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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding the appeal of a conviction for illegal possession of a firearm. The court upheld the search warrant that led to the discovery of the firearm. The search warrant was based on an affidavit from an officer describing information from a named informant who had purchased drugs from the defendant in his motel room and seen him with a firearm. The court found the affidavit established probable cause and rejected arguments that material information was omitted from the affidavit.

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    Filed: Patrick Fisher

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    32 views7 pages
    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding the appeal of a conviction for illegal possession of a firearm. The court upheld the search warrant that led to the discovery of the firearm. The search warrant was based on an affidavit from an officer describing information from a named informant who had purchased drugs from the defendant in his motel room and seen him with a firearm. The court found the affidavit established probable cause and rejected arguments that material information was omitted from the affidavit.

    Original Description:

    Filed: 2001-11-15 Precedential Status: Non-Precedential Docket: 01-1222

    Original Title

    United States v. Gary, 10th Cir. (2001)

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding the appeal of a conviction for illegal possession of a firearm. The court upheld the search warrant that led to the discovery of the firearm. The search warrant was based on an affidavit from an officer describing information from a named informant who had purchased drugs from the defendant in his motel room and seen him with a firearm. The court found the affidavit established probable cause and rejected arguments that material information was omitted from the affidavit.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    32 views7 pages

    Filed: Patrick Fisher

    Uploaded by

    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding the appeal of a conviction for illegal possession of a firearm. The court upheld the search warrant that led to the discovery of the firearm. The search warrant was based on an affidavit from an officer describing information from a named informant who had purchased drugs from the defendant in his motel room and seen him with a firearm. The court found the affidavit established probable cause and rejected arguments that material information was omitted from the affidavit.

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    of 7

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    NOV 15 2001

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    IVERSON LEON GARY, also known
    as Iverson Leon Gary, III,

    No. 01-1222
    (D.C. No. 00-CR-368-WM)
    (D. Colo.)

    Defendant-Appellant.
    ORDER AND JUDGMENT

    Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and


    Circuit Judge.

    BRORBY, Senior

    After examining the briefs and appellate record, this panel has determined
    unanimously to grant 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.

    Defendant 1 appeals his conviction, entered on a conditional plea of guilty to


    illegal possession of a firearm after prior conviction of a felony, in violation of
    18 U.S.C. 922(g). We have jurisdiction, and we affirm. Defendant challenges
    the affidavit supporting the search warrant resulting in discovery of the firearm,
    contending that the affidavit did not establish probable cause in support of the
    warrant and that it contained material omissions. Aplts Br. at 1.
    The facts are not disputed. On May 24, 2000, officers from the Colorado
    Springs Police Department and the federal Bureau of Alcohol, Tobacco, and
    Firearms (ATF) executed a search warrant at defendants motel room and
    recovered a .380 caliber pistol. The warrant was issued by a state court judge,
    based on the affidavit of Officer James Rogers of the Colorado Springs Police
    Department.
    According to the affidavit, ATF agents contacted a Kathleen Brown, based
    on reports of her possession of a .25 caliber semi-automatic pistol. She
    volunteered knowing a man she called Ike, a black male, dark complexion, 175
    pounds, who sold crack cocaine from room 26 at the motel and whom she had

    There is some confusion regarding defendants name. The indictment lists


    him as Iverson Leon Gary, but in the affidavit, the motel clerk referred to him as
    Gary Iverson, see R. Vol. I, doc. 14 ex. A at 5, and a supplemental Colorado
    Springs police report refers to him as Leon Gary Iverson.
    Id. , ex. D at 18. We
    assume defendants name to be the former, Iverson Leon Gary.
    1

    -2-

    observed with a .380 pistol. She further admitted smoking crack cocaine with Ike
    and purchasing the drug from him.
    The agents went to the motel and spoke with the manager, learning that a
    man (Gary Iverson) lived in room 26 and had given the manager the .380 pistol,
    asking him to check to be sure it was not stolen. The manager eventually returned
    the gun to the defendant. Upon observing the black man fitting the description,
    the officers relayed the information to Officer Rogers, who signed the affidavit
    underlying the warrant.
    We review de novo the district courts determination that there was
    probable cause for the warrant.

    United States v. Price , 265 F.3d 1097, 1101 (10th

    Cir. 2001). There is probable cause for a search warrant only when a supporting
    affidavit lists facts leading a prudent person to believe a fair probability exists
    that contraband or evidence of a crime will be found in a particular place.

    See

    United States v. Basham , ___ F.3d ___, No. 01-5016, 2001 WL 1262098 at *2
    (10th Cir. Oct. 22, 2001). We review the issuance of the search warrant by the
    magistrate judge more deferentially,

    Price , 265 F.3d at 1101, with our duty being

    simply to ensure that the magistrate had a substantial basis for concluding that
    probable cause existed.

    Illinois v. Gates , 462 U.S. 213, 238-39 (1983) (internal

    quotations omitted). Further, we consider the totality of the circumstances,


    viewing the evidence in the light most favorable to the government.
    -3-

    United States

    v. Tisdale , 248 F.3d 964, 970 (10th Cir. 2001). We also accept the district courts
    factual findings unless they are clearly erroneous.

    Id.

    In this case the affidavit contained specific, detailed information provided


    by a named informant regarding her purchases, on several recent occasions, of
    drugs from the defendant in his motel room. Thus, this was not an anonymous tip
    from an unknown confidential informant.

    Compare, e.g. , Florida v. J.L. , 529 U.S.

    266, 271 (2000) (bare report of unknown, unaccountable informant with no


    explanation how informant knew about gun or provided basis for believing
    informant had inside information about defendant held insufficient to establish
    reliability). Moreover, Ms. Browns statement (that she had herself purchased
    drugs) was against her own penal interest, a factor we have considered indicative
    of reliability.

    United States v. Le , 173 F.3d 1258, 1266 (10th Cir. 1999) (citing

    United States v. Sturmoski , 971 F.2d 452, 457 (10th Cir. 1992)). We also note
    that a finding of reliability can be supported by evidence of first-hand
    observations. See United States v. Tuter , 240 F.3d 1292, 1297-98 (10th Cir.),
    cert. denied , 2001 WL 758729 (U.S. Oct. 1, 2001) (No. 01-11). Here, Ms. Brown
    had also observed drugs and packaging materials in defendants room and had
    seen him with a .380 semi-automatic pistol while selling crack cocaine to others.
    In addition, Ms. Browns information was corroborated by the hotel
    manager with respect to defendants description, his residence at the particular
    -4-

    motel room (and for the particular length of time he had been there), and the
    possession of the firearm. As to the pistol, the affiant police officer knew the use
    or carrying of a firearm in furtherance of drug trafficking to be illegal under 18
    U.S.C. 924 (c)(1)(A).
    The corroboration of innocent activity may become suspicious in light of
    Ms. Browns initial statements.

    See Gates , 462 U.S. at 243 n.13 (probable cause

    requires only a probability or substantial chance of criminal activity, not an actual


    showing of such activity). In addition, both Ms. Browns story and the
    surrounding facts possessed an internal coherence that gave weight to the whole.
    Massachusetts v. Upton,

    466 U.S. 727, 734 (1984). We hold that there was

    probable cause for the issuance of the warrant.


    Defendant also contends that the evidence should have been suppressed
    because the affidavit omitted material information concerning the informants
    credibility, bias, and motive to lie, which, if known to the issuing magistrate
    would have vitiated probable cause. Aplts Br. at 13. The district courts
    finding that the officer did not intentionally or recklessly seek to mislead the
    issuing judge is reviewed under the clearly erroneous standard.

    See United States

    v. Dozier , 844 F.2d 701, 705 (9th Cir 1988). Whether omitted facts would have
    defeated probable cause is reviewed de novo.

    -5-

    Id.

    In Franks v. Delaware , 438 U.S. 154, 155-56 (1978), the Supreme Court
    held that to invalidate a facially valid warrant a defendant must show that the
    affiant knowingly and intentionally, or with reckless disregard for the truth
    included false statements or omitted material facts and that the statements were
    necessary to the finding of probable cause. This applies to both intentionally
    false statements and to material omissions.
    583 (10th Cir. 1990).
    probable cause.

    See Stewart v. Donges , 915 F.2d 572,

    However, the omission must be necessary to the finding of

    Tisdale , 248 F.3d at 973.

    The district court found that adding the omissions to the affidavit (Ms.
    Browns use of alias names and her own alleged involvement with guns) would
    not have changed the issuing magistrate judges conclusion that sufficient
    probable cause existed for the issuance of the warrant. We agree.
    The affidavit disclosed that Ms. Brown was in possession of a .25 caliber
    semi-automatic pistol at the time she was first contacted by ATF agents and
    admitted to her own use of drugs, as well as being present when drugs were sold
    to others. Several other alleged omissions were not known to the officers at the
    time the affidavit was drafted, which defendant concedes.

    See Aplts Reply Br.

    at 10. We are not persuaded that Ms. Browns use of aliases constituted a
    reckless omission of material facts.
    2

    See United States v. Kennedy , 131 F.3d

    We are here concerned with alleged omissions.


    -6-

    1371, 1376 (10th Cir. 1997). And, even if the information had been included, the
    affidavit would still have given rise to probable cause,

    Basham , 2001 WL

    1262098 at *3.
    The judgment of the United States District Court for the District of
    Colorado is AFFIRMED.

    Entered for the Court

    Wade Brorby
    Senior Circuit Judge

    -7-

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