F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 31, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 05-5146
v. N. D. Oklahoma
B RIA N SC OTT PER RY , (D.C. No. 04-CR-189-001-TCK)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.
Appellant Brian Perry was charged in the United States District Court for
the Northern District of Oklahoma w ith possession of a firearm after prior
conviction of a felony, in violation of 18 U.S.C. § 922(g)(1); possession with the
intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1); and
possession of a firearm in furtherance of a drug-trafficking crime, in violation of
*
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); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
18 U.S.C. § 924 (c)(1)(A). Before trial he sought to suppress evidence, including
a handgun, baggies containing methamphetamine, a spoon with methamphetamine
residue, and drug paraphernalia, gathered during a search of his residence. The
district court denied the motion, holding that the affidavit for the search warrant
established probable cause and, alternatively, even if there were deficiencies in
the affidavit, the good-faith exception to the exclusionary rule was satisfied, so
that the evidence should not be suppressed. M r. Perry was then convicted by a
jury on all three counts. He was sentenced to 150 months’ imprisonment.
M r. Perry now appeals the district court’s denial of his motion to suppress. W e
have jurisdiction under 28 U.S.C. § 1291 and affirm.
I. B ACKGR OU N D
Tulsa police officers conducted a search of M r. Perry’s home under a
warrant based on an affidavit by Officer Anthony First. The affidavit contained
the following allegations: (1) Officer First had been a Tulsa police officer for
five years and had various formal and informal training in the “recognition of
controlled dangerous substances” and on the “recognition of and enforcement
against clandestine labs . . . .” R. Vol.1 Doc. 14 Ex. A at 1. (2) W ithin 72 hours
before the affidavit was filed, Officer First had received information from a
confidential informant (CI) that M r. Perry was selling methamphetamine. “The
CI told [Officer First] that they have purchased quantities of marijuana from
Brian in the past at several different locations including Brian’s house at 7112 E.
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Jasper St. The CI went on to state that each time they have placed orders for
methamphetamine, Brian has been able to provide it.” Id. (3) Also within 72
hours of the affidavit, Officer First met with the CI and arranged a controlled buy
targeting M r. Perry. The CI contacted M r. Perry and arranged to purchase a
quantity of methamphetamine from him. Officer First searched the CI’s person,
finding no drugs or money on him, provided him with a quantity of money with
which to make the buy, and followed him to 7112 E. Jasper St. (4) O fficers
maintained surveillance on the residence as the CI arrived, entered, and departed.
No other people entered while the CI was inside. W hen the CI exited, Officer
First followed him to a location where the CI gave him a quantity of
methamphetamine and told him that it had been obtained from M r. Perry.
Another search of the CI revealed that he had no other drugs on him. (5) A
search of police records revealed that M r. Perry “has an extensive criminal history
including four previous contacts for illegal drugs.” Id. at 2. (6) During two
separate observation periods, officers observed a “very high volume” of “foot and
vehicle, short term traffic” at M r. Perry’s home. Id.
M r. Perry filed a written motion to suppress the evidence gathered during
the search of his residence, arguing that the affidavit was insufficient to support
probable cause for the search and that the good-faith exception did not apply. H e
contended that the officers employed inadequate precautions for the controlled
buy, pointing out that the affidavit failed to indicate w hether the CI’s car, in
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which he drove himself to and from M r. Perry’s residence for the buy, had been
searched by the officers. A t the suppression hearing he argued that probable
cause and good faith were lacking also because the affidavit (1) did not provide
the identity or purpose of any of the short-term visitors to M r. Perry’s house
observed by the officers and (2) provided no basis for the assertion that
methamphetamine was the substance returned to Officer First after the controlled
buy.
Officer First’s testimony at the suppression hearing clarified several
statements in the affidavit. He testified that his partner had searched the CI’s car
both before and after the controlled buy, and that omission of that information
from the warrant affidavit had been an oversight. He also testified that the
statement in the affidavit that the CI gave him a quantity of “methamphetamine”
after the controlled buy was based on a field test of the substance, because it was
his practice always to field test substances under those circumstances.
On appeal M r. Perry continues to challenge the sufficiency of the affidavit
and the applicability of the good-faith exception. He does not pursue his
argument below based on the failure to search the CI’s vehicle. He focuses on
the absence of any mention of the field test in the affidavit and the failure to
provide dates for the surveillance of short-term visitors at M r. Perry’s house.
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II. D ISC USSIO N
W hen w e review a district court’s decision on a motion to suppress, we
accept the factual findings unless they are clearly erroneous, and review
questions of law de novo. United States v. Gonzales, 399 F.3d 1225, 1228 (10th
Cir. 2005). W hether the warrant was supported by probable cause and whether
the good-faith exception of United States v. Leon, 468 U.S. 897 (1984), applies
are both questions of law. Gonzales, 399 F.3d at 1228. Appellate courts have
discretion to address probable cause or to proceed directly to the good-faith
analysis. Id. Here, the probable-cause determination is a close one, but the
question of good faith is clear. Therefore, we will proceed directly to the good-
faith inquiry.
Leon announced a good-faith exception under w hich evidence procured in
violation of the Fourth Amendment would nonetheless be admissible at trial. 468
U.S. at 913. It declared that the exclusion of “reliable physical evidence seized
by officers reasonably relying on a warrant issued by a detached and neutral
magistrate,” id. at 913, did not serve the primary purpose of the Fourth
Amendment exclusionary rule— deterrence of police misconduct, see id. at 913-
23; see also Gonzales, 399 F.3d at 1228-29. The Court noted, however, four
situations in which deference to the magistrate’s probable-cause determination
would not suffice to bring an officer’s execution of the warrant within the good-
faith exception:
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[1] Suppression . . . remains an appropriate remedy if the magistrate
or judge in issuing a warrant was misled by information in an
affidavit that the affiant knew was false or would have known was
false except for his reckless disregard of the truth. [2] The exception
we recognize today will also not apply in cases where the issuing
magistrate wholly abandoned his judicial role . . . . [3] Nor would an
officer manifest objective good faith in relying on a warrant based on
an affidavit so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable. . . . [4] Finally,
. . . a warrant may be so facially deficient . . . that the executing
officers cannot reasonably presume it to be valid.
Leon, 468 U.S. at 923 (internal citations and quotation marks omitted). On appeal
M r. Perry relies on only the third instance in which the good-faith exception
would not apply, asserting that “[t]he affidavit at issue was so devoid of factual
support that no reasonably well trained officer could have relied on it.” A plt Br.
at 11. W e disagree. (In his written motion to suppress, M r. Perry claimed that
the magistrate had wholly abandoned his judicial role in approving this w arrant,
but he does not renew that argument in his briefs to this court.)
“W hile officers are generally entitled to rely on the magistrate’s judgment,
they are also required to exercise their ow n professional judgment. . . . [W ]e
determine good faith in this context by considering whether a reasonably well
trained officer would have known that the search was illegal despite the
magistrate’s authorization.” Gonzales, 399 F.3d at 1230 (internal citation and
quotation marks omitted).
In our view , Officer First’s affidavit meets this standard. In particular,
M r. Perry’s sole challenge to the controlled buy (which, if properly performed,
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would itself establish the CI’s credibility and support a finding of probable cause,
see United States v. Artez, 389 F.3d 1106, 1111-12 (10th Cir. 2004)) is that the
affidavit does not recite that a field test was conducted to establish the identity of
the substance. But the very fact that the CI entered M r. Perry’s house with money
and left with a quantity of a substance that a trained officer thought to be
methamphetamine provides significant corroboration to the CI’s assertion that he
had been purchasing methamphetamine from M r. Perry. Sloppiness in writing,
and approving, affidavits for warrants is an unfortunate, and sometimes costly,
error. But a well-trained officer who knew facts establishing probable cause
could reasonably err in relying on approval of a warrant based on an affidavit that
inadvertently omitted some of those facts. Officers need to be “reasonably well
trained,” but we cannot expect them to parse language as a skilled lawyer could.
See United States v. Corral-Corral, 899 F.2d 927, 939 (10th Cir. 1990) (“[T]he
knowledge and understanding of law enforcement officers and their appreciation
for constitutional intricacies are not to be judged by the standards applicable to
lawyers.” (internal quotation marks omitted)). W e cannot say that the affidavit
was “so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Leon, 468 U.S. at 923 (internal quotation marks
omitted); see United States v. Danhauer, 229 F.3d 1002, 1007 (10th Cir. 2000);
United States v. M cKneely, 6 F.3d 1447, 1454 (10th Cir. 1993) (“It is only when
an officer’s reliance was w holly unwarranted that good faith is absent.” (emphasis
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and internal quotation marks omitted)). Accordingly, we affirm the district
court’s determination under Leon that M r. Perry’s motion to suppress be denied.
III. C ON CLU SIO N
For the reasons stated above, we AFFIRM the judgment of the district
court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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