                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 25, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                        No. 10-8094
          v.                                              (D. of Wyo.)
 IRA IZELL JONES, JR.,                          (D.C. No. 10-CR-00066-01-D)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **


      Ira Jones, a federal prisoner, appeals the district court’s denial of his

motion to suppress evidence seized pursuant to a search warrant. He claims the

affidavit supporting the search was insufficient to establish probable cause and

argues that the seized evidence was critical to the government’s case at trial. We




      *
         This order and judgment is not binding precedent except under the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 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
disagree and find there was sufficient basis in the affidavit to establish probable

cause.

         Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

                                   I. Background

         The Laramie County Sheriff’s Office responded to a call from a

confidential informant. The informant said that Jones threatened to kill him if a

package scheduled to be delivered to the informant’s home did not arrive. The

informant also expressed that Jones had received shipments of crack cocaine from

California in the past.

         The next day, an officer contacted the informant and was told that Jones

had requested to stay the night at the informant’s home in order to receive a

package he had arranged to be delivered to the home. Based on the informant’s

prior knowledge of Jones’s drug-related shipments from California, and concern

that this package would contain contraband, he refused Jones’s request. The

officer also learned the informant had seen a box of ammunition in Jones’s

belongings three weeks prior.

         The package arrived anyway, addressed to the informant. Inside the

package was a stuffed bear containing approximately 29 grams (with packaging)

of suspected cocaine base. The substance tested presumptively positive for the

presence of cocaine. Subsequent laboratory analysis identified the substance as

cocaine base weighing 25.92 grams.

                                          -2-
      Jones was later arrested at his hotel on suspicion of drug trafficking.

During the arrest, the officers noticed a strong odor of marijuana, and discovered

a small bag of what appeared to be marijuana and a hotel room key. The key

belonged to the room Jones was seen leaving just prior to his arrest. The officers

learned Jones was the sole occupant of the room and an officer smelled a strong

odor of marijuana emanating from that room.

      Based on information officers had received from the informant, and the

events following Jones’s arrest, the Sheriff’s Office prepared an affidavit and an

application for a search warrant of Jones’s hotel room. A search warrant was

issued by a Laramie County Circuit Court Judge, authorizing the search of the

hotel room and Jones’s personal property located there. The warrant also

authorized the seizure of “[c]ontrolled substances/contraband, [d]rug ledgers,

documents, cell phones, and all information contained within, firearms,

ammunition or U.S. Currency.” R., Vol. 1, Doc. 39, Ex. B.

      A search of the hotel room revealed a .40 caliber handgun with ten rounds

of ammunition in the magazine, a black nylon holster, a box of .40 caliber

ammunition containing 40 rounds, a digital scale, a green stuffed bear with its

back cut open, three cellular telephones, and miscellaneous documents including

three receipts for money transfers from Cheyenne to Fresno, California.




                                         -3-
      Jones was indicted on three counts. The first count charged him with

conspiracy to possess with intent to distribute, and to distribute, 50 grams or more

of a mixture and substance containing cocaine base, in violation of 21 U.S.C.

§§ 846, 841(a)(1) and 841(b)(1)(A). The second count charged him with

possession of a firearm in furtherance of a drug trafficking crime, in violation of

18 U.S.C. § 924(c)(1)(A). The final count charged him with being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

      Jones filed a motion to suppress evidence, challenging the sufficiency of

the affidavit relied upon in determining probable cause and the scope of the

search warrant, which was subsequently denied. A jury found Jones guilty of

conspiracy to possess with intent to distribute, and to distribute, five grams or

more, but less than 50 grams, of cocaine base, and guilty of being a convicted

felon in possession of a firearm. But he was acquitted on the second count of

being in possession of a firearm in furtherance of a drug trafficking crime. He

was sentenced to a total of 360 months’ imprisonment and eight years of

supervised release.

                                    II. Analysis

      Jones now appeals the district court’s denial of his motion to suppress. On

appeal, Jones argues that the affidavit in support of the search warrant was

inadequate to provide the circuit court judge probable cause to issue the search




                                          -4-
warrant because the affidavit did not contain allegations of criminal conduct in

Jones’s hotel room.

      When confronted with an appeal of a district court’s denial of a motion to

suppress, “[t]he ultimate question of reasonableness under the Fourth Amendment

is a legal conclusion that we review de novo.” United States v. Grimmett, 439

F.3d 1263, 1268 (10th Cir. 2006). The Fourth Amendment provides that “no

Warrants shall issue, but upon probable cause.” U.S. C ONST . amend IV. But we

provide substantial deference to a judge’s finding of probable cause and only

inquire “whether, under the totality of the circumstances presented in the

affidavit, the magistrate judge had a substantial basis for determining that

probable cause existed.” United States v. Tuter, 240 F.3d 1292, 1295 (10th Cir.

2001) (internal quotation marks and citation omitted). “The test is whether the

facts presented in the affidavit would warrant a [person] of reasonable caution to

believe that evidence of a crime will be found at the place to be searched.”

United States v. Artez, 389 F.3d 1106, 1113 (10th Cir. 2004) (quotation, citation,

and emphasis omitted).

      Jones argues that the affidavit failed to establish a nexus between his

alleged possession and distribution of drugs and the hotel room. His argument is

not persuasive. As the district court noted, the informant’s statements regarding

the delivery of drugs from California to Wyoming were sufficiently corroborated

by the fact that a drug package was in fact delivered to the informant’s residence,

                                         -5-
just as promised. Armed with this knowledge, officers arrested Jones on

suspicion of drug trafficking. Prior to the arrest, the officers witnessed Jones

leaving the hotel room. During the arrest, they found him in possession of a hotel

key to the room he had just left. More so, they not only detected an odor of

marijuana from him, but also found him in possession of a small bag of

marijuana. Another officer detected a strong odor of marijuana from Jones’s

hotel room. Along with the informant’s prior statements of Jones’s drug

trafficking activities, these facts provided a substantial basis that probable cause

existed to believe a search of the hotel room would reveal contraband or evidence

of criminal activity. 1

       We thus AFFIRM the district court’s denial of Jones’s motion to suppress.

                                                       ENTERED FOR THE COURT

                                                      Timothy M. Tymkovich
                                                      Circuit Judge




       1
       Because we find that the search warrant was supported by probable cause,
we do not address the government’s good faith argument.

                                         -6-
