United States v. Mathis

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 11 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 02-7138

DOUGLAS VICTOR MATHIS,

Defendant - Appellant.

Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. CR-02-44-S)

Jeffrey A. Gallant (Sheldon J. Sperling, United States Attorney, with him on the
brief), Assistant United States Attorney for the Plaintiff-Appellee.

Eddie Christian, Jr., (Dan George, Sallisaw, Oklahoma with him on the briefs),
Fort Smith, Arkansas for the Defendant-Appellant.

Before KELLY, LUCERO, and McKAY, Circuit Judges.

LUCERO, Circuit Judge.

At issue in this case are several claims of error regarding the issuance of a

search warrant, which include the sufficiency and reliability of an affidavit

containing multiple layers of hearsay as a basis for the search warrant. The
district court rejected the defendant’s arguments, including that the warrant

improperly relied upon unreliable and stale hearsay, and found instead that the

magistrate had a substantial basis to find probable cause to issue a warrant to

search the defendant’s residence. We take the district court’s position on the

issues and, exercising jurisdiction pursuant to 28 U.S.C. § 1291, affirm.

I

On March 9, 2001, a warrant was executed at defendant Douglas Mathis’s

residence authorizing a search for records and other evidence of his purported

illegal activities, including distribution of methamphetamine and possession of

stolen vehicles. During the execution of the warrant, law enforcement agents

observed Mathis run out the back door of the residence and drop a small pouch

from his hand; authorities also found drug paraphernalia at the residence. Robert

Walden, an investigator for the District Attorney and the affiant for the first

search warrant, then requested a second warrant to search Mathis’s residence for

evidence of possession and distribution of methamphetamine. The second warrant

was executed the same day and, as a result of evidence obtained under these

warrants, Mathis was arrested.

Mathis was indicted June 13, 2002 by a federal grand jury; the three count

indictment charged him with drug and firearms violations, including the

manufacture, distribution, and use of methamphetamine. Mathis moved to

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suppress the evidence obtained pursuant to the two warrants, alleging that the

information upon which the magistrate judge relied in issuing the first warrant

was stale and based on impermissible hearsay and, therefore, that the warrant

issued without probable cause.

Specifically, Mathis alleged that the probable cause supporting the first

search warrant rested almost entirely upon information from four confidential

cooperating witnesses (CW #1-4). According to Mathis, the information provided

by those cooperating witnesses was stale, inconsistent, and filtered through an

unknown number of law enforcement agents before reaching the affiant, Walden.

As a result, Mathis claimed the magistrate who issued the warrants had no

substantial basis upon which to accept the cooperating witnesses’ information,

and without such a basis, the first search warrant lacked probable cause. Because

the first search warrant was not based on probable cause, Mathis continued, any

evidence obtained under the second warrant was tainted and must also be

suppressed.

After filing the motion to suppress, Mathis also filed a motion to compel

disclosure of the identity of the confidential informants who provided information

to Walden. The district court held hearings on both motions and conducted an in

camera inspection of documents which revealed the identities of the informants at

issue. When the court denied both motions, Mathis conditionally pled guilty to

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Count Two of the indictment, possession with intent to distribute

methamphetamine. He was sentenced to ninety-six months in prison, followed by

forty-eight months of supervised release. Mathis appeals to this court, arguing

that the district court erred both in denying his motion to suppress the evidence

and in denying his motion to reveal the identities of the confidential informants.

II

We consider: (1) whether the first search warrant lacked probable cause due

to hearsay and staleness problems such that all evidence obtained under either

search warrant should be suppressed, see Wong Sun v. United States, 371 U.S.

471, 484 (1963); and (2) if due to alleged inconsistencies between the accounts of

two of the cooperating witnesses, the prosecution must reveal the identities of

those witnesses to Mathis in order to allow him to mount an effective defense, see

Rovario v. United States, 353 U.S. 53, 61–62 (1957).

A

The United States Constitution requires that “no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation.” U.S. Const., amend IV.

While the phrase “probable cause” is not self-defining, the Supreme Court has

described the probable cause inquiry as a “commonsense, practical question” to be

informed by the totality of the circumstances present in any particular case.

Illinois v. Gates, 462 U.S. 213, 230 (1983).

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 Mathis initially argues that the first search warrant lacked probable cause

because the affidavit underlying the search warrant was based upon unknown

layers of hearsay. The problem, Mathis contends, is that Walden did not receive

the information he described in the affidavit from the cooperating witnesses

directly; rather, each cooperating witness related his or her tale to other law

enforcement agents who then passed along the information to Walden. Mathis

claims the magistrate’s reliance on Walden’s testimony regarding information

relayed through multiple layers of hearsay resulted in the issuance of a search

warrant unsupported by probable cause.

As Mathis concedes, hearsay evidence may form the basis for a probable

cause determination. See, e.g., Jones v. United States, 362 U.S. 257, 269 (1960);

United States v. Snow, 919 F.2d 1458, 1460 (10th Cir. 1990). Moreover, we have

previously recognized that multiple layers of hearsay may support a finding of

probable cause for a search warrant. United States v. $149,442.43 in U.S.

Currency, 965 F.2d 868, 874 n.3 (10th Cir. 1992). Despite this clear precedent,

Mathis insists that in this case the affiant, Walden, was not sufficiently proximate

to the investigation to effectively corroborate the hearsay evidence to which he

attested. Mathis reasons that because Walden had not independently verified the

information provided by law enforcement agents, and because he did not

personally obtain the tips from the cooperating witnesses, he could not personally

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be aware of, or accountable for, the accuracy of the information contained in his

sworn affidavit. Therefore, Mathis urges, Walden’s oath was meaningless and as

a consequence, the magistrate erred in relying upon the hearsay contained in the

affidavit.

To bolster his argument, Mathis points to the Court’s discussion in Jones:

In testing the sufficiency of probable cause for an officer’s action
even without a warrant, we have held that he may rely upon
information received through an informant, rather than upon his
direct observation, so long as the informant’s statement is reasonably
corroborated by other matters within the officer’s knowledge.

Jones, 362 U.S. at 269. Mathis’s reliance on Jones is misplaced. Jones did not

require an officer to corroborate information received from an informant through

personal observation as Mathis would have us hold. Rather, an officer simply

must have knowledge of other matters that reasonably corroborate the informant’s

statements. Mathis’s contention that Walden did not have sufficient personal

knowledge of corroborating information thus fails.

Next we consider the argument that because an unknown number of law

enforcement agents were involved in transmitting the informant’s tips from the

witnesses to Walden, the magistrate judge had no basis for determining the

reliability (or in one instance, the identity 1) of these links in the hearsay chain,

1
In the affidavit, Walden does name the law enforcement agents from
whom he received CW #1–3’s information; nonetheless, in the case of CW #4, the
(continued...)

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and thus, no substantial basis upon which to conclude the underlying tips were

reliable. We restate that multiple layers of hearsay may form the basis of a

finding of probable cause. $149,442.43 in U.S. Currency, 965 F.2d at 874 n.3.

Moreover, it is not necessary to reveal the identities of the individuals providing

information to the police; hearsay from unknown or unnamed individuals has been

recognized as acceptable support for a finding of probable cause. See, e.g.,

Gates, 462 U.S. at 237–238 (approving of anonymous citizen tips).

Rugendorf v. United States, 376 U.S. 528 (1964), decided shortly after

Jones, also directly undercuts Mathis’s argument. In Rugendorf, the defendant,

on facts similar to those presently before us, attacked a search warrant as invalid

because the affidavit upon which it was based contained hearsay from

confidential informants passed to the affiant by other law enforcement agents.

376 U.S. at 529–531. Without explicitly analyzing each of the multiple layers of

hearsay present, the Court concluded that a valid probable cause determination

requires only a substantial basis to find that evidence of a crime was probably

present in the place to be searched. Id. at 533; accord United States v. Ventresca,

380 U.S. 102, 111 (1965) (regarding hearsay from police officers: “[o]bservations

of fellow officers of the Government engaged in a common investigation are

1
(...continued)
affidavit does not provide the identity of or information regarding the reliability
of the law enforcement agent(s) who furnished Walden with CW #4’s story.

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plainly a reliable basis for a warrant applied for by one of their number.”); Snow,

919 F.2d at 1460 (finding that hearsay evidence from other police officers’

informants, bolstered in part with separate corroboration, was sufficient to

support probable cause). On these authorities, we reject Mathis’s contention that

the hearsay evidence in this case was inherently unreliable and move to the

primary inquiry in any probable cause determination: did the magistrate, in

considering the information which he was provided, make a practical, common-

sense judgment that there was a fair probability that evidence of a crime would be

present at Mathis’s residence? See, e.g., Snow, 919 F.2d at 1460.

Generally, we give considerable deference to a magistrate’s determination

of probable cause; a reviewing court’s only duty is “to ensure that the magistrate

had a substantial basis for concluding that probable cause existed.” Gates, 462

U.S. at 236, 238 (quotation omitted). When judging information provided by an

informant as the foundation supporting probable cause for a search warrant, we

consider the informant’s veracity, reliability, and basis of knowledge as relevant

factors to evaluate in assessing whether “given all the circumstances set forth in

the affidavit . . . there is a fair probability that contraband or evidence of a crime

will be found in a particular place.” Id. at 238. In addition, a law enforcement

agent’s opinion, based upon his professional expertise, that evidence of illegal

activity will be found in the place to be searched, is entitled to consideration in

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our determination of whether probable cause existed at the time a warrant issued.

United States v. Wicks, 995 F.2d 964, 972 (10th Cir. 1993); $149,442.43 in U.S.

Currency, 965 F.2d at 874; United States v. Corral-Corral, 899 F.2d 927, 937

(10th Cir. 1990).

In reviewing the denial of Mathis’s motion to suppress, we uphold a district

court’s findings of fact unless they are clearly erroneous. United States v.

Danhauer, 229 F.3d 1002, 1005 (10th Cir. 2000). Because Mathis claims the

affidavit in this case does not adequately support a finding of probable cause, we

first consider the extensive factual findings of the district court. The district

court found, inter alia, that in June 1999 cooperating witness #1 (CW #1) and a

man named Frank Chambers were observed by surveilling officers driving to

Mathis’s residence. The officers saw Chambers enter the residence, leave a short

time later to return to the vehicle, and drive away with CW #1. CW #1 stated that

he or she had provided Chambers with $1200 cash to buy methamphetamine; CW

#1 later provided 20.5 grams of methamphetamine to the DEA, purportedly from

this transaction.

The second cooperating witness (CW #2) informed an FBI special agent

that he or she had known Mathis for over two years and had seen Mathis sell

methamphetamine at least twenty-five times between approximately February

1999 and August 2000. During the same period, CW #2 purportedly witnessed

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Mathis trade drugs for stereos and other items and overheard a conversation

where Mathis claimed he routinely cooked methamphetamine at his residence.

CW #2 further asserted that he or she observed a dark colored, 1968 Chevrolet

truck and a white truck with red paint dots on it at Mathis’s home and that a

network of video cameras and police scanners were operating whenever CW #2

was present at the residence.

Professing to have known Mathis for over three years, the third

cooperating witness (CW #3) stated that he or she had personally observed Mathis

sell methamphetamine over fifty times, including a sale in January 2001. CW

#3’s observations of the quantity of methamphetamine Mathis generally sold in a

transaction, Mathis’s willingness to accept goods in exchange for

methamphetamine, his use of a network of video cameras and police scanners, his

admission that methamphetamine was cooked at the residence, and that a white

truck with red painted dots was present at the residence, all corroborate CW #2’s

observations. In addition, Investigator Walden drove by Mathis’s residence in

March of 2001 and observed a 1968 pickup fitting CW #2 and CW #3’s

description. Lastly, cooperating witness #4 (CW #4), in late January 2001,

informed the FBI of his personal knowledge that Mathis had distributed and

continued to distribute significant quantities of methamphetamine, and that he or

she had obtained methamphetamine from Mathis on a few occasions.

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 In summary, the district court found that the affidavit contained reliable

information provided to law enforcement by the confidential informants; that each

cooperating witness’ basis of knowledge had been stated, i.e., each personally

knew Mathis and his residence; that the information provided by the informants

was internally corroborated in several respects; and that Walden had extensive

law enforcement experience, including training in investigations of illegal

narcotics. On these grounds, the court determined that sufficient facts were

available to establish a substantial basis to believe that evidence of a crime would

be found at Mathis’s residence. Our review of the affidavit and the record does

not persuade us that these findings of fact were erroneous. Furthermore, we

conclude that given all the circumstances set forth in the affidavit, the magistrate

had a substantial basis upon which to conclude that there was a fair probability

that contraband or evidence of illegal activity would be present at Mathis’s

residence at the time the search warrant was issued. We therefore conclude that

the magistrate’s reliance on hearsay information as a basis for probable cause to

support the first search warrant was not in error.

B

As for Mathis’s argument that the evidence in the affidavit was stale, we

have previously held that “[p]robable cause to search cannot be based on stale

information that no longer suggests that the items sought will be found in the

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place to be searched.” Snow, 919 F.2d at 1459. Mathis contests the age or

reliability of the information supplied by each of the cooperating witnesses. For

example, Mathis contends that CW #1 could only provide information regarding

one incident, which occurred in 1999, nearly two years before the search warrant

was executed. While CW #2 provided relatively more recent information

regarding Mathis’s alleged criminal activity, his or her observations were limited

to a period prior to August 2000, months before the search warrant was executed.

Though CW #3’s account provided information regarding Mathis’s criminal

activity proximal to the time of the search warrant’s execution, Mathis argues that

CW #3’s account conflicts with CW #2’s account. Accordingly, Mathis

maintains, the only reliable substantiated information regarding his alleged

criminal activity dated back to August of 2000. CW #4’s account, which related

the most recent criminal activity by Mathis, was not as detailed as the other three

cooperating witnesses tips; therefore this information was inherently unreliable

and could not rescue the other witnesses’ fatally stale information.

Mathis’s argument fails on several grounds. First, we reject Mathis’s claim

that the information provided by CW #2 and CW #3 are contradictory, simply

because the last date on which each witness claims to have seen Mathis’s illegal

activities differs. Mathis has offered no evidence beyond theorizing that CW #2

and CW #3 might have been in a relationship and therefore might have been at the

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residence at the same time that the dates should match.

Second, Mathis ignores our case law, which has firmly established that

“whether information is too stale to establish probable cause depends on the

nature of the criminal activity, the length of the activity, and the nature of the

property to be seized.” Snow, 919 F.2d at 1460 (quotation omitted). Mathis was

suspected of continuous and ongoing drug activity; information from the

cooperating witnesses dated Mathis’s criminal venture to June 1999, and

observations by various witnesses continued through January of 2001. “Such

ongoing and continuous activity makes the passage of time less critical” when

judging the staleness of information upon which a search warrant is based. Id.;

accord, United States v. Le, 173 F.3d 1258, 1267 (10th Cir. 1999); United States

v. Myers, 106 F.3d 936, 939 (10th Cir. 1997). Mathis’s reliance upon the

passage of time alone to demonstrate the staleness of the witnesses’ accounts is

unavailing.

We reject also Mathis’s contention that the information relied upon by the

magistrate was unsubstantiated and therefore unreliable. Walden himself verified

that a few days before the search warrant was executed, a particular truck,

believed to be stolen and described by CW # 2 and CW #3, was still present at

Mathis’s residence; as a result, at least part of CW #2 and CW #3’s information

was confirmed immediately prior to the warrant’s execution. For the foregoing

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reasons, it is quite clear to us that the information contained in the affidavit was

not impermissibly stale or unreliable such as would preclude establishment of

probable cause.

In sum, we affirm the district court’s determination that the first warrant

issued was supported by probable cause; it is therefore unnecessary to address the

district court’s alternative analysis concerning the Leon good faith exception for

warrants issued without probable cause. United States v. Leon, 468 U.S. 897

(1984).

II

The second general allegation of error is that the district court erred in

denying Mathis’s motion to compel disclosure of the identities of CW #2 and CW

#3. In addition to the appeal of the district court’s denial, Mathis has filed a

petition with this court asking to supplement the record on appeal to include a

transcript of the in camera hearing conducted by the district court, at which the

identities of CW #2 and CW #3 were disclosed. We review the district court’s

exclusion of evidence for an abuse of discretion. United States v. Davis, 40 F.3d

1069, 1073 (10th Cir. 1994); United States v. Bowser, 941 F.2d 1019, 1021 (10th

Cir. 1991). In evaluating whether the district court abused its discretion in

denying Mathis’s motion to compel disclosure of confidential informants, we are

guided by Rovario: “Where the disclosure of an informer's identity, or of the

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contents of his communication, is relevant and helpful to the defense of an

accused, or is essential to a fair determination of a cause, the privilege must give

way. ” 353 U.S. at 60-61. However, “[m]ere speculation about the usefulness of

an informant’s testimony is not sufficient to warrant disclosure.” United States v.

Brantley, 986 F.2d 379, 383 (10th Cir. 1993).

Underlying Mathis’s request for disclosure is his contradiction theory;

specifically, the information from CW #2 and CW #3 is strikingly similar in all

aspects except for the last date on which they reportedly observed Mathis’s drug

activities. Given that the witnesses’ observations parallel in all other respects,

Mathis argues, it stands to reason that they were present in the Mathis residence

at the same time and might even be husband and wife. He concludes that because

these witnesses were likely present in his residence at the same time, their

information should match in all respects, including the dates each witness

observed his illegal undertakings. Mathis tells us that the alleged contradiction

between CW #2 and CW #3 is critically important because the information

provided by these two witnesses was integral to the magistrate judge’s

determination that probable cause existed. Because he claims the relationship

between the two cooperating witnesses is crucial to his contradiction theory,

Mathis asserts it is essential to his defense that the identities of these two

cooperating witnesses be revealed.

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 However, the district court considered these arguments at an in camera

hearing and determined that the revelation of the informant’s identities was not

relevant to Mathis’s defense. Additionally, the court found that Mathis had

provided no evidence that CW #2 and CW #3 were at his residence at the same

time. Regarding Mathis’s hypothesis that CW #2 and CW #3 may have been

husband and wife and therefore should have identical observations, the court

correctly observed, “[e]ven a husband and wife are not always at the same

location at the same time. Simply because [CW #2 and CW #3’s] observations

are not identical does not mean they are incorrect or inconsistent.” United States

v. Mathis, CR-02-00044, at 13, Aug. 2, 2002. We agree.

Mathis has marshaled the mere speculation that if CW #2 and CW #3 were

in a relationship, any inconsistencies in their observations of Mathis’s illegal

activities renders their accounts contradictory and unreliable. Such speculation is

insufficient to warrant the disclosure of the identities of confidential informants.

We conclude that the district court did not abuse its discretion in denying

Mathis’s motion to compel disclosure of the identities of CW #2 and CW #3.

Further, we deny Mathis’s motion to supplement the record on appeal with the

transcript of the district court’s in camera hearing.

III

AFFIRMED.

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