F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 22 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-5016
JOHNNY RAY BASHAM, also known as
Johnny Bashum,
Defendant-Appellant.
Appeal from United States District Court
for the Northern District of Oklahoma
(D.C. No. 00-CR-107-K)
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
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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
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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
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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
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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
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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 when there would be minor
children in the home. However, as stated above, the method employed to execute a
search warrant is not relevant to the questions of whether there was probable cause to
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issue the warrant or whether there was a showing of reasonable suspicion sufficient to
justify a no-knock warrant. See Ramirez, 523 U.S. at 71. Had information pertaining to
the presence of children and a television crew been included in the warrant, probable
cause would still exist, and there still would have been a reasonable suspicion that
knocking and announcing would have been dangerous, futile, or destructive to the
purposes of the investigation.
With regard to allegedly misleading information in the affidavit, Basham contends
that Officer Comfort misled the magistrate into authorizing a no-knock warrant by falsely
representing that Basham’s criminal history included “numerous weapons and assault
charges.” At the suppression hearing, evidence was presented that Basham had been
arrested twice on weapons charges and once on assault charges. The district court held
that “the defendant’s criminal history appears to have been somewhat exaggerated in the
affidavits (of which this Court does not approve).” Aplt. App. at 239. Nevertheless, the
district court went on to find that a criminal history involving drugs and weapons did exist
and justified the issuance of the no-knock warrant.
Even considering Basham’s actual criminal history, the affidavit contains
information that Basham had been charged with assault and two weapons violations, was
paranoid and had violent tendencies, had stated to an informant that he would not go back
to jail at any cost, and previously had approached the door of his residence with a sawed-
off shotgun. These facts alone would have been sufficient to support a reasonable
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suspicion that knocking and announcing would be dangerous or futile, or would inhibit
the effective investigation of the crime. See Richards, 520 U.S. at 394. Therefore, the
exaggeration did not affect the issuance of the warrant and the district court did not err in
failing to declare the warrant invalid on that basis.
Basham also contends the affidavit was based on stale information because much
of the evidence regarding his dangerous tendencies came from an earlier affidavit. He
argues there was no new information regarding his violent tendencies, and therefore, no
reason to suspect that a no-knock warrant was needed.
The trial court held that the information in the affidavit was not stale, in that the
information from the previous affidavit had been corroborated by the second drug buy,
and nothing had changed regarding Basham’s criminal history. Basham argues that for
the court to simply assume that the situation would be dangerous enough to justify a no-
knock warrant was “dangerously close” to establishing a criminal category exception,
which was prohibited by the United States Supreme Court in Richards.
Basham’s argument is without merit. In Richards, the Court struck down a
Wisconsin Supreme Court decision holding that police officers are never required to
knock and announce their presence when executing a search warrant in a felony drug
investigation. The Court concluded that such an exception to the knock and announce
rule contained an overgeneralization, and that while some drug investigations pose a
substantial risk of danger, not every investigation does. 520 U.S. at 393. In such
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situations, the governmental interests in preserving evidence and maintaining safety might
not outweigh the individual privacy interests intruded upon by a no-knock entry, and a
blanket rule would insulate those cases from review. Id. The Court further held that the
reasons for creating one category exception to the knock and announce rule could easily
be applied to others, rendering the Fourth Amendment’s reasonableness requirement
meaningless. Id. at 393-94.
The blanket category concern is not present, however, where the no-knock
determination is based upon an individual defendant's conduct. It would be an
overgeneralization to conclude that because a person is engaged in the drug trade, that
person is likely to be dangerous and possess firearms. However, it would not be an
overgeneralization to conclude that because a certain person involved in the drug trade
exhibited violent tendencies, was armed with a sawed-off shotgun, declared that he would
not go to prison at any cost, and had a violent criminal history eight months previous, the
same person might possess weapons and hold the same views at the present time, given
that he was still involved in the drug trade. See United States v. Singer, 943 F.2d 758,
763 (10th Cir. 1991) (noting that guns, unlike drugs, are durable goods useful to their
owners for long periods of time, and finding that information that a suspect possessed a
gun six months prior was not too stale to support a no-knock warrant under the
circumstances).
The determination of whether information is stale depends on the nature of the
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crime and the length of criminal activity, not simply the number of days that have elapsed
between the facts relied upon and the issuance of the warrant. United States v. Myers,
106 F.3d 936, 939 (10th Cir. 1997). The information regarding Basham’s state of mind
concerning returning to jail, his violent and paranoid tendencies, and his possession of a
firearm all related to his involvement in the drug trade. This information was not stale as
it was not likely to have changed over the eight-month period of time since Basham was
still involved in the drug trade. Certainly, Basham’s criminal history of violence was not
affected by the passage of time. The district court did not err in failing to suppress the
evidence based upon the presence of stale information in the affidavit.
Because we conclude that the search warrant issued in this case was valid, we need
not determine whether the good faith exception found in United States v. Leon, 468 U.S.
897 (1984), is applicable.
III.
Basham also contends that the district court erred in its instruction to the jury
regarding the offense of possession of a firearm in furtherance of a drug trafficking crime.
He contends that the court’s instruction erroneously broadened the language of the
offense, and thus constituted reversible error.
This court reviews jury instructions de novo to determine whether, as a whole, the
instructions correctly state the governing law and provide the jury with an ample
understanding of the issues and applicable standards. United States v. Wittgenstein, 163
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F.3d 1164, 1168 (10th Cir. 1998).
Basham was charged with a violation of 18 U.S.C. § 924(c)(1)(A)(i), which
prohibits the using or carrying of a firearm during and in relation to any crime of violence
or drug trafficking crime, or the possession of a firearm “in furtherance” of any such
crime. The jury was instructed that to find Basham guilty, it must find in part that he
“knowingly possessed a firearm in furtherance of the commission of [the drug trafficking
crime of possession with intent to distribute methamphetamine].” Appee App. at 198.
The instruction to which Basham objects defines the element “possessed in furtherance,”
and more particularly the phrase “in furtherance of” as follows:
“In furtherance of” means for the purpose of assisting in, promoting,
accomplishing, advancing, or achieving the goal or objective of the
underlying offense.
Mere presence of a firearm at the scene is not enough to find
possession in furtherance of a drug trafficking crime, because the firearm’s
presence may be coincidental or entirely unrelated to the underlying crime.
Some factors that may help in determining whether possession of a firearm
furthers, advances, or helps forward a drug trafficking offense might
include, but are not limited to:
1. the type of drug activity that is being conducted;
2. accessibility of the firearm;
3. the type of weapon;
4. whether the weapon is stolen;
5. the status of the possession (legitimate or illegal);
6. whether the gun is loaded;
7. proximity to drugs or drug profits; and
8. the time and circumstances under which the gun
is found.
Id. at 280-81.
The eight factors listed above were taken from the decision in United States v.
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Ceballos-Torres, 218 F.3d 409 (5th Cir. 2000). In that case, Ceballos-Torres was
convicted of possessing a firearm in furtherance of a drug trafficking crime where a
loaded gun was discovered on top of his bed and drugs were found in a closet. The court
discussed the meaning of the term “in furtherance” and settled on the dictionary definition
of “‘the act of furthering, advancing, or helping forward.’” Id. at 412. The court
emphasized that the mere presence of a firearm is not enough, but stated that what is
required is “evidence more specific to the particular defendant, showing that his or her
possession actually furthered the drug trafficking offense.” Id. at 414. The court then
provided the nonexclusive list of factors, listed in the instruction above, which it deemed
helpful in making the determination. Ultimately, the court affirmed Ceballos-Torres’s
conviction, based on the fact that the weapon was loaded and easily accessible in the
apartment, and was possessed in the apartment along with drugs.
Basham argues that the factors taken from Ceballos-Torres are an incorrect
statement of the law. He argues that the language allowing the jury to find that he
possessed the guns and drugs based simply on the proximity of the gun to the drugs is
incorrect under the United States Supreme Court’s decision in Bailey v. United States,
516 U.S. 137 (1995). In Bailey, the Court strictly defined the term “use” in § 924 to
denote the active employment in connection with the crime. The Court stated that simply
having a gun nearby for use if needed during drug crimes would not satisfy the “use”
provision of the statute. Id. at 149-50. According to Basham, the addition of the
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“possession in furtherance of” prong to the statute was merely surplusage and did not
affect this holding in Bailey. He contends that to instruct the jury that it could consider
the proximity of the weapons found to drugs or drug profits was error, and that the jury
should have been instructed that the “mere inert presence or storing of a firearm near
drugs or drug proceeds is inadequate to support a conviction.” Aplt. Br. at 38. Basham
offered a jury instruction which included this language.
There is some tension between the opinion in Ceballos-Torres and this court’s
holding in United States v. Iiland, 254 F.3d 1264 (10th Cir. 2001), regarding the scope of
the amendment to § 924 which added the language regarding possession in furtherance of
drug trafficking. In Ceballos-Torres, the Fifth Circuit concluded that the addition of this
language was intended to broaden the reach of the statute in the wake of the Supreme
Court’s narrow construction of the “use” and “carry” language in Bailey. See 218 F.3d at
413. However, in Iiland, this court concluded that rather than broadening the statute, the
amendment directed the “in furtherance” requirement to be an even higher standard than
that required for the “use” and “carry” prongs, and to require a direct connection between
the firearm and the drug offense. 254 F.3d at 1271-74.
Despite this apparent difference regarding the scope of the amendment, nothing in
Iiland compels rejection of the Ceballos-Torres factors as relevant and helpful to the jury
in determining when possession of a firearm is “in furtherance of” drug trafficking. The
court in Iiland specifically noted, in finding that the government had failed to show
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possession in furtherance of drug trafficking, that “[t]here was no evidence that the gun
and drugs were ever kept in the same place or that Mr. Iiland ever kept the gun accessible
when conducting drug transactions.” 254 F.3d at 1274. Basham’s argument that the
proximity of the firearm to drugs or drug proceeds cannot be used as a factor in
determining whether possession is in furtherance of drug trafficking ignores the
distinction between the terms “used” and “possessed.” Under Bailey, a firearm that is
kept available for use if needed is not actually “used,” in the sense that if the firearm is
merely available for use, it is not “actively employed.” See Bailey, 516 U.S. at 149-150.
However, a firearm that is kept available for use if needed during a drug transaction is
“possessed in furtherance of” drug trafficking, because such possession does not
necessarily require “use” as long as such possession “in furtherance of” is the intent of the
drug trafficker. Such intent would necessarily be subject to proof by circumstantial
evidence, and factors such as the type of drug activity being conducted, the accessibility
of the firearm, the type of firearm, the legal status of the firearm, whether the firearm is
loaded, the proximity of the firearm to drugs or drug profits, and the time and
circumstances under which the firearm is found would be relevant and helpful to a jury in
determining the intent with which the weapon was possessed. The mere possession of a
firearm in proximity to drugs or drug proceeds would not require a finding that a weapon
was possessed in furtherance of drug trafficking, but could be considered by the jury
along with other evidence in arriving at a decision as to intent.
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The instruction here advised the jury that in order to convict it must find that
Basham possessed the firearm involved for the purpose of assisting in, promoting,
accomplishing, advancing, or achieving the goal or objective of the underlying offense.
The factors from Ceballos-Torres were included as helpful factors that the jury could use
in reaching its decision. The jury was explicitly instructed that the mere presence of a
firearm at the scene was not enough to find possession. The instruction given fairly and
accurately stated the law.
AFFIRMED.
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