                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        May 31, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


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

               Plaintiff - Appellee,                     No. 05-5146
          v.                                           N. D. Oklahoma
 B RIA N SC OTT PER RY ,                      (D.C. No. 04-CR-189-001-TCK)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


      Appellant Brian Perry was charged in the United States District Court for

the Northern District of Oklahoma w ith possession of a firearm after prior

conviction of a felony, in violation of 18 U.S.C. § 922(g)(1); possession with the

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

possession of a firearm in furtherance of a drug-trafficking crime, in violation of



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
18 U.S.C. § 924 (c)(1)(A). Before trial he sought to suppress evidence, including

a handgun, baggies containing methamphetamine, a spoon with methamphetamine

residue, and drug paraphernalia, gathered during a search of his residence. The

district court denied the motion, holding that the affidavit for the search warrant

established probable cause and, alternatively, even if there were deficiencies in

the affidavit, the good-faith exception to the exclusionary rule was satisfied, so

that the evidence should not be suppressed. M r. Perry was then convicted by a

jury on all three counts. He was sentenced to 150 months’ imprisonment.

M r. Perry now appeals the district court’s denial of his motion to suppress. W e

have jurisdiction under 28 U.S.C. § 1291 and affirm.

I.    B ACKGR OU N D

      Tulsa police officers conducted a search of M r. Perry’s home under a

warrant based on an affidavit by Officer Anthony First. The affidavit contained

the following allegations: (1) Officer First had been a Tulsa police officer for

five years and had various formal and informal training in the “recognition of

controlled dangerous substances” and on the “recognition of and enforcement

against clandestine labs . . . .” R. Vol.1 Doc. 14 Ex. A at 1. (2) W ithin 72 hours

before the affidavit was filed, Officer First had received information from a

confidential informant (CI) that M r. Perry was selling methamphetamine. “The

CI told [Officer First] that they have purchased quantities of marijuana from

Brian in the past at several different locations including Brian’s house at 7112 E.

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Jasper St. The CI went on to state that each time they have placed orders for

methamphetamine, Brian has been able to provide it.” Id. (3) Also within 72

hours of the affidavit, Officer First met with the CI and arranged a controlled buy

targeting M r. Perry. The CI contacted M r. Perry and arranged to purchase a

quantity of methamphetamine from him. Officer First searched the CI’s person,

finding no drugs or money on him, provided him with a quantity of money with

which to make the buy, and followed him to 7112 E. Jasper St. (4) O fficers

maintained surveillance on the residence as the CI arrived, entered, and departed.

No other people entered while the CI was inside. W hen the CI exited, Officer

First followed him to a location where the CI gave him a quantity of

methamphetamine and told him that it had been obtained from M r. Perry.

Another search of the CI revealed that he had no other drugs on him. (5) A

search of police records revealed that M r. Perry “has an extensive criminal history

including four previous contacts for illegal drugs.” Id. at 2. (6) During two

separate observation periods, officers observed a “very high volume” of “foot and

vehicle, short term traffic” at M r. Perry’s home. Id.

       M r. Perry filed a written motion to suppress the evidence gathered during

the search of his residence, arguing that the affidavit was insufficient to support

probable cause for the search and that the good-faith exception did not apply. H e

contended that the officers employed inadequate precautions for the controlled

buy, pointing out that the affidavit failed to indicate w hether the CI’s car, in

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which he drove himself to and from M r. Perry’s residence for the buy, had been

searched by the officers. A t the suppression hearing he argued that probable

cause and good faith were lacking also because the affidavit (1) did not provide

the identity or purpose of any of the short-term visitors to M r. Perry’s house

observed by the officers and (2) provided no basis for the assertion that

methamphetamine was the substance returned to Officer First after the controlled

buy.

       Officer First’s testimony at the suppression hearing clarified several

statements in the affidavit. He testified that his partner had searched the CI’s car

both before and after the controlled buy, and that omission of that information

from the warrant affidavit had been an oversight. He also testified that the

statement in the affidavit that the CI gave him a quantity of “methamphetamine”

after the controlled buy was based on a field test of the substance, because it was

his practice always to field test substances under those circumstances.

       On appeal M r. Perry continues to challenge the sufficiency of the affidavit

and the applicability of the good-faith exception. He does not pursue his

argument below based on the failure to search the CI’s vehicle. He focuses on

the absence of any mention of the field test in the affidavit and the failure to

provide dates for the surveillance of short-term visitors at M r. Perry’s house.




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II.   D ISC USSIO N

      W hen w e review a district court’s decision on a motion to suppress, we

accept the 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 the warrant was supported by probable cause and whether

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

are both questions of law. Gonzales, 399 F.3d at 1228. Appellate courts have

discretion to address probable cause or to proceed directly to the good-faith

analysis. Id. Here, the probable-cause determination is a close one, but the

question of good faith is clear. Therefore, we will proceed directly to the good-

faith inquiry.

      Leon announced a good-faith exception under w hich evidence procured in

violation of the Fourth Amendment would nonetheless be admissible at trial. 468

U.S. at 913. It declared that the exclusion of “reliable physical evidence seized

by officers reasonably relying on a warrant issued by a detached and neutral

magistrate,” id. at 913, did not serve the primary purpose of the Fourth

Amendment exclusionary rule— deterrence of police misconduct, see id. at 913-

23; see also Gonzales, 399 F.3d at 1228-29. The Court noted, however, four

situations in which deference to the magistrate’s probable-cause determination

would not suffice to bring an officer’s execution of the warrant within the good-

faith exception:

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      [1] Suppression . . . remains an appropriate remedy if the magistrate
      or judge in issuing a warrant was misled by information in an
      affidavit that the affiant knew was false or would have known was
      false except for his reckless disregard of the truth. [2] The exception
      we recognize today will also not apply in cases where the issuing
      magistrate wholly abandoned his judicial role . . . . [3] Nor would an
      officer manifest objective good faith in relying on a warrant based on
      an affidavit so lacking in indicia of probable cause as to render
      official belief in its existence entirely unreasonable. . . . [4] Finally,
      . . . a warrant may be so facially deficient . . . that the executing
      officers cannot reasonably presume it to be valid.

Leon, 468 U.S. at 923 (internal citations and quotation marks omitted). On appeal

M r. Perry relies on only the third instance in which the good-faith exception

would not apply, asserting that “[t]he affidavit at issue was so devoid of factual

support that no reasonably well trained officer could have relied on it.” A plt Br.

at 11. W e disagree. (In his written motion to suppress, M r. Perry claimed that

the magistrate had wholly abandoned his judicial role in approving this w arrant,

but he does not renew that argument in his briefs to this court.)

      “W hile officers are generally entitled to rely on the magistrate’s judgment,

they are also required to exercise their ow n professional judgment. . . . [W ]e

determine good faith in this context by considering whether a reasonably well

trained officer would have known that the search was illegal despite the

magistrate’s authorization.” Gonzales, 399 F.3d at 1230 (internal citation and

quotation marks omitted).

      In our view , Officer First’s affidavit meets this standard. In particular,

M r. Perry’s sole challenge to the controlled buy (which, if properly performed,

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would itself establish the CI’s credibility and support a finding of probable cause,

see United States v. Artez, 389 F.3d 1106, 1111-12 (10th Cir. 2004)) is that the

affidavit does not recite that a field test was conducted to establish the identity of

the substance. But the very fact that the CI entered M r. Perry’s house with money

and left with a quantity of a substance that a trained officer thought to be

methamphetamine provides significant corroboration to the CI’s assertion that he

had been purchasing methamphetamine from M r. Perry. Sloppiness in writing,

and approving, affidavits for warrants is an unfortunate, and sometimes costly,

error. But a well-trained officer who knew facts establishing probable cause

could reasonably err in relying on approval of a warrant based on an affidavit that

inadvertently omitted some of those facts. Officers need to be “reasonably well

trained,” but we cannot expect them to parse language as a skilled lawyer could.

See United States v. Corral-Corral, 899 F.2d 927, 939 (10th Cir. 1990) (“[T]he

knowledge and understanding of law enforcement officers and their appreciation

for constitutional intricacies are not to be judged by the standards applicable to

lawyers.” (internal quotation marks omitted)). W e cannot say that the affidavit

was “so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable.” Leon, 468 U.S. at 923 (internal quotation marks

omitted); see United States v. Danhauer, 229 F.3d 1002, 1007 (10th Cir. 2000);

United States v. M cKneely, 6 F.3d 1447, 1454 (10th Cir. 1993) (“It is only when

an officer’s reliance was w holly unwarranted that good faith is absent.” (emphasis

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and internal quotation marks omitted)). Accordingly, we affirm the district

court’s determination under Leon that M r. Perry’s motion to suppress be denied.

III.     C ON CLU SIO N

         For the reasons stated above, we AFFIRM the judgment of the district

court.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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