F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 23 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 99-4196
v.
DENNIS R. DANHAUER,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 98-CR-354)
Submitted on the briefs:
Gregory G. Skordas and Stephanie Ames, Salt Lake City, Utah, for Appellant.
Paul M. Warner, United States Attorney, and Barbara Bearnson, Assistant United
States Attorney, Salt Lake City, Utah, for Appellee.
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
I. INTRODUCTION
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This court
therefore honors the parties’ requests and orders the case submitted without oral
argument.
Defendant Dennis R. Danhauer entered a conditional guilty plea to one
count of attempting to manufacture methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and 846, and one count of using a destructive device in relation to a
drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1). Danhauer appeals
from the district court’s final judgment and conviction, asserting the district court
erred in denying his motion to suppress. See Fed. R. Crim. P. 11(a)(2) (providing
that a defendant, with approval of the court and consent of the government, may
enter conditional guilty plea and reserve right to appeal an adverse determination
of pretrial motion). Although this court concludes the affidavit in support of the
search warrant was not sufficient to establish probable cause, we exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the district court’s denial of
the motion to suppress based on the good-faith exception to the exclusionary rule.
II. BACKGROUND
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In June 1998, West Valley City Police Officer Dumas informed Detective
McCarthy that Robbi and Dennis Danhauer were cooking methamphetamine in a
large garage located at the rear of their property and that a person called “Casey”
was acting as a lookout in front of their home. Officer Dumas received the
information from a confidential informant who was not paid or promised anything
in exchange for the information. Because the informant feared for his personal
safety, Officer Dumas did not reveal the informant’s identity to Detective
McCarthy.
Detective McCarthy verified the informant’s physical description of the
Danhauer property and confirmed by a records check that Robbi and Dennis
Danhauer occupied the premises. Further, the detective observed Robbi Danhauer
going back and forth between the home and the garage.
Detective McCarthy researched the criminal background of both suspects;
their “criminal histories include[d] dangerous drugs, possession [of]
paraphernalia, assault, forgery, and criminal mischief.” Criminal records revealed
that both Danhauers had outstanding arrest warrants. Importantly, Detective
McCarthy discovered that Robbi Danhauer was on probation for attempted
forgery. During her probation report the previous day, Robbi Danhauer submitted
to a urine analysis which came back positive for the presence of
methamphetamine and opiates.
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Detective McCarthy included the facts described above in his affidavit for a
search warrant. The Third District Court for the State of Utah issued a warrant,
authorizing the search of Dennis Danhauer, Robbi Danhauer, and their property.
After the warrant was executed, Danhauer was charged in a five-count indictment
that included drug and weapons charges.
Danhauer filed a Motion to Suppress, claiming the affidavit in support of
the search warrant did not provide probable cause and execution of the search
warrant did not fall within the good-faith exception to the Fourth Amendment
exclusionary rule. Pursuant to 28 U.S.C. § 636(b)(1)(B), the district court
referred the matter to a federal magistrate, who held a hearing on the Motion to
Suppress. The magistrate’s Report and Recommendation concluded that
Detective McCarthy’s “affidavit contained bare-bones allegations obtained from a
confidential informant without a basis for reliability or trustworthiness of those
allegations.” Further, the magistrate found no corroboration of the informant’s
claim that Danhauer and his wife were cooking methamphetamine. Accordingly,
the magistrate concluded there was no probable cause to issue the search warrant.
Nonetheless, the magistrate determined the Leon good-faith exception applied to
the execution of the search warrant. See United States v. Leon, 468 U.S. 897,
920-24 (1984).
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After Danhauer objected to the magistrate’s Report and Recommendation,
the district court conducted a hearing on the suppression motion. Relying on
United States v. Bishop, 890 F.2d 212, 216 (10th Cir. 1989), the district court
determined it did not need to address whether the affidavit was sufficient to
support probable cause before turning to the good-faith issue. The district court
denied Danhauer’s Motion to Suppress, holding that the warrant survived a good-
faith analysis. Danhauer entered a conditional guilty plea to two counts of the
indictment, reserving his right to appeal the denial of his Motion to Suppress.
On appeal, Danhauer argues the district court erred in failing to address the
sufficiency of the affidavit in support of the search warrant before turning to the
good-faith exception. Danhauer also argues the district court erred in applying
the good-faith exception to the search of his residence.
In reviewing the denial of a motion to suppress, this court views the
evidence in the light most favorable to the government and upholds the district
court’s factual findings unless clearly erroneous. See United States v. Rowland,
145 F.3d 1194, 1200 (10th Cir. 1998). Determinations relating to the sufficiency
of a search warrant and the applicability of the good-faith exception are
conclusions of law, however, which this court reviews de novo. See id. at 1206;
United States v. Earls, 42 F.3d 1321, 1326 (10th Cir. 1994).
III. DISCUSSION
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A. Sufficiency of Affidavit in Support of Probable Cause
In reviewing suppression motions, courts have the discretion to proceed
directly to an analysis of the good-faith exception without first addressing the
underlying Fourth Amendment question. See Leon, 468 U.S. at 924-25. When
resolution of a Fourth Amendment issue is “necessary to guide future action by
law enforcement officers and magistrates,” however, it is appropriate for a
reviewing court to address this issue first. Id. at 925; see also Rowland, 145 F.3d
at 1206 n.8. We conclude this is such a case.
Danhauer argues the affidavit supporting the search warrant insufficiently
established a basis for probable cause because it failed to demonstrate the
informant’s veracity, reliability, and basis of knowledge. Danhauer further
asserts that police corroboration of a limited portion of the information provided
by the informant did not establish a nexus between evidence of a crime and his
residence.
A search warrant must be supported by probable cause, requiring “more
than mere suspicion but less evidence than is necessary to convict.” United States
v. Burns, 624 F.2d 95, 99 (10th Cir. 1980). “Probable cause undoubtedly requires
a nexus between suspected criminal activity and the place to be searched.”
United States v. Corral-Corral, 899 F.2d 927, 937 (10th Cir. 1990). An affidavit
in support of a search warrant must contain facts sufficient to lead a prudent
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person to believe that a search would uncover contraband or evidence of criminal
activity. See Rowland, 145 F.3d at 1204. In making a probable-cause
determination, the issuing magistrate must examine the totality of the
circumstances set forth in the affidavit, including an informant’s veracity and
basis of knowledge. See Illinois v. Gates, 462 U.S. 213, 238 (1983). Although
reviewing courts should afford a magistrate’s probable cause decision great
deference, this court will not defer if there is no “substantial basis for concluding
that probable cause existed.” Rowland, 145 F.3d at 1204 (quotations omitted).
The affidavit in this case failed to allege facts sufficient to establish
probable cause. The affidavit contains repetitive statements regarding the
physical description of the Danhauer residence and the identity of the occupants.
Further, the affidavit contains statements about the criminal histories of both
Dennis and Robbi Danhauer. The affidavit does not reveal, however, the
informant’s basis of knowledge or adequately verify the informant’s most serious
allegation, that the Danhauers were manufacturing methamphetamine. An
affidavit replete with repetitive and tenuous facts does not provide a magistrate
with a sufficient basis for drawing a reasonable inference that a search would
uncover evidence of criminal activity.
When there is sufficient independent corroboration of an informant’s
information, there is no need to establish the veracity of the informant. See
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United States v. Sturmoski, 971 F.2d 452, 457 (10th Cir. 1992). In this case,
however, the affiant neither established the veracity of the informant, nor
obtained sufficient independent corroboration of the informant’s information.
The only police corroboration of the informant’s information was the affiant’s
verification of the Danhauer residence’s physical description, a records check to
confirm that the Danhauers resided at the premises in question, an observation of
Robbi Danhauer coming and going from the house to the garage, and a search of
the Danhauers’ criminal histories, which brought to light Robbi Danhauer’s latest
urinalysis revealing the presence of methamphetamine. The detective made little
attempt to link methamphetamine to the Danhauer residence. Cf. United States v.
Le, 173 F.3d 1258, 1266 (10th Cir. 1999) (concluding that affiant’s search of
suspect’s trash and discovery of used bag with white powder residue confirmed to
be methamphetamine helped corroborate information received from confidential
sources). The only possible nexus between Danhauer’s residence and the alleged
criminal activity was his wife’s urinalysis result. This is not the type of evidence
that enables the state magistrate to draw a reasonable inference that the items
subject to the search warrant would be located at Danhauer’s residence. Such a
nebulous connection does not give a magistrate a substantial basis for concluding
that probable cause existed.
B. Applicability of the Leon Good-Faith Exception
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Although the search warrant was not supported by probable cause, the
evidence seized at Danhauer’s residence need not be suppressed if the executing
officer acted with an objective good-faith belief that the warrant was properly
issued by a neutral magistrate. See Leon, 468 U.S. at 922. When reviewing the
reasonableness of an officer’s reliance upon a search warrant, this court must
examine the underlying documents to determine whether they are “devoid of
factual support.” United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir. 1993)
(quotation and italics omitted).
The Supreme Court recognizes four situations in which an officer would
not have reasonable grounds for believing a warrant was properly issued. See
Leon, 468 U.S. at 922-23. In these situations, the good-faith exception to the
exclusionary rule would not apply. Id. First, evidence should be suppressed if
the issuing magistrate was misled by an affidavit containing false information or
information that the affiant would have known was false if not for his “reckless
disregard of the truth.” Id. at 923. Second, the exception does not apply when
the “issuing magistrate wholly abandon[s her] judicial role.” Id. Third, the good-
faith exception does not apply when the affidavit in support of the warrant is “so
lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable.” Id. (quotation omitted). Fourth, the exception does not
apply when a warrant is so facially deficient that the executing officer could not
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reasonably believe it was valid. See id. Danhauer argues that the second and
third situations apply in this case. 1
Danhauer claims the good-faith exception does not apply because the
detective’s affidavit was “bare bones” in that it did not sufficiently corroborate
the informant’s representations about the manufacturing of methamphetamine at
Danhauer’s residence or establish the informant’s reliability or basis of
knowledge. Without making a probable cause determination, the district court
reasoned the good-faith exception applied because the officer’s reliance on the
search warrant was not “wholly unwarranted.” This court agrees with the district
court. 2
Danhauer incorrectly describes the third situation in his brief by reference
1
to precedent outside of this circuit. He argues the good-faith exception does not
apply in the third instance “[i]f the affidavit does not provide the magistrate with
a substantial basis for determining the existence of probable cause.” (emphasis
added). While one of our sister circuits applies this language in its good-faith
analysis, see United States v. Wilhelm, 80 F.3d 116, 121 (4th Cir. 1996), this
court utilizes the “substantial basis” language solely in the probable cause
context. See, e.g., United States v. Rowland, 145 F.3d 1194, 1204 (10th Cir.
1998). In evaluating Danhauer’s claim, this court applies the law set forth in
Leon, as described supra.
Although Danhauer argues that the second and third situations described in
2
Leon apply to this case, he does not make independent arguments to explain the
applicability of each scenario to the facts before us. Rather, he incorporates both
scenarios into one argument. While Danhauer suggests the state magistrate
abandoned her judicial role in issuing the warrant, this suggestion is based upon
his conclusion that the underlying affidavit was lacking in probable cause.
Danhauer is in fact only making one argument, which this court addresses infra.
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Although the affidavit in support of the warrant did not establish probable
cause, it was not so lacking in indicia of probable cause that the executing officer
should have known the search was illegal despite the state magistrate’s
authorization. See Leon, 468 U.S. at 922 n.23. Further, the absence of
information establishing the informant’s reliability or basis of knowledge does not
necessarily preclude an officer from manifesting a reasonable belief that the
warrant was properly issued, see Bishop, 890 F.2d at 217, particularly when the
officer takes steps to investigate the informant’s allegation. Detective McCarthy,
who both obtained and executed the search warrant, reasonably believed the fruits
of his investigation into the informant’s allegation sufficiently linked the
manufacture of methamphetamine and Danhauer’s residence. His affidavit
contains more than conclusory statements based on the informant’s allegation
about the alleged criminal activity at Danhauer’s residence.
IV. CONCLUSION
This court concludes the search warrant failed to establish probable cause
because the nexus between the alleged criminal activity and Danhauer’s residence
was insufficient. Nonetheless, the district court did not err in refusing to suppress
the evidence seized because the officer acted in objectively reasonable, good-faith
reliance on the warrant. Accordingly, this court AFFIRMS.
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