FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 19, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 08-4062
v. District of Utah
TERRY JAY OLSON, (D.C. No. 2:07-CR-00199-TC-1)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, KELLY and McCONNELL, Circuit Judges.
Defendant Terry Jay Olson was charged with possession of cocaine with
intent to distribute and possession of a firearm by a previously convicted felon.
He filed a conditional plea of guilty to the latter charge; the drug distribution
charge was dismissed. Mr. Olson reserved the right to appeal the district court’s
denial of his motion to suppress evidence found in a warranted search of his
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10 th Cir. R. 32.1.
residence. In district court, Mr. Olson argued that the affidavit submitted in
support of the search warrant was insufficient to establish probable cause.
Without reaching a determination on the sufficiency of the affidavit, the district
court denied the motion on the basis of the good faith exception to the
exclusionary rule. See United States v. Leon, 468 U.S. 897 (1984). The court
stated that “the detectives reasonably relied on the warrant issued by a neutral
judge, triggering the good faith exception to the exclusionary rule.”
On appeal, the defendant argues first that the district court erred in
proceeding to the good faith exception without first addressing the sufficiency of
the affidavit. However, the Supreme Court has left it to the “informed discretion”
of the district court to decide the order of addressing these issues. Id. at 925; see
United States v. McKneely, 6 F.3d 1447, 1453-54 (10th Cir. 1993). The defendant
is no doubt correct that it is helpful for the development of precedent for district
courts to reach the Fourth Amendment merits in cases involving novel or
significant questions, but it is far from clear that this is such a case, and in any
event a court’s discretionary decision not to do so is not ground for reversal.
The defendant also argues that, for two reasons, the good faith exception
does not apply to this case: (1) the affidavit is so lacking in indicia of probable
cause as to render official belief in its existence entirely unreasonable; and (2) the
warrant is so facially deficient that the executing officer could not reasonable
believe it was valid. We cannot agree with either contention. Whether or not the
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evidence sworn in the affidavit rises to the level of probable cause, the affidavit
contains sufficient evidence of suspected wrongdoing that an officer’s reliance on
it cannot be deemed “wholly unwarranted,” which is the legal standard.
McKneely, 6 F.3d at 1454. Mr. Olson and other persons associated with the
property had criminal records for drug distribution; Mr. Olson had been a suspect
in past investigations known to the investigators. Affidavit, ¶ 6. During a two-
week surveillance of the property, the officers performed a search of the trash can
in front of the home and found a cigarette pack containing a “bindle bag” with a
white, powdery substance resembling methamphetamine, and several other plastic
baggies containing suspected drug residue. Id., ¶ 5. In a paragraph entitled
“Additional Probable Cause,” the affidavit recited that a baggie with suspected
methamphetamine residue was tested and found to contain amphetamine
compounds. Id., ¶ 6. We agree with the district court that this was sufficient to
meet the legal standard for the good faith exception.
The defendant argues that “amphetamine compounds” are found in several
licit drugs and therefore could not reasonably be thought to support probable
cause. We do not think this is reason enough to overturn the district court’s
ruling. Even without the lab testing, the discovery by trained drug officers of
baggies containing what appeared to be narcotics residue is “some factual basis”
for the warrant. United States v. Gonzales, 399 F.3d 1225, 1231 (10th Cir. 2005).
Moreover, the fact that the residue was found in a “bindle bag,” which was known
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to the officers as commonly used by drug users and dealers, Aff. ¶ 5, makes it
even less likely that the amphetamine compounds came from nasal decongestants,
as the defendant would have us believe.
The judgment of the United States District Court for the District of Utah is
AFFIRMED.
Entered for the Court,
Michael W. McConnell
Circuit Judge
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