                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                   October 20, 2009
                                 TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                     Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 09-4005
          v.                                               (D. Utah)
 GREGORY R. WRIGHT,                            (D.C. No. 1:07-CR-00046-TS-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and MURPHY,
Circuit Judge.



I. Introduction

      Gregory Wright was charged in a one-count indictment with possession of

fifty grams or more of methamphetamine with intent to distribute, in violation of

21 U.S.C. § 841(a)(1), (b)(1)(A). Police officers seized over one pound of

methamphetamine and $10,000 while executing a search of the residence Wright

shared with his mother. Wright filed a motion to suppress this evidence, arguing



      *
        This order and judgment is not binding precedent except under the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.
the information contained in the supporting affidavit was stale and, even if not

stale, did not support a finding of probable cause. After the district court denied

his motion, Wright pleaded guilty to the charge, preserving his right to appeal the

denial of his suppression motion. See Fed. R. Crim. P. 11(a)(2). On appeal,

Wright argues the affidavit supporting the search warrant did not establish

probable cause because it failed to establish a sufficient nexus between the

alleged illegal activity and his residence. An examination of the sufficiency of

the affidavit in light of the totality of the circumstances demonstrates the district

court did not err when it denied Wright’s motion to suppress. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, this court therefore AFFIRMS.



II. Background

      On March 15, 2007, Detective Ryan Reid of the Roy City Police

Department applied for a warrant to search Wright’s residence at 3750 South

Midland Drive in Roy, Utah. In his supporting affidavit, Detective Reid averred

there was probable cause to believe Wright was a methamphetamine dealer who

stored large quantities of methamphetamine, as well as related processing and

packaging material, at his residence. The affidavit lists several anonymous

complaints about Wright’s methamphetamine dealings and information from four

confidential informants regarding Wright’s ongoing methamphetamine

distribution operation.

                                          -2-
      The affidavit states the Weber County Sheriff’s Office received an

anonymous complaint in May 2003 about two people who appeared to be

conducting a drug deal in a church parking lot. Further investigation revealed one

of the people observed in the parking lot used a vehicle belonging to Wright. The

police also received two more anonymous complaints about Wright: the first, in

March 2004, stated Wright used the 3750 South Midland Drive residence to store

the methamphetamine he was selling; the second, in August 2005, stated Wright

was “a very large methamphetamine dealer and one of the biggest in the Weber

County area.”

      The affidavit also details information Detective Reid received from four

confidential informants (“CI#1,” “CI#2,” “CI#3,” and “CI#4”). In the fall of

2006, CI#1 and CI#2 both informed Detective Reid that Wright was “a very big

methamphetamine dealer in the Weber County area” and that he lived at 3750

South Midland Drive with his mother. Later, in December 2006, CI#3 provided

Detective Reid with a detailed account of Wright’s drug distribution network,

which corroborated the information provided by CI#1 and CI#2 regarding

Wright’s use of the 3750 South Midland Drive residence. Also in late 2006,

police arrested an individual identified by CI#1 and CI#2 as one of Wright’s

methamphetamine suppliers. This individual, identified in the affidavit as CI#4,

subsequently provided detailed information about Wright’s drug trafficking




                                        -3-
business which again corroborated the information provided by the other

confidential informants and anonymous complaints.

      In March 2007, Detective Reid contacted both the Internal Revenue Service

and the Utah State Tax Division and verified Wright had not reported any income

for a number of years. This corroborated the confidential informants’ statements

that Wright had not held a job for number of years and that methamphetamine

distribution represented his main source of income.

      Finally, Detective Reid attested CI#3 had “recently” been in contact with

Wright. CI#3 informed him that Wright “is still buying large quantities of

methamphetamine from his source in [Salt Lake City, Utah], storing these

narcotics inside his bedroom inside his house . . . at 3750 South Midland Drive

#15 with [h]is mother and is in turn selling large amounts of methamphetamine to

a number of people in the Ogden and Roy areas.”

      Reid’s affidavit did not, however, provide a complete list of all of the

techniques used by the police during their four-year investigation of Wright.

During a detention hearing on April 24, 2007, Detective Reid testified he used a

variety of investigative techniques, including “knock and talks” and “trash

covers,” and also attempted to orchestrate several controlled buys, all of which

proved unsuccessful.

      Based upon the information contained in the affidavit, the Utah Second

District Court issued a search warrant for Wright’s residence on March 15, 2007.

                                         -4-
Utah law enforcement officers executed the warrant on March 20, 2007. Officers

located over one pound of high-quality methamphetamine and $10,000 at

Wright’s residence. On May 2, 2007, Wright was indicted by a federal grand jury

on one count of possession of fifty or more grams of methamphetamine with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A).

      Wright filed a motion to suppress the evidence seized from his residence,

arguing the warrant authorizing the search was not supported by probable cause

because the information in the supporting affidavit was stale and the information

provided by the confidential informants did not provide a sufficient nexus

between Wright’s alleged criminal activity and his residence. Wright also argued

against applying the good-faith exception to the exclusionary rule recognized in

United States v. Leon, 468 U.S. 897 (1984), because Detective Reid could not

have reasonably believed the search warrant was constitutionally valid.

      On October 22, 2007, the district court rejected Wright’s staleness

argument in light of the ongoing nature of Wright’s suspected drug activities and

found the information provided by the four confidential informants provided a

substantial basis for probable cause. As a result, the district court found it

unnecessary to address Wright’s arguments under Leon. Wright then pleaded

guilty to the single count of the indictment, preserving his right to appeal the

denial of his motion to suppress. See Fed. R. Crim. P. 11(a)(2).




                                          -5-
      On appeal, Wright argues the search warrant was not supported by probable

cause because the supporting affidavit failed to establish a sufficient nexus

between the alleged criminal activity and Wright’s residence. Wright also argues

Detective Reid’s knowing or reckless omission of material information from the

affidavit renders the search warrant invalid under Franks v. Delaware, 438 U.S.

154, 155-56, 171-72 (1978). Wright argues the good faith exception does not

apply because the supporting affidavit was “so obviously lacking in nexus and

probable cause that the magistrate necessarily acted as a rubber stamp,” and

because Detective Reid knowingly misled the issuing judge by omitting

information regarding past unsuccessful investigative efforts pertaining to Wright.



III. Analysis

      “In reviewing the denial of a motion to suppress, this court views the

evidence in the light most favorable to the government and upholds the district

court’s factual findings unless clearly erroneous.” United States v. Danhauer,

229 F.3d 1002, 1005 (10th Cir. 2000). “Determinations relating to the sufficiency

of a search warrant and the applicability of the good-faith exception are

conclusions of law, however, which this court reviews de novo.” Id. Though

reviewing courts afford “great deference” to the magistrate’s probable cause

determination, this court will not defer to a magistrate’s determination if the

supporting affidavit fails to provide “a substantial basis for concluding that

                                         -6-
probable cause existed.” United States v. Rowland, 145 F.3d 1194, 1204 (10th

Cir. 1998) (quotation omitted). In determining whether a substantial basis for

probable cause exists, the reviewing court “must examine the facts individually in

their context to determine whether rational inferences can be drawn from them”

that support probable cause. United States v. Valenzuela, 365 F.3d 892, 897 (10th

Cir. 2004) (quotation omitted). The court, however, may not “arrive at probable

cause simply by piling hunch upon hunch.” Id.

      Wright argues Detective Reid’s affidavit was insufficient to support a

finding of probable cause in three respects: (1) it was supported only by

uncorroborated information from confidential informants; (2) it failed to establish

a sufficient nexus between Wright’s residence and the illegal activity; and, (3) it

failed to support probable cause once the intentionally or recklessly omitted

evidence of Detective Reid’s unsuccessful investigative techniques was included. 1



      A. Information Provided by the Confidential Informants

      Wright challenges the validity of the search warrant, asserting it rested on

information from four confidential informants that was not sufficiently

corroborated by the police. The Supreme Court has adopted a “totality of the


      1
       Wright does not pursue the staleness argument on appeal, except to allege
the magistrate judge’s staleness analysis was flawed because the affidavit as a
whole set out allegations too vague and uncorroborated to support probable cause.
Accordingly, we do not address this portion of the district court’s decision.

                                         -7-
circumstances test to determine when information from an anonymous or

confidential informant can establish probable cause.” United States v. Artez, 389

F.3d 1106, 1111 (10th Cir. 2004) (quotation omitted). An informant’s “veracity,

reliability, and basis of knowledge are all highly relevant in determining the value

of his report.” Id. (quotation omitted). Those elements, however, “should be

understood simply as closely intertwined issues that may usefully illuminate the

commonsense, practical question whether there is ‘probable cause’ to believe that

contraband or evidence is located in a particular place.” Illinois v. Gates, 462

U.S. 213, 230 (1983). Accordingly, an officer is not required to corroborate

information received from an informant through personal observation. United

States v. Mathis, 357 F.3d 1200, 1204 (10th Cir. 2004). “Rather, an officer

simply must have knowledge of other matters that reasonably corroborate the

informant’s statements.” Id. A tip from a second (or third or fourth) informant

can serve to reasonably corroborate the first informant’s statements. See Artez,

389 F.3d at 1114; United States v. Sturmoski, 971 F.2d 452, 455-56, 457-58 (10th

Cir. 1992).

      Detective Reid’s affidavit provides sufficient detail regarding the reliability

of the four confidential informants to allow a magistrate to rely upon their

statements as a basis for a finding of probable cause. According to the affidavit,

all four informants had previously given reliable and productive evidence in other

drug investigations. All identified 3750 South Midland Drive as the address

                                         -8-
where Wright lived with his mother and stated drug dealing was Wright’s main

source of income. In addition, CI#3 and CI#4 provided specific details about

Wright’s methamphetamine trafficking business: who his suppliers were, how

frequently he bought methamphetamine, where he stored his methamphetamine,

and who was in his distribution network. Finally, CI#4, an individual who

previously supplied Wright with methamphetamine, also described his personal

drug dealings with Wright. The information provided by each confidential

informant corroborated both the information received from the anonymous

complaints and the information received from the other confidential informants.

      Nonetheless, the affidavit makes clear that Detective Reid did not

independently corroborate much of the information he received about Wright’s

alleged illegal drug distribution network. Indeed, the affidavit reveals Detective

Reid only verified one statement he received from the confidential informants.

The affidavit states Detective Reid contacted both federal and state tax agencies

to corroborate that Wright subsisted on proceeds from his drug dealings alone.

Both agencies confirmed Wright had not reported any income for “a number of

years.” According to the affidavit, this information, when viewed in conjunction

with Wright’s ownership of several vehicles and “well-fed” appearance,

corroborated the confidential informants’ statements that Wright’s drug dealing

represented his main source of income.




                                         -9-
      The absence of other, stronger, evidence independently corroborating the

information provided by the four confidential informants is not dispositive under

the commonsense, practical approach announced in Gates. “[A]n officer simply

must have knowledge of other matters that reasonably corroborate the informant’s

statements.” Mathis, 357 F.3d at 1204. The affidavit in this case lists three

separate anonymous complaints from 2003, 2004, and 2005 informing police of

Wright’s alleged methamphetamine dealings. This information was subsequently

confirmed by more detailed statements from confidential informants, whose

reporting had previously proved reliable, and also by Wright’s failure to report

income to federal and state tax agencies for a number of years. Under the totality

of the circumstances, it was proper for the issuing judge to rely upon the

information provided by the four confidential informants despite Detective Reid’s

failure to independently corroborate much of that information.



      B. Nexus

      Wright also argues the affidavit failed to establish a sufficient nexus

between Wright’s residence and the illegal activity, even if all of the

uncorroborated information provided by the confidential informants is credited.

“An affidavit establishes probable cause for a search warrant if the totality of the

information it contains establishes the fair probability that contraband or evidence

of a crime will be found in a particular place.” United States v. Soderstrand, 412

                                         -10-
F.3d 1146, 1152 (10th Cir. 2005) (quotation omitted). Accordingly, the affidavit

must establish a “nexus between . . . suspected criminal activity and the place to

be searched.” United States v. Gonzalez, 399 F.3d 1225, 1228 (10th Cir. 2005)

(quotation omitted). Probable cause that someone is guilty of a crime does not

alone establish probable cause to search that person’s home. Rowland, 145 F.3d

at 1204. Rather, an affidavit seeking a warrant for a home must establish

probable cause as to that home, or a link between the home and the criminal

activity. Id.

      On appeal, Wright highlights there was no indication anyone ever

purchased or saw any drugs in Wright’s home, there were no controlled buys from

the home or from Wright, there was no surveillance of Wright or his home, and

there was no indication Wright or anyone who ever came to his home had a single

drug-related conviction. Wright’s argument, however, ignores the other evidence

in the affidavit specifically linking illegal drugs to his residence. The affidavit

states the police first learned Wright stored methamphetamine at the 3750 South

Midland Drive residence from an anonymous complaint received in March 2004.

CI#1 and CI#2 subsequently informed police in the fall of 2006 that Wright was a

methamphetamine dealer who lived at the 3750 South Midland Drive residence

with his mother. One of Wright’s methamphetamine suppliers was subsequently

arrested (CI#4), who in turn informed police that Wright stored methamphetamine

in the 3750 South Midland Drive residence. Finally, in December 2006, and

                                         -11-
again between December 2006 and March 2007, CI#3 informed police that Wright

stored large quantities of methamphetamine in his bedroom at the 3750 South

Midland Drive residence. Under the totality of the circumstances, this

information is certainly sufficient to establish there was a fair probability

evidence of Wright’s illegal drug dealing would be found at the 3750 South

Midland Drive residence. Accordingly, the information provided by the four

confidential informants created a sufficient nexus between Wright’s alleged

criminal activity and his residence to support a finding of probable cause.



      C. Franks Challenge

      Wright also alleges Detective Reid knowingly or recklessly omitted facts

pertaining to several unsuccessful attempts to corroborate allegations against

Wright, and argues the inclusion of these facts would have precluded a finding of

probable cause. Wright’s argument is both forfeited and without merit. “The

standards of deliberate falsehood and reckless disregard set forth in Franks apply

to material omissions, as well as affirmative falsehoods. United States v. Avery,

295 F.3d 1158, 1166 (10th Cir. 2002) (quotation omitted). To qualify for a

hearing under Franks, however, a defendant must first make “a substantial

showing that the affidavit contains intentional or reckless false statements” and

that “the affidavit, purged of its falsities, would not be sufficient to support a

finding of probable cause.” Id. at 1166 (quotation omitted). Examination of the

                                          -12-
record reveals Wright made no such showing in this case. Indeed, in briefing the

applicability of Leon before the district court, Wright conceded that the first

exception to the Leon rule, which also looks to whether the magistrate was misled

by an affidavit containing false information, did not apply.

      Wright’s failure to present the district court with any argument regarding

Detective Reid’s alleged Franks violation constitutes forfeiture of the issue. See

United States v. Charles, 576 F.3d 1060, 1065 n.1 (10th Cir. 2009). This court

reviews a forfeited claim under the plain-error doctrine and will reverse only if

“there is (1) error, (2) that is plain, which (3) affects substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Teague, 443 F.3d 1310, 1314 (10th Cir. 2006)

(quotation omitted). Under the facts of the present case, Wright cannot

demonstrate plain error because he cannot make a substantial showing, as

required by Franks, that the claimed omissions were material. See United States

v. Charles, 138 F.3d 257, 263-64 (6th Cir. 1998) (holding officer’s failure in

search warrant affidavit to mention several unsuccessful attempts to coordinate

drug deals with defendant was not material and did not make the affidavit false).

Inclusion of the details of Detective Reid’s unsuccessful investigative techniques

would not have altered the probable cause analysis in any way. Under the totality

of the circumstances test, the affidavit in this case supports probable cause

regardless of whether evidence of Detective Reid’s failed knock and talks, trash

                                          -13-
covers, and controlled buys is included. Wright’s claims under Franks are

therefore without merit.



IV. Conclusion

      The district court did not err in concluding, under the totality of the

circumstances, that the affidavit supporting the search warrant established a

sufficient nexus between the alleged criminal activity and Wright’s residence. In

light of this, it is unnecessary to address the parties’ alternative arguments

regarding the applicability of the Leon good-faith exception. Accordingly, the

decision of the district court is hereby AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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