F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 2 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 02-1107
(D. Ct. No. 00-CR-439-S)
CHRISTIAN JONES, (D. Colo.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, BRORBY, Senior Circuit Judge, and
O’BRIEN, Circuit Judge.
Defendant-Appellant Christian Jones pled guilty to possession with intent
to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B), reserving his right to appeal the district court’s denial of his motion to
suppress. Mr. Jones filed a timely notice of appeal on March 4, 2002. We
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
I. B ACKGROUND
Beginning in April 1999, federal agents in the Southern Colorado Drug
Task Force (“Task Force”), a joint operation between the Bureau of Alcohol,
Tobacco, & Firearms (“ATF”) and the Drug Enforcement Administration
(“DEA”), began a long-term investigation into the cocaine trafficking activities of
a number of individuals in Pueblo and Colorado Springs, Colorado. ATF Special
Agent James Deir was a member of the Task Force, based in Colorado Springs,
Colorado.
On July 5, 2000, a confidential informant purchased $200 worth of crack
cocaine from Lionel Amos. Approximately two hours later, the informant
purchased an additional, similar amount of crack cocaine from Amos. Task Force
officials monitored both of these controlled purchases and subsequently set up a
surveillance team to monitor Amos’ activities.
On July 7, 2000, the informant attempted to page Amos in order to
purchase more crack cocaine, but Amos did not respond. The informant told Task
Force officials this meant that Amos was out of cocaine and going to Colorado
Springs to resupply.
On July 10, 2000, ATF Special Agent Deir set up a surveillance team
outside the apartment of Mapajuana Naki, in Colorado Springs, Colorado. Task
Force officials had observed Amos’ vehicle parked outside Naki’s apartment and
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knew that Naki was Amos’ girlfriend. At approximately 11:40 a.m., Amos left
Naki’s apartment. Special Agent Deir and other Task Force officials followed
Amos to 3928 Red Cedar Drive – the residence of defendant and Celeste Abeyta.
Amos remained at defendant’s residence for approximately four and one half
hours before a taxi arrived at 3928 Red Cedar Drive from the airport. A woman,
later identified as Abeyta, exited the taxi with one bag and entered the house.
Minutes later, Amos left defendant’s residence, briefly returned to Naki’s
apartment, and then proceeded southbound on Interstate 25, toward Pueblo.
Special Agent Deir, accompanied by Task Force officials and other state
and local law-enforcement officers, followed Amos on Interstate 25. During this
surveillance, DEA Special Agent Mark Recht contacted the Colorado State Patrol
and informed them of their suspicions of Amos’ activity. At some point later, a
Colorado State Patrol trooper, Steven Ortiz, stopped Amos based on his excessive
speed, searched Amos’ car after he consented, and found approximately three
ounces of cocaine. 1
On that same day, Special Agent Deir prepared an application and affidavit
1
Following this search, Agent Pat Crouch, with the Colorado Bureau of
Investigation, interviewed Amos. During that interview, Amos denied that he had
obtained the cocaine from 3928 Red Cedar Drive and instead claimed that he had
stolen it on July 9, 2000. Amos also denied being at the defendant’s residence on
July 10, 2000. The district court, however, found that Special Agent Deir was
unaware of these statements at the time he prepared his affidavit, and we accept
this finding as it is not clearly erroneous.
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for the issuance of a warrant to search the defendant’s residence at 3928 Red
Cedar Drive. Special Agent Deir’s affidavit included all the information
chronicled above. In addition, Special Agent Deir stated that Amos routinely
used women as carriers in his cocaine-trafficking business, information he had
learned during the course of the investigation, and noted further that, based on his
law-enforcement experience, drug traffickers commonly use women to smuggle
drugs on airplanes using single carry-on bags.
Based on all this information, a magistrate in El Paso County issued a
search warrant for defendant’s residence at 3928 Red Cedar Drive. Special Agent
Deir and other Task Force officials executed the warrant on July 11, 2000, and
found seventeen grams of cocaine base and just under one kilogram of powder
cocaine at defendant’s residence.
Jones filed a motion to suppress the evidence found at 3928 Red Cedar
Drive, which the district court denied in an order dated November 28, 2001. This
appeal followed.
II. D ISCUSSION
On appeal, Jones argues that the district court erred in denying his motion
to suppress for two reasons: (1) the search warrant was not supported by probable
cause; and (2) the good-faith exception announced in United States v. Leon, 468
U.S. 897 (1984), does not apply. For the reasons set forth below, we disagree
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with the first proposition and find it unnecessary to consider the second.
A. Standard of Review
In reviewing Jones’ Fourth Amendment suppression claim, we accept the
district court’s factual findings unless they are clearly erroneous and view the
evidence in the light most favorable to the district court’s ruling. United States v.
Smith, 63 F.3d 956, 960 (10th Cir. 1995), vacated on other grounds, 516 U.S.
1105 (1995). The ultimate question of whether a Fourth Amendment violation
occurred, however, is an issue of law, which we review de novo. Id.
B. Probable Cause
The Fourth Amendment requires that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched and the persons or things to be seized.” U.S. C ONST . A MEND
IV. We recognize that “‘probable 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.’” United States v. Soussi, 29 F.3d
565, 568 (10th Cir. 1994) (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)).
An issuing magistrate must make a practical, commonsense decision whether,
given the totality of the circumstances set forth in the affidavit, there is a fair
probability that a search will reveal contraband or evidence of a crime in a
particular place. Id.
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“A reviewing court must give ‘great deference’ to the magistrate’s
determination of probable cause and should uphold that conclusion if the ‘totality
of the information contained in the affidavit provided a substantial basis for
finding there was a fair probability that evidence of criminal activity would be
found.’” Id. at 568-69. In making this determination, the magistrate may
properly consider an affiant’s experience and expertise. Id. at 569.
In this case, Jones alleges that the affidavit was deficient for three reasons:
(1) the affidavit, which chronicled Special Agent Deir’s observation of Amos’
activities of July 10, 2000, did not support the magistrate’s probable-cause
determination; (2) information in the affidavit supplied by the confidential
informant was unsubstantiated and uncorroborated; and (3) Special Agent Deir
failed to provide adequate information about his training and experience. For the
reasons set forth below, we disagree.
1. Special Agent Deir’s Observation of Amos’ Activities on July 10,
2001
Jones first argues that Special Agent Deir’s observation of Amos’ activities
on July 10, 2000, did not provide probable cause to support the search of his
home. Jones is correct in pointing out that neither his association with Amos nor
Amos’ mere presence at his residence, standing alone, could give rise to probable
cause to search his house. See United States v. Anderson, 981 F.2d 1560, 1566
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(10th Cir. 1992) (holding that, without more, agents lacked probable cause to
arrest defendant who visited a house that contained drugs, walked by the place of
arrest of alleged co-conspirators, and parked in the same parking lot with a U-
Haul previously seen at the same place). In this case, however, it was Amos’
presence at Jones’ home under all the surrounding circumstances that gave rise to
probable cause. The relevant circumstances include the following: (1) the
informant told Agent Deir that Amos would be traveling to Colorado Springs to
obtain more drugs; (2) Special Agent Deir observed Amos enter Jones’ residence
and remain there for over four and one half hours; (3) Special Agent Deir
observed Abeyta arrive from the airport in a taxi carrying one bag, and, seven
minutes later, Amos left Jones’ residence; (4) Special Agent Deir provided the
magistrate with statements indicating that drug traffickers commonly use air
travel to smuggle drugs, oftentimes women with single carry-on bags; and (5)
shortly after Amos left Jones’ residence, Colorado State Patrol troopers found him
in possession of three ounces of cocaine. Thus, it was not Amos’ mere presence
at Jones’ Red Cedar Drive residence that gave rise to probable cause; rather, it
was the “totality of the information” in the affidavit taken as a whole, which
provided the magistrate with a “‘substantial basis for finding there was a fair
probability that evidence of criminal activity would be found.’” Soussi, 29 F.3d
at 568-69 (citation omitted).
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2. Confidential Informant’s Statements
Jones next challenges the affidavit’s inclusion of the confidential
informant’s statements, arguing that the informant’s information was
unsubstantiated and uncorroborated. We disagree. “In making a probable cause
determination [involving a confidential informant], the issuing magistrate must
examine the totality of the circumstances set forth in the affidavit, including an
informant’s veracity and basis of knowledge.” United States v. Danhauer, 229
F.3d 1002, 1006 (10th Cir. 2000). We have previously held that “the successful
completion of [a] controlled buy . . . [is] sufficient to establish the reliability of
the informant.” Smith, 63 F.3d at 961. Further, “[w]hen there is sufficient
independent corroboration of an informant’s information, there is no need to
establish the veracity of the informant.” Danhauer, 229 F.3d at 1006.
In this case, the informant’s successful completion of two controlled
purchases of cocaine demonstrated her familiarity with Amos and personal
knowledge of his drug-trafficking activities. Cf. Smith, 63 F.3d at 961. Further,
Special Agent Deir provided “independent corroboration” in his affidavit, see
Danhauer, 229 F.3d at 1006. Specifically, Deir stated that Colorado State Patrol
troopers found Amos in possession of cocaine shortly after leaving Jones’
residence. Thus, the magistrate reasonably relied on the informant’s statements
contained in Special Agent Deir’s affidavit in making his probable-cause
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determination.
3. Special Agent Deir’s Training and Experience
Finally, Jones challenges the sufficiency of the affidavit based on the fact
that Special Agent Deir failed to provide adequate detail about his training and
experience. Although Special Agent Deir did not list his specific training in the
affidavit, he did note that he was an ATF agent working with the Southern
Colorado Drug Task Force, a joint operation between the ATF and the DEA.
Further, Special Agent Deir indicated in the affidavit that he was intimately
involved in the investigation of this case. The fact that Special Agent Deir did
not include an exhaustive account of his relevant experience does not alter the
reasonableness of the magistrate’s probable-cause determination.
Jones specifically challenges Special Agent Deir’s statement in the
affidavit that, based on his experience, drug traffickers routinely use females on
commercial planes to smuggle narcotics. We agree with the district court that
even the slightest familiarity with drug trafficking could support this opinion.
Certainly, this would be well within the training and experience of an ATF agent
working with a drug task force.
Because we affirm the district court’s finding that the warrant was
supported by probable cause, we need not address the applicability of the Leon
good-faith exception.
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III. C ONCLUSION
Based on the foregoing, we AFFIRM the district court’s denial of Jones’
motion to suppress and AFFIRM his conviction under 21 U.S.C. § 841(a)(1) and
(b)(1)(B).
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
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