                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3681
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Mark Allen Hallam,                      *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: May 12, 2004
                                Filed: May 17, 2005
                                 ___________

Before MORRIS SHEPPARD ARNOLD, MCMILLIAN, and MELLOY, Circuit
      Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      Mark Hallam was convicted of two counts of possessing a firearm while being
a felon and unlawful user of a controlled substance in violation of 18 U.S.C.
§ 922(g)(1), (3). The firearms at issue were discovered and seized during two
searches, separated by several months, that were conducted at Mr. Hallam's home
pursuant to state search warrants. The district court1 denied Mr. Hallam's motion to


      1
       The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri, adopting the report and recommendations of the Honorable
James C. England, United States Magistrate Judge for the Western District of
suppress the firearms, which was based on the alleged insufficiency of the affidavits
supporting the two warrants. Mr. Hallam conditionally pleaded guilty to both counts,
reserving the right to have this court review the denial of his suppression motion. He
now appeals, contending that the district court erred in denying his motion to
suppress and in determining his sentence. We affirm.

                                            I.
                                           A.
        We first address the district court's refusal to suppress the guns seized from
Mr. Hallam's residence during the first search. The fourth amendment, applicable to
the states through the fourteenth amendment, protects individuals' rights to be secure
in their homes against "unreasonable" searches, and provides that "no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation." U.S. Const.
amend. IV. It is uncontested that the first search warrant was invalid because the
information contained in the affidavit in support of the warrant was insufficient to
establish probable cause, and that the search thus violated Mr. Hallam's constitutional
rights.

       At issue is whether the district court correctly held that the illegally seized
evidence was admissible against Mr. Hallam because the warrant, despite its
invalidity, was executed in good faith. As a general matter, in the absence a valid
search warrant issued by a detached and neutral magistrate pursuant to his
independent determination of probable cause, evidence discovered by the police
during a non-consensual search of a defendant's home is not admissible at the
defendant's trial, see Mapp v. Ohio, 367 U.S. 643, 655-57 (1961). The fourth
amendment, however, does not itself "expressly preclud[e] the use of evidence
obtained in violation of its commands," United States v. Leon, 468 U.S. 897, 906
(1984), and the Supreme Court has held that evidence obtained by an officer pursuant


Missouri. See 28 U.S.C. § 636(b)(1)(B).

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to an invalid warrant need not be excluded from the prosecution's case-in-chief if the
officer's reliance on a magistrate's erroneous probable-cause determination was
"objectively reasonable" and manifested "objective good faith," id. at 922-23. The
reasonableness of the execution of the warrant at issue here is a mixed question of
law and fact that we review de novo, considering all of the relevant circumstances.
See, e.g., United States v. Marion, 238 F.3d 965, 968-69 (8th Cir. 2001); United
States v. Riedesel, 987 F.2d 1383, 1391 (8th Cir. 1993).

                                          B.
      The county prosecutor who applied for the warrant to search Mr. Hallam's
residence presented an affidavit signed by Trooper Kelsey Rutledge in support of the
application. The affidavit provided the following factual basis for Trooper Rutledge's
information and belief that probable cause existed:

      [W]ithin the last 6 hours, a cooperating individual advised me in person
      that he had seen methamphetamine on the dining room table of the Mark
      Hallam residence. ... [T]he cooperating individual had been stopped by
      me in a traffic stop, and provided this information after I had arrested
      him for felony driving while revoked ... and had found marijuana on his
      person in the course of a search incident to arrest. The cooperating
      individual indicated he had seen the methamphetamine only minutes
      before, as he had just left the Mark Hallam residence prior to my
      stopping him.

The affidavit went on to describe the precise location of the "property where the
methamphetamine was seen by the confidential informant." Based on this affidavit,
a state magistrate signed a search warrant and Trooper Rutledge and other state
officials executed the search, during which eight guns were seized.

       The district court determined that Trooper Rutledge's affidavit failed to
establish probable cause, as it did not include any information regarding the reliability
of the unnamed "cooperating individual" or any corroborating information. The court

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concluded, however, that Mr. Hallam's motion to suppress the evidence obtained
through the first search warrant should be denied because Trooper Rutledge had acted
in good-faith reliance on the warrant in executing the search. The Supreme Court has
noted that the so-called "good faith" exception to the exclusionary rule is broad,
advising that "a warrant issued by a magistrate normally suffices to establish that a
law enforcement officer has acted in good faith in conducting the search," and thus
that exclusion of evidence discovered during the search is inappropriate. Leon,
468 U.S. at 922 (internal quotations omitted). The Court has made clear, however,
that suppression of the fruits of a search conducted pursuant to an invalid warrant
remains the appropriate remedy "in cases where the issuing magistrate wholly
abandoned his judicial role" or where the warrant is "based on an affidavit so lacking
in indicia of probable cause as to render official belief in its existence entirely
unreasonable," among other situations. Id. at 923 (internal quotations omitted).
Mr. Hallam contends that the first search warrant exhibits both of these infirmities,
and that the district court thus erred in denying his motion to suppress.

                                          C.
       Mr. Hallam contends first that Trooper Rutledge's reliance on the warrant was
objectively unreasonable because the magistrate abandoned his judicial role in issuing
it. Trooper Rutledge met with a prosecutor at about 2:00 AM on the day of the
search. They collectively prepared an affidavit and search warrant for the magistrate
to sign, and then asked the magistrate to come to the prosecutor's office. Trooper
Rutledge testified during the suppression hearing that the issuance of the warrant took
place in a "pretty casual atmosphere," that the magistrate had no questions and made
no statements about the search warrant or affidavit, and that the magistrate "was
anxious to get back to bed."

      While the magistrate's relative silence and his desire to return to his slumber
might tend to show that he was acting as a mere "rubber stamp" instead of actively
making an independent probable cause determination, such behavior is only to be

                                         -4-
expected from a man who has been rousted out of bed in the middle of the night.
There is no indication that the magistrate was biased or impartial, nor is there any
evidence of a pattern of passive, automatic issuance of warrants. The record provides
only a very limited insight into the magistrate's internal mental processes, and we
simply do not have sufficient information to conclude that he "wholly abandoned his
judicial role."

                                             D.
       Mr. Hallam also contends that the firearms should be suppressed because
Trooper Rutledge's affidavit, which provided the only factual basis for the
magistrate's probable cause determination, was "so lacking in indicia of probable
cause as to render official belief in its existence entirely unreasonable." Both parties
agree that the affidavit failed to provide sufficient facts establishing the reliability of
the statements of the "cooperating individual." It did, however, provide some fairly
specific information in the form of first-hand observation of the unnamed informant
that methamphetamine would be found at the residence of Mr. Hallam; all that was
missing was an additional factual basis to corroborate this evidence. We conclude
that the affidavit, while scant, was not so utterly lacking in facts as to render Trooper
Rutledge's belief that it established probable cause "entirely unreasonable."

                                           E.
       Background facts disclosed by Trooper Rutledge during his testimony at the
suppression hearing also indicate that he was acting with good faith in relying on the
magistrate's probable cause determination. Trooper Rutledge testified that this was
the first search warrant that he had sought since beginning his job with the highway
patrol. He executed the warrant after two attorneys, the prosecutor and the
magistrate, represented to him that the affidavit established probable cause. Trooper
Rutledge testified that he believed that he had probable cause to conduct the search,
and that he relied upon the fact that the magistrate had signed the warrant. Due to his
relative inexperience in dealing with search warrants and his limited legal knowledge,

                                           -5-
it was reasonable for him to give some deference to the judgment of the prosecutor
and the magistrate, and there is no reason to presume that his reliance on their
affirmations and on the magistrate's issuance of the warrant was in bad faith.

        Prior to the preparation of the affidavit, Trooper Rutledge showed the
prosecutor a statement signed by the informant mentioned in the affidavit (who turned
out to be Mr. Hallam's brother), which stated that he "saw meth on the table of Mark
Hallam tonight on the dinning [sic] room table in two separate bags," and described
where Mr. Hallam lived. In addition, the trooper told the prosecutor about a
conversation that he had had with Mr. Hallam's brother in which the brother described
other drug-related incidents that the trooper was able to corroborate independently.
Trooper Rutledge testified that Mr. Hallam's brother provided the incriminating
information about Mr. Hallam in exchange for an agreement to "cut him a deal" on
traffic and drug charges that he was facing. Trooper Rutledge also told the prosecutor
about another incident that occurred two days prior to the issuance of the warrant
involving a man named Paul Murphy. He had arrested Mr. Murphy for a traffic
violation, after which Mr. Murphy disclosed to him that Mr. Hallam was producing
large quantities of methamphetamine, and was employing Mr. Murphy's ex-wife and
supplying her with methamphetamine.

       Trooper Rutledge testified that the typical procedure in obtaining a warrant is
that the troopers "go to [the prosecutor] with information, give him the case, and
basically he types things up for us." He testified that the prosecutor wrote up the
affidavit that he signed and that for some reason unknown to him, the prosecutor
failed to include in the affidavit any information about the informant's identity, the
additional independently corroborated information relayed by the informant, or the
conversation with Mr. Murphy, and that he had relied on the prosecutor to include in
the affidavit whatever the prosecutor thought was necessary. Had the affidavit
contained the additional facts that Trooper Rutledge relayed to the prosecutor, it quite
likely would have established probable cause, as these facts tended to bolster the

                                          -6-
reliability of the information that the prosecutor did include in the affidavit. In any
event, we agree with the district court that, based on the totality of circumstances,
including facts that do not appear on the face of the affidavit, "[i]t was entirely
reasonable for Trooper Rutledge to have believed that probable cause existed," and
"Trooper Rutledge acted in good faith in relying on the county prosecutor and state
judge's probable cause determination." We thus conclude that the district court's
denial of Mr. Hallam's motion to suppress the firearms seized during the first search
of his home was not erroneous.

                                            II.
        We next address the district court's refusal to suppress a firearm found in
Mr. Hallam's home during the second search. Mr. Hallam contends that the evidence
seized during the second search should have been suppressed because it is a "fruit of
the poisonous tree," as the affidavit in support of the second search warrant was based
in part on information gleaned as a result of the first search conducted pursuant to the
first, deficient search warrant. This argument is disposed of by our holding above
that the first search was conducted in reasonable good-faith reliance on the invalid
warrant; the good faith served to purge any taint that might otherwise require
exclusion of evidence that was obtained during the second search as a proximate
result of the inadequate first warrant.

      Mr. Hallam also argues that the second search warrant was invalid because the
affidavit in support of the warrant, signed by Deputy Chris Spratt, did not establish
probable cause. The district court determined that "[t]he affidavit in support of the
[second] search warrant is replete with reliable information and clearly provides
probable cause for a search warrant of Defendant's residence." In reviewing the
issuance of a warrant, a district court need not make a de novo inquiry into the
existence of probable cause, but rather should uphold the decision to issue the warrant
so long as it is supported by "substantial evidence in the record." See Massachusetts
v. Upton, 466 U.S. 727, 728 (1984) (per curiam).

                                          -7-
       Deputy Spratt's affidavit stated that a "reliable informant" had reported to him
that he had witnessed Mr. Hallam cooking methamphetamine in the kitchen and
bathroom of Mr. Hallam's house, that several thousand dollars in cash was hidden in
vehicles parked outside Mr. Hallam's residence, that Mr. Hallam had surveillance
cameras watching the highway outside his house, and that methamphetamine, pills,
and marijuana were hidden in several precisely identified locations at Mr. Hallam's
residence, including behind false floors and inside hidden compartments and chicken
coops. The affidavit stated that the informant had bought methamphetamine from
Mr. Hallam off and on for three years and was willing to testify against him. Deputy
Spratt's affidavit also stated that a man named Mark Neil, whose methamphetamine
was discovered during a search following an arrest for a traffic violation, disclosed
that he had obtained the drugs from Mr. Hallam that very day, and that he had
purchased drugs from Mr. Hallam about seventy-five times over the past year.
Finally, Deputy Spratt, who had taken part in the first search, stated in the affidavit
that he had personally received numerous phone calls since Mr. Hallam's last arrest
"stating that he is back to cooking and selling methamphetamine and Marijuana."

       We agree with the district court that the probable cause determination was
supported by substantial evidence. The various sources referred to in Deputy Spratt's
affidavit all pointed to the same conclusion that Mr. Hallam was operating an illegal
drug business out of his home, and some of that information was exceptionally
detailed. Collectively, the information provided in the affidavit quite clearly gives
rise to "a fair probability that contraband or evidence of a crime," Illinois v. Gates,
462 U.S. 213, 238 (1983), would be found at Mr. Hallam's residence. We thus affirm
the denial the motion to suppress the firearm seized during the second search.

                                        III.
      Finally, we address the two sentencing questions raised by this case. The first
is whether the district court erred when it enhanced Mr. Hallam's guidelines
sentencing range pursuant to U.S.S.G. § 2K2.1(b)(5). The second is whether the

                                         -8-
district court committed plain error by sentencing Mr. Hallam pursuant to the
mandatory-guidelines regime instead of the advisory-guidelines regime laid out in
United States v. Booker, 125 S. Ct. 738 (2005). We answer both questions in the
negative.

      We conclude that the district court appropriately calculated Mr. Hallam's
guidelines sentencing range, which is advisory in the wake of Booker, 125 S. Ct. at
756-57. Section 2K2.1(b)(5) provides that a court should add four levels to a
defendant's offense level "[i]f the defendant used or possessed any firearm ... in
connection with another felony offense." Mr. Hallam argues that there is no evidence
that he committed another felony offense and, in the alternative, that there is no
evidence connecting the firearms to any such offense that he committed.

       In our view, the record supports the district court's conclusion that Mr. Hallam
committed at least one other felony offense. When the police searched Mr. Hallam's
house the first time, they found (in addition to ten firearms) drug paraphernalia
associated with the manufacture and distribution of methamphetamine, almost four
grams of methamphetamine, and almost $800 in cash. (He does not deny that the
police found these items.) This evidence, along with the statements by Mr. Hallam's
brother and Mr. Murphy, see generally United States v. Tucker, 286 F.3d 505, 510
(8th Cir. 2002), more than supports the district court's finding under a preponderance-
of-the-evidence standard that Mr. Hallam committed other felony offenses, namely
the attempted manufacture of methamphetamine, Mo. Rev. Stat. § 195.211 (2004),
possession with the intent to distribute methamphetamine, id., and possession of drug
paraphernalia with the intent to manufacture methamphetamine, Mo. Rev. Stat.
§ 195.233. See generally United States v. Marks, 328 F.3d 1015, 1017 (8th Cir.
2003). And in fact, Mr. Hallam had been charged with these crimes in Missouri state
court at the time of his sentencing.




                                         -9-
        We also conclude that the district court appropriately determined that the
firearms were connected with these other offenses. When the other offenses are drug
related, as they are here, the four-level enhancement is appropriate unless it is
" 'clearly improbable' " that the firearms were used in connection with those offenses.
See United States v. Regans, 125 F.3d 685, 687 (8th Cir. 1997), cert. denied, 523 U.S.
1065 (1997) (quoting U.S.S.G. § 2D1.1 comment. (n. 3)); United States v. Kanatzar,
370 F.3d 810, 815 (8th Cir. 2004), vacated on other grounds by 125 S. Ct. 1010
(2005). "In connection with means that the firearm must have [had] ... the potential
of facilitating [ ] another felony offense; its presence or involvement cannot [have]
be[en] the result of accident or coincidence." United States v. Frederickson, 195 F.3d
438, 439-40 (8th Cir. 1999) (per curiam) (internal quotations omitted). We cannot
say that it is "clearly improbable" that the firearms found at the house had the
potential of facilitating the drug crimes which probably occurred at the house, as
firearms are "tools of the drug trade providing protection and intimidation," United
States v. Linson, 276 F.3d 1017, 1019 (8th Cir. 2002); see United States v. Brown,
148 F.3d 1003, 1009 (8th Cir. 1998), cert. denied, 525 U.S. 1169 (1999).

       Turning to the second sentencing question, we hold that the district court did
not plainly err by sentencing Mr. Hallam under the mandatory-guidelines regime. To
demonstrate plain error, Mr. Hallam would have to show, based on the record as a
whole, that there is a reasonable probability that he would have received a more
favorable sentence had the judge sentenced him under the advisory-guidelines system.
United States v. Pirani, No. 03-2871, 2005 WL 1039976, at *6 (8th Cir. April 29,
2005) (en banc). Mr. Hallam cannot make this showing. The only evidence that the
judge might have given him a lower sentence under the new system is that the judge
sentenced him to the bottom of the guidelines range. Under Pirani, however, that is
not enough to carry the defendant's burden. Id. at *7.




                                         -10-
                                       IV.
     For the reasons given, we affirm the district court's denial of Mr. Hallam's
motion to suppress and affirm his sentence.
                      ______________________________




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