                                                                                  F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  DEC 13 2004
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                       Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.
                                                              No. 03-3271
                                                      (D.C. No. 02-CR-40090-SAC)
 DARREN L. CARTER,
                                                                (Kansas)
           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and HENRY,
Circuit Judge.


       On July 17, 2002, Darren L. Carter (defendant) was charged in a one count

indictment filed in the United States District Court for the District of Kansas with

knowingly possessing on May 31, 2001, 11 grams of cocaine base in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. On November 7, 2002, the

defendant filed a motion to suppress any use at trial of all items seized in a search of his

residence. The government in response asked that the motion to suppress be denied. On



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
December 30, 2002, the district court denied defendant’s motion to suppress.

       On May 9, 2003, the defendant moved to exclude, at trial, the testimony of one

Brandon Rosario (Rosario), a member of the Kansas National Guard Counter Drug

Special Operations Group, whose “report” had been either misplaced or lost, and hence

was not available to defense counsel for possible use in his cross-examination of Rosario.

That motion was denied on May 13, 2003. After a three-day trial, a jury convicted the

defendant of the crime charged in the indictment on May 16, 2003, and thereafter, the

defendant filed a motion for judgment of acquittal, which was denied on July 17, 2003.

On September 5, 2003, the defendant was sentenced to 92 months imprisonment.

Defendant appeals his conviction and sentence. We affirm.1

       As stated, on November 7, 2002, the defendant filed a motion to suppress the use

at trial of all items seized in the search of his residence on May 31, 2001. The basis for

the motion was that the affidavit in support of the request for a search warrant was

insufficient to support the issuance thereof, i.e., the affidavit was not sufficient to show

that contraband or evidence of a crime would be found in defendant’s residence. The

government filed a response to that motion, contending that the affidavit was sufficient to

support the issuance of the warrant.

       The warrant in question was issued by a state judge in Kansas and the affidavit in



      This case was set for oral argument, but appellant’s counsel prior to argument
       1

moved to submit the matter on the briefs, stating the appellee had no objection thereto.
The motion was granted and the case was submitted on the briefs.

                                             -2-
support thereof was made by Brian Hill, an officer in the Topeka, Kansas Police

Department. The warrant was executed on May 31, 2001, the date of its issuance, by Hill

and other members of the Topeka Police Department. The search disclosed, inter alia,

cocaine in a plastic bag “beside the stoop outside the back door,” scales and sandwich

bags on the upper shelf in the kitchen cabinet, and two cell phones were seized in the

kitchen area, along with a pager and $350 in cash from defendant’s person. There was no

evidentiary hearing on the motion to suppress, since defendant’s challenge was based on

an alleged facial insufficiency of the affidavit itself. The district court on December 30,

2002, in a 12-page memorandum and order, denied the motion. On appeal, the defendant

first challenges the district court’s denial of his motion to suppress.

       In reviewing a motion to suppress, we review de novo the ultimate determination

of whether the search was “reasonable” under the Fourth Amendment. United States v.

Little, 60 F.3d 708, 712 (10th Cir. 1995). In making our determination “we consider the

totality of the circumstances and view the evidence in a light most favorable to the

government.” United States v. Long, 176 F.3d 1304, 1307 (10th Cir. 1999). In this

general connection, in United States v. Danhauer, 229 F.3d 1002, 1005-6 (10th Cir.

2000), we spoke as follows:

              A search warrant must be supported by probable cause,
              requiring “ more than mere suspicion but less evidence than is
              necessary to convict.” “Probable cause undoubtedly requires
              a nexus between suspected criminal activity and the place to
              be searched.” An affidavit in support of a search warrant
              must contain facts sufficient to lead a prudent person to

                                             -3-
              believe that a search would uncover contraband or evidence
              of criminal activity. In making a probable-cause
              determination, the issuing magistrate must examine the
              totality of the circumstances set forth in the affidavit,
              including an informant’s veracity and basis of knowledge.
              (Citations omitted.)

       Our reading of the affidavit is that it was sufficient to show probable cause and

that the district court did not err in denying defendant’s motion to suppress. The

affidavit, while perhaps not “overwhelming,” did show “more than mere suspicion.” See

United States v. Burns, 624 F.2d 95, 99 (10th Cir. 1980).2

       The Topeka Police Department apparently had a “working relationship” with the

Kansas National Guard Counter Drug Special Operations Group, whereby the latter, on

request, would conduct a “pre-raid surveillance” of the property to be searched in advance

of the actual search thereof. In this case, Brandon Rosario, a member of that group,

conducted a six-hour pre-raid surveillance of defendant’s residence immediately prior to

the search. As indicated, very shortly prior to trial, the defendant moved that Rosario not

be allowed to testify at his trial because a written “report” made by Rosario to Hill of the

results of his surveillance had either been misplaced or lost and therefore was not

available for possible use by defense counsel at trial. For a defendant’s Due Process rights


       2
        In the district court, as in this Court, the government argues that even if the
affidavit was insufficient, this case would come within the “good faith exception” to the
general exclusionary rule. See United States v. Danhauer, 229 F.3d 1002, 1008 (10th Cir.
2000). In that case, we held that the affidavit involved was “insufficient,” but then stated
“[n]onetheless, the district court did not err in refusing to suppress the evidence seized
because the officer acted in objectively reasonable good faith reliance on the warrant.”

                                            -4-
to be violated, defendant must show that the evidence which was not preserved was

material, that is, it possessed an “exculpatory value” that was “apparent before”

destruction and the defendant could not get “comparable evidence by other reasonably

available means.” California v. Trombetta, 467 U.S. 479, 489 (1984). Alternatively, “[i]f

the exculpatory value of the evidence is indeterminate and all that can be confirmed is

that the evidence was ‘potentially useful’ for the defense, then a defendant must show that

the government acted in bad faith in destroying the evidence.” United States v. Bohl, 25

F.3d 904, 910 (10th Cir. 1994) (citing United States v. Youngblood, 488 U.S. 51, 58

1988).

         The district court denied appellant’s motion finding the defendant failed to

demonstrate materiality or bad faith. On appeal, the defendant argues that the ruling

constituted reversible error. We do not agree. In this regard, we note that prior to trial,

Rosario was, in fact, interviewed by an investigator for the Public Defender’s office, with

the knowledge and consent of the government, and that investigator then testified at trial

as a defense witness. Further, there is nothing to indicate that the missing report was

caused by “bad faith” on the part of the officers or was material to defendant’s defense.

         After trial, the defendant filed a motion for judgment of acquittal. In that motion,

counsel attacked the credibility of Rosario, whose testimony at trial tied the defendant to

the cocaine found in a plastic bag “beside the stoop outside the back door” of defendant’s

residence. After hearing, the district court, in a rather detailed six-page memorandum and


                                              -5-
order, denied that motion. On appeal, defendant challenges the district court’s denial of

his motion for judgment of acquittal. This issue poses a question of witness credibility.

At trial, the government called four witnesses, including Rosario and Hill, the affiant.

The defendant called two witnesses, which included the investigator who interviewed

Rosario, and defendant’s girlfriend. The defendant, himself, elected not to testify. On

that state of the record, the jury having resolved the credibility of the several witnesses,

the district court declined to “reweigh” the evidence and stated that “the government

presented substantial evidence from which a rational trier of fact could find guilt beyond a

reasonable doubt.”. We agree.

       Judgment affirmed.



                                                   ENTERED FOR THE COURT



                                                   Robert H. McWilliams
                                                   Senior Circuit Judge




                                             -6-
