924(e)(1). He contends that the evidence discovered during the search of his residence should have been suppressed because the search warrant was invalid, in that the magistrate issuing the warrant failed to inquire as to the method by which it was to be executed, and the warrant itself was based on omission, misrepresentation and stale information. He further contends that the district court erred in its instruction to the jury with regard to the crime of possession of a firearm in furtherance of a drug trafficking crime. Our jurisdiction is pursuant to 28 U.S.C. 1291. We affirm the district court's denial of the motion to suppress and affirm Basham's convictions.

I.

On April 20, 2000, Officer Brian Comfort of the Tulsa Police Department presented an affidavit for a search warrant of Basham's residence in which he detailed that he had witnessed a confidential informant purchase methamphetamine at Basham's residence within the past 72 hours, and that the confidential informant had informed him that the methamphetamine had been purchased directly from Basham and Basham had other methamphetamine packaged for sale.

In addition, Comfort referenced a prior search warrant affidavit submitted on August 20, 1999, which detailed the dangerous nature of Basham. A search warrant had been issued based on the earlier affidavit, but had not been executed. Comfort stated that, in the earlier affidavit, information was related that Basham had been observed carrying a sawed-off shotgun at the front door of the residence, was very paranoid and violent toward visitors, was a frequent methamphetamine user, and had stated that he would not go back to prison at any cost.

Comfort further stated in his affidavit that Basham had a "lengthy criminal history," was an "[e]x-con," and "had numerous weapon and assault charges." Aplt. App. at 17. Based on the information regarding Basham, Comfort requested and was eventually issued a no-knock warrant in order to protect the safety of the officers executing the warrant. The warrant was executed by members of the Tulsa Police Department's Special Operations Team (SOT), and involved 31 to 33 officers and an armored personnel carrier. The SOT breached the front window of the residence, used a flash and sound diversionary device, and secured the residence without incident. The execution of the search warrant was taped by a local television station.

Eleven baggies of methamphetamine were discovered in the garage of the residence along with other items of paraphernalia. In a tool box next to where the drugs were found, police discovered an unloaded handgun. Two additional handguns, one of which was inoperable, were found on some shelving five to ten feet from the drugs. A shoulder holster was found in the metal filing cabinet containing the drug paraphernalia. The garage also contained surveillance monitors, a police scanner, and an electronic "bug detector."

II.

Prior to trial, Basham filed a motion to suppress the evidence obtained during the search of his house. The district court denied the motion.

When reviewing a district court's denial of a motion to suppress, this court accepts the district court's factual findings unless they are clearly erroneous, viewing the evidence in the light most favorable to the government. However, the ultimate determination of reasonableness under the Fourth Amendment is a question of law and is reviewed de novo under the totality of the circumstances. United States v. Green, 178 F.3d 1099, 1104 (10th Cir. 1999).

In determining whether a search warrant is supported by probable cause, this court reviews the sufficiency of the affidavit upon which a warrant is issued by looking at the totality of the circumstances and ensuring "that the magistrate had a substantial basis for concluding that probable cause existed." United States v. Tisdale, 248 F.3d 964, 970 (10th Cir. 2001). Probable cause to issue a search warrant exists only when the supporting affidavit sets forth facts that would lead a prudent person to believe there is a fair probability that contraband or evidence of a crime will be found in a particular place. See United States v. Wicks, 995 F.2d 964, 972-73 (10th Cir. 1993). To justify a no-knock entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime. Richards v. Wisconsin, 520 U.S. 385, 394 (1997).

Means of execution of warrant

Basham first contends that the district court should have suppressed the evidence because the magistrate failed to inquire as to the means by which the warrant was to be executed. He argues that, in situations where a no-knock warrant is requested, the magistrate has an independent duty to inquire as to the means by which service is to be executed in order to protect public safety, including the safety of any minor children.

Basham presents no authority for this proposition. In Dalia v. United States, 441 U.S. 238, 256-59 (1979), the United States Supreme Court rejected the contention that an order allowing a wire intercept violated the Fourth Amendment because it did not specify the means by which the intercept would be installed. The Court stated that "it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant, subject of course to the general Fourth Amendment protection 'against unreasonable searches and seizures.'" Id. at 257. The Court reasoned that it is often impossible to anticipate what actions will be necessary in serving a warrant, and further noted that "[n]othing in the decisions of this Court . . . indicates that officers requesting a warrant would be constitutionally required to set forth the anticipated means for execution even in those cases where they know beforehand that unannounced or forced entry likely will be necessary." Id., n. 19.

To be sure, the officers' discretion regarding the method of execution is not without limitation, but instead must be exercised within statutory and constitutional limitations. United States v. Stewart, 867 F.2d 581, 583 (10th Cir. 1989). In United States v. Ramirez, 523 U.S. 65, 71 (1998), the Court stated that the "general touchstone of reasonableness which governs Fourth Amendment analysis" also governs the execution of a search warrant, and that excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment. However, this is an entirely different matter than the question of whether the warrant itself is valid. In Ramirez, the Court held that such excessive or unnecessary destruction does not impact the lawfulness of the entry because it has no relation to whether the "reasonable suspicion" necessary to justify a no-knock warrant exists. See 523 U.S. at 70-71.

We conclude, consistent with Dalia and Ramirez, that there is no duty on the part of the magistrate to inquire as to the method by which a warrant will be executed, and that the failure of a magistrate to so inquire provides no basis for suppression of the evidence obtained during the search.

Warrant product of misrepresentation and stale information

Basham next argues that the warrant was invalid because it was the product of misrepresentation and stale information. He argues that Officer Comfort intentionally withheld relevant information in his affidavit and misrepresented Basham's criminal record.

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. Franks v. Delaware, 438 U.S. 154, 171-72 (1978.) 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. Id. at 171-72. This prohibition likewise applies to intentional or reckless omissions of material facts, which, if included, would vitiate probable cause. Stewart v. Donges, 915 F.2d 572, 581-83 (10th Cir. 1990). In a case where the defendant alleges information was intentionally omitted from an affidavit, the existence of probable cause is determined by examining the affidavit as if the omitted information had been included and determining whether the affidavit would still give rise to probable cause. Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996).

Basham contends that Officer Comfort intentionally withheld information that the media would be present during the execution of the warrant and that the SOT was planning a high-risk execution of the warrant at a time...