                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                      August 5, 2016
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 15-5128
                                              (D.C. No. 4:15-CR-00080-GKF-1)
 MARCUS DUPREE SMITH,                                  (N.D. of Okla.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, McKAY and MURPHY, Circuit Judges.


      Marcus Dupree Smith pleaded guilty pursuant to a plea agreement to four

counts, including conspiracy, in violation of 21 U.S.C. §§ 841 and 846, and

possession of cocaine base, in violation of 21 U.S.C. § 841. The plea agreement

allowed Smith to appeal the district court’s denial of his motion to suppress

evidence seized from a search.

      Over a period of several years, Tulsa, Oklahoma, police officers received

tips regarding Smith’s potential connection to illegal drug distribution. This



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
information ultimately led to the police seeking a warrant to search Smith’s

alleged residence. In the warrant application, an officer explained the police

department’s knowledge of Smith’s prior drug crimes, and previous searches

conducted on his residence that had resulted in seizures of $8000 in drug

proceeds. The officer’s affidavit further explained how the police department had

come to believe that Smith was residing at the target address after a trash pull

found residency items, and a car associated with Smith was seen in the vicinity of

the home. The trash pull also resulted in the seizure of latex gloves, baking soda,

and digital scales.

      The affidavit also detailed information received from a confidential

informant within the previous month. This particular informant had provided the

department with reliable information over fifteen times in the past. The informant

told officers that Smith was in possession of crack cocaine and was selling crack

cocaine from a residence in North Tulsa. The affidavit went on to explain that, in

the officer’s experience, crack cocaine distributors often use latex gloves and

baking soda to manufacture the drugs, and digital scales to measure it for

distribution.

      Based on the information in the affidavit, the department sought and

obtained a search warrant for the residence. The search was carried out and

resulted in the seizure of crack cocaine, drug proceeds, and small bags commonly

used for distributing crack cocaine.

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      Following the seizure, Smith and a co-conspirator were charged with the

four counts described above. Smith moved in the district court to suppress the

evidence seized at the residence, arguing that the warrant was issued without

probable cause and that the officer’s affidavit contained stale information. After

a hearing, the district court denied the motion. Smith’s conditional guilty plea

followed.

      We review the question whether a warrant was issued with probable cause

de novo. United States v. Gonzales, 399 F.3d 1225, 1228 (10th Cir. 2005). We

base this determination on the totality of the circumstances. United States v.

Edwards, 813 F.3d 953, 960 (10th Cir. 2015). We review the district court’s

factual findings for clear error, viewing the evidence in the light most favorable

to the government. United States v. Cantu, 405 F.3d 1173, 1176 (10th Cir. 2005).

      Smith’s first challenge to the search alleges the information contained in

the warrant application was stale. Warrants cannot issue based on stale

information that no longer suggests the items sought are to be found in the place

to be searched. United States v. Snow, 919 F.2d 1458, 1459 (10th Cir. 1990). We

have found this determination depends on several factors, such as the nature and

length of the criminal activity, and the nature of the grounds to be searched. See

id. at 1460. In addition, for ongoing criminal activity, the “passage of time is not

of critical importance.” United States v. Thao Dinh Le, 173 F.3d 1258, 1266




                                         -3-
(10th Cir. 1999) (quoting United States v. Sturmoski, 971 F.2d 452, 457 (10th Cir.

1992)).

       We agree with the government that the information contained in the warrant

was not unacceptably stale in light of the continuous nature of Smith’s criminal

activity (the affidavit detailed his continuous involvement with drug crimes dating

back to 2008), and the recent nature—one month prior to the affidavit’s filing—of

the final confidential tip. In addition, the trash pull that revealed drug-making

equipment at the residence occurred only one month prior to the submission of the

application. Given the evidence in the record, we agree with the district court

that the warrant application did not contain stale information. If anything, the

earlier information helped paint a fuller picture of Smith’s potential criminal

activity.

       Smith’s other argument alleges the warrant application lacked the requisite

probable cause. The Supreme Court has described probable cause as a “fluid

concept,” dependent on “particular factual contexts.” Illinois v. Gates, 462 U.S.

213, 232 (1983). Under the totality of the circumstances, we agree with the

government that the warrant application contained sufficient evidence to give the

issuing judge a “substantial basis” for determining that probable cause existed.

Edwards, 813 F.3d at 960 (quoting United States v. Haymond, 672 F.3d 948, 958

(10th Cir. 2012)). Given the information provided in the affidavit described

above, we have little trouble concluding there was probable cause to issue the

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warrant: a car associated with Smith was seen in the area of the residence, a

reliable informant provided information that Smith was manufacturing and

distributing drugs out of the residence, a trash pull of the residence revealed

materials tying Smith to the residence, and that same pull turned up drug-making

equipment and paraphernalia. Together this evidence amply supported the issuing

judge’s finding of probable cause that drugs would be found at the residence if a

warrant was issued.

      Because we affirm the district court’s decision on these bases, we have no

occasion to address the government’s other arguments for affirming, including the

good faith exception.

      The denial of Smith’s motion to suppress is AFFIRMED.

                                                     ENTERED FOR THE COURT


                                                     Timothy M. Tymkovich
                                                     Chief Judge




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