                                                                                    FILED
                                                                        United States Court of Appeals
                                       PUBLISH                                  Tenth Circuit

                     UNITED STATES COURT OF APPEALS                             April 8, 2014

                                                                            Elisabeth A. Shumaker
                                     TENTH CIRCUIT                              Clerk of Court


UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                            No. 13-1026

KEITH SCOTT PULLIAM, a/k/a Keith
Scott Drew,

             Defendant - Appellant.


                     Appeal from the United States District Court
                             for the District of Colorado
                         (D.C. No. 1:11-CR-00378-CMA-1) 


Submitted on the briefs:

Boston H. Stanton, Jr., Attorney at Law, Denver, Colorado, for Defendant - Appellant.

John F. Walsh, United States Attorney, James C. Murphy and Kurt J. Bohn, Assistant
U.S. Attorneys, Denver, Colorado, for Plaintiff - Appellee.



Before BRISCOE Chief Judge, O’BRIEN, and PHILLIPS, Circuit Judges.



      
        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
submitted without oral argument.
O’BRIEN, Circuit Judge.


       Keith Scott Pulliam was indicted on charges of being a felon in possession of a

firearm and being an armed career criminal. He moved to suppress the fruits—several

firearms—of a search of his home. Pertinent to this appeal, he claimed the application

for the search warrant, issued by a state court judge, did not demonstrate probable cause

and the search by state officers was unreasonably executed. After the district judge

denied his suppression motion he pled guilty under a plea agreement, which reserved his

right to appeal from the denial. The judge accepted the plea and sentenced Pulliam to

imprisonment for 75 months. Exercising his reserved right, Pulliam now brings this

appeal. We affirm.

                                     BACKGROUND

       Colorado police officers executed the search warrant issued by a Colorado state

court judge. After the search was complete, they left the warrant itself and an inventory

of the property taken. The inventory was hand written on the back of the warrant. The

officers did not leave the attachments to the warrant: the affidavit submitted to obtain the

warrant (Attachment A) or the list of items to be seized. (Attachment B).1




       1
           The substance of Attachment B is reproduced, infra.


                                               -2-
                                       DISCUSSION

       Pulliam contends the evidence from the search should be suppressed because (1)

the search warrant was issued without a showing of probable cause; (2) the warrant

lacked the particularity required by the Fourth Amendment; and (3) police failed to give

him a complete copy of the search warrant as required under Fed. R. Crim. P. 41(f) and

the terms of the warrant.

        “[T]he ultimate determination of reasonableness under the Fourth Amendment is

a question of law,” an issue we review de novo. United States v. Basham, 268 F.3d 1199,

1203 (10th Cir. 2001). However, as part of our de novo review, we “accept[] the district

court’s factual findings unless they are clearly erroneous” and “view[] the evidence in the

light most favorable to the government.” Id. “A finding of fact is ‘clearly erroneous’ if it

is without factual support in the record or if the appellate court, after reviewing all the

evidence, is left with a definite and firm conviction that a mistake has been made.”

Manning v. United States, 146 F.3d 808, 812 (10th Cir. 1998). We “must uphold any

district court finding that is permissible in light of the evidence.” Id. at 813.

A. Constitutional Issues

           1. Probable Cause

       Pulliam argues the warrant application was deficient because it contained

unreliable and uncorroborated statements from an informant who was untested and

dishonest. In Pulliam’s view, these statements failed to establish probable cause to

search. The district judge disagreed; so do we.



                                                 -3-
       Although our review of the district judge’s analysis of the validity of the warrant is

de novo, both this Court and the district court must accord “great deference” to the

probable-cause assessment of the state court judge who issued the warrant. United States

v. Biglow, 562 F.3d 1272, 1280-81 (10th Cir. 2009). Our review is limited to “ensur[ing]

the Government’s affidavit provided a substantial basis” for the issuance of the warrant.

Id. at 1281 (quotation marks omitted). Accordingly, even in a “doubtful or marginal

case,” we defer “to the [magistrate’s] determination of probable cause.” Id. at 1282.

       Probable cause refers to “a probability or substantial chance of criminal activity,”

id. at 1281, based on the “‘commonsense’ [and] ‘practical considerations of everyday

life.’” Id. at 1281 (quoting Illinois v. Gates, 462 U.S. 213, 230-31 (1983)). When

assessing probable cause, we look to the totality of the circumstances as detailed in the

affidavit accompanying the application for the search warrant. Gates, 462 U.S. at 230;

see id. at 236.

       To the extent the application relies on the statements of an informant, we pay close

attention to the veracity, reliability, and basis of knowledge of the informant about the

target of the proposed search. Id. at 230. Here, the affidavit supporting the application

for the warrant was based on the statements of an informant who demonstrated sufficient

veracity, reliability, and basis of knowledge. As the district judge noted, the identity of

the informant, Andre Herring, was known to the police at the time he made his




                                                -4-
statements.2 Police encountered him as a suspect in a burglary. In addition to taking

police to his own home to recover stolen property, he volunteered to provide information

about the others involved in the burglary in return for lenience. Based on his assertions

that stolen property could be found at a particular address, police searched the location

and discovered the items, just as Herring had predicted. Herring was released to uncover

more information about the stolen items. When he returned, he gave the police another

address where stolen items could be found. When the police searched this address, they

again discovered stolen property. Later, Herring told officers a revolver from another

burglary could be found at Pulliam’s residence. The affidavit for the warrant named

Herring as the informant and described how his tips had reliably led police to contraband

in the past. As regards to information specifically pertaining to Pulliam, the affidavit also

set forth the basis for Herring's personal knowledge of Pulliam's possession of guns. The

affidavit included Herring's detailed description of his sale of a handgun to Pulliam and

that he had witnessed Pulliam in possession of firearms on several occasions. The

issuing judge obviously considered Herring’s statements sufficiently reliable for a search

warrant. The reviewing district judge concluded they gave the issuing judge a substantial



       2
        This alone is one indicator of veracity and reliability. See United States v.
Johnson, 364 F.3d 1185, 1190 (10th Cir. 2004) (“A tipster who refuses to identify
himself may simply be making up the story, perhaps trying to use the police to harass
another citizen.”). Indeed, as the district judge observed, since Herring’s cooperation was
fueled by his hope of earning lenient treatment from the police and prosecutors, he had a
powerful incentive to provide accurate information.


                                               -5-
basis, see Biglow, 562 F.3d at 1280-81, to conclude there was probable cause to search

Pulliam’s home. See Florida v. J.L., 529 U.S. 266, 271 (2000) (corroboration allows

police to “test the informant’s knowledge [and] credibility” thereby ensuring reliability);

see also United States v. Hauk, 412 F.3d 1179, 1188 (10th Cir. 2005) (discussing the

special concerns attendant to the statements whose identity is not known). Indeed, under

these circumstances, Pulliam’s characterization of Herring as “new” and “untested” is

unwarranted. (Appellant Br. 11.) We see no error.

          2. Particularity

       Pulliam’s argument that the warrant violated the Fourth Amendment’s

particularity requirement has two prongs: (1) the warrant did not sufficiently

(particularly) describe the items to be seized, and (2) the copy of the warrant given to him

impermissibly omitted the attachment containing the list of places to be searched and

items to be seized.

       The Fourth Amendment requires warrants to “particularly describ[e] the place to

be searched, and the persons or things to be seized.” U.S. Const. Amend. IV. The Fourth

Amendment’s “particularity requirement ensures that a search is confined in scope to

particularly described evidence relating to a specific crime for which there is

demonstrated probable cause.” Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985).

“A description is sufficiently particular when it enables the searcher to reasonably

ascertain and identify the things authorized to be seized.” United States v. Riccardi, 405

F.3d 852, 862 (10th Cir. 2005) (citation omitted). “[A] warrant that describes the items


                                               -6-
to be seized in broad or generic terms may be valid when the description is as specific as

the circumstances and the nature of the activity under investigation permit.” Id. (citation

omitted). And the warrant may cross-reference other documents, such as the affidavit in

support of the application, to satisfy the particularity requirement. United States v.

Cooper, 654 F.3d 1104, 1126 (10th Cir. 2011).

       Here, the warrant to search Pulliam’s home expressly referred to Attachment B to

describe the targets of the search. Attachment B detailed the following targets:

       1. Any and all firearms and ammunition.

       2. Any and all firearm manufacturer packing materials receipts and transfer
       documents.

       3. All items of indicia for proof of ownership and occupancy for the address
       identified as 1935 Carmel Dr 103, which is located in the City of Colorado
       Springs, County of El Paso and State of Colorado is a first floor apartment
       within a multi-family dwelling . . . .

(R. Vol. 1 at 48.) The district judge concluded Attachment B was sufficiently particular

“because defendant is a convicted felon . . . [m]eaning that any and all firearms he

possesses constitute a crime.” (R. Vol. 2 at 148 (quotation marks omitted).) We agree.

The police knew of Pulliam’s felony conviction when they sought the warrant and

disclosed his status to the state court judge in their application for the search warrant.

Since Pulliam was a felon, and both the police and the issuing judge knew it, any guns in

his possession were contraband. No specific description of a gun was necessary.

       Pulliam also claims the copy of the warrant provided to him after the search

violated the Fourth Amendment’s particularity requirements because it lacked



                                                -7-
“Attachment B,” which particularly described the items to be seized. According to him,

disclosure is necessary to allow the person or persons targeted by the warrant to ensure

police adhere to the scope of the searches and seizures identified in the warrant. In

support he cites Ramirez v. Butte-Silver Bow County, 298 F.3d 1022, 1026-27 (9th Cir.

2002), where the Ninth Circuit endorsed this rationale. However, since the Ninth Circuit

decided Ramirez, the Supreme Court has abrogated this line of jurisprudence. In United

States v. Grubbs, it explained:

       “The absence of a constitutional requirement that the warrant be exhibited
       at the outset of the search, or indeed until the search has ended, is . . .
       evidence that the requirement of particular description does not protect an
       interest in monitoring searches.” United States v. Stefonek, 179 F.3d 1030,
       1034 ([7th Cir.] 1999) (citations omitted). The Constitution protects
       property owners not by giving them license to engage the police in a debate
       over the basis for the warrant, but by interposing, ex ante, the “deliberate,
       impartial judgment of a judicial officer . . . between the citizen and the
       police,” Wong Sun v. United States, 371 U.S. 471, 481–482 (1963), and by
       providing, ex post, a right to suppress evidence improperly obtained and a
       cause of action for damages.


547 U.S. 90, 98 (2006) (parallel citations omitted); see also United States v. SDI Future

Health Inc., 568 F.3d 684, 701 (9th Cir. 2009) (recognizing Grubbs abrogated the Ninth

Circuit’s requirement that “officers . . . present any curative document . . . to the persons

whose property is to be subjected to the search.”). In short, under Grubbs, persons

targeted by a search warrant have no right rooted in the Fourth Amendment’s

particularity clause in using their copy of the warrant in an attempt to monitor or control

the search during its execution. See Grubbs, 547 U.S. at 98.



                                                -8-
       On the contrary, the plain language of the Fourth Amendment requires us to focus

solely on the warrant as issued to police rather than any copy given to the person or

persons targeted by the search. U.S. Const. Amend. IV (“[N]o warrants shall issue but

upon probable cause, supported by Oath or affirmation, and particularly describing the

place to be searched, and the person or things to be seized.”) (emphasis added); see

Grubbs, 547 U.S. at 98. This focus on the warrant as issued to the police is consistent

with the particularity clause’s purpose of “allow[ing] the executing officers to distinguish

between items that may and may not be seized.” United States v. Leary, 846 F.2d 592,

602 (10th Cir. 1988). Pulliam’s particularity argument fails.

B. Other Search Issues

       Finally, according to Pulliam, the police were required, under both Fed. R. Crim.

P. 41(f)(1)(C) and the terms of the warrant, to provide him and his spouse with a copy of

the search warrant contemporaneous with their search. He asserts “the police refused to

provide either of them a copy of the warrant.” (Appellant Br. 6.) In his view, the

police’s failure to honor these requirements should have led to the exclusion of any

evidence resulting from the search. He is wrong.

          1. Rule 41(f)

       There are two problems with Pulliam’s Rule 41 argument. First, it raises a

question about the remedies available for a violation of Rule 41. As we have recognized,

some violations of Rule 41 can lead to the suppression of evidence regardless of whether

the search was reasonable under the Fourth Amendment. See United States v. Sims, 428


                                               -9-
F.3d 945, 955 (10th Cir. 2005). Yet, to obtain suppression for such a violation, we

require the defendant to show either “‘(1) there was prejudice in the sense that the search

might not have occurred or would not have been so abrasive if the Rule had been

followed, or (2) there is evidence of intentional and deliberate disregard of a provision in

the Rule.’” Id. (quoting United States v. Pennington, 635 F.2d 1387, 1389-90 (10th Cir.

1980)). Here, Pulliam makes no attempt to show either prejudice or deliberate disregard

of the Rule’s requirements. As such, he would not be entitled to suppression even if the

Rule were violated.

       Second, as the government notes, Rule 41 does not apply to “state warrants.”

(Appellee Br. 12.) See United States v. Bookout, 810 F.2d 965, 966-67 (10th Cir. 1987).

It is correct. Rule 41 applies only “when federal officers are directly involved in carrying

out the search itself and in taking immediate custody of the fruits of the search,” id.; see

United States v. Barrett, 496 F.3d 1079, 1090 (10th Cir. 2007), or “if from the beginning

it was assumed a federal prosecution would result.” Barrett, 496 F.3d at 1091 (quotation

marks omitted). Here, the warrant issued from a state court and state officers executed it;

Pulliam does not claim any federal officers were involved in the search or that anyone

assumed the search would lead to federal prosecution. Rule 41 does not apply.

          2. Conditions Contained in the Warrant

       “[A] search must be reasonable not only in its inception, but also in its execution.”

United States v. Gordon, 741 F.3d 64, 70 (10th Cir. 2014); see Basham, 268 F.3d at

1204; see also Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (“The touchstone of


                                               - 10 -
our analysis under the Fourth Amendment is always the reasonableness in all the

circumstances of the particular invasion of a citizen's personal security.”) (quotation

marks omitted and emphasis added).

       The warrant issued here required “a copy of this warrant . . . be left with the

person whose premises or person is searched along with a list of any and all items seized

at the time of its execution.” (R. Vol. 1 at 42.) Even assuming police violated this term

of the warrant, Pulliam has again failed to explain why the remedy of suppression is

legally justified. He merely assumes “[t]he police’s failure . . . to provide a copy of the

warrant . . . renders the police’s search unreasonable.” (Appellant Br. 7.)

       We have acknowledged the violation of a warrant’s terms can make suppression

appropriate even when a search is reasonable under the Fourth Amendment. As we

explained in Sims, when police violate the terms of a federal judge’s warrant, a court may

suppress the resulting evidence, but, again, only when the violation was prejudicial or

intentional. 428 F.3d at 955; see also United States v. Garcia, 707 F.3d 1190, 1196 (10th

Cir.) (concluding federal standards also apply to violations of warrants issued by state

court judges), cert. denied, 133 S. Ct. 2875 (2013).

       For the fruits of this search to be suppressed, Pulliam would, at a minimum, have

to show (1) the violation rendered the search unreasonable under the Fourth Amendment,

or (2) the violation was intentional or resulted in prejudice. He has failed to make either

showing. He does not explain why—other than police’s failure to give him a complete

copy of the warrant—the search was unreasonable. Given that the search was supported


                                               - 11 -
by probable cause and a warrant issued properly limiting the scope of the search and

adequately describing the items to be seized, we cannot see how the failure of a

ministerial act—failure to include all attachments to the warrant—made the search

unreasonable. As to the second required showing, Pulliam has made no attempt to show

how the alleged violation was intentional or prejudicial to him. He is not entitled to

suppression of the evidence from the search.

       Moreover, as we read the warrant, the police officers did not violate its terms.

Nothing in the warrant expressly required them to provide Pulliam a copy of the

warrant’s attachments. Although the better practice might have been to provide a

complete copy of the warrant, including any attachments, the rationales at the core of the

warrant’s requirement to provide a copy of the warrant are, as far as we can tell, to notify

the target of the search that the police’s search occurred under the authority of a warrant

and to apprise him or her of any property taken. See Grubbs, 547 U.S. at 98 (reasoning

the search warrant’s list of the places to be searched and items to be seized is not

intended to allow the persons targeted by the search to attempt to ensure officers’

compliance during the course of the search). After all, a complete copy of the warrant,

including all attachments and a copy of the inventory are available in the files of the

issuing judge and can be inspected for possible irregularities. A post hoc review of the

warrant under judicial supervision is preferable to a confrontation with the police during

an ongoing search. As the district judge found, the police “gave the face sheet of the

warrant, with the inventory of the property taken, written on the back of the face sheet, to


                                               - 12 -
defendant . . . .”3 (R. Vol. 2 at 149.) The documents Pulliam received satisfied the

warrant’s command.

       AFFIRMED.




       3
        Since this finding is supported by the testimony of the detective who gave the
warrant to defendant, we are bound by it. See Basham, 268 F.3d at 1203.


                                              - 13 -
