                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                              June 30, 2005
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

                                                           No. 05-8004
               Plaintiff-Appellee,
          v.                                              (D. Wyoming)
 RICHARD THOMAS SCHIRBER,                           (D.C. No. 04-CR-151-B)

               Defendant-Appellant.




                            ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.


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

unanimously that oral argument would not materially assist the determination of

this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      In a one-count indictment, Richard Schirber was charged with being an

unlawful user of a controlled substance in possession of nineteen firearms, in


      *
        This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3.
violation of 18 U.S.C. § 922(g)(3). The district court denied his motion to

suppress evidence, and he entered a conditional guilty plea. He was sentenced to

twenty-one months of imprisonment and two years of supervised release. He

received a $100 special assessment and a $250 fine. Mr. Schirber now timely

appeals. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. Because we hold

that (1) the warrant was supported by probable cause, and in the alternative (2)

the good faith exception of United States v. Leon, 468 U.S. 897 (1984) applies,

we affirm.

                                 I. BACKGROUND

      On February 5, 2004, a Wyoming state court judge issued a search warrant

for Mr. Schirber’s residence in Thermopolis, Wyoming. The search warrant

authorized officers to search for controlled substances and evidence of the use or

trafficking of controlled substances. The judge issued the search warrant based

on an affidavit from Officer Mark Nelson of the Thermopolis Police Department.

      In his affidavit, Officer Nelson set forth facts pertaining to his

investigation of Mr. Schirber, information relating to the reliability of the

informants he interviewed, and detailed information regarding numerous other

individuals unrelated to this case. Officer Nelson stated in the affidavit that on

January 19, 2004, he interviewed Chad Harris, who discussed his drug

involvement during a period of time he had lived in Thermopolis. Mr. Harris’s


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involvement included one occasion when he purchased methamphetamine from

Chad Severance in February 2003. According to Mr. Harris, Mr. Severance told

him that his source was Mr. Schirber. Mr. Harris also stated that on one occasion

“6 months prior to this incident,” Mr. Schirber showed him a rock of

methamphetamine that was “[a]pproximately the size of a [b]aseball.” Rec. vol.

I, doc. 31, Ex. A (Affid. of Chad Harris, dated Jan. 26, 2004).

      Officer Nelson also interviewed Lahoma Martin, who had been involved in

a romantic relationship with Mr. Harris. Ms. Martin admitted she used both

methamphetamine and marijuana. She stated that she knew through other people

involved with drugs that Mr. Schirber was a Thermopolis-based drug dealer. Ms.

Martin also stated that Mr. Harris obtained methamphetamine from Mr.

Severance, and that she knew of a purchase Mr. Severance made from Mr.

Schirber during the summer of 2002. Ms. Martin also stated that she had used

marijuana and methamphetamine with a woman named Stormy Jeffres, and that

Ms. Jeffres advised Ms. Martin that she obtained her drugs through Mr. Schirber.

      Officer Nelson also interviewed Jason Krueger on January 27, 2004. Mr.

Krueger confirmed he frequently injected methamphetamine, and had done so

with Mr. Severance. Mr. Krueger stated he purchased several grams of

methamphetamine from Mr. Schirber, but he did not give specifics as to this

transaction. During the eight months preceding the interview, however, Mr.



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Krueger and his wife primarily used sources outside of Thermopolis. Mr. Krueger

also stated that Mr. Schirber sold methamphetamine to Mr. Severance, and that he

knew Mr. Schirber was associated with Dean Willenbrecht, who was bringing

methamphetamine, LSD, and cocaine to town.

      Officer Nelson’s affidavit also included information from surveillance he

and other officers performed on Mr. Schirber’s residence. From January 29 to

February 3, 2004, among the vehicles parked at Mr. Schirber’s residence included

those registered to Mr. Severance, Sherry Krueger (Mr. Krueger’s spouse), and a

Harold Willenbrecht.

      When officers executed the warrant on February 5, 2004, they retrieved

numerous pills, electronic scales, a drug kit, and nineteen firearms that were in

plain view. Mr. Schirber filed a motion to suppress the evidence found during the

search, claiming that (1) Officer’s Nelson’s affidavit did not establish probable

causes for the search, and (2) the firearms should be suppressed because the

warrant did not authorize a search for firearms. The district court denied the

motion. It found probable cause, and in the alternative, evidence to support the

application of the good faith exception to the exclusionary rule. The district court

also found that the firearms were in plain view and lawfully seized. Mr. Schirber

appeals only the probable cause finding.




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                                   II. DISCUSSION

      “On appeal from the denial of a motion to suppress evidence, we review the

district court’s factual findings for clear error, viewing the evidence in the light

most favorable to the government. The district court’s determination of

reasonableness under the Fourth Amendment is reviewed de novo.” United States

v. Cantu, 405 F.3d 1173, 1176 (10th Cir. 2005) (citations omitted).

      “Where the search or seizure was pursuant to a warrant, our review of the

issuing magistrate’s finding of probable cause is very deferential: Our duty is to

ensure that the magistrate judge had a substantial basis for concluding that the

affidavit in support of the warrant established probable cause.” United States v.

Riccardi, 405 F.3d 852, 860 (10th Cir. 2005) (internal quotation marks omitted).

“The task of the issuing magistrate is simply to make a practical, commonsense

decision whether, given all the circumstances set forth in the affidavit . . . there is

a fair probability that contraband or evidence of a crime will be found in a

particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). “Moreover, [e]ven

if we conclude that the warrant was not supported by probable cause, we may still

uphold the search if we conclude that the good-faith exception to the exclusionary

rule contained in United States v. Leon, 468 U.S. 897 (1984) . . . applies.”

Riccardi, 405 F.3d at 860 (internal quotation marks and alterations omitted). We

review de novo the applicability of the Leon good-faith exception. Id.



                                           -5-
      Mr. Schirber contends that Officer Nelson’s affidavit contains insufficient

evidence to support probable cause for the issuance of the warrant. The three

witnesses each attested to an incident involving the sale or use of

methamphetamine by Mr. Severance, and each witness mentions that Mr. Schirber

was Mr. Severance’s source. The record also contains Mr. Harris’s statement that

in the fall of 2002, Mr. Schirber showed him a large piece of methamphetamine.

Drugs were purchased by Mr. Harris in February 2003, by Ms. Martin in the

summer 2002, and by Mr. Krueger around April 2003. Officer Nelson submitted

the application for the warrant on February 4, 2004.

      The government argues the affidavit establishes that Mr. Schirber’s drug

activity was ongoing over a considerable period of time. The district court found

that the information was “certainly not stale.” Rec. vol. II, at 40. As the court

noted, Officer “Nelson’s affidavit contained allegations of illegal drug possession

and distribution occurring over a period of months so there was evidence of

ongoing and continuous criminal activity by Defendant.” Rec. vol. I, doc. 36, at

5.

      We acknowledge that “the determination of whether information is stale

depends on the nature of the crime and the length of criminal activity, not simply

the number of days that have elapsed between the facts relied upon and the

issuance of the warrant.” United States v. Myers, 106 F.3d 936, 939 (10th Cir.



                                         -6-
1997) (concluding that a gap of five months between tip and search warrant did

not render information stale when drug activities were demonstrated to be

continuous and ongoing). “Where the affidavit recites a mere isolated violation it

would not be unreasonable to imply that probable cause dwindles rather quickly

with the passage of time. However, where the affidavit properly recites facts

indicating activity of a protracted and continuous nature, a course of conduct, the

passage of time becomes less significant.” United States v. Johnson, 461 F.2d

285, 287 (10th Cir. 1972) (emphasis added).

      Standing alone, the information here would be stale. See United States v.

Jardine, 364 F.3d 1200, 1205 (10th Cir. 2004) (noting that “[t]aken alone, it is

doubtful that [eight-month old] information would establish probable cause to

search”), vacated on other grounds by 125 S. Ct. 1024 (2005); United States v.

Neal, 500 F.2d 305, 309 (10th Cir. 1974) (three-month old information from

participant in stolen-auto ring was stale since there was no information “from

which it could be inferred that the operation continued or that the material sought

to be recovered remained on the described premises”); 2 Wayne R. LaFave,

S EARCH AND S EIZURE § 3.7(a) (4th ed. 2004) (“Absent additional facts tending to

show otherwise, a one-shot type of crime, such as a single instance of possession

or sale of some form of contraband, will support a finding of probable cause only

for a few days at best.”). We note that methamphetamine is readily moved, not



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affixed to the home, and easily destroyed. See State v. Gillespie, 503 N.W.2d

612, 6167 (Iowa Ct. App. 1993) (taking into consideration the nature of the

criminal activity, the length of the activity, and the nature of the property seized,

reversing the denial of a motion to suppress given evidence of sale of

methamphetamine fifty-four days before the application for the warrant). Without

more, we agree with Mr. Schirber that it is doubtful that this information would

establish probable cause to search his current residence.

      However, unlike the majority of our cases in which probable cause is not

established, the above information was not all the magistrate judge had before

him when issuing the warrant. As the government notes, Mr. Harris, Mr. Krueger

and Ms. Martin each gave statements against their penal interests. Moreover, the

three statements “cross-corroborate” one other. For example, each statement

identified Mr. Severance as someone who obtained methamphetamine from Mr.

Schirber. The district court found this consistency persuasive:

      Considering the admissions of Harris and Krueger, the consistent
      statements about other individuals who purchased illegal drugs from the
      Defendant, and the subsequent surveillance of Defendant’s residence,
      Nelson’s affidavit contained a substantial basis for the finding of
      probable cause.

Rec. vol. I, doc. 36, at 4-5. Furthermore, the surveillance of Mr. Schirber’s home

provided independent corroboration of his ties with Mr. Severance. See id. at 5-6.

      We acknowledge that other courts, when faced with aging information



                                          -8-
concerning drug transactions have determined that such information was stale.

For instance, in United States v. Grant, 108 F. Supp.2d 1172, 1176 (D. Kan.

2000), the district court granted the defendant’s motion to suppress, finding that

evidence of two sales of drugs that occurred six months and four-and-a-half

months prior to the application for a warrant did not establish continuous and

ongoing activity. The court noted “[t]here is no indication, for instance, that

defendant had recently kept a supply of drugs at his house or that he was

receiving more contraband in the future or that he was continuing to use or sell

illegal drugs or that it was likely that he still kept records or other evidence of

drug sales at his house.” Id. Similarly, in State v. Newton, 489 S.E.2d 147, 151

(Ga. Ct. App. 1997), the appellate court noted that evidence of a single sale one

month prior to the application for the warrant, standing alone, failed to create any

inference that the circumstances described still existed at the time application for

the warrant was made. In the case before us, however, the information regarding

the drug transactions, coupled with the various methamphetamine sales, was

sufficient to tip the scale in favor of deferring to the state court judge’s finding

that Officer’s Nelson’s affidavit contained a substantial basis for the finding of

probable cause.

      Even if we were to conclude the warrant was not supported by probable

cause, we note that evidence seized pursuant to an invalid warrant need not

always be suppressed. “In Leon [468 U.S. 897 (1984)], the Supreme Court

                                           -9-
modified the Fourth Amendment exclusionary rule by holding that evidence

seized pursuant to a search warrant later found to be invalid need not be

suppressed if the executing officers acted in objectively reasonable, good-faith

reliance on the warrant.” United States v. Rowland, 145 F.3d 1194, 1206 (10th

Cir. 1998). In Leon the Court also identified four specific situations in which an

officer’s reliance on a subsequently invalidated warrant could not be considered

to be objectively reasonable: (1) when the warrant is issued on the basis of an

affidavit that the affiant knows (or is reckless in not knowing) to contain false

information; (2) when the issuing magistrate abandons his neutral and detached

role and serves as a rubber stamp for police activities; (3) when the affidavit is so

lacking in indicia of probable cause that a belief in its existence is objectively

unreasonable; and (4) when the warrant is so facially deficient that it cannot

reasonably be presumed to be valid. See Leon, 468 U.S. at 914-923.

      Here, Mr. Schirber argues that the warrant was based on a bare-boned

affidavit that the officers could not have presumed to be valid. He cites a

Colorado appellate court decision holding that evidence indicating two illegal

drug transactions – four months old and a one month old – was too stale to

support a warrant. People v. Miller, 75 P.3d 1108, 1115 (Colo. 2003).

      In this case, the district court found in the alternative that “[e]ven if there

was no probable cause, the evidence would not need to be suppressed because

Nelson acted conscientiously and in good faith reliance upon the search warrant.”

                                          -10-
Rec. vol. I, doc. 36, at 6. Having reviewed the entire record de novo, see United

States v. Nolan, 199 F.3d 1180, 1184 (10th Cir. 1999), we agree.

      In determining whether the good-faith exception should apply in a
      particular case, the “inquiry is confined to the objectively ascertainable
      question whether a reasonably well trained officer would have known
      that the search was illegal despite the magistrate's authorization.”
      Leon, 468 U.S. at 922 n. 23. In answering this question, the court
      should consider all of the circumstances and assume that the executing
      officers have a “reasonable knowledge of what the law prohibits.” Id.
      at 919 n.20.

Riccardi, 405 F.3d at 863 (emphasis added).

      Here, the affidavit indicated several people were aware of Mr. Schirber’s

activities, and the affidavit indicated that police surveillance confirmed the

association of an alleged purchaser of drugs with Mr. Schirber only days before

the warrant’s execution. There is no evidence that the officers were unreasonable

when they relied upon the issuance of the warrant. Furthermore there is no

suggestion that the officers were involved in any misconduct in the application

for or the execution of the warrant. “As the Court stated in Leon, the

exclusionary rule should only be applied in those unusual cases when its purpose,

to deter police misconduct, will be furthered.” Rowland, 145 F.3d at 1208. Here,

Officer Nelson acted promptly upon receiving the information contained in his

affidavit, and there is no indication that he acted with reckless disregard for the




                                         -11-
truth. Officer Nelson’s reliance upon the warrant was objectively reasonable.

The good-faith exception under Leon applies. 1



                               III. CONCLUSION

      The district court properly denied Mr. Schirber’s motion to suppress

evidence obtained through the search of his residence, and we AFFIRM his

conviction.

                                              Entered for the Court,


                                              Robert H. Henry
                                              Circuit Judge




      1
         Although we could have simply affirmed the district court on the basis of
the good faith exception, we recognize that “the policy of avoiding ‘freezing’
Fourth Amendment jurisprudence, discussed by the Court in Leon, compels us in
this case to resolve the constitutional issue” so that magistrate judges and law
enforcement officers are given some guidance in their decisionmaking.
United States v. Dahlman, 13 F.3d 1391, 1398 (10th Cir 1993); see Leon, 468
U.S. at 924-925.


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