F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 5 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 01-4258
v. D.C. No. 2:01-CR-206-B
(D. Utah)
NINA D. WATSON,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before MURPHY, ANDERSON, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore ordered submitted
without oral argument.
INTRODUCTION
Nina D. Watson pled guilty to a violation of 21 U.S.C. § 841(a)(1),
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
possession with intent to distribute fifty grams or more of methamphetamine, and
was sentenced to the mandatory minimum term of ten years imprisonment. She
reserved the right, exercised here, to appeal the district court’s denial of her
motion to suppress evidence obtained through a state daytime no-knock search
warrant. She also appeals the district court’s refusal to ignore mandatory
minimum sentencing requirements. Exercising jurisdiction under 28 U.S.C. §
1291 and 18 U.S.C. § 3742, we affirm.
ISSUES PRESENTED
Ms. Watson presents the following issues for review:
1. The fruits of the search conducted pursuant to the search warrant
should be suppressed because:
i. The applicant for the warrant made sworn statements that were
perjurious or made with reckless disregard for the truth, in
violation of Franks v. Delaware, 438 U.S. 154 (1978).
ii. Probable cause to search was not shown because the
supporting affidavit did not adequately establish the reliability
of the informants, and its recital of Ms. Watson’s criminal
history was improper.
iii. The facts stated in the affidavit were insufficient to support the
-2-
no-knock authorization.
iv. The facially deficient search warrant did not survive the good
faith exception enunciated in United States v. Leon, 468 U.S.
897 (1984).
v. The search warrant was not delivered to Ms. Watson before the
search was conducted.
2. The district court erred in refusing to grant safety valve relief under
18 U.S.C. § 3553(f) and U NITED S TATES S ENTENCING C OMMISSION ,
G UIDELINES M ANUAL § 5C1.2 (Nov. 2001)(USSG) from a mandatory
minimum term of ten years imprisonment.
FACTS
On January 3, 2001, Detective Marcelo Rapela of the Sandy, Utah Police
Department filed an affidavit for a search warrant with a judge of the Third
District Court of Utah, seeking to search Ms. Watson’s residence for evidence of
the production and sale of methamphetamine. The affidavit presented the
following information. Ms. Watson lived in a residence adjacent to and rented
from Mr. Kolten Kener. Several months preceding Detective Rapela’s affidavit,
two confidential informants identified Mr. Kener as selling methamphetamine
from his home. Within the week prior to filing the affidavit, an anonymous
-3-
neighbor informed the detective about a large amount of “short stay” traffic to
and from the Watson and Kener residences. The detective knew Ms. Watson was
a suspect in a previous investigation for the sale of methamphetamine and that she
had previous arrests and convictions for distribution of controlled substances. On
the day he applied for the search warrant, Detective Rapela personally watched
the adjoining residences of Mr. Kener and Ms. Watson, where he observed some
“short stay” traffic. He also observed Mr. Kener walk from his residence to Ms.
Watson’s residence, go inside for about ten minutes, then return to his residence.
After five minutes or so, he observed another male (“confidential informant”)
emerge from the Kener residence, get into a truck parked in Mr. Kener’s
driveway, and depart. Detective Rapela immediately executed a traffic stop on
the confidential informant, who was found to possess several baggies of
methamphetamine. The informant told Detective Rapela the following: Mr.
Kener delivered the methamphetamine to him for the purpose of sale to others;
Ms. Watson was Mr. Kener’s methamphetamine supplier; he watched Mr. Kener
go over to Ms. Watson’s house (the same movement independently observed by
the detective) to obtain the methamphetamine from her; he had personally
observed Mr. Kener deliver pre-cursor chemicals to Ms. Watson within the
previous twenty-four hours; and someone named “Rick” had told him Ms. Watson
maintained a clandestine methamphetamine laboratory in her residence.
-4-
Detective Rapela stated the information provided by the confidential
informant and the anonymous neighbor was reliable because neither was given
compensation or other consideration in exchange for his statement, and the
information was verified by Detective Rapela’s independent surveillance and
previous investigation. According to the detective, no threats or promises were
made to the confidential informant; and the anonymous neighbor had nothing to
gain by providing his information other than the well-being of the neighborhood.
In support of a request for no-knock authorization in execution of the
search warrant, Detective Rapela asserted Mr. Kener kept a loaded handgun in the
front room of his residence in fear of robbery or assault; Ms. Watson had a
sophisticated surveillance system in place at her residence which would allow
approaching officers to be seen; and advance notice would both compromise the
safety of the entry team and enable Ms. Watson to destroy evidence or obtain a
weapon. Based upon the affidavit of Detective Rapela, a judge issued a daytime
no-knock search warrant for Ms. Watson’s premises. 1 In the search, conducted
the same day as the application for the warrant, law enforcement officers seized
1
Based on the affidavit provided by Detective Rapela, the same judge also
issued a daytime “no-knock” search warrant for Mr. Kener’s residence. Law
enforcement had targeted both residences as part of a suspected drug distribution
scheme.
-5-
narcotics, cash and other evidence of narcotics production and distribution.
The Presentence Investigation Report evidenced a criminal history point
ranking of three for Ms. Watson, based upon a prior felony conviction (one point)
and commission of the instant offense while on probation (two points).
STANDARD OF REVIEW
We review de novo a district court’s determination of reasonableness under
the Fourth Amendment, but defer to its factual findings if they are not clearly
erroneous, viewing the evidence in the light most favorable to the government.
United States v. Basham, 268 F.3d 1199, 1203 (10th Cir. 2001), cert. denied, 122
S.Ct. 1336 (2002). We accord great deference to the magistrate who issued the
search warrant in his finding of probable cause. Illinois v. Gates, 462 U.S. 213,
236 (1983). If there was a substantial basis for issuance of the warrant, it will
stand. Basham, 268 F.3d at 1203. We review the district court’s interpretation of
the Sentencing Guidelines de novo. United States v. Owensby, 188 F.3d 1244,
1245 (10th Cir. 1999).
-6-
DISCUSSION
1. Search Warrant
a. Denial of Franks Hearing
Franks requires a defendant who challenges the veracity of an affidavit for
a search warrant to make a “substantial preliminary showing” the affiant made a
“false statement knowingly and intentionally, or with reckless disregard for the
truth” to the reviewing magistrate. Franks v. Delaware, 438 U.S. 154, 155-56
(1978). Intentional or reckless omissions of material fact are treated in like
fashion. Stewart v. Donges, 915 F.2d 572, 582-83 (10th Cir. 1990).
The challenged statement from Detective Rapela’s affidavit was: “On 01-
03-2001 your affiant performed surveillance at the two above mentioned address’s
[sic]. Your affiant observed some ‘short stay’ traffic.” Ms. Watson’s attorney
submitted an affidavit to the district court in support of the Franks hearing
request. In it, she recited a conversation she had with Detective Rapela in which
he further detailed his surveillance of the two residences, stating he saw three
vehicles come and go from the Kener residence and one vehicle come and go from
the Watson residence. Distinguishing this revelation from the statement in his
search warrant affidavit, Ms. Watson claims Detective Rapela uttered a deliberate
falsehood to the reviewing magistrate.
-7-
Taking the affidavit of Ms. Watson’s attorney as a whole, it does not reach
the threshold required for a Franks hearing. There is no apparent falsehood, let
alone one that is deliberate or reckless. Detective Rapela’s statement that he
observed short-stay traffic at the two residences was imprecise, but it was not
false, even charitably considering the additional detail supplied in the affidavit of
Ms. Watson’s attorney. The thrust of the search warrant application was the
coincidence of the houses in a criminal enterprise to distribute methamphetamine.
Ms. Watson has not made clear how the specific details detract from that theme.
Accordingly, she has failed to make a “substantial preliminary showing” of a false
statement. As a result, we need not consider whether the statement was made
knowingly and intentionally or in reckless disregard of the truth. If anything, the
detective’s imprecision goes to the sufficiency of the affidavit, which we will
next discuss.
b. Sufficiency of the Search Warrant
“[P]robable cause is a fluid concept – turning on the assessment of
probabilities in particular factual contexts – not readily, or even usefully, reduced
to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983).
Probable cause does not denote a prima facie case of criminal activity, but only
the probability of it. Id. at 235 (citing Spinelli v. United States, 393 U.S. 410,
-8-
419 (1969)). The Gates court adopted a “totality of the circumstances” test in
evaluating an informer’s tip, where such factors as the veracity of the informant
and his basis of knowledge were not independently scrutinized, but reviewed in a
mix. Id. at 238-39.
With these principles in mind, we turn to Ms. Watson’s arguments. The
anonymous neighbor tip as to recent short-stay traffic was insufficient, standing
alone, to support a search warrant. 2 As Gates teaches, though, such a tip is a
legitimate and meaningful part of the totality of the circumstances upon which a
reviewing magistrate may rely. Ms. Watson cites United States v. Danhauer, 229
F.3d 1002 (10th Cir. 2000), to support her argument there was no evidence of the
veracity or basis of knowledge of the confidential informant. The citation is
inapposite. In Danhauer, there was no incriminating corroboration developed to
substantiate the claims of the confidential informant, only assertions of innocent
facts. 229 F.3d at 1006. This case stands in stark contrast. The confidential
informant here was stopped leaving the Kener residence in flagrante delicto,
aweight with baggies of methamphetamine. Shortly before the confidential
2
A citizen informant’s tip is presumptively reliable. United States v. Neff,
300 F.3d 1217, 1221 (10th Cir. 2002) (dictum). Here, of course, we are presented
with an anonymous citizen tip. While we believe the anonymity of the tip tends
to diminish its presumptive reliability, we note Detective Rapela independently
verified the tip through his own observation.
-9-
informant’s arrest, Detective Rapela had observed Mr. Kener walk to the Watson
residence, stay there about ten minutes, then return to his residence. These
independent observations bolstered the report of the confidential informant
indicating Mr. Kener was his supplier, and Ms. Watson was Mr. Kener’s supplier.
They also tended to verify the confidential informant’s claim to have personally
observed Mr. Kener provide Ms. Watson with precursor chemicals within the past
twenty-four hours.
For all of this information the confidential informant was offered no
consideration, adding to his credibility. His credibility was also bolstered because
he made statements against his penal interest when he admitted to participation in
a criminal enterprise. United States v. Sporleder, 635 F.2d 809, 812 (10th Cir.
1980). Finally, the temporal and spatial proximity of the confidential informant’s
possession of narcotics to the Watson and Kener residences, in addition to all of
the other circumstances of the case, are significant in substantiating his
assertions.
Ms. Watson also challenges the recital of her criminal history in the
warrant application, including arrests and convictions for distribution of
controlled substances. That bit of information along with other marginal recitals
-10-
does not warrant discussion because, apart from them, there was a substantial
basis for the decision of the issuing magistrate.
c. No-Knock Entry
The requirement for law enforcement officers to “knock and announce”
when executing a warrant “forms a part of the reasonableness inquiry under the
Fourth Amendment[,]” except in cases of exigent circumstances, as where there is
a threat of physical violence or where evidence would be at risk of destruction in
the event of an advertised entry. Wilson v. Arkansas, 514 U.S. 927, 929, 936
(1995), cert. granted, 513 US 1014 (1994). The showing required for no-knock
authorization is “not high.” Richards v. Wisconsin, 520 U.S. 385, 394 (1997). It
depends upon a reasonable suspicion by law enforcement officers that to
announce their presence in advance of entry would place them at risk or allow
destruction of evidence. Id.; Basham, 268 F.3d at 1203. The affiant’s articulated
belief of “exigent circumstances” must be “objectively reasonable.” United States
v. Stewart, 867 F.2d 581, 584 (10th Cir. 1989). Here, the government offered two
exigencies: the presence of a firearm in Mr. Kener’s household and a surveillance
system in place at Ms. Watson’s household.
The mere presence of firearms within a premises to be searched does not
-11-
constitute exigent circumstance sufficient to obviate the requirement to knock and
announce. However, if the government demonstrates the presence of firearms
presents a threat to safety, then exigent circumstance is indeed shown. See United
States v. Moore, 91 F.3d 96, 98 (10th Cir. 1996); United States v. Gay, 240 F.3d
1222, 1228 (10th Cir. 2001), cert. denied, 533 U.S. 939 (2001). The review in
this case is complicated by the fact the firearm in question was alleged to be
present in Mr. Kener’s household, not Ms. Watson’s. In challenging the
sufficiency of the affidavit, Ms. Watson’s only complaint about the grant of no-
knock authority as it related to the firearm is that any danger presented by a
firearm in Mr. Kener’s residence should not have been imputed to her for the
purpose of supporting no-knock entry into her residence. However, the
allegations taken as a whole clearly suggest concerted activity by these two
individuals in methamphetamine production and in running a wholesale drug
operation from their separate residences as a combined unit. Therefore, it is a fair
inference that if alerted to the presence of police, Mr. Kener might use his firearm
to protect himself, his confederate, Ms. Watson, and their joint enterprise against
discovery.
Detective Rapela reported a sophisticated surveillance system in place at
Ms. Watson’s residence, suggesting an opportunity for her to conceal or destroy
-12-
evidence and to alert Mr. Kener. To be sure, as Ms. Watson argues, there is
nothing in the request for no-knock authority providing any more than a bare
description of the surveillance system. But Detective Rapela was understandably
limited in the detail he could certify to the reviewing magistrate because his
observations were perforce surreptitious. An articulated concern that the target of
a search might be alerted in advance to the presence of officers so as to threaten
destruction of evidence is an exigent circumstance justifying no-knock procedure.
United States v. Dickerson, 195 F.3d 1183, 1186-87 (10th Cir. 1999).
Taking into account the circumstances as a whole, we find the issuance of
no-knock authority was justified by a reasonably articulated threat to officer
safety and the need to preserve evidence from destruction, either of which would
have sufficed. In arriving at this conclusion, we bear in mind this was a daytime
search, 3 which does not demand the extra degree of scrutiny for reasonableness
3
The search of Ms. Watson’s residence began at 7:00 p.m. Utah defines
“nighttime” as one half hour after sunset to one half hour before sunrise. State v.
Simmons, 866 P.2d 614, 617 (Utah 1993). However, even if the search was
conducted during the “nighttime” under Utah law, federal constitutional
requirements govern admissibility in federal court of evidence seized under a
search warrant entirely state in character. United States v. Gibbons, 607 F.2d
1320, 1325 (10th Cir. 1979). F ED . R. C RIM . P. 41, “is a useful guide because it
implements the essentials of the Fourth Amendment.” Id. at 1326. The rule in
effect at the time of the search of Ms. Watson’s residence defined “nighttime” as
the hours between 10:00 p.m. and 6:00 a.m. F ED . R. C RIM . P. 41(h) (the rule was
restyled in 2002, but contains the same definition).
-13-
required of a nighttime search. See United States v. Callwood, 66 F.3d 1110,
1113 (10th Cir. 1995). We also note extra protection of Fourth Amendment
freedoms was provided because a disinterested magistrate authorized the no-
knock search.
d. The Leon Exception
Ms. Watson argues the good faith exception announced by United States v.
Leon, 468 U.S. 897 (1984), cannot save the fruits of the search conducted here.
However, since the search warrant was properly issued, the issue is moot.
e. Failure to Provide Copy of Search Warrant
Ms. Watson argues the evidence seized under the search warrant should be
suppressed because the officers executing the warrant failed to provide her a copy
of it prior to conducting the search. However, she refers to no evidence adduced
or argument presented in the district court to support the contention, and there is
no ruling from which to appeal. We deem the issue waived below and decline to
address it. United States v. DeWitt, 946 F.2d 1497, 1502 (10th Cir. 1991), cert.
denied, 502 U.S. 1118 (1992).
-14-
2. Failure to Grant Downward Departure
Ms. Watson complains she did not receive safety valve relief under 18
U.S.C. § 3553(f). This provision directs the district court to sentence beneath the
ten year minimum term of imprisonment mandated by 21 U.S.C. § 841(b)(1)(A),
pursuant to the Sentencing Guidelines, so long as certain predicates are met. The
only predicate at issue here is: “the defendant does not have more than 1 criminal
history point, as determined under the sentencing guidelines.” 18 U.S.C. §
3553(f)(1). See also, USSG § 5C1.2(a)(1). Employment of the safety valve
provision, as its language suggests, presupposes a sentence under the Sentencing
Guidelines lower than the mandatory minimum term of imprisonment. In Ms.
Watson’s case, it presupposes favorable consideration for downward departure
from “heartland” cases on the grounds allowed by statute and the Sentencing
Guidelines. See 18 U.S.C. § 3553(b); USSG, ch. 1, pt. A, 4(b); and USSG §
5K2.0.
Ms. Watson has advanced several grounds for downward departure from
“heartland” cases pursuant to 18 U.S.C. § 3553(b) and USSG § 5K2.0. We need
not evaluate these claims because, even if they are meritorious, 18 U.S.C. §
3553(f) still forbids a breach of the mandatory minimum term of imprisonment
since Ms. Watson has more than one criminal history point.
-15-
Ms. Watson concedes as valid the three point criminal history attributed to
her in the Presentence Investigation Report (one point for a prior felony
conviction of possession of a controlled substance and two points for commission
of the instant offense while on probation for the prior offense). She argues that it
ought to be reduced to one point, thereby enabling a breach of the mandatory
minimum term of imprisonment, for two reasons. First, she asserts her probation
status when she committed the instant offense was due to her being a
methamphetamine addict and if she was not an addict she would not have been on
probation. Secondly, she argues disparate treatment accorded her confederates in
the methamphetamine distribution scheme justifies a reduction in her criminal
history points. The arguments fail.
Ms. Watson confuses “departure from heartland” analysis with the
requirements of 18 U.S.C. § 3553(f). We have previously held a downward
departure in the sentencing guideline range, occasioned by a determination that a
defendant’s criminal history category overstates the seriousness of past criminal
conduct, does not permit a revision in the calculation of criminal history points
itself. United States v. Owensby, 188 F.3d 1244, 1246 (10th Cir. 1999). The
calculation of criminal history points is an objective exercise based on stated
criteria in the Sentencing Guidelines. It is not subject to alteration through the
-16-
exercise of judicial discretion. Id. at 1247. So too with respect to any other
cause for downward departure authorized by statute and the Sentencing
Guidelines. “[T]he district court has no discretion to depart from a statutory
minimum sentence for section 3553(b) mitigating circumstances.” United States
v. Verners, 103 F.3d 108, 111 (10th Cir. 1996). Put simply, § 3553(f) trumps §
3553(b). The district court was correct. It possessed no authority to consider a
departure from the statutory minimum term of imprisonment because Ms. Watson
did not meet the requirements of 18 U.S.C. § 3553(f).
CONCLUSION
The district court’s denial of Ms. Watson’s motion to suppress evidence
and its refusal to afford sentencing relief under 18 U.S.C. § 3553(f) were both
proper. The judgment and sentence are AFFIRMED.
Entered by the Court:
TERRENCE L. O’BRIEN
United States Circuit Judge
-17-