                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                 November 4, 2010
                                 TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 10-1126
          v.                                            (D. Colorado)
 SHUN LAMAR BIRCH,                           (D.C. No. 1:09-CR-00053-WYD-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      A jury found Shun Lamar Birch guilty of being a felon in possession of a

firearm. See 18 U.S.C. § 922(g)(1). The evidence against him included firearms

that he had moved to suppress on the ground that they were seized in an unlawful

search. Although the United States District Court for the District of Colorado

expressed serious concerns about whether probable cause supported the search

warrant, it denied his motion, ruling that the good-faith exception to the


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
exclusionary rule applied. Mr. Birch now appeals the denial of the motion to

suppress. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I.    BACKGROUND

      On December 6, 2006, Kalonniann Clark was murdered in her home.

Police officers found a footprint on the door of her home as well as .380 caliber

shell casings and a 9mm slug and shell casings. Recovered from her body was a

9mm bullet fired from the same weapon as the slug.

      On November 19, 2008, a Denver County grand jury indicted Mr. Birch for

the murder of Kalonniann Clark. He was arrested that day by Denver police at

10001 East Evans Avenue, Unit 39-B, a townhouse where he was staying.

      Later in the day Denver Police detective Jaime Castro applied for a search

warrant for the Evans Avenue residence. He sought male athletic shoes, .380

caliber and 9mm handguns, and other evidence of the murder. His affidavit

described the events on the night of the murder and the crime scene, including the

bullet and shoe-print evidence that the police had found. It stated that Mr. Birch,

Brian Hicks, and Willie Clark had been indicted for the murder by a grand jury;

that a confidential informant had stated that, shortly after the murder, the

informant had seen Mr. Birch receive $4,000 of marijuana as partial payment for

killing Kalonniann Clark; that Mr. Birch was arrested on December 13, 2006 (a

week after the murder) for marijuana possession; and that Willie Clark had told

Hicks (who was incarcerated) in a recorded phone conversation that Mr. Birch

                                         -2-
had been arrested for possession of marijuana and that Clark had paid his bail

bond. It further stated that surveillance officers had observed Mr. Birch living at

the Evans Avenue townhouse and that he had given his address as 10001 East

Evans Avenue on a report that he had filled out after a July 2008 traffic accident.

      To support probable cause that evidence could be found at Mr. Birch’s

home, Detective Castro drew upon his 18 years of police experience. Based on

that experience, he stated in his affidavit that conspirators to a murder continue to

communicate after the crime, and with increased frequency when they learn of an

investigation; that if some of them are incarcerated, as had been true of Hicks and

Willie Clark since January 2007, they commonly communicate by mail; that shoes

are not frequently discarded and are stored at home; that cell phones are used to

store the names and phone numbers of associates; and that young male criminals

frequently keep cell-phone pictures of themselves holding guns and other

evidence of criminality (the affidavit gave Mr. Birch’s birthdate as March 31,

1981). The affidavit also stated that Castro knew of at least one occasion on

which a murderer had later been arrested with the firearm used in the crime.

      Upon execution of the warrant, the police found a .45 caliber handgun and

ammunition, two 12-gauge shotguns, and .40 caliber ammunition. 1 They also



      1
       The district court determined that if the police were lawfully searching the
townhouse, the weapons were in plain view. Mr. Birch does not challenge this
conclusion on appeal.

                                         -3-
seized 19 pairs of athletic shoes. The weapons recovered resulted in the federal

gun charges at issue here.

II.   DISCUSSION

      A.     Probable Cause and the Good-Faith Exception

      The Fourth Amendment requires probable cause to conduct a search in a

criminal investigation. See Arizona v. Hicks, 480 U.S. 321, 328 (1987) (“A

dwelling-place search . . . requires probable cause”). Probable cause is “a fair

probability that contraband or other evidence will be found in a particular place.”

United States v. Biglow, 562 F.3d 1272, 1281 (10th Cir. 2009) (internal quotation

marks omitted). In determining probable cause, magistrates may rely on the

expert opinions of law-enforcement officers regarding where evidence might be

kept. See id. at 1279.

      To enforce Fourth Amendment requirements, the exclusionary rule

generally bars use of evidence obtained through a search or seizure that violates

the Amendment, see United States v. Leon, 468 U.S. 897, 906–08 (1984), thereby

deterring law-enforcement officers from violating it, see id. at 906. Excluding the

evidence, however, will not always have the desired deterrent effect. In

particular, the Supreme Court in Leon recognized that the exclusion of “reliable

physical evidence seized by officers reasonably relying on a warrant issued by a

detached and neutral magistrate” does not serve the primary purpose of the Fourth

Amendment exclusionary rule—deterrence of police misconduct. Id. at 913.

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Thus, Leon created the good-faith exception to the exclusionary rule, which

allows evidence obtained in such circumstances to be used at trial. See id. at 922;

United States v. Gonzalez, 399 F.3d 1225, 1229 (10th Cir. 2005) (“Leon

established that evidence obtained pursuant to a warrant that is later found to be

defective is not properly excluded when the warrant is relied on by the officers in

objective good faith.”).

      This is not to say that the exclusionary rule never applies when officers

execute a warrant issued by a magistrate. Leon noted four situations in which the

good-faith exception would not apply because reliance on the warrant by the

officers would not be objectively reasonable: (1) if the affidavit for the warrant is

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

entirely unreasonable”; (2) if the issuing magistrate was “misled by information

in an affidavit that the affiant knew was false or would have known was false

except for his reckless disregard for the truth”; (3) if the magistrate “wholly

abandoned his judicial role”; and (4) if a warrant is “so facially deficient . . . that

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

(internal quotation marks omitted).

      B.     Contentions on Appeal

      On appeal Mr. Birch argues that Castro’s affidavit failed to establish

probable cause because it did not show why evidence of a two-year-old crime

would be found at Mr. Birch’s new residence. He further argues that the evidence

                                          -5-
is not admissible under the good-faith exception, relying on the first two grounds

for not applying the exception: (1) the lack of probable cause was so evident that

it was unreasonable for the officers executing the warrant to believe that it

existed, and (2) the magistrate who approved the warrant was misled by

recklessly false statements in the affidavit. 2

      C.     Standard of Review

      On appeal of a district court’s decision on a motion to suppress, “we accept

the [court’s] factual findings unless they are clearly erroneous, and review

questions of law de novo.” Gonzalez, 399 F.3d at 1228. Whether the good-faith

exception applies is a question of law that we review de novo. See United States

v. Danhauer, 229 F.3d 1002, 1005 (10th Cir. 2000). We need not decide whether

a warrant was supported by probable cause if we determine that the good-faith

exception applies. See Gonzalez, 399 F.3d at 1228. That is how we will proceed.

      D.     Application of the Good-Faith Exception to this Case

      We reject Mr. Birch’s contention that the affidavit lacked sufficient indicia

of probable cause to permit a reasonable police officer to believe that probable

cause existed. First, the affidavit certainly provides probable cause to believe

that Mr. Birch participated in the murder, and he does not really dispute this. See

      2
        In his reply brief on appeal, Mr. Birch also briefly argues that the warrant
failed to describe with sufficient particularity the items to be seized. We will not
address this argument, however, because it was not raised in his opening brief.
See White v. Colorado, 82 F.3d 364, 366 n.4 (10th Cir. 1996) (court need not
consider argument raised for the first time in appellate reply brief).

                                           -6-
United States v. Windrix, 405 F.3d 1146, 1153 (10th Cir. 2005) (grand-jury

indictment provided probable cause to believe that defendants were involved in

the crime). There is also no doubt that it provided probable cause to believe that

Mr. Birch resided at the Evans Avenue address; he had listed that address on an

accident-report form, and surveillance before the arrest had observed him arriving

and staying at the townhouse. Thus, the principal question is whether there was

reason to believe that Mr. Birch would maintain evidence of the crime two years

later, in a home where he had resided only a few months.

      The affidavit may not have established probable cause to believe that

evidence of the murder could be found at Mr. Birch’s new residence. But we

reject his contention that it was entirely unreasonable for the officers to rely on

the warrant. “Reliance is entirely unreasonable only if the affidavit submitted in

support of the warrant is devoid of factual support.” United States v. Henderson,

595 F.3d 1198, 1201–02 (10th Cir. 2010) (internal quotation marks omitted).

“[W]e have held that good faith can be established so long as a minimal nexus

exists between the place to be searched and the suspected criminal activity.”

United States v. Roach, 582 F.3d 1192, 1204 (10th Cir. 2009) (internal quotation

marks omitted).

      Perhaps Mr. Birch would wish to dispose of the murder weapon promptly

after the murder; but if he did not do so, there would be no reason for him not to

retain the weapon indefinitely. It makes little difference whether the search

                                         -7-
occurred two weeks or two years after the murder, because the passage of time

would not give Mr. Birch a greater motivation to get rid of the gun. See United

States v. Laury, 985 F.2d 1293, 1314 (5th Cir. 1993) (applying good-faith

exception but stating that probable cause to search home for instrumentalities of

armed robbery still existed nearly two months after crime). And it would be

reasonable to believe that he would retain the shoes worn during the murder,

because he would be unlikely to fear that he left a shoe print on the door, and it

would not be unusual to keep shoes for two years. Moreover, the affidavit stated

that it was Castro’s experience, as an officer and otherwise, that people do not

frequently discard their shoes and that they keep the shoes at home. Similarly, it

was not entirely unreasonable for the officers to believe that they would find at

Mr. Birch’s residence some communications between Mr. Birch and others

implicated in the murder, cell-phone records and pictures, and documents showing

that Mr. Birch had received money for his role in killing Kalonniann Clark.

      Mr. Birch relies on Gonzalez, where this court refused to apply the good-

faith exception. But in that case the affidavit contained no facts tying the

defendant to the house searched and no explanation of why the affiant thought

contraband would be found there. See Gonzalez, 399 F.3d at 1229–30. Unlike

the affidavit in Gonzalez, the affidavit here made it clear that Mr. Birch lived at

the Evans Avenue townhouse and provided reason to think that evidence of the

murder would be located inside.

                                         -8-
      We also reject Mr. Birch’s second argument—that the affidavit misled the

magistrate because Castro knowingly or recklessly included false information in

it. He points to the assertion in the affidavit that “Confidential Witness A stated

that shortly after the homicide of Kalonniann Clark, Confidential Witness A was

present when Shun Birch was given $4,000 dollars [sic] of ‘high grade’ marijuana

as partial payment for killing Kalonniann Clark.” R., Vol. 1 pt. 1 at 106. At the

suppression hearing, Castro testified that the confidential witness had deduced or

inferred that the marijuana was payment for the murder, but he had never been

explicitly told that by Mr. Birch. In our view, the affidavit was not misleading.

To begin with, it does not assert that the confidential witness quoted Mr. Birch as

saying that the marijuana was a partial payment for the murder; rather, it says

only that the witness so characterized the transaction, which was correct. More

importantly, the witness statement did not affect the magistrate’s assessment of

probable cause; it was relevant only to whether Mr. Birch played a role in the

murder, and there was no question that the affidavit (by referencing the

indictment of Mr. Birch) established probable cause for that fact.

      Mr. Birch also argues that the police misleadingly omitted details from the

affidavit—in particular, it omits that during the surveillance of Mr. Birch, he had

not been seen carrying a weapon or wearing shoes that matched the footprint on

Kalonniann Clark’s door. Again, however, the affidavit was not misleading. The

affidavit revealed that officers had conducted surveillance of Mr. Birch; and the

                                         -9-
magistrate (or any other reader) could assume that if anything additional had been

observed that could be incriminating, the affidavit would have mentioned it.

Moreover, as Detective Joel Humphrey testified, the unit charged with watching

Mr. Birch before his arrest had never been told the details of the offense that

Mr. Birch was suspected of, and had not been told about the particular importance

of his shoes, so there would be no special significance in the failure of those

officers to note that the shoes that they observed matched the footprint on the

door.

III.    CONCLUSION

        We AFFIRM the judgment of the district court.



                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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