                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS                   July 30, 2009
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                            __________________________                Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-3160
 v.                                          (D.Ct. No. 5:07-CR-40031-JAR-1)
                                                          (D. Kan.)
 DONNELL FRANCIS TIMLEY,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before O'BRIEN, BALDOCK, 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.



      Appellant Donnell Francis Timley appeals his conviction for possession



      *
         This order and judgment is not binding precedent except under the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.
with intent to distribute 67.5 net grams of cocaine base (or crack cocaine). 1 He

alleges the district court erred in denying his motion to suppress evidence

obtained during a search of his home because the affidavit in support of the

search warrant failed to establish the probable cause necessary for such a warrant

and did not support seizure of certain items listed in the warrant – all in violation

of his Fourth Amendment right against unreasonable searches and seizures. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm Mr. Timley’s

conviction.



                               I. Factual Background

      In September 2006, Mr. Timley became the subject of a narcotics

investigation by the Shawnee County Sheriff’s Office in Topeka, Kansas. In

conjunction with that investigation, Deputy Bryan L. Clemmons executed an

affidavit in support of a search warrant of Mr. Timley’s residence. The affidavit

contained, in part, the following background information.



      In September 2006, Deputy Clemmons, through a confidential informant,

made two controlled purchases of marijuana from someone known to the


      1
        Mr. Timley was indicted for possession with intent to distribute 74 gross
grams of crack cocaine, but at the time of his plea hearing and sentencing the net
weight to which he pled guilty and was sentenced was determined to be 67.5
grams.

                                         -2-
informant as “Bebo.” Later, after viewing a series of photographs matching his

description, the informant positively identified Mr. Timley as the person from

whom he made the controlled purchases.



      During the first controlled purchase, on September 25, 2006, Mr. Timley

exited a maroon Toyota Camry in the driveway of a house on the west side of

Colorado and 29 th Street in Topeka, where he met with the informant. Mr. Timley

pulled two bags of marijuana from his coat pocket and gave them to the informant

in exchange for $60. Mr. Timley also asked the informant if he was interested in

buying ecstasy, which the informant declined to purchase at that time. A field

test of the substance in the two bags tested positive for THC, or

tetrahydrocannabinol, 2 and had a combined weight of 6.9 grams.



      Prior to the next controlled purchase, the informant told Deputy Clemmons

and others that Mr. Timley usually drove a green minivan. Thereafter, on

September 29, 2006, authorities saw a green minivan with Kansas license tag

“WDR 074" parked at the gas station where the informant was scheduled to meet

Mr. Timley. Deputy Clemmons observed the informant enter the green minivan,

heard him conversing with two individuals inside the vehicle, and then watched

      2
        Tetrahydrocannabinol is “a compound found in cannabis or made
synthetically that is the primary intoxicant in marijuana.” Webster’s II New
Riverside Univ. Dictionary, 1197 (1984 ed.).

                                        -3-
him exit the van and walk away. At that time, Mr. Timley sold the informant two

bags of marijuana for $50 and again asked the informant if he was interested in

buying ecstasy, which the informant declined but said he might try some cocaine

in the future. The two bags again tested positive for THC and had a gross weight

of 6.9 grams. On or about January 12, 2007, the informant positively identified

Mr. Timley from a photograph.



      Deputy Clemmons learned the green minivan at the scene of the second

drug transaction was registered to Trelonda Brown, at 308 Scotland Avenue,

Topeka. However, surveillance of Mr. Timley following the two controlled

purchases of marijuana indicated he lived in a house at 528 S.E. 33 rd Terrace in

Topeka; parked at that house was the green minivan he used to conduct the

second controlled purchase as well as a large, older-model automobile covered

with a tan tarp parked in the back of the driveway.



      Because the green minivan was registered to Trelonda Brown, at 308

Scotland Avenue, Deputy Clemmons also began conducting surveillance of the

Scotland Avenue address on February 23, 2007; at that residence he began to

notice the green minivan parked in the driveway as well as the large, older-model

automobile covered with a tan tarp, which was parked in the back of that

driveway. In addition, sometime after the beginning of the year, surveillance

                                         -4-
showed the residence at the S.E. 33 rd Terrace address had been vacated, which

was confirmed by a Topeka police officer who had information Mr. Timley was

now living at the Scotland Avenue address.



      On March 22, 2007, Deputy Clemmons saw a black male matching Mr.

Timley’s description exit the Scotland Avenue residence and move the green

minivan parked in the driveway onto the street and then enter a black vehicle,

also parked in the driveway, and drive away. On March 30, 2007, which was the

normal pick-up day for trash in the neighborhood, Deputy Clemmons took two

large tied-up black plastic bags of garbage from the alley directly behind the

Scotland Avenue residence. On examination of the contents of those bags, he

found a bank statement addressed to “Trelonda Timley” at the Scotland Avenue

address; a piece of paper with Mr. Timley’s first name, “Donnell,” written on it;

several empty cigar boxes and wrappers; loose cigar tobacco mixed with

marijuana stems and seeds; trace amounts of cocaine on a shirt; and thirty plastic

baggies with the corners torn off, which indicated to Deputy Clemmons the

packaging of illegal narcotics for distribution.



      In addition to these facts, Deputy Clemmons averred in his affidavit that he

was a certified law enforcement officer who possessed approximately seven years

experience and hundreds of hours of professional law enforcement training in the

                                         -5-
detection and investigation of criminal offenses. 3 Based on his training and

experience, Deputy Clemmons further stated he knew that individuals who use

and sell illegal substances: (1) commonly have firearms and other weapons in

their possession used to protect and secure their property, drugs, and money; (2)

frequently have in their possession paraphernalia required to conduct narcotics

transactions, including scales, plastic baggies, pipes, and other smoking devices;

(3) commonly discard their drug packaging and used materials in their personal

trash receptacles; (4) often discard small amounts of marijuana in the form of

seeds, stems, and burned marijuana cigarette butts; (5) make or use cigars to

smoke marijuana using a “blunt,” which is an unrolled cigar with the tobacco

taken out of the middle and then refilled with marijuana; and (6) use small plastic

baggies with the corners cut off as a means of narcotics packaging and/or discard

small plastic baggies commonly used to package narcotics after cutting or tearing

off their corners to remove cocaine, crack cocaine, methamphetamine, marijuana,

and other drugs.



      With respect to narcotics dealers, Deputy Clemmons stated they: (1) are

      3
         As a narcotics officer, Deputy Clemmons stated he had participated in
numerous investigations related to the possession and trafficking of controlled
substances and that during those investigations, he: (1) spent numerous hours
conducting surveillance on narcotics-related activity; (2) purchased illegal drugs,
both in an undercover capacity and through the use of informants during
controlled purchases; and (3) interviewed those who sell, distribute, purchase, and
use controlled substances.

                                        -6-
known to use pagers and cellular phones to conduct their business; (2) often buy

large amounts of narcotics, which they separate, weigh, and package at their

residences and then sell from vehicles in order to deter law enforcement from

access to their residences; and (3) often have: (a) records which reflect amounts

of drugs sold and fronted and money owed and proceeds from drug sales; (b)

records of names, phone numbers, and/or pager numbers of associates; and (c)

books, receipts, notes, ledgers, money transfers and orders, computer disks,

computer hard drives, and other papers related to their drug transactions. For the

purpose of requesting a “no knock” search warrant, Deputy Clemmons recounted

in his affidavit Mr. Timley’s very extensive criminal history, including his

convictions for murder and other violent felonies, as well as various exigent

circumstances, such as his history of attempting to evade arrest by running from

law enforcement, destroying and hiding evidence, and prior use or possession of

weapons.



      Following submission of Deputy Clemmons’s affidavit, a state district

judge issued a “no knock” search warrant for the premises at 308 Scotland

Avenue, authorizing in separately numbered paragraphs the following items for

seizure:

      1. Cocaine

      2. Marijuana

                                         -7-
      3. Ecstasy

      4. Drug paraphernalia included but not limited to scales, packaging
      material, baggies, smoking pipes and any other means of injecting,
      inhaling or ingesting narcotics[]

      5. Any documents, letters or records indicating computer hardware,
      i.e. hard drives computer files attached to and or on disks. Any
      security equipment i.e. cameras, monitors, and or warning devices,
      and firearms. Any documents letters or records indicating ownership
      of real estate, bank accounts, vehicles, firearms, weapons, and/or
      other property from residences and storage buildings.

R., Vol. 4 at D-1 to D-2. The warrant concluded there was “probable cause to

believe that the above-described articles to be seized are located in or on the

above described premises or person to be searched.” Id. at D-2. Thereafter,

Deputy Clemmons and others executed the search warrant at the Scotland Avenue

address, where they encountered Mr. Timley, found 116.9 grams of marijuana and

two digital scales in the residence, and also discovered, in the master bedroom,

documents belonging to Mr. Timley and 74 gross grams, or 67.5 net grams, of a

mixture containing cocaine base on top of a dresser.



      Following his arrest, a grand jury indicted Mr. Timley on one count of

possession with intent to distribute approximately 74 grams of cocaine base

(“crack cocaine”), in violation of 21 U.S.C. § 841(a)(1), and one count of

knowingly and intentionally possessing with intent to distribute approximately

114 grams of a mixture or substance containing a detectable quantity of


                                         -8-
marijuana, also in violation of 21 U.S.C. § 841(a)(1). Thereafter, Mr. Timley

filed a motion to suppress all evidence seized from his residence, alleging Deputy

Clemmons’s affidavit failed to establish probable cause necessary for the search

warrant and seizure of certain items listed in the warrant, resulting in a violation

of his Fourth Amendment rights.



      Specifically, Mr. Timley claimed the affidavit: (1) was based on stale

information because the controlled marijuana purchases occurred six months prior

to the search warrant; (2) did not establish the required nexus between the crime

and the place to be searched because the six-month-old controlled buys did not

occur at the residence searched, officers believed he lived at a different residence

than searched, and the trash seized could have included items from passersby

going through the alley; (3) was based on evidence that Deputy Clemmons

illegally collected from the trash without a warrant; and (4) did not support

paragraph five of the warrant, which was overly broad, allowing seizure of

computer hardware, security equipment, firearms, and documents indicating

ownership of real estate, bank accounts, vehicles, firearms, and other property

from residences and storage buildings.



      After the government filed its response opposing Mr. Timley’s motion to

suppress, the district court held a hearing on the motion at which both parties

                                          -9-
presented argument. Following the hearing, the district court issued an order and

memorandum denying Mr. Timley’s motion. With regard to the issue of

staleness, it held the drug activity in question was ongoing and continuing, based

on: (1) Mr. Timley’s history of drug arrests and convictions dating from 1993 to

2006, when the controlled drug purchases occurred; and (2) the “trash pull,”

which revealed current ongoing drug dealings and abuse in the residence, as

demonstrated by the thirty plastic baggies with the corners missing, known to be

consistent with drug packaging. On the nexus issue, it found the affidavit

sufficiently established a nexus between the objects seized and the place searched

because the trash bags contained both evidence of drug packaging and the bank

statement addressed to Mr. Timley’s wife. It also discounted Mr. Timley’s

assertion passersby could have placed all of the incriminating evidence in those

bags, noting the unlikelihood someone would have opened the trash bags and

placed the incriminating items inside.



      It also rejected Mr. Timley’s contention the affidavit was based on

impermissible evidence because Deputy Clemmons searched his trash for

evidence of a crime, in violation of the Fourth Amendment. It found Deputy

Clemmons’s statements he took the trash on the normal pick-up day in the

neighborhood and that it was taken from a receptacle in the alley behind the

residence, rather from the curtilage of the home, sufficient to establish no Fourth

                                         -10-
Amendment violation occurred. Finally, with regard to the particularity of the

scope of the warrant and whether paragraph five was overly broad, the

government conceded portions of the paragraph were overly broad and should be

redacted, but that the balance of that paragraph and the rest of the warrant were

valid. The district court agreed, determining the appropriate remedy was “to

strike the offending paragraph,” but the rest of the warrant remained valid. R.,

Vol. 1, Doc. 37 at 7-8.



      Thereafter, Mr. Timley entered into a conditional plea agreement, pleading

guilty to count one of the indictment charging him with possession of cocaine

base but reserving his right to appeal the district court’s denial of his motion to

suppress. In turn, the government agreed to dismiss the remaining marijuana

distribution count. Following a plea hearing, the district court accepted Mr.

Timley’s guilty plea and sentenced him to 240 months imprisonment and ten

years supervised release. Mr. Timley does not appeal his sentence.



                                    II. Discussion

      Mr. Timley now appeals the district court’s denial of his motion to suppress

evidence, raising essentially the same issues he raised before that court. In turn,

the government continues to oppose Mr. Timley’s arguments in support of his

motion to suppress. In addressing Mr. Timley’s issues on appeal, we first discuss

                                         -11-
the legality of Deputy Clemmons’s trash pull, on which much of our disposition

of his appeal rests, and then consider our standard of review and the general legal

principles involved with regard to search warrants.



      The Supreme Court and this court have both held an individual has no

reasonable expectation of privacy in items found in plastic garbage bags left on or

at the side of a public street. California v. Greenwood, 486 U.S. 35, 40-41

(1988); United States v. Long, 176 F.3d 1304, 1307-09 (10 th Cir. 1999). Thus, in

making a determination as to whether an officer’s conduct in taking garbage

violates the Fourth Amendment, we consider whether the garbage bags “were

within the curtilage of the home,” and, if they are not, “then no Fourth

Amendment violation occurred.” Long, 176 F.3d at 1307. “Curtilage is the area

to which extends the intimate activity associated with the sanctity of a ... home

and the privacies of life.” Id. at 1308 (quotation marks and citation omitted).

Even if the garbage bags are within the curtilage of a home, we have held a

defendant “must still show that he had a reasonable expectation of privacy in the

trash bags” at issue. Id.



      In this case, it is clear Deputy Clemmons obtained the two bags of trash at

issue from the public alley directly behind the Scotland Avenue residence, rather

than the curtilage of the home, and Mr. Timley has not otherwise argued or shown

                                        -12-
he had a reasonable expectation of privacy in that trash. As a result, we discern

no Fourth Amendment violation occurred in the collection of the evidence

obtained therefrom, on which we hereafter rely in discussing Mr. Timley’s

arguments on appeal.



      Next, regarding search warrants, under the Fourth Amendment probable

cause is necessary for issuance of a search warrant and must be supported by a

sufficient oath or affirmation. See United States v. Mathis, 357 F.3d 1200, 1203

(10 th Cir. 2004). “In determining whether a search warrant is supported by

probable cause, this court reviews the sufficiency of the affidavit upon which a

warrant is issued by looking at the totality of the circumstances and ensuring that

the [judge] had a substantial basis for concluding that probable cause existed.”

United States v. Basham, 268 F.3d 1199, 1203 (10 th Cir. 2001) (quotation marks

and citation omitted). “Probable cause to issue a search warrant exists only when

the supporting affidavit sets forth facts that would lead a prudent person to

believe there is a fair probability that contraband or evidence of a crime will be

found in a particular place.” Id. Hence, “[p]robable cause requires only a

probability or substantial chance of criminal activity, rather than an actual

showing of such activity.” United States v. Biglow, 562 F.3d 1272, 1281 (10 th

Cir. 2009) (quotation marks and citation omitted).




                                        -13-
      We generally “give considerable deference to a [judge’s] determination of

probable cause; a reviewing court’s only duty is to ensure that the [court] had a

substantial basis for concluding that probable cause existed.” Mathis, 357 F.3d at

1205 (quotation marks and citation omitted). Thus, “[w]hen reviewing a district

court’s denial of a motion to suppress, this court accepts the district court’s

factual findings unless they are clearly erroneous, viewing the evidence in the

light most favorable to the government.” Basham, 268 F.3d at 1203. “The

credibility of witnesses, the weight to be given evidence, and the reasonable

inferences drawn from the evidence fall within the province of the district court.”

United States v. Higgins, 282 F.3d 1261, 1269 (10 th Cir. 2002). While we

consider an “informant’s veracity, reliability, and basis of knowledge as relevant

factors to evaluate,” so is “a law enforcement agent’s opinion, based upon his

professional expertise, that evidence of illegal activity will be found in the place

to be searched ....” Mathis, 357 F.3d at 1205. However, “the ultimate

determination of reasonableness under the Fourth Amendment is a question of law

and is reviewed de novo under the totality of the circumstances.” Basham, 268

F.3d at 1203. With these principles in mind, we turn to Mr. Timley’s specific

issues raised on appeal



                                 A. Staleness Issue

      Mr. Timley asserts Deputy Clemmons’s affidavit did not support a search

                                         -14-
warrant because it contained stale information, based on the fact the two

controlled sales of marijuana occurred six months before issuance of the search

warrant. Mr. Timley suggests the district court’s finding of continuous and

ongoing drug activity ignores the fact that, other than the “trash pull,” the most

recent information in the affidavit was six months old. He also points out that

nothing in the affidavit indicated any other contact occurred between him and the

informant or law enforcement officers during that six-month period or that Mr.

Timley was continuing to sell marijuana or ever sold drugs from the residence to

be searched. The government agrees that without the evidence from the trash the

affidavit contained stale information but contends evidence from the trash

adequately established Mr. Timley’s current involvement in drug dealing for the

purpose of correcting any lingering staleness issues.



      As Mr. Timley contends, an affidavit in support of a search warrant “cannot

be based on stale information that no longer suggests that the items sought will be

found in the place to be searched.” United States v. Snow, 919 F.2d 1458, 1459-

60 (10 th Cir. 1990). “Probable cause existing at some time in the past will not

suffice unless circumstances exist from which it may be inferred that the grounds

[for probable cause] continued to the time the affidavit was filed.” United States

v. Neal, 500 F.2d 305, 309 (10 th Cir. 1974) (emphasis added). As a result,

“otherwise stale information may be refreshed by more recent events,” and

                                         -15-
“[w]hen the circumstances suggest ongoing criminal activity, the passage of time

recedes in importance.” United States v. Cantu, 405 F.3d 1173, 1177-78 (10 th Cir.

2005).



         In this case, the trash obtained by Deputy Clemmons from the alley directly

behind Mr. Timley’s residence demonstrated ongoing drug-dealing activity and

the presence of drugs, as evidenced by the items found inside, including loose

cigar tobacco mixed with green marijuana stems and seeds, a shirt with cocaine

on it, and the substantial number of plastic baggies with the corners torn away,

indicating the packaging of illegal drugs for distribution. Inclusion of this

information in Deputy Clemmons’s affidavit sufficiently refreshed any stale

information in support of a search warrant. This evidence, demonstrating ongoing

criminal activity at the residence searched, is adequate to overcome Mr. Timley’s

staleness charge, regardless of whether any subsequent contact occurred between

Mr. Timley and the informant or law enforcement officers or whether Deputy

Clemmons’s affidavit failed to explicitly allege Mr. Timley was continuing to sell

marijuana or sold drugs from the residence to be searched.



                                    B. Nexus Issue

         Mr. Timley alleges an insufficient nexus existed between the items listed in

the warrant and the place searched because the two controlled buys occurred six

                                          -16-
months prior to issuance of the warrant and officers determined he lived at a

residence different from the one for which the warrant was issued. While Mr.

Timley acknowledges the evidence found in the trash demonstrated possible

evidence of criminal activity at the place searched, he points out that Deputy

Clemmons’s affidavit did not indicate whether the drug residue and paraphernalia

were found in the same bag as the mail addressed to Mr. Timley’s wife. He also

suggests, as he did before the district court, that anyone driving or walking

through the alley could have placed the trash in the location from which it was

seized.



      “Whether a sufficient nexus has been established between a defendant’s

suspected criminal activity and his residence ... depends [on] the facts of each

case.” Biglow, 562 F.3d at 1279. Thus, when reviewing an affidavit in support of

a search warrant, we do not require “hard evidence or personal knowledge of

illegal activity [to] link a Defendant’s suspected unlawful activity to his home.”

Id. (quotation marks and citations omitted). “Instead, we have indicated that a

sufficient nexus is established once an affidavit describes circumstances which

would warrant a person of reasonable caution in the belief that the articles sought

are at a particular place.” Id. (quotation marks and citations omitted). Thus,

“judges may rely on the opinion of law enforcement officers as to where

contraband or other evidence may be kept” as well as inferences reasonably

                                         -17-
drawn from the “evidence connecting a defendant’s suspected activity to his

residence ....” Id. at 1279-80 (quotation marks and citation omitted).



      Applying these principles to the circumstances presented, it is apparent Mr.

Timley’s suspected activity involved the distribution of marijuana and other

drugs, as demonstrated by the controlled purchases made six months earlier.

Similarly, the trash in question obtained from the alley directly behind the

Scotland Avenue residence contained evidence of suspected drug distribution,

together with items connecting Mr. Timley with that residence, including mail

addressed to his wife and a piece of paper containing his first name. Based on

these circumstances, an inference could reasonably be drawn connecting Mr.

Timley’s suspected drug distribution activities to his residence.



      Mr. Timley’s argument no nexus existed because officers determined he

lived at a residence different from the one searched grossly mischaracterizes

Deputy Clemmons’s affidavit. While Deputy Clemmons stated his original

surveillance of Mr. Timley indicated he lived at 528 S.E. 33 rd Terrace, he also

clarified that subsequent surveillance established: (1) Mr. Timley’s green

minivan and older-model automobile had been transported to and parked at the

Scotland Avenue residence; (2) he witnessed someone fitting Mr. Timley’s

description leave the Scotland Avenue house and move the green minivan; and (3)

                                        -18-
the S.E. 33 rd Terrace residence had been vacated, as confirmed by a Topeka police

officer who had information Mr. Timley was presently living at the Scotland

Avenue address at the time Deputy Clemmons submitted his affidavit.



      Next, we can readily dismiss Mr. Timley’s argument no nexus existed

because the two controlled buys occurred six months prior to issuance of the

warrant, given our previous determination evidence from the residence “trash

pull” refreshed that conduct. We are also unpersuaded by Mr. Timley’s

contention no nexus existed because it is unclear whether the drug-related items

were found in the same bag as the items indicating he maintained his residence

there. While knowledge as to whether those items were found together in one

bag, rather than in two separate bags, would have presented even stronger

evidence of a nexus between the suspected activity and the place searched, the

fact both bags were located together in the alley directly behind the residence to

be searched is more than adequate to establish the requisite nexus for the purpose

of issuing a search warrant, which, again, only requires inferences reasonably

drawn from the “evidence connecting a defendant’s suspected activity to his

residence ....” Biglow, 562 F.3d at 1280-81.



      Similarly, while it is possible a passerby could have placed the

incriminating drug evidence in the two tied-up garbage bags in the alley directly

                                        -19-
behind Mr. Timley’s residence, Mr. Timley was suspected of marijuana and other

drug distribution activities, and, correspondingly, the trash found in the alley

directly behind his residence contained evidence of such drug distribution. Based

on these circumstances, a reasonable or prudent person would believe a fair

probability existed that the trash removed from those bags was likely connected

with the home to be searched, rather than as a result of someone coincidentally

discarding drug-related rubbish into Mr. Timley’s tied garbage bags while passing

through the same alley.



                 C. Overbreadth or Particularity of Warrant Issue

      Mr. Timley suggests, as he did before the district court, that paragraph five

of the search warrant is overly broad because the affidavit did not support the

seizure of computer hardware, security equipment, firearms, and documents

indicating ownership of real estate, bank accounts, vehicles, firearms, and other

property from residences and storage buildings. The government admits part of

paragraph five is overly broad but only with respect to security equipment and

“other property from residences and storage buildings.” It suggests that once

those portions of the paragraph are severed, the remainder of that paragraph,

together with the rest of the warrant, is sufficiently particularized and supported

by probable cause to support the seizure of the items taken as evidence from Mr.

Timley’s home. We agree.

                                         -20-
      To begin, “[t]he Fourth Amendment requires that warrants describe both

the place to be searched and the things to be seized with particularity. The search

should be confined in scope to particularly described evidence relating to a

specific crime for which there is demonstrated probable cause.” United States v.

Brown, 984 F.2d 1074, 1077 (10 th Cir. 1993) (quotation marks and citations

omitted). “The issue of whether a warrant is overbroad is subject to de novo

review by this court.” Id.



      Under the severability doctrine, “the infirmity of part of a warrant requires

the suppression of evidence seized pursuant to that part of the warrant, but does

not require the suppression of anything described in the valid portions of the

warrant ....” Id. (quotation marks, citations, and alterations omitted). In

determining if the severability doctrine is applicable, we “divide the warrant into

individual phrases, clauses, paragraphs, or categories ....” United States v. Sells,

463 F.3d 1148, 1155 (10 th Cir. 2006). If parts of a warrant may be “meaningfully

severed” and its:

      valid portions make up the greater part of the warrant, then we sever
      those portions, suppress the evidence seized pursuant to the portions
      that fail to meet the Fourth Amendment’s warrant requirement, and
      admit all evidence seized pursuant to the valid portions or lawfully
      seized during execution of the valid portions.

Id. at 1151. As a result, “[w]here ... each of the categories of items to be seized

describes distinct subject matter in language not linked to language of other

                                         -21-
categories, and each valid category retains its significance when isolated from

[the] rest of the warrant, then the valid portions may be severed from the

warrant.” Id. at 1158 (relying, in part, on Brown, 984 F.2d at 1078 (holding that

“[a]lthough one sentence in the warrant may have been overbroad, the infirm

portion may be isolated and severed from the constitutionally adequate part”)).



       In this case, paragraph five of the search warrant may be meaningfully

severed from the rest of the search warrant because the items sought therein,

primarily pertaining to documents or records, are distinct from those in the rest of

the search warrant, dealing with seizure of the actual physical drugs or drug

paraphernalia. Similarly, portions of paragraph five may be severed because they

are directed at different categories of items with little overlap, making them

distinguishable from each other. For instance, while paragraph five primarily

refers to documents or records, its subparts refer to items very distinct from one

another, including firearms, computer equipment, and security equipment. Thus,

while Deputy Clemmons’s affidavit does not support seizure of security

equipment or records regarding other residences and storage buildings, as the

government admits, it did support a search for the other items to which paragraph

five refers.



       For example, paragraph five of the search warrant is directed not only at

                                         -22-
documents regarding firearms but the search and seizure of firearms themselves.

Correspondingly, Deputy Clemmons stated in his affidavit that individuals who

use and sell illegal substances commonly have in their possession firearms and

other weapons used to protect and secure their property, drugs, and money and

that Mr. Timley had a history of prior use or possession of firearms. He also

averred that narcotics dealers are known to possess records which reflect drug

transaction information, including computer disks and computer hard drives. As a

result, his affidavit supported the search and seizure of any firearms and

documents or records in paragraph five pertaining to firearms or the listed

computer items.



      Deputy Clemmons’s affidavit also provided information Mr. Timley resided

at the Scotland Avenue residence, where its trash indicated ongoing drug-related

activities, and that Mr. Timley drove a green minivan during at least one drug

transaction, which he parked at the residence to be searched, and that narcotics

dealers often transact drug sales from their vehicles. Thus, the affidavit

sufficiently supported the search for and seizure of documents verifying his

residence and ownership of the minivan, which were reasonably believed to be

directly related to his suspected criminal activities. Finally, Deputy Clemmons

avowed narcotics dealers often retain records reflecting amounts of drugs sold or

fronted and proceeds from drug sales, so that documents relating to bank records,

                                         -23-
as indicated in the search warrant, were amply covered by the affidavit. These

valid portions of paragraph five, together with the other valid paragraphs of the

search warrant, clearly make up the greater part of the warrant and support

seizure of the items listed, including the drug scales, 114 grams of marijuana, and

67.5 net grams of crack cocaine discovered at Mr. Timley’s residence, which are

referred to in the constitutionally-valid paragraphs one, two, and four of the

search warrant.



      Applying our standard of review and the applicable legal principles to the

circumstances presented and the issues raised on appeal, we conclude the district

court did not err in denying Mr. Timley’s motion to suppress the evidence

obtained at his residence. Accordingly, the search warrant and affidavit in

support thereof did not violate Mr. Timley’s Fourth Amendment right against

unreasonable searches and seizures. 4




      4
         A review of the cases cited by Mr. Timley in support of his arguments on
appeal does not otherwise convince us the district court erred in denying his
motion to suppress. We further note the cases cited in support of his staleness
issue are especially unpersuasive as they are based on factual circumstances
which differ from those presented here.

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                         III. Conclusion

For the reasons contained herein, we AFFIRM Mr. Timley’s conviction.

                             Entered by the Court:

                             WADE BRORBY
                             United States Circuit Judge




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