                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS March 10, 2009

                                 TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                     Clerk of Court


    UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
                                                        No. 07-2232
         v.                                           (D. New Mexico)
    JOE ANTHONY REZA, a/k/a JOE                   (D.C. No. CR-06-2603 RB )
    REZA,

               Defendant-Appellant.



                            ORDER AND JUDGMENT *


Before HENRY, Chief Judge, TYMKOVICH, Circuit Judge, and LEONARD,
District Judge. **



        After the district court denied his motion to suppress, the defendant Joe

Anthony Reza entered a conditional guilty plea to being a felon in possession of a

firearm and a felon in possession of ammunition, in violation of 18 U.S.C. §§



*
   This order and judgment is not binding precedent except under the doctrines of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.

**
  The Honorable Timothy D. Leonard, United States District Judge for the
Western District of Oklahoma, sitting by designation.
922(g)(1) and 924(e)(1). The district court sentenced him to 41-months’

imprisonment.

      Mr. Reza now appeals, contending that the search warrant for the Artesia,

New Mexico residence that he shared with his mother was not supported by

probable cause and that the good faith exception to the exclusionary rule

established by United States v. Leon, 468 U.S. 897 (1984), is inapplicable.

As no novel issues are involved here, we bypass the probable cause issue and

conclude that the good-faith exception does apply. We therefore affirm the

district court’s denial of Mr. Reza’s motion to suppress.

                                  I. BACKGROUND

      On May 24, 2006, probation and parole officers in Artesia, New Mexico,

attempted to visit Mr. Reza at an apartment on 10th Street that he had listed as his

residence. At the time, Mr. Reza was on probation for another felony. After the

officers discovered that Mr. Reza no longer lived at the 10th Street apartment,

agents from the Pecos Valley Drug Task force went to Mr. Reza’s mother’s home,

located at 301 Paris Street, where Mr. Reza had also been reported to reside. The

agents found a camp trailer on the south side of the residence and knocked on its

door. A man named Jesse Perez answered, and the agents smelled burning

marijuana coming from inside the trailer. Mr. Perez admitted that there was

marijuana there. The agents proceeded to conduct a protective sweep of the

trailer and discovered a rifle.


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      The agents then knocked on the door of the main residence. They saw

someone looking outside, but no one answered the door. Mr. Reza’s mother,

Dora Perez, then arrived, and she told the agents that Mr. Reza had called her

from inside the residence and reported that they were outside. A short time later,

Mr. Reza opened the door.

      After the agents conducted a protective sweep of the residence, they

applied for a search warrant. The affidavit in support of the warrant summarized

the agents’ efforts to find Mr. Reza, noted the evidence that marijuana was

present in the camper trailer, and reported that informants had stated that Mr.

Reza had been selling methamphetamine and cocaine and trading drugs for

firearms:

             Within the past 30 days, agents from the Pecos Valley Drug Task
      force have received information from credible and reliable informants
      of Joe Reza selling both methamphetamine and crack cocaine from
      inside the residence of 301 Paris. Information was also received that
      Reza will trade these drugs for firearms and is also in possession of a
      semi-automatic handgun. Within the past 72 hours, agents received
      information from a confidential informant that Reza is in possession of
      large quantities of methamphetamine, crack cocaine, and numerous
      handguns. During a recent interview with investigators from the Eddy
      County Sheriff’s Department, Pedro Zarazua stated that he has traded
      several firearms to Reza at this residence.


Rec. vol. I, doc. 21, Ex. 1, attach. C. The agents requested permission to search

for “[a]ny and all controlled substances such as but not limited to marijuana,




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cocaine, and methamphetamine,” as well as drug paraphernalia and documents

related to the manufacture and distribution of illegal drugs. Id. attach. B.

       Based on that affidavit, an Eddy County Magistrate issued a search warrant

for the 301 Paris residence and all its curtilage and outbuildings, including the

camp trailer. The agents conducted a search and discovered five firearms, drug

paraphernalia, marijuana, police body armor, assorted ammunition, and a scanner.

       A federal grand jury indicted Mr. Reza on weapons and ammunition

charges. He then moved to suppress the evidence discovered during the search,

arguing that the warrant was not supported by probable cause and that the Leon

good-faith exception was inapplicable. According to Mr. Reza, the affidavit

accompanying the application for the warrant contained neither (a) specific

factual statements that would allow the magistrate to form his own conclusion

about the reliability of the informants; nor (b) any indication of independent

corroboration of the informants’ allegations.

       Although the district court denied the motion to suppress, it thought that

Mr. Reza had made a colorable argument. It noted that, although the affidavit

reported that the unnamed informants were “credible and reliable,” id. attach. C,

the affidavit contained no facts to support that statement. Although the affidavit

did provide the name of another informant, it included no information as to his

reliability either.




                                         -4-
      Nevertheless, the district court concluded that the affidavit established

probable cause to search the Paris Street property. It reasoned that some of the

informants’ allegations about drug dealing and firearms were corroborated by the

agents and that the issuing magistrate judge had reasonably relied on this

corroboration in issuing the warrant. In the alternative, the district court held, the

evidence discovered in the residence was admissible under the good-faith

exception to the exclusionary rule.

                                 II. DISCUSSION

      On appeal, Mr. Reza argues that the search of the Paris Street residence

violated the Fourth Amendment requirement that “no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV.

He also challenges the district court’s alternative conclusion that, even if the

warrant was not supported by probable cause, the evidence obtained during the

search was admissible under the good-faith exception to the exclusionary rule.

See Leon, 468 U.S. at 919-922.

      When reviewing the denial of a motion to suppress, we view the evidence

in the light most favorable to the government and uphold the district court’s

factual findings unless clearly erroneous. United States v. Danhauer, 229 F.3d

1002, 1005 (10th Cir. 2000). We review the district court’s conclusions of law de

novo, including its determination that the Leon good-faith exception applies. Id.




                                          -5-
      We “have the discretion to proceed directly to an analysis of the good-faith

exception without first addressing the underlying Fourth Amendment question.”

Danhauer, 229 F.3d at 1005; see also United States v. Bishop, 890 F.2d 212, 216

(10th Cir. 1989) (“[R]esolution of whether there was probable cause supporting

the warrant is not necessary to our decision . . . because . . . the agents’ conduct

clearly falls within the ‘good faith exception’ to the exclusionary rule.”), United

States v. Cook, 854 F.2d 371, 372 (10th Cir. 1988) (“Assuming but not holding

that the affidavit fails to establish probable cause, we believe the district court

erred in refusing to apply the good faith exception to the exclusionary rule as set

forth in Leon.”). Because this case does not require us to resolve a “novel

question of law . . . [that] is necessary to guide future action by law enforcement

officers and magistrates[,]” we proceed directly to the good faith issue here.

United States v. Craig, 861 F.2d 818, 820-21(5th Cir. 1988) (quoting Illinois v.

Gates, 462 U.S. 213, 264 (1983) (White, J., concurring in the judgment)).

However, we recognize that some discussion of general Fourth Amendment

principles is necessary to decide whether the good-faith exception applies.

     A. Under Leon, evidence should not be suppressed if police officers
reasonably relied upon a facially valid warrant to obtain it.

      The Supreme Court has created an exclusionary rule that, when applicable,

forbids the use at trial of evidence obtained in violation of the Fourth

Amendment. Herring v. United States, 129 S. Ct. 695, 699 (2009). “[T]his



                                          -6-
judicially created exclusionary rule is ‘designed to safeguard Fourth Amendment

rights generally through its deterrent effect.’” Id. (quoting United States v.

Calandra, 414 U.S. 338, 348 (1974)).

      Nevertheless, there are important principles that limit the rule’s application.

Id. at 700. The rule applies only when it “results in appreciable deterrence” and

when “the benefits of deterrence . . . outweigh the costs.” Id. (internal quotation

marks and citations omitted). “To trigger the exclusionary rule, police conduct

must be sufficiently deliberate that exclusion can meaningfully deter it and

sufficiently culpable that such deterrence is worth the price paid by the judicial

system.” Id. at 702. Those principles are reflected in Leon, the decision that

establishes the exception at issue here.

      In Leon, the Supreme Court held that evidence seized pursuant to a facially

valid warrant should not be suppressed if police were acting “with an objective

good-faith belief that the warrant was properly issued by a neutral magistrate.

Danhauer, 229 F.3d at 1006 (discussing Leon). Leon creates a presumption that,

when an officer relies upon a warrant, the officer is acting in an objectively

reasonable manner. United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir.

1993). This presumption, though not absolute, has considerable heft. Id. (citing

United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985)). Thus, “searches

pursuant to a warrant will rarely require any deep inquiry into reasonableness, for

a warrant issued by a magistrate normally suffices to establish that a law


                                           -7-
enforcement officer has acted in good faith in conducting the search.” Leon, 468

U.S. at 922 (internal citations and quotation marks omitted).

      When reviewing an officer’s reliance upon a warrant, we must determine

whether the underlying documents are devoid of factual support, not merely

whether the facts they contain are legally sufficient. Cardall, 773 F.2d at 1133

Thus, [i]t is only when [an officer’s] reliance was wholly unwarranted that good

faith is absent.” Id. 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. A court should evaluate all attendant circumstances and assume that the

executing officers have “a reasonable knowledge of what the law prohibits.” Id.

at 919 n.20.

      Nevertheless, the Leon good-faith exception does not apply when: (1) the

magistrate judge issuing the warrant was misled by a deliberately or recklessly

false affidavit; (2) the magistrate judge wholly abandoned his or her detached and

neutral judicial role; (3) the warrant was based on an affidavit so lacking in

indicia of probable cause as to render official belief in its existence entirely

unreasonable; or (4) the warrant was so facially deficient . . . that the executing

officers cannot reasonably presume it to be valid. Leon, 468 U.S. at 923. In such

instances, “a reasonably well trained officer would have known that the search

was illegal[,]” Herring, 129 S. Ct. at 703 (internal citations and quotation marks


                                          -8-
omitted), and, as a result, suppression of the unlawfully obtained evidence

remains an appropriate remedy. See United States v. Rowland, 145 F.3d 1194,

1215-16 (10th Cir. 1998) (discussing these limitations to the Leon good-faith

exception).

  B. Contrary to Mr. Reza’s arguments, the agents reasonably believed that the
warrant for the Paris Street property was supported by probable cause.

      In challenging the district court’s ruling, Mr. Reza invokes the second and

third of these exceptions to the Leon rule. He contends that “the issuing judge

wholly abandoned his judicial role and failed to perform his neutral and detached

role, and the affidavit issued to support the warrant is so lacking in indicia of

probable cause as to render official belief in its existence entirely unreasonable.”

Aplt’s Br. at 25. He observes that the affidavit in support of the search warrant

failed to include any specific information to support the general allegations that

the unnamed informants and the named informant (Pedro Zarazua) were reliable.

Moreover, in his view, the agents failed to sufficiently corroborate the

informants’ allegations that Mr. Reza was selling methamphetamine and cocaine

and trading drugs for firearms.

      With regard to the reliability of the informants, we agree with the district

court that the search warrant affidavit contains significant deficiencies.

Statements regarding an informant’s veracity and basis of knowledge are an

important part of the totality of circumstances that a judicial officer must consider

in determining whether there is probable cause, i.e., “a fair probability that

                                          -9-
contraband or evidence of a crime will be found in a particular place.” United

States v. Sells, 463 F.3d 1148, 1154 (10th Cir. 2006). When an affidavit “leaves

the nature of [the informant’s past] performance undisclosed . . . the judicial

officer making the probable cause determination has no basis for judging whether

the [affiant’s] characterization of [the informant’s past] performance is justified.”

United States v. Foree, 43 F.3d 1572, 1576 (11th Cir. 1995) (quoting 1 Wayne R.

LaFave, Search and Seizure § 3.3(b) at 636 (2d ed.1987)). As a result, “[m]any

courts have properly held that a bare assertion that an informant has provided

reliable information in the past carries little or no weight in the probable cause

determination.” United States v. Bynum, 293 F.3d 192, 203 (4th Cir. 2002)

(Michael, J., dissenting) (citing United States v. Brack, 188 F.3d 748, 755 (7th

Cir. 1999) and Foree, 43 F.3d at 1575-76); see generally Illinois v. Gates, 462

U.S. 213, 239 (1983) (explaining that “an officer’s statement that ‘affiants have

received reliable information from a credible person and believe that heroin is

stored in a home,’” is insufficient to establish probable cause because it “is a

mere conclusory statement that gives the magistrate virtually no basis at all for

making a judgment regarding probable cause” and because “[the issuing judge’s]

action cannot be a mere ratification of the bare conclusions of others”) (citation

omitted).

      Here, as the district court observed, the affidavit in support of the search

warrant for the Paris Street residence failed to explain the basis for its conclusion


                                         -10-
that the informants were reliable and omitted other important details of the

investigation. See Rec. vol. I doc. 28, at 4 (observing that (1) “[a]lthough the

informants who gave information about Mr. Reza selling methamphetamine and

crack cocaine from 301 Paris within the prior 30 days were described as ‘credible

and reliable,’ the affidavit contains no facts to support this conclusion[;]” (2)

“[t]he use of the passive voice gives no clue as to the source of the information

concerning trades of drugs for firearms and possession of a semi-automatic

handgun[;]” (3) “[t]he affidavit contains no statements concerning the reliability

or credibility of the ‘confidential informant’ who informed agents that Mr. Reza

possessed large quantities of methamphetamine, crack cocaine, and numerous

handguns within the prior 72 hours[;]” and that (4) “[a]lthough Pedro Zarazua is

named, the affidavit includes no information as to his reliability”). Thus, the

issuing judge could not make an independent determination “whether the

[affiant’s] characterization of [the informant’s past] performance [was] justified.”

Foree, 43 F.3d at 1576 (internal quotation marks and citation omitted).

      Nevertheless, “the absence of information establishing the informant’s

reliability or basis of knowledge does not necessarily preclude an officer from

manifesting a reasonable belief that the warrant was properly issued.” Danhauer,

229 F.3d at 1007; Bishop, 890 F.2d at 217 (holding that reliance on an informant

of unproven reliability does not preclude a finding of the agents’ good faith).




                                         -11-
Particularly when the officer takes steps to investigate the informant’s allegations,

his reliance on the warrant may be reasonable. Danhauer, 229 F.3d at 1007.

      For example, in Danhauer, a detective received information from an

unnamed informant that the defendants were manufacturing methamphetamine at

their residence. The detective researched the defendants’ criminal histories and

learned through a probation report that one of the defendants had submitted a

urinalysis the day before the warrant application that tested positive for

methamphetamine and opiates. We concluded that the affidavit failed to establish

probable cause: it did not reveal the informant’s basis of knowledge and did not

adequately corroborate the informant’s allegations. Moreover, the detective made

“little attempt to link the methamphetamine to the [defendants’] residence.” Id.

at 1006.

      Nevertheless, in our view, the detective’s affidavit “was not so lacking in

indicia of probable cause that the executing officer should have known the search

was illegal despite the state magistrate’s authorization.” Id. His affidavit

“contain[ed] more than conclusory statements based on the informant’s allegation

about criminal activity at [the defendants’] residence.” Id. Accordingly, the

evidence was admissible under the good-faith exception.

      This case resembles Danhauer. Several factors indicate that the officers

reasonably believed that the warrant was properly issued.




                                         -12-
      First, there was more than one informant. See Rec. vol. I, doc. 21, Ex. C.

(Affidavit for Search Warrant reporting information from (a) “credible and

reliable informants[,]” (b) “a confidential informant[,]” and (c) “Pedro Zarazua”)

(emphasis added). Although the sheer number of informants is not dispositive,

the fact that the agents reported similar allegations against Mr. Reza from

different sources supports the government’s contention that they reasonably

believed that probable cause existed. See United States v. Mathis, 357 F.3d 1200,

1206 (10th Cir. 2004) (affirming the district court’s finding of probable cause

based in part on the fact that “the information provided by the informants was

internally corroborated in several respects”); United States v. Spry, 190 F.3d 829,

836 (7th Cir. 1999) (concluding that the district court’s finding of probable cause

was supported in part by the fact that “multiple confidential informants provided

corroborating information”); United States v. Ellison, 793 F.2d 942, 946-47 (8th

Cir. 1986) (concluding that probable cause was supported in part by the

consistency of the statements of seven informants who had first-hand knowledge

but were not described as “reliable and credible” in the search warrant

application).

      Second, one of the informants, Mr. Zarazua, was named in the affidavit.

See United States v. Brown, 496 F.3d 1070, 1074-75 (10th Cir. 2007) (stating that

“where informants are known . . . , a lesser degree of corroboration is required)

(internal quotation marks, citation, and alterations omitted); United States v.

                                         -13-
Jenkins, 313 F.3d 549, 556 (10th Cir. 2002) (observing that, in contrast to the

anonymous informants in other cases, “the informant in this case risked his

anonymity by repeatedly meeting with or talking to the police” and that this fact

supported the judge’s finding of probable cause). Again, although it is not

dispositive, the fact that the finding of probable cause was not based solely upon

the allegations of “a never-known, never-verified tipster” is significant. See

Bynum, 293 F.3d at 196, 197 (observing that “[a]lthough certainly it would have

been preferable if [a law enforcement agent] had expressly stated in his affidavit

the basis for his statement as to his informant’s reliability, he did at least swear to

the magistrate that he was relying on a known and proven confidential source”

and that a warrant based upon information from a known informant was not “so

lacking in indicia of probable cause as to render official belief in its existence

entirely unreasonable”) (internal quotation marks and citation omitted).

      In addition, even though the agents investigating Mr. Reza did not

corroborate the informants’ allegations that he was selling methamphetamine and

trading drugs for firearms, they did discover an illegal drug on the property—the

marijuana in the camper trailer—before they applied for a warrant. Some courts

have applied the Leon good-faith exception when drugs have been discovered near

a residence but when officers have then relied upon a warrant to search the

residence itself. See, e.g., United States v. Carpenter, 360 F.3d 591, 593, 596

(6th Cir. 2004) (en banc) (applying the good-faith exception when a warrant

                                          -14-
application stated that “marijuana was growing ‘near’ a residence and there

‘[was] a road connecting’ the residence and the marijuana plants”) (emphasis

added); cf. United States v. Bennett, 170 F.3d 632, 638-39 (6th Cir. 1999)

(holding that probable cause to search a residence also established probable cause

to search a shop building because “the shop building and the residence are located

on the same piece of real property and are in close proximity to each other”);

United States v. Roberts, 747 F.2d 537, 545 (9th Cir. 1984) (holding that because

the defendant was in control of the entire premises, probable cause to search a

garage established probable cause to search a house). This case law also supports

the agents’ reliance on the warrant.

      Finally, in our view, application of the exclusionary rule to the facts at

hand would not result in “appreciable deterrence” of police misconduct. Herring,

129 S. Ct. at 700 (quoting Leon, 468 U.S. at 909). After receiving allegations

about illegal activities from multiple informants and observing marijuana use on

the same real property where they discovered Mr. Reza, the agents presented this

information to a judicial officer. We see no indication that the Eddy County

Magistrate abandoned his neutral role. Instead, in a close case, he made a

decision that probable cause existed.

                               III. CONCLUSION

      Because the agents reasonably relied upon a facially valid warrant to search

the Paris Street property, the good-faith exception to the exclusionary rule


                                         -15-
applies. We therefore AFFIRM the district court’s decision denying Mr. Reza’s

motion to suppress.

                                     Entered for the Court,


                                     Robert H. Henry
                                     United States Circuit Judge




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