                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                              November 15, 2013
                                    PUBLISH                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                     No. 12-5174

 GERMAIN HARRIS,

       Defendant-Appellant.


                 Appeal from the United States District Court
                   for the Northern District of Oklahoma
                     (D.C. No. 4:12-CR-00037-GKF-1)


Robert J. Gorence, Gorence & Oliveros, P.C., Albuquerque, NM, for Defendant-
Appellant.

Timothy L. Faerber, Assistant United States Attorney, Northern District of
Oklahoma, Tulsa, Oklahoma (Danny C. Williams, Sr., United States Attorney,
and Leena Alam, Assistant United States Attorney, with him on the brief), for
Plaintiff-Appellee.


Before BRISCOE, Chief Judge, KELLY, and GORSUCH, Circuit Judges.


GORSUCH, Circuit Judge.



      Germain Harris’s legal troubles had their start in those of another man.

Authorities suspected — and eventually convicted — Alonzo Johnson of
participating in the contract killing of Neal Sweeney, a Tulsa businessman. While

officers worked to build their murder-for-hire case against Mr. Johnson and his

co-conspirators, a fair number of facts began pointing to Mr. Harris’s auto shop as

a place where evidence might be hidden. So officers secured a warrant to search

the shop and, while executing it, came across an illegal gun and drugs belonging

to Mr. Harris. Soon enough, Mr. Harris found himself facing federal charges of

his own, charges that ripened to convictions after trial. It is these convictions Mr.

Harris now asks us to undo, arguing that the district court should have suppressed

the evidence found in his shop or at least granted his motion for a new trial.

      Mr. Harris acknowledges that the officers had a warrant for their search and

he doesn’t contest the manner of its execution. Instead, he argues the warrant was

constitutionally defective on its face. Defective because, in Mr. Harris’s words, it

failed to establish a “nexus” between the crime officers sought to investigate and

his auto shop. As Mr. Harris notes, for a search to qualify as “reasonable” within

the meaning of the Fourth Amendment we must be able to discern some “nexus

between the contraband to be seized or suspected criminal activity and the place

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

(brackets omitted). This court has held that a “sufficient nexus” is surely

established by a search warrant when the materials supporting it describe

“circumstances which would warrant a person of reasonable caution [to believe]

that the articles sought are at a particular place.” United States v. Biglow, 562

                                        -2-
F.3d 1272, 1279 (10th Cir. 2009) (quotation marks omitted). For its part, the

Supreme Court has held that “[p]robable cause exists when there is a fair

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

place.” United States v. Grubbs, 547 U.S. 90, 95 (2006) (quotation marks

omitted).

      We are satisfied that much existed in this case. As the search warrant

affidavit explained, officers held in hand evidence suggesting that Mr. Johnson

provided the stolen van used during the murder. The affidavit explained that

officers hadn’t yet recovered the keys to that van or the murder weapon. It

recounted, too, that when officers sought to tail Mr. Johnson’s car earlier in the

day he drove erratically and hurriedly, apparently in an effort to shake them.

Eventually, officers managed to trail Mr. Johnson to Mr. Harris’s auto shop,

where Mr. Johnson parked his car, pulled out a key, entered after unlocking the

door, and left a short time later on a motorcycle after locking up. Relying on

experience, an attesting officer indicated that Mr. Johnson’s actions were

consistent with an effort to evade officers before proceeding to the shop. Of

course, these actions also showed that Mr. Johnson had access to the shop. An

officer attested, too, that individuals connected to a violent crime or conspiracy

are known sometimes to hide incriminating evidence at a friend’s place, or to

keep it at a common “clubhouse,” rather than to retain it in their own homes,

which might come under more obvious and immediate suspicion. An officer

                                        -3-
explained, as well, that Mr. Harris’s auto shop had served as a front for illegal

activity before. Viewed in whole, this information is enough, we think, to cause a

reasonable person to believe evidence about the murder-for-hire plot could be

found at the auto shop. See, e.g., Biglow, 562 F.3d at 1279-80 (upholding search

based in part on officers’ experience about where contraband is typically hidden);

United States v. Sanchez, 555 F.3d 910, 913-14 (10th Cir. 2009); United States v.

Sparks, 291 F.3d 683, 689-90 (10th Cir. 2002); United States v. One Hundred

Forty-Nine Thousand Four Hundred Forty-Two & 43/100 Dollars ($149,442.43)

in U.S. Currency, 965 F.2d 868, 873-74 (10th Cir. 1992). 1

      True, the evidence used against Mr. Harris in this criminal case was found

only incidentally, while officers were executing a search warrant aimed at the

murder-for-hire conspiracy. But that by itself does not a Fourth Amendment

violation make. The Fourth Amendment requires us to evaluate the

reasonableness of searches and seizures based on the facts known to officers when

the event in question occurred, and to avoid as best we can the temptation of

offering critiques with the “20/20 vision of hindsight.” Graham v. Connor, 490

U.S. 386, 396-97 (1989). Looking at the officers’ conduct in this case, we cannot

      1
          What we are not holding may be nearly as important as what we are. We
do not mean to suggest that anywhere a suspect goes after evading police is
automatically subject to search. Neither do we mean to suggest that any location
a suspect has a key to is automatically subject to search. Had Mr. Johnson
proceeded, say, to his grandmother’s home and entered there with a key, we might
have had a different case. We are persuaded of the search’s reasonableness in
this case only because of the particular combination of facts in play here.

                                         -4-
help but think they had reason at the time to suspect the auto shop would yield

evidence against Mr. Johnson, whatever the search’s ultimate outcome.

      Mr. Harris suggests that United States v. Rowland, 145 F.3d 1194 (10th Cir.

1998), requires a different result but we do not see how. The court in Rowland

recognized that “[p]robable cause to search a person’s residence does not arise

based solely upon probable cause that the person is guilty of a crime . . . . [T]here

must be additional evidence linking the person’s home to the suspected criminal

activity.” Rowland, 145 F.3d at 1204. Here the officers had “additional

evidence” to think Mr. Johnson was hiding evidence in the auto shop. Much as in

Biglow, the officers in this case could and did point to professional experience

suggesting that Mr. Johnson had entrusted evidence of his wrongdoing with a

friend or secreted it in a “clubhouse.” See Biglow, 562 F.3d at 1283. The officers

in this case also pointed to evidence suggesting that Mr. Johnson provided the van

used in the plot, the keys to which were still missing. They knew, too, that Mr.

Johnson had a key to the auto shop. And they suspected that he had taken active

steps to shake officers from his trail before proceeding to the auto shop. This just

isn’t a case like Rowland where police sought to search a place associated with

the defendant (let alone his home) only because they suspected the defendant of a

crime. Here, officers had “additional evidence” suggesting a link between the

crime and the place to be searched.




                                         -5-
         Even if the officers possessed information enough to warrant a search of his

auto shop, Mr. Harris contends the information was “stale.” It is settled law, Mr.

Harris notes, that “[p]robable cause to search cannot be based on stale

information.” United States v. Snow, 919 F.2d 1458, 1459 (10th Cir. 1990). And,

as Mr. Harris stresses, the underlying murder officers were investigating took

place 18 months before the search of his shop.

         Mr. Harris’s problem is this. The relevant question is not whether a close

temporal proximity exists between the crime and the warrant application. The

relevant question is whether the information in the search warrant affidavit

suggests the items sought are currently located in the place officers seek to

search. After all, police can hardly be thought constitutionally unreasonable for

trying to solve “cold” cases. Instead, the Fourth Amendment faults police only

when they seek to conduct a search based on information that “no longer suggests

that the items sought will be found in the place to be searched.” Snow, 919 F.2d

at 1459; see also United States v. Iiland, 254 F.3d 1264, 1268-69 (10th Cir.

2001).

         Eventually recognizing as much, Mr. Harris says we still must rule for him

because the warrant application contained “no information from which it could be

inferred that . . . the material sought to be recovered remained” in his shop by the

time of the search. United States v. Neal, 500 F.2d 305, 309 (10th Cir. 1974). As

we’ve already detailed, however, the search warrant affidavit in this case

                                          -6-
contained information along just these lines. Police knew that Mr. Johnson had a

connection to the van used in the murder; that the keys to the van and the murder

weapon were still missing; that the auto shop had been the front for illegal

activity before; that suspects in violent crimes sometimes use places like the shop

to hide incriminating evidence; and that on the very same day they sought the

warrant application Mr. Johnson sought to evade police before proceeding to the

shop. Under these circumstances, officers possessed information suggesting a

“fair probability” that evidence from the murder-for-hire conspiracy was currently

being kept in the auto shop. See Grubbs, 547 U.S. at 95 (quoting Illinois v.

Gates, 462 U.S. 213, 238 (1983)).

      Separately still, Mr. Harris points out that the search warrant affidavit

contains hearsay from a confidential informant whose reliability isn’t documented

anywhere in the record. To be sure, a search warrant “can be predicated upon . . .

hearsay from a reliable . . . informant.” United States v. Monaco, 700 F.2d 577,

580 (10th Cir. 1983). But Mr. Harris is right that “the basis of a confidential

informant’s knowledge, as well as his reliability, are important factors in deciding

whether information in an affidavit supports a finding of probable cause for a

search.” United States v. Avery, 295 F.3d 1158, 1167 (10th Cir. 2002). He is

correct, too, that the search warrant affidavit at issue here contains no discussion

at all about the confidential informant’s reliability.




                                         -7-
      Even so, this court has explained that “the complete failure of an affidavit

to discuss the reliability of an informant does not automatically preclude a finding

of probable cause.” Id. In particular, “[w]hen there is sufficient independent

corroboration of an informant’s information, there is no need to establish the

veracity of the informant.” United States v. Danhauer, 229 F.3d 1002, 1006 (10th

Cir. 2000). That’s the case we have here. Multiple independent sources cited in

the search warrant affidavit confirmed Mr. Johnson’s involvement in the murder-

for-hire plot. The confidential informant’s hearsay added nothing on that score.

In fact, the only details the confidential informant added to the mix were to link

the murder-for-hire plot to Mohammed Aziz, one of Mr. Johnson’s eventual co-

defendants, and to establish that Mr. Johnson was paid for his involvement. Yet

these details were inessential to the search warrant application. Stated

differently, the warrant application contained probable cause to think Mr. Johnson

was connected to the murder-for-hire conspiracy and to think the auto shop would

contain evidence incriminating him, whatever Mr. Aziz’s involvement and

whatever Mr. Johnson was or wasn’t paid. See United States v. Cusumano, 83

F.3d 1247, 1250 (10th Cir. 1996) (when a defendant alleges improper material

tainted an affidavit, “we may disregard [that] material . . . and ask whether

sufficient facts remain to establish probable cause”). 2

      2
        Though we find Mr. Harris’s various Fourth Amendment attacks
unsuccessful on their merits, they fail for another reason still. Even if we were to
                                                                       (continued...)

                                         -8-
      Apart from but related to his Fourth Amendment challenges, Mr. Harris

argues that the district court erred when it denied two (among many) motions he

filed seeking a new trial. To prevail on these motions — motions that focused on

the potential exculpatory value of newly discovered evidence — Mr. Harris bore

the burden of establishing before the district court that:

      (1) the evidence was discovered after trial; (2) the failure to discover the
      evidence was not caused by the defendant’s lack of diligence; (3) the new
      evidence is not merely impeaching; (4) the new evidence is material to the
      principal issues . . . involved; and (5) the new evidence would probably
      produce an acquittal in a new trial.

United States v. Pearson, 203 F.3d 1243, 1274 (10th Cir. 2000). For our part, we

may review a district court’s denial of Mr. Harris’s new trial motions under these

standards only for abuse of discretion. Id.

      We see none. The “newly discovered evidence” Mr. Harris presented in his

new trial motions consists of two statements about the location of the gun used in

the murder plot. In his first motion, Mr. Harris presented a statement made by a

member of the conspiracy, Terrico Bethel, suggesting that he (Mr. Bethel)


      2
        (...continued)
assume (without granting) a Fourth Amendment violation, suppression does not
automatically follow as the appropriate remedy. In fact, when a police officer
executing a search relies on a warrant issued by a neutral magistrate, this court
has held that suppression is generally inappropriate unless the search warrant
affidavit was “so lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable.” Danhauer, 229 F.3d at 1007 (quoting
United States v. Leon, 468 U.S. 897, 923 (1984)). Whatever else one might say
about the evidence in the search warrant affidavit discussed above, we cannot say
it sinks to such a low level.

                                         -9-
disposed of the firearm. Mr. Harris’s second motion presented testimony by

another member of the murder-for-hire conspiracy claiming that Mr. Bethel told

him that the gun was “buried . . . in the backyard.” Mr. Harris argues that this

information vitiates any probable cause that might have existed to search his auto

shop. Because it’s now clear the murder weapon wasn’t in his shop, the

reasoning goes, it’s now equally clear officers had no probable cause under the

Fourth Amendment to search it. And without the search, Mr. Harris observes, the

government lacks any evidence to pursue charges against him. It is in this way,

he insists, the newly discovered evidence requires an acquittal in his case.

      Whatever other problems lurk in this line of reasoning, it rests on at least

two faulty premises. First, Mr. Harris assumes that the only thing officers were

lawfully authorized to search for in the auto shop was the murder weapon. Yet,

as the district court explained, the police sought and obtained a search warrant for

various objects besides the murder weapon, including keys to the vehicle used

during the murder, paperwork related to the conspiracy, and cell phones.

Whatever the newly discovered evidence might say about the gun’s whereabouts,

it does nothing to undercut the officers’ reasonable belief that these other items

could be found in the auto shop. Second, Mr. Harris assumes that statements by a

co-conspirator concerning the location of an as-yet-undiscovered murder weapon

must be credited by police — that the statements preclude the possibility probable

cause might exist to search for the weapon anywhere else. But we are aware of

                                        - 10 -
no authority for such a bold proposition. To the contrary, it is settled law that

“probable cause doesn’t require an officer’s suspicion about the presence of

contraband to be more likely true than false,” and it is surely uncontroversial to

suggest that officers can follow alternative and competing leads when both are

supported by a “fair probability” they will yield something productive. United

States v. Ludwig, 641 F.3d 1243, 1252 (10th Cir. 2011) (internal quotation marks

omitted). With or without Mr. Harris’s newly discovered evidence, then, the

search here was lawful, the fruits of it are untainted by any Fourth Amendment

violation, the evidence presented against Mr. Harris at trial was lawful, and no

lawful basis exists for us to undo the jury’s verdict. 3

      The judgment is affirmed.




      3
         Mr. Harris also argues that the district court erred in ruling on his motion
for a new trial without holding an evidentiary hearing. But a district court is not
required to pursue process without purpose. See United States v. Velarde, 485
F.3d 553, 560 (10th Cir. 2007). As we have seen, no purpose would have been
served by an evidentiary hearing about Mr. Bethel’s statements. Whatever their
import, as a matter of law they could not have negated probable cause to support
the auto shop search. Neither, we pause to note, has Mr. Harris sought to pursue
on appeal any objection regarding the newly discovered evidence under Brady v.
Maryland, 373 U.S. 83 (1963), Franks v. Delaware, 438 U.S. 154 (1978), or any
theory except the one we have discussed.

                                         - 11 -
