                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      July 11, 2006
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court



U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                       No. 05-3352
v.                                                  (District of K ansas)
                                               (D.C. No. 05-CR-10019-M LB)
CLA RK A. M O RIN ,

          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before M U RPH Y, HOL LOW AY, and M cKAY, Circuit Judges.


I. Introduction

      On M ay 3, 2005, a four-count second superseding indictment charged Clark

A. M orin with violations of Titles 18 and 21 of the United States Code. M orin

moved to suppress evidence seized by police during a search of his residence,

contending the w arrant that authorized the search was improper. After a

suppression hearing, the United States District Court for the District of Kansas




      *
       This order and judgment is not binding precedent, except under the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.
denied M orin’s motion to suppress. M orin pleaded guilty to possession of

methamphetamine w ith intent to distribute in violation of 21 U.S.C. § 841(a)(1),

but preserved his right to appeal the district court’s order denying his motion to

suppress. On appeal, M orin argues the affidavit supporting the search warrant

suffered from material omissions, was misleading, and failed to establish a

connection betw een the alleged illegal activity and M orin’s residence. He

therefore claims the warrant authorizing the search of his home was not supported

by probable cause and evidence seized during that search must be suppressed.

W e assert jurisdiction pursuant to 28 U.S.C. § 1291. After examining the

sufficiency of the search warrant affidavit based on the totality of the

circumstances, we conclude the district court did not err when it denied M orin’s

motion to suppress. W e therefore affirm.

II. Background

      On December 22, 2004, Kansas Bureau of Investigation Agent Ronnie

Light applied for a warrant to search M orin’s residence located at 1829 New

M exico R oad in Iola, Kansas. In his affidavit and application, Light averred there

was probable cause to believe M orin possessed and was distributing

methamphetamine from his home. He cited four information sources in support

of this belief: (1) reliable source #1 (“RS#1”) and (2) reliable source #2

(“RS#2”), both of whom supplied information to Detective Shannon M oore of the

City of Iola Police Department, who then relayed the information to Light; (3)

                                          -2-
Juanita Sinclair, whom Light interviewed after her arrest for possession of

methamphetamine and non-drug offenses; and (4) a confidential informant, later

revealed to be Saber Granger, who participated in a controlled buy of

methamphetamine from a person alleged to be M orin.

      Based on Light’s application and affidavit, the District Court of Allen

County, Kansas found probable cause and issued a search warrant for M orin’s

residence. Kansas law enforcement officers executed the warrant on December

22, 2004. In M orin’s residence, officers discovered and seized methamphetamine,

marijuana, drug paraphernalia, a drug ledger, large amounts of cash, and an array

of firearms. A grand jury charged M orin in a four-count second superceding

indictment. The second count of the indictment alleged M orin possessed with the

intent to distribute approximately 84.9 grams of methamphetamine in violation of

21 U.S.C. § 841(a)(1).

      M orin filed motions to suppress the evidence seized from his residence,

arguing the warrant authorizing the search of his residence was not supported by

probable cause. The district court held a hearing to consider M orin’s motion to

suppress and later denied the motion in a written memorandum and order. Upon

review , the court concluded the affidavit as a whole “provided a reasonable basis

for the state court judge to determine with ‘fair probability’ that evidence of a

crime would be found at [M orin’s] house.” United States v. M orin, No. 05-

10019-01 M LB, at 5 (D. Kan. 2005) (order denying motion to suppress). After

                                          -3-
the district court’s ruling, M orin entered a conditional plea of guilty to possession

with intent to distribute methamphetamine, preserving for appeal the district

court’s denial of his motion to suppress.

III. Analysis

      On appeal, M orin argues the warrant authorizing the search of his residence

was not supported by probable cause because the affidavit supporting the warrant

contained material omissions and misleading statements. He further argues the

affidavit failed to establish a sufficient nexus between the alleged criminal

activity and M orin’s residence. Lastly, M orin argues the good faith exception to

the exclusionary rule, established in United States v. Leon, 468 U.S. 897 (1984),

does not apply. He therefore contends the evidence obtained from the search

must be suppressed.

      In reviewing a district court’s denial of a motion to suppress, we accept the

district court’s factual findings unless they are clearly erroneous and review

questions of law de novo. United States v. Gonzales, 399 F.3d 1225, 1228 (10th

Cir. 2005). W hether a warrant is supported by probable cause is a question of

law. Id. “In determining w hether a warrant is supported by probable cause, we

assess the sufficiency of a supporting affidavit based on the totality of the

circumstances.” United States v. Cantu, 405 F.3d 1173, 1176 (10th Cir. 2005);

see Illinois v. Gates, 462 U.S. 213, 238 (1983). This court gives great deference

to a magistrate’s determination of probable cause, and “[o]ur review is limited to

                                            -4-
ensuring that the magistrate’s determination had a substantial basis.” Cantu, 405

F.3d at 1176–77.

      A. Allegations of M aterial Omissions and M isleading Statem ents

      M orin argues the affidavit supporting the search warrant contained several

material omissions and misleading statements. Under the standard set forth in

Franks v. Delaware, a defendant seeking to challenge the veracity of a search

warrant affidavit must allege deliberate falsehood or reckless disregard for the

truth. 438 U.S. 154, 155–56 (1978). M orin, however, does not claim the

purported flaws in the affidavit are deliberate falsehoods or products of the

affiant’s reckless disregard for the truth. His appeal therefore does not assert a

Franks argument. Accordingly, our examination of M orin’s argument is limited

to ensuring the alleged omissions and misleading statements did not undermine

the state court judge’s probable cause determination such that it could no longer

be said to have a substantial basis. See Cantu, 405 F.3d at 1176–77.

      M orin claims affiant Light omitted material information from his search

warrant affidavit when he failed to note confidential informant Granger was a

recently arrested methamphetamine user who agreed to be an informant in the

hope that he would receive leniency from prosecutors. In reviewing the omission

of a confidential informant’s criminal history, courts ask whether the judge

issuing the warrant still would have found probable cause if the affidavit had

discussed the informant’s criminal history in more detail. United States v. Avery,

                                          -5-
295 F.3d 1158, 1168 (10th Cir. 2002). This court has observed that when an

affidavit informs a judge a confidential informant has used drugs, it puts the

judge on notice the informant is “not a model citizen.” Id. M oreover, we have

noted judges issuing search warrants “often know, even without an explicit

discussion of criminal history, that many confidential informants suffer from

generally unsavory character and may only be assisting police to avoid

prosecution for their own crimes.” Id. (quotation omitted). In this case, the

affidavit informed the state court judge Granger had purchased methamphetamine

from M orin in the past. Combined with the judge’s presumed background

knowledge about confidential informants, the information in the affidavit was

sufficient to alert the court Granger was a drug user who may have been

cooperating with police for self-serving reasons. W e therefore conclude the

affidavit’s failure to give a more thorough recitation of Granger’s background did

not impair the substantial basis for the state court’s probable cause determination.

      M orin also claims it was misleading to characterize RS#1 and RS#2 as

“reliable” sources when Light admitted he had never used either source in the

past, and when only one of the two sources had previously provided information

to law enforcement authorities. In assessing the credibility of information from

an anonymous source, a court must take into account “all the circumstances set

forth in the affidavit.” Gates, 462 U.S. at 238. It may not simply accept an

affiant’s portrayal of the source as “reliable” or “credible.” Id. at 239 (noting an

                                          -6-
affiant’s statement that he has received reliable information from a credible

source, standing alone, is insufficient to establish probable cause). Thus, when

the state court evaluated the credibility of information obtained from RS#1 and

RS#2, it was required to focus on the totality of the circumstances described by

the affidavit, not the mere use of the w ord “reliable.” A ccordingly, the affiant’s

use of the adjective “reliable” did not undercut the substantial basis for the state

court’s probable cause determination.

       M orin further argues the affidavit’s description of the controlled buy

between confidential informant Granger and M orin was misleading. In relevant

part, the affidavit states:

       The CI [confidential informant Granger] was followed by officers
       involved with the controlled purchase. At approximately 1:30 a.m.
       Affiant was informed that M ORIN wanted the CI to meet on the
       highway (US 169 Hwy). Affiant was informed that M ORIN would
       by [sic] driving his maroon Ford Ranger truck. At 1:35 a.m. the CI
       met with M ORIN near the intersection of 1600 St. and M innesota Rd.
       M ORIN arrived at the meeting place prior to the CI’s arrival. SA
       B OTTS recorded the conversation from the wireless transmitter. At
       approximately 1:39 a.m. SA COM M ONS observed a vehicle later
       identified as M ORINS [sic] Ford Ranger truck leave the meeting
       place and proceed west on M innesota Rd. Affiant observed the
       vehicle believed to be occupied by M orin turn and proceed south on
       US-169 Hwy. Affiant proceeded north on US-169 Hwy, and
       observed the CI drive back to the prearranged meeting place.

ROA vol. I, tab 17, attachment 1 at 4. M orin claims the affidavit is written so as

to imply the affiant witnessed M orin participating in the drug transaction, when in

fact, no law enforcement officer positively identified M orin during the controlled



                                          -7-
buy. The phrasing of the affidavit, however, belies M orin’s argument. The

affidavit states one law enforcement officer saw a vehicle “later identified” as

belonging to M orin leave the location of the controlled buy, and states the affiant

saw a vehicle “believed to be occupied by M orin” turn and drive down the

highway. These descriptions make clear law enforcement officers did not

positively identify M orin at the time of the controlled buy. W e thus conclude the

wording of the affidavit did not affect the substantial basis for the state court’s

probable cause determination.

      B. Nexus Between Alleged Illegal Activity and M orin’s Residence

      In addition to his claim that the search warrant affidavit is marred by

material omissions and misleading statements, M orin stresses confidential

informant Granger was the only source identified in the affidavit to allege illegal

activity occurred in M orin’s residence. He argues the information supplied by

Granger, considered in the context of the alleged material omissions and

misleading statements described above, is insufficient to demonstrate a

connection between the alleged criminal activity and the place to be

searched— M orin’s residence. Therefore, M orin contends, the affidavit did not

establish probable cause to search M orin’s home.

      Probable cause exists w hen facts presented in a supporting affidavit “w ould

warrant a man of reasonable caution to believe that evidence of a crime will be

found at the place to be searched.” United States v. Nolan, 199 F.3d 1180, 1183

                                          -8-
(10th Cir. 1999) (quotation omitted). It thus “requires a nexus between suspected

criminal activity and the place to be searched.” United States v. Corral-Corral,

899 F.2d 927, 937 (10th Cir. 1990). A court reviewing an application for a search

warrant must “make a practical, common-sense decision” whether the supporting

affidavit demonstrates “a fair probability that contraband or evidence of a crime

will be found in a particular place.” Gates, 462 U.S. at 238. The court “may

draw reasonable inferences from the material provided in the warrant

application.” United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir. 1998).

As noted above, “the duty of a reviewing court is simply to ensure that the

magistrate had a substantial basis for concluding that probable cause existed.”

Gates, 462 U.S. at 238–39 (quotation and alterations omitted).

      After examining the search warrant affidavit with these standards in mind,

we conclude there was a substantial basis to support the state court’s probable

cause determination. The affidavit established a connection between alleged

illegal drug activities and M orin’s residence when it stated that various identified

sources claimed M orin sold methamphetamine from his house, sometimes

manufactured methamphetamine, and equipped his house with firearms and an

infrared video surveillance system. ROA vol. I, tab 17, attachment 1 at 2–5. The

nexus was furthered by the sources’ statements that M orin’s unattached garage

had painted windows, an exhaust system, and was subject to traffic and activity.

Id. It was permissible for the state court, drawing reasonable inferences from

                                          -9-
these statements, to conclude there was a fair probability that contraband or

evidence of a crime would be found at M orin’s residence. Accordingly, the state

court had a substantial basis for its probable cause determination.

      In sum, the district court did not err when it denied M orin’s motion to

suppress evidence seized from his residence. In light of our conclusion, it is

unnecessary to discuss the Leon good faith exception to the exclusionary rule.

IV. Conclusion

      For the foregoing reasons, we affirm the district court’s denial of M orin’s

suppression motion.

                                       ENTERED FOR THE COURT



                                       M ichael R. M urphy
                                       Circuit Judge




                                        -10-
