                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               OCT 17 2001
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellant,
 v.                                                          No. 00-4159
 JOSE MARTINEZ-MARTINEZ, also                         (D.C. No. 99-CR-622-ST)
 known as Arvelin Mendoza-Martinez,                          (D. Utah)

          Defendant-Appellee.



                                 ORDER AND JUDGMENT*


Before BRISCOE, McWILLIAMS, and ANDERSON, Circuit Judges.


      This is an interlocutory appeal filed by the government. The government appeals

the district court's order suppressing evidence found in defendant Jose Martinez-Martinez'

apartment during the execution of a search warrant. The court held the warrant to search

the apartment was not supported by probable cause and further concluded the good faith

exception set forth in United States v. Leon, 468 U.S. 897 (1984), did not apply. We

exercise jurisdiction under 18 U.S.C. § 3731 and reverse and remand for further



      *
          This order and judgment is not binding precedent, except under the doctrines of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.
proceedings.

                                             I.

       In August 1999, Detective Travis Rees, a member of the Salt Lake Drug

Enforcement Agency/Metro Narcotics Task Force, began investigating defendant and his

girlfriend, Mayda Mishon Wanosik, based on a tip from a confidential informant that the

two were distributing cocaine at defendant's apartment. After arranging two cocaine buys

from defendant and Wanosik by an undercover police detective, Rees applied for a

warrant to search defendant's apartment, two cars, and also defendant's and Wanosik's

persons.

       Rees' affidavit was attached to the application for the warrant. The affidavit set

forth Rees' qualifications and experience with drug investigations and stated he was

investigating a complaint relating to the ongoing distribution of drugs at an apartment

identified in the affidavit. The affidavit described the two undercover cocaine buys and

stated two cars, both registered to defendant, were driven by either defendant or Wanosik

during the cocaine buys. The affidavit noted that Rees had observed the cars parked

outside defendant's apartment several times during both day and night. The address of

defendant's apartment was listed on one car registration. The other car registration listed

defendant's prior address. Rees also detailed the criminal history of defendant and

Wanosik. Both individuals had been charged with at least one drug offense in the past.

Defendant's history included prior convictions for possession with intent to distribute both


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cocaine and methamphetamine.

       A magistrate judge issued a no-knock search warrant, authorizing the search of the

apartment, the two cars, and defendant's and Wanosik's persons. When the officers

executed the warrant on October 25, 1999, they found in the apartment over 10 grams of

cocaine, a Black Beretta .22 caliber pistol, and drug paraphernalia. Defendant was

charged pursuant to 18 U.S.C. § 922(g)(5) (illegal alien in possession of a firearm),

8 U.S.C. § 1326 (illegal reentry of a deported alien), and 21 U.S.C. § 844 (possession of a

controlled substance).

       Defendant moved to suppress the evidence recovered when the warrant was

executed. As regards the search of his apartment, he argued Rees' affidavit was

insufficient to establish probable cause for the search, and that it was a “bare bones”

affidavit that failed to show any nexus between the alleged cocaine buys and his

apartment. At the evidentiary hearing, Rees testified to additional facts gathered from his

investigation that were not stated in his affidavit. He stated that during one of the

arranged buys, officers attempted to maintain constant surveillance of one of defendant's

cars but the car escaped surveillance for approximately five minutes. He also stated that

in his experience, street-level narcotics traffickers keep drugs in their residences and often

keep drugs and money in the same place. Further, he testified that when the confidential

informant arranged the buys, the informant phoned a land line that came back to

defendant's apartment.


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       The district court granted defendant's motion to suppress evidence seized from his

apartment, but denied the motion to suppress evidence found in defendant's cars or on the

persons of defendant and Wanosik. The district court noted the fact that neither cocaine

buy occurred at defendant's apartment and held the affidavit was a “bare bones” affidavit,

insufficient to establish probable cause to search the apartment. The only connection

between the apartment and the arranged buys was that the two cars used by defendant and

Wanosik during the buys had been seen parked in front of the apartment. The court noted

there was no continuous surveillance of the cars from the time they left the apartment

until they later appeared at the undercover buys. The court further noted that although the

affidavit set forth Rees' training, it made no connection between his “limited” drug

enforcement training and experience and the likelihood that evidence of drug activities

would be found in the apartment. The court held that the good faith exception to the

exclusionary rule did not apply because the government did not prove that reliance on the

warrant was objectively reasonable.

                                            II.

       The Fourth Amendment states that “no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation.” U.S. Const. amend. IV. Probable cause exists

when “there is a fair probability that contraband or evidence of a crime will be found in a

particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983); see United States v.

McCarty, 82 F.3d 943, 947 (10th Cir. 1996). Evidence that is obtained in violation of this


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Fourth Amendment stricture is subject to the exclusionary rule and is not permitted to be

used at trial. See Mapp v. Ohio, 367 U.S. 643, 651 (1961).

       The government argues that the warrant in this case was valid because the affidavit

demonstrated probable cause to search the residence. Alternatively, it argues even if the

search warrant was not supported by probable cause, the “good faith exception” to the

exclusionary rule applied and therefore the evidence was admissible.

       Resolution of whether there was probable cause supporting the warrant is not

necessary to our decision because, as discussed below, the officers' search of defendant's

apartment falls within the good faith exception to the exclusionary rule. See United

States v. Cook, 854 F.2d 371, 372 (10th Cir. 1988) (reversing granting of motion to

suppress under good faith exception to exclusionary rule by assuming, without expressly

holding, warrant lacked probable cause basis).

       The Court concluded in Leon the policies of deterring police misconduct that

supported the exclusionary rule required that there be an exception allowing admission of

evidence obtained pursuant to an invalid search warrant where “an officer acting with

objective good faith has obtained a search warrant from a judge or magistrate and acted

within its scope.” 468 U.S. at 920. Whether the good faith exception should be applied is

a question of law reviewed de novo. See United States v. Corral-Corral, 899 F.2d 927,

929 (10th Cir. 1990).

       In Leon, the Court set forth four situations where a search conducted pursuant to


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an invalid warrant is not afforded the benefit of the good faith exception: (1) if the judge

issuing the 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)

where the issuing judge “wholly abandoned his judicial role”; (3) where the underlying

affidavit was “so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable”; and (4) where the warrant was “so facially deficient –

i.e., in failing to particularize the place to be searched or the things to be seized – that the

executing officers cannot reasonably presume it to be valid.” 468 U.S. at 923. Defendant

argues the second and third situations apply here.

       Defendant's argument that the magistrate abandoned his judicial role lacks merit.

There is no indication the magistrate acted beyond his judicial role. Further, defendant

failed to raise this argument before the district court. See United States v. Perez, 955

F.2d 34, 36 (10th Cir. 1992) (holding issues not raised in district court will not be

considered for first time on appeal).

       “Because the good-faith inquiry is confined to the objectively ascertainable

question whether a reasonably well trained officer would have known that the search was

illegal despite the magistrate's authorization, the reviewing court must examine the text of

the warrant and the affidavit to ascertain whether the agents might have reasonably

presume[d] it to be valid.” United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir.

1993) (internal quotations omitted). “[W]hen reviewing an officer's reliance upon a


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warrant, we must determine whether the underlying documents are devoid of factual

support, not merely whether the facts they contain are legally sufficient.” Id. (internal

quotation omitted). “[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.” United States v. Bishop, 890 F.2d 212, 217 (10th Cir. 1989).

       The district court held the good faith exception did not apply to the search of

defendant's apartment because the affidavit did not establish a link between the apartment

and the suspected criminal activity. The court found the affidavit should have included

information that the buys were arranged on a phone line connected to defendant's

apartment, and that failure to maintain unbroken surveillance of the cars between the

apartment and the location of the buys broke any link to the apartment. These

shortcomings should not result in our equating Rees' affidavit to a “bare bones affidavit,

containing only conclusory statements and completely devoid of factual support.” See

United States v. Rowland, 145 F.3d 1194, 1207 (10th Cir. 1998) (citing Leon, 468 U.S. at

926). When determining whether Leon's good faith exception applies, the question is not

what is absent from the affidavit, but what is present. As long as the affidavit contains

sufficient information for a reasonable officer to believe the warrant is valid, the good

faith exception applies. “The first notion to be remembered in considering the good faith

principle is the presumption created in Leon that when an officer relies upon a warrant,

the officer is acting in good faith.” McKneely, 6 F.3d at 1454 (internal quotation


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omitted). “This presumption, though not absolute, must carry some weight.” Id. (internal

quotation omitted).

       This court has applied the good faith exception even when the affidavit supporting

the warrant was insufficient. In United States v. Danhauer, 229 F.3d 1002 (10th Cir.

2000), the affidavit provided insufficient information about the veracity of the

confidential informant and offered no corroboration. We determined the lack of

information did not “preclude an officer from manifesting a reasonable belief that the

warrant was properly issued.” Id. at 1007. Similarly, in United States v. Nolan, 199 F.3d

1180 (10th Cir. 1999) (the case the district court here relied on to find the affidavit lacked

probable cause), the affidavit established that defendant was a crack dealer who did not

sell from his residence, but that drug dealers sometimes keep records in their homes.

Based on this information, we held a reasonable officer could believe the warrant was

properly granted. These cases are analogous to the present case in that the affidavit

contained more information than a “bare bones” affidavit, even if it may not have

contained enough information for probable cause.

       Detective Rees' affidavit stated that an undercover police detective purchased

drugs from two individuals who drove two different cars to the drug deals. These were

controlled buys and at least one of the buys was observed by Rees. Rees further stated

that he had driven by the apartment of one of the individuals several times, both during

the day and during the night, and had seen the cars parked in front of the apartment. The


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affidavit stated both cars were registered to one of the individuals who had sold the drugs

and the address on one of the car registrations was the address of the apartment where the

cars were parked. The affidavit set forth Rees' expertise and noted that he was

investigating a complaint relating to ongoing drug sales at the apartment. Rees also

summarized the criminal histories of both individuals, and both previously had been

charged with drug violations. Even if this information was not found to be legally

sufficient to establish probable cause to search defendant's apartment, it clearly was not

wholly devoid of factual support. Because the warrant and its underlying affidavit were

not so lacking in indicia of probable cause that the executing officer should have known

the search was illegal despite the magistrate's authorization, the good faith exception to

the exclusionary rule applies and the evidence should not be suppressed.

       The district court's order granting defendant's motion to suppress is REVERSED

and this case is REMANDED for further proceedings.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




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