US v. Tisdale, 99-3379

• Decision Date: 16 April 2001
• Docket Number: No. 99-3379,99-3379
• Citation: 248 F.3d 964
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRYAN E. TISDALE, Defendant - Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 964

248 F.3d 964 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRYAN E. TISDALE, Defendant - Appellant.

No. 99-3379

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

April 16, 2001

Appeal from the United States District Court for the District of Kansas

(D.C. No. CR-99-10016-01-WEB)

[Copyrighted Material Omitted] Submitted on the briefs: Michael G. Katz, Federal Public Defender, and Vicki Mandell-King, Assistant Federal Public Defender, Denver, Colorado, for Defendant - Appellant.

Jackie N. Williams, United States Attorney, and Nancy Landis Caplinger, Assistant United States Attorney, Topeka, Kansas, for Plaintiff - Appellee.

Before SEYMOUR, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and MILLS, District Judge.^*

MILLS, District Judge.

Plea of guilty to possession of cocaine with intent to distribute.

Sentence: 365 months, consecutive to state sentences.

Issues: denial of motion to suppress and sentence.

I. BACKGROUND

At approximately 2:11 a.m., on July 25, 1998, Wichita police officers were dispatched to the scene of an attempted burglary/robbery at 1645 North Hydraulic, Wichita, Kansas. Upon arrival, Wichita police officer Donna-Jean Buckman observed Bryan E. Tisdale lying on the ground between the two residences located at 1645 North Hydraulic and 1651 North Hydraulic.¹ Tisdale's white 1992 Nissan Maxima was parked in the driveway between the two houses.

Tisdale had been shot in his back and in his leg. Officer Buckman asked Tisdale what had happened, and Tisdale responded that he had heard a noise outside of his house, and when he went to investigate, he was shot. When asked who had shot him, Tisdale pointed to Donnell Mike Harrell who was lying dead next to the Maxima.² Due to the number of shell casings scattered around the area, Officer Buckman asked Tisdale where the other gun was. Because he was on probation for some state court convictions, Tisdale initially told her that he did not have a gun, but later, he informed Officer Buckman that he gave the gun which he had used to kill Harrell to his neighbor David Howard who resides at 1651 Hydraulic.³

Accordingly, Wichita police officer Paul Kimble questioned Howard about the gun which Tisdale had used to kill Harrell. Howard informed Officer Kimble that he had found Tisdale injured and lying in the yard and that a bag of cocaine and a gun were located approximately four feet from Tisdale. Howard stated that Tisdale asked him to hide the gun and the cocaine, and he obliged.

After the police had recovered the gun from inside Howard's house and due to the bullet holes in Tisdale's house, the officers made a protective sweep of Tisdale's residence in order to determine whether any other victims or persons were in the house. The police did not find anyone in Tisdale's house, nor did they find any contraband or any other evidence of a crime.⁴

Meanwhile, Officer Sarah Hamilton, who was also at the scene, interviewed Tisdale's live-in girlfriend, Laketha Lee. Lee told Officer Hamilton that she had been about two blocks away at a friend's house when the shooting occurred but that she had spoken with Tisdale on the telephone shortly before the shooting. Lee stated that Tisdale told her that he had heard a noise outside and that, when he went to investigate, he had found the trunk of his car open.⁵ Later, Detective Christopher Moore interviewed Lee at the police station. Lee also advised Detective Moore that Tisdale had told her that he had found the trunk of his car open. However, Lee never specifically stated to which of Tisdale's cars he was referring; Detective Moore merely assumed that Tisdale was referring to his Maxima.⁶

A few hours later that same day, the police sought and obtained a search warrant for Tisdale's residence and for his Nissan Maxima.⁷ When the warrant was executed, the police recovered a large quantity of crack cocaine packaged in two-ounce, one-ounce, and quarter-ounce packages located in the trunk of Tisdale's Maxima. In addition, the police discovered a quantity of crack cocaine in a box and in a whiskey container in Tisdale's bedroom. In all, the police found a total of 936.79 grams of crack cocaine, the majority of which was located in Tisdale's Maxima.

On March 3, 1999, a federal grand jury indicted Tisdale. Count I charged him with knowingly and intentionally possessing with the intent to distribute cocaine base in violation of 21 U.S.C. 841(a)(1); Count II charged him with unlawfully carrying or using a firearm during and in relation to a drug offense in violation of 18 U.S.C. 924(c)(1); and Count III charged him with being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). Tisdale filed two motions to suppress with the district court which were each denied on September 7, 1999, after the district court conducted an evidentiary hearing.⁸

On September 10, 1999, Tisdale entered into a plea agreement whereby he pleaded guilty to Count I of the indictment, reserving the right to appeal the district court's denial of his motions to suppress. In exchange for his plea, the Government agreed to move to dismiss Counts II and III of the indictment and to withdraw its 21 U.S.C. 851(a) notice of Tisdale's three prior felonies. On November 18, 1999, the district court sentenced Tisdale to 365 months of imprisonment. Tisdale has now filed the instant appeal challenging the district court's denial of his suppression motion and the district court's calculation of his sentence under the United States Sentencing Guidelines.

II. ANALYSIS

A. MOTION TO SUPPRESS

Tisdale argues that Sergeant Allen's application and affidavit, which he submitted to Judge Owens in support of his request for a search warrant for Tisdale's Maxima and residence, failed to demonstrate probable cause for the issuance of the warrant because there was no basis to assume that he possessed other guns or drugs or that any other such items would be found in his house or car. Specifically, Tisdale asserts that there was no basis for the search warrant because he had told the police that nothing was missing from his vehicle, because the fact that he had possessed and used his girlfriend's gun does not lead to the logical conclusion that he kept other guns in his home, and that the discovery of a minuscule amount of cocaine (i.e., an amount appropriate for personal consumption) does not logically lead to the conclusion that he maintained other quantities (i.e., an amount appropriate for distribution) of cocaine in his car or house. Moreover, Tisdale claims that Judge Owens' determination of probable cause is undermined by the fact that the police officers conducted a protective search of his house but uncovered no drugs or firearms.

Furthermore, Tisdale argues that the district court erred in concluding that the good faith exception applied to the Fourth Amendment's exclusionary rule. Tisdale contends that the good faith exception does not apply: (1) because the warrant is based upon an affidavit which is facially lacking any indicia of probable cause, (2) because Sergeant Allen recklessly included false information regarding which car was the object of Harrell's attempted theft (the application for the search warrant identified the Maxima, but Tisdale claims that the evidence establishes that Harrell was after his Buick Regal), and (3) because Sergeant Allen omitted the significant fact that the officers had previously performed a protective sweep of his house without discovering any drugs, weapons, or contraband. Tisdale also contends that the good faith exception should not apply because Officer Harris recklessly failed to communicate the information which he had received from Smith that Tisdale was referring to his Buick Regal's trunk as being opened, not his Maxima. In short, Tisdale argues that, when the application for the search warrant is stripped of all irrelevant information, the affidavit is merely "a bare bones" application which was insufficient to establish probable cause for issuing the search warrant. Accordingly, Tisdale asserts that the district court erred in denying his motion to suppress.

The Government argues that the search warrant was supported by probable cause. The Government asserts that the affidavit recited many of the factual events which occurred on the night of the shooting, including the fact that Harrell lay dead immediately next to the trunk of Tisdale's Maxima, the fact that shell casings were found near Tisdale's house and Maxima, the fact that bullet holes were found in the exterior of Tisdale's house, the fact that Tisdale had exited his house with a gun in his hand, and the fact that Tisdale gave the gun and a bag of crack cocaine to his neighbor to hide. Based upon this and the other facts contained within Sergeant Allen's application, the Government claims that Judge Owens had a substantial basis for concluding that the application and affidavit established probable cause, i.e., a basis to believe that there was a fair probability that contraband or evidence of a crime would be found in Tisdale's house and/or Maxima, thereby justifying the issuance of the search warrant for both. Therefore, the Government claims that the district court did not err in denying Tisdale's motion to suppress.

Alternatively, the Government contends that the law enforcement officers' reliance upon Judge Owen's probable cause determination was objectively reasonable, and thus, the good faith exception applies. Moreover, the Government claims that, as discussed supra, Sergeant Allen's affidavit is not a "bare bones" application. Finally, the Government argues that it is clear that the Maxima was the subject of the robbery and that any failure by Officer Harris to communicate any information to the other officers was merely inadvertent. In short, the Government asserts that the application for the search warrant contained no intentional or reckless misstatements, nor did it contain any material...