                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 21 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 00-1137
                                                    (D.C. No. 99-CR-328-N)
    NICHOLAS COLTON                                        (D. Colo.)
    CASSAVETES,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, McKAY, and ANDERSON, Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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 entered a conditional plea of guilty to a charge of possession of

an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871. The

district court sentenced defendant to twenty-two months’ imprisonment.

Defendant appeals from the district court’s denial of his motions to suppress

evidence seized from his residence pursuant to a search warrant. We have

jurisdiction under 28 U.S.C. § 1291.

      This case was part of a two-year federal investigation into the Sons of

Silence motorcycle club, of which defendant was a member. A number of

warrants related to the investigation were issued by a federal magistrate judge on

October 5, 1999, including the warrant to search defendant’s residence challenged

here. That warrant was executed beginning at 9:40 p.m. on October 7, 1999.

      The warrant was supported by information provided by an undercover

special agent of the Bureau of Alcohol, Tobacco and Firearms. This agent stated

that he observed defendant inhaling methamphetamine at a Valentine’s Day party

in 1999 and was offered methamphetamine by defendant; saw a short-barreled

shotgun in defendant’s garage on February 14, 1999; heard defendant say that he

owned one hundred firearms, including machine guns, that day; fired guns with

defendant on the firing range on defendant’s property that day; and heard

defendant say on September 5, 1999, that he still had an AK-47. Defendant

argues on appeal that: (1) the information supporting the warrant was so old that


                                        -2-
                                         2
any probable cause was stale; (2) an AK-47 is not necessarily a machine gun and

the information that defendant possessed machine guns was given in reckless

disregard of the truth; (3) defendant was not established as a drug user who was

prohibited from owning guns; and (4) there was no basis for a nighttime search.

      “We review de novo the district court’s probable cause determination.”

United States v. Nolan, 199 F.3d 1180, 1182 (10th Cir. 1999). Our review of the

issuance of the search warrant is more deferential, however. Id. (citing Illinois v.

Gates, 462 U.S. 213, 236-39 (1983)).

      The task of the issuing magistrate is simply to make a practical,
      common-sense decision whether, given all the circumstances set forth
      in the affidavit . . . , there is a fair probability that contraband or
      evidence of a crime will be found in a particular place. And the duty
      of a reviewing court is simply to ensure that the magistrate had a
      substantial basis for . . . conclud[ing] that probable cause existed.

Gates, 462 U.S. at 238-39 (quotation omitted). In reviewing the district court’s

denial of a motion to suppress, we accept the court’s factual findings unless they

are clearly erroneous, viewing the evidence in the light most favorable to the

government. United States v. Le, 173 F.3d 1258, 1264 (10th Cir. 1999). The

ultimate question of reasonableness under the Fourth Amendment is a legal

question that we review de novo. United States v. Hill, 199 F.3d 1143, 1147

(10th Cir. 1999), cert. denied, 121 S. Ct. 83 (2000).

      We find no error. Whether information supporting a warrant is stale is

determined by “the nature of the criminal activity, the length of the activity, and

                                         -3-
                                          3
the nature of the property to be seized.” United States v. Snow, 919 F.2d 1458,

1460 (10th Cir. 1990) (quotation omitted). The district court did not clearly err in

finding that defendant was a gun enthusiast who probably had not, by October,

gotten rid of all of the many guns he claimed to own in February. See United

States v. Shomo, 786 F.2d 981, 984 (10th Cir. 1986).

      Further, the district court did not clearly err in finding that when defendant

claimed in September to have an AK-47, he meant a machine gun. Although

defendant insists that an AK-47 can be a semi-automatic weapon, it is common

sense to interpret defendant’s September comment in light of his earlier claim to

own machine guns. See Gates, 462 U.S. at 238. It is immaterial that the search

failed to uncover any machine guns. And, because the magistrate judge had

probable cause to believe that defendant possessed illegal weapons, it is

unnecessary to discuss defendant’s argument that he was not shown to be a drug

user who was prohibited from owning any guns under 18 U.S.C. § 922(g)(3).

      Finally, although the warrant authorized a nighttime search, the search

actually began at 9:40 p.m., which is defined as daytime. Fed. R. Crim. P. 41(h).

A search that lawfully begins during the daytime may continue into the night.

United States v. Young, 877 F.2d 1099, 1104-05 (1st Cir. 1989). Therefore, it is

immaterial whether a nighttime search was properly authorized.




                                         -4-
     The judgment of the United States District Court for the District of

Colorado is AFFIRMED.

                                                  Entered for the Court



                                                  Deanell Reece Tacha
                                                  Circuit Judge




                                       -5-
