                                                                            FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                    UNITED STATES COURT OF APPEALS                     April 15, 2008
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT
                                                                       Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-4196
          v.                                               (D. Utah)
 LUIS NOEL ARMENDARIZ,                          (D.C. No. 2:06-CR-00815-DB)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Luis Noel Armendariz was indicted on November 11, 2006, on two counts

of possession of a firearm by an illegal alien, in violation of 18 U.S.C.

§ 922(g)(5). On December 22, 2006, Armendariz filed his first motion to


      *
        This order and judgment is not binding precedent except under the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.
suppress evidence (the firearm), alleging that the search warrant failed to

establish probable cause, in violation of Utah law. In an oral ruling, the district

court dismissed the motion without prejudice and denied an evidentiary hearing.

      Armendariz filed a second motion to suppress on March 7, 2007, alleging

that the night-time execution of the warrant violated the Utah and Federal Rules

of Criminal Procedure, as well as the Fourth Amendment. He again requested an

evidentiary hearing. In a written order, the district court denied this second

motion with prejudice and again denied an evidentiary hearing. Armendariz then

entered a conditional plea of guilty to one count of the indictment, preserving his

right to appeal the denials of his two motions to suppress. He was sentenced to

nine months’ imprisonment. Armendariz appeals, and we affirm.



                                  BACKGROUND

      On the night of October 28, 2006, Sergeant Mike Clegg and Officer Ryan

Yardley of the Heber City, Utah, police department responded to a complaint

about noise at a trailer home at 1390 South Highway 40 #2 in Heber City. Upon

arrival at the trailer home, the officers saw a truck with its radio playing loudly

outside the home. The officers asked Armendariz, the resident of the home and

apparent owner of the truck, to turn off the ignition. Armendariz appeared to be

heavily intoxicated. As Armendariz pushed the seat of the truck back into




                                          -2-
position after he turned off the ignition, one of the officers noticed a revolver in

plain view hanging out of a coat pocket on the front seat.

      When the officers asked Armendariz about the revolver, he told them he

had found it at work and he further told the officers they could keep it. He also

told the officers that he had a 9mm pistol inside the trailer home. When asked for

identification, Armendariz produced a Utah driver’s license authorizing driving

privileges only. Because of the driving-privileges-only card, Sergeant Clegg

suspected that Armendariz might not have a Social Security card and therefore

might be in the country illegally. When asked, Armendariz told the officers he

was in the country legally. The officers took the gun found in the truck and

returned to the police station.

      Sergeant Clegg contacted Agent Carlos Gamarra with United States

Immigration and Customs Enforcement (“ICE”). Agent Gamarra told Sergeant

Clegg that the number on Armendariz’s driving privileges card was not a Social

Security Card number, but, rather, a tax identification number. Furthermore,

Agent Gamarra could not find an alien registration number for Armendariz.

Agent Gamarra also told Sergeant Clegg that Armendariz’s possession of a

driving-privileges-only card was a typical indicator of illegal status in the United

States. As an illegal alien, Armendariz would be prohibited by both Utah and

federal law from possessing a firearm.




                                          -3-
        In the early morning hours of October 29, Sergeant Clegg obtained a search

warrant for Armendariz’s residence, signed by Utah Fourth District Judge O. Lane

McCotter. The affidavit attached to the search warrant stated the following:

Sergeant Clegg’s qualifications; the general circumstances of the noise complaint

incident; that Armendariz appeared to be heavily intoxicated and spoke fluent

English; that Armendariz told the officers that, in addition to the revolver in the

truck, he possessed a 9mm pistol in his home; when asked if he knew he was not

supposed to carry a firearm, Armendariz replied that he was aware of that; when

asked for identification, Armendariz provided a driving-privileges-only card; that

Sergeant Clegg contacted ICE Agent Gamarra, who said a driving-privileges-only

card is indicative of illegal immigration status; that the number on Armendariz’s

card was a tax identification number; that Agent Gamarra was unable to locate an

alien registration number for Armendariz; and that possession of a firearm by an

illegal alien is a violation of Utah law. Thus, Sergeant Clegg averred that there

was probable cause to believe that there would be a firearm in Armendariz’s

home.

        Judge McCotter signed the warrant in the early morning hours. Sergeant

Clegg included a hand-written notation on the search warrant, stating: “On Oct[.]

29th at 0134 I talked to Judge McCotter[.] Authorized night time service of this

warrant. MSC[.]” Appellant’s App. at 33.




                                          -4-
      The search warrant was executed at 1:40 a.m. on October 29. Armendariz

was home at the time. Officers found a loaded 9mm Beretta pistol in a closet in

the back bedroom. Armendariz subsequently admitted that he was in the country

illegally and that he knew he was not permitted to possess firearms. He was

arrested for possession of a firearm by a restricted person.

      As indicated, the district court denied both of Armendariz’s motions to

suppress. With respect to the first motion, the district court stated:

      Based on the record before me today, I am going to deny the
      defendant’s request for an evidentiary hearing pursuant to Franks
      versus Delaware [438 U.S. 154 (1978)], and find that there have been
      insufficient allegations of deliberate falsehoods or of reckless
      disregard for the truth to warrant a hearing in which the arresting
      officers would be witnesses and would be cross-examined.

                                         ....

            Based on the present state of the record and of the affidavit
      that was submitted in support of the search warrant, I find that there
      was probable cause for the issuance of the search warrant. Even if
      there wasn’t probable cause, this [United States v. ]Leon[, 468 U.S.
      897 (1984)] case would come into play and validate this warrant.

Tr. of Mot. to Suppress at 12-13, Appellant’s App. at 60-61. The district court

dismissed the motion without prejudice, however, telling Armendariz that he was

“entitled to a hearing if [he] can show me some information that would indicate

that there is some reason to believe that some of the allegations set forth or some

statements made in the probable cause affidavit submitted in support of the search

warrant were deliberately false or recklessly false, and that they would have made


                                          -5-
a difference in whether the judicial officer signed the warrant.” Id. at 14,

Appellant’s App. at 62. With respect to the second motion to suppress, and

motion for an evidentiary hearing, the district court issued a written order

explaining its rationale for denying the motion and the request for an evidentiary

hearing.

      Armendariz appeals both denials, arguing: (1) the district court erred in

finding there was probable cause for the issuance of the search warrant; (2) the

search warrant was procedurally defective because it, in bad faith, failed to

comply with the Utah Rules of Criminal Procedure, the Federal Rules of Criminal

Procedure and the Fourth Amendment; (3) the district court erred in denying the

second motion to suppress; and (4) the district court abused its discretion in

failing to grant an evidentiary hearing.



                                   DISCUSSION

      Armendariz raises essentially the same issues on appeal that he raised

before the district court. But he fails to articulate any valid grounds for

overturning the district court’s reasoning or judgment. We have carefully

reviewed the record in this case and the briefs on appeal. Accordingly, for

substantially the reasons stated in the district court’s oral and written orders of

January 25, 2007, and May 25, 2007, we affirm the denials of Armendariz’s

motions to suppress. We also affirm the denial of an evidentiary hearing.

                                           -6-
                                 CONCLUSION

      For the foregoing reasons, we AFFIRM the denials of Armendariz’s

motions to suppress and the denials of his request for an evidentiary hearing.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




                                        -7-
