                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 28, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                       No. 09-3363
 DYLAN L. STIFFLER,                           (D.C. No. 2:09-CR-20003-JWL-1)
                                                          (D. Kan.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, BALDOCK, and TYMKOVICH, Circuit Judges.



      A confidential informant purchased twenty dollars worth of marijuana from

Defendant Dylan Stiffler on the sidewalk just outside the Defendant’s apartment

in Atchison, Kansas. Following a warrant search of his residence, Defendant was

charged in federal court with numerous drug and weapon offenses. Defendant

filed a motion to suppress asserting the invalidity of the warrant, and requested an

evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

Defendant asserted the police officer’s affidavit in support of the search warrant

application contained intentional and/or reckless falsities that misled the state



      *
         This order and judgment is not binding precedent except under the doctrines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.
magistrate into issuing the warrant based on a finding of probable cause that

contraband would be found inside Defendant’s residence. In support of his

request for an evidentiary hearing, Defendant proffered the police report of the

officer submitting the affidavit and the written statement of the confidential

informant. Following oral argument, the district court found the factual

recitations set forth in the affidavit supporting the warrant application diverged

somewhat from those contained in the officer’s report and the informant’s

statement. But the court did “not infer such intentional or reckless falsity from

those discrepancies.” Aplt’s App’x at 38. Rather, the court found “at worse,

those discrepancies are the product of either simply poor draftsmanship or

negligence.” Aplt’s App’x at 38. The court observed that had the facts set forth

in the affidavit precisely matched the facts set forth in the informant’s statement

and the police report, probable cause would have existed nonetheless, “all of

which causes [the court] to believe . . . that this was not an intentional attempt to

mislead the magistrate.” Aplt’s App’x at 40. Accordingly, the district court

denied Defendant’s motion to suppress and his accompanying request for an

evidentiary hearing. Defendant thereafter entered a conditional plea of guilty

pursuant to Fed. R. Crim. P. 11(a)(2) to four counts of criminal misconduct, and

appealed the district court’s refusal to grant him an evidentiary hearing. 1 Our


      1
         Specifically, Defendant pled guilty to one count of possession with intent
to distribute marijuana and one count of possession with intent to distribute
methamphetamine both in violation of 21 U.S.C. § 841(a)(1), one count of possession
                                                                     (continued...)

                                           2
jurisdiction arises under 28 U.S.C. § 1291. We summarily affirm.

      In Franks, the Supreme Court held the Fourth Amendment entitles a

defendant to an evidentiary hearing on a motion to suppress asserting the

invalidity of a search warrant where the defendant makes a “substantial

preliminary showing” that the affiant included a false statement in the affidavit

supporting the warrant application either intentionally or with reckless disregard

for the truth, and the false statement was necessary to establish probable cause.

Franks, 438 U.S. at 155-56. Accounting for both the inclusion of false statements

in a supporting affidavit as did Franks, and the omission of material statements

from such affidavit as did Stewart v. Donges, 915 F.2d 572 (10th Cir. 1990), the

Tenth Circuit recently held that a search warrant is invalid where (1) the affiant

intentionally, or with reckless disregard for the truth, includes false statements in

or omits material information from an affidavit, and (2) after excising such false

statements and considering such material omissions, a corrected affidavit would

not support a finding of probable cause. 2 United States v. Garcia-Zambrano, 530

      1
        (...continued)
of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c), and one count of possession of an unregistered destructive device in
violation of 26 U.S.C. § 5861(d).
      2
         In Stewart, we opined that “[w]hether the omitted statement was material is
determined by examining the affidavit as if the omitted information had been
included and inquiring if the affidavit would still have given rise to probable cause
for the warrant.” Stewart, 915 F.2d at 582 n.13. Relying on United States v.
Ippolito, 774 F.2d 1482, 1486-87 n.1 (9th Cir. 1985), we endorsed an approach that
“would delete false or misleading statements and insert the omitted truths.” Stewart,
                                                                        (continued...)

                                           3
F.3d 1249, 1254 (10th Cir. 2008). On appeal, we review for clear error the

district court’s findings regarding whether the statements in the affidavit were

true or false and whether any falsehoods were made intentionally or with reckless

disregard for the truth. Id. We review de novo whether a corrected affidavit

would support a finding of probable cause. Id.

      In this case, the affidavit in support of the warrant application set forth

“[t]he basic procedure for a controlled buy.” Aplt’s App’x at 21. Among other

things, that procedure included fitting the confidential informant with a listening

device and “maintaining sight of the informant as much as possible” without

compromising the informant’s safety. Aplt’s App’x at 22. The affiant attested

that the confidential informant had “made controlled buys of illegal drugs in the

past under [a]ffiant’s control,” and had “provided [a]ffiant narcotics related

information that [was] . . . both accurate and credible based on surveillance, [and]

information received by other reliable confidential informants and concerned

citizens.” Aplt’s App’x at 22. The affidavit represented that the confidential

informant, within twenty-four hours prior, had “made a controlled buy of

marijuana from a white male identified as Dylan Stiffler at the residence of 1431

Commercial Street” in Atchison, Kansas. Aplt’s App’x at 22. At the time of the

buy, Defendant told the informant that he “would have more marijuana for a



      2
       (...continued)
915 F.2d at 582 n.13 (internal quotations omitted).

                                          4
while and to look him up.” Aplt’s App’x at 22. The affidavit concluded by

stating that the substance obtained had field-tested positive for marijuana and that

police records indicated Defendant had previously listed his residence as 1431

Commercial Street. Aplt’s App’x at 22.

      On appeal, Defendant claims, as he did in the district court, that the

affiant’s police report and informant’s written statement illustrate the misleading

nature of the affidavit used to procure the search warrant. First, Defendant argues

that the “basic procedure for a controlled buy” set forth in the affidavit was

misleading because its wording would lead a reasonable magistrate to conclude

the assisting officer, who is the affiant here, maintained constant visual and audio

surveillance throughout the buy. Defendant points out that the police report

indicates the informant’s concealed audio device was able to decipher only the

informant’s voice. Moreover, both the police report and the informant’s

statement reveal the affiant did not view the actual buy, but rather waited at a car

wash around the block. Second, Defendant argues the statements in the affidavit

that the informant bought the marijuana at “the residence of 1431 Commercial

Street,” and that Defendant told the informant he “would have more marijuana for

a while and to look him up,” gave rise to false inferences that the buy took place

inside Defendant’s apartment rather than on the sidewalk in front of Defendant’s

residence and that affiant actually heard Defendant say, through the informant’s

audio device, that he had more marijuana.


                                          5
      Applying the first prong of our Garcia-Zambrano analysis, the district court

found the language in the affidavit depicting a controlled buy “was boilerplate

describing the way in which controlled purchases usually take place, and that

would not necessarily indicate that this was a representation that the particular

operation had occurred in that particular fashion.” Aplt’s App’x at 38-39. The

court further found the statements in the affidavit to which Defendant objected

“are statements that do not warrant an inference of some sort of intentional desire

to mislead the magistrate judge. As I say, I think at worst [the affidavit] wasn’t

drafted as well as it should have been . . . .” Aplt’s App’x at 39-40. But even

assuming the statements in the affidavit exhibited the affiant’s reckless disregard

for the truth, the district court, consistent with the second prong of our Garcia-

Zambrano analysis, reasoned that –

      if you simply took out those statements which are false or incorrect
      and added those statements omitted, the result would still be that
      there would have been probable cause here, all of which causes [the
      court] to believe, in the first stage of the analysis, that this was not
      an intentional attempt to mislead the magistrate. If this affidavit had
      correctly stated that the listening [device was designed to pick up
      Defendant’s voice] . . . but that here [Defendant’s] voice was unable
      to be heard, if the omitted language had been included, and
      Defendant and the cooperating individual were not able to be seen,
      that would not undercut the ability to derive probable cause in large
      part because of the allegations in Paragraphs 3 and 4 of the affidavit.
      In Paragraph 3, the affidavit indicates that the cooperating individual
      has provided the affiant with narcotics-related information that has
      been determined to be both accurate and credible based on
      surveillance information [and ] . . . other reliable information from
      citizens; and, Paragraph 4, that the [confidential informant] has made
      controlled buys of illegal drugs in the past under affiant’s control.


                                          6
Aplt’s App’x at 40-41. As to Defendant’s claim regarding the actual location of

the buy, the court reasoned, again consistent with Garcia-Zambrano, that even if

the affiant had accurately indicated the buy’s precise location outside Defendant’s

apartment, the supporting affidavit still would have established the required nexus

with Defendant’s apartment, and therefore probable cause:

      Here I think that [the] inferences that can be drawn from the facts
      clearly support a finding of probable cause. The cooperating
      individual goes to [Defendant’s] apartment building . . . and
      [Defendant] comes out of that apartment building with the
      contraband, with the marijuana. Now this is where I agree with the
      government that to have us warrant any further hearing here there
      would have needed to have been something to show that there was no
      basis for a reasonable inference that [Defendant] came out of his own
      apartment. There is nothing here that indicates that [Defendant] did
      come out of some other place in that building, that he came out of
      somebody else’s apartment or he came out of some common area.
      There’s no affidavit from [Defendant] to that effect. There certainly
      is no showing in either the police reports or the statement of the
      [informant] that anyone had any reason to believe that [Defendant]
      came out of anywhere but his own apartment and I believe . . . the
      issuing magistrate judge would have clearly found that it was a
      reasonable inference to draw that [Defendant] under the totality of
      the circumstances here came out of his own apartment within that
      apartment building to deliver the drugs, therefore, providing probable
      cause.[ 3] I see no basis for a hearing under Franks v. Delaware . . . .

Aplt’s App’x at 43-44.

      We have little to add to the district court’s analysis of this case: “Where the



      3
         In Franks, the Court indicated that to mandate an evidentiary hearing, an
allegation of deliberate falsehood or reckless disregard for the truth must be
accompanied by an offer of proof: “Affidavits or sworn or otherwise reliable
statements of witnesses should be furnished, or their absence satisfactorily
explained.” Franks, 438 U.S. at 171.

                                         7
district court accurately analyzes an issue and articulates a cogent rationale, it

serves no useful purpose for us to write at length.” United States v. Schmidt, 353

Fed. Appx. 132, 134 (10th Cir. 2009) (unpublished). The district court did not

clearly err in finding Defendant failed to make a substantial preliminary showing

that the affiant intentionally, or with reckless disregard for the truth, made false

statements in or omitted material information from the affidavit supporting the

search warrant application. To be sure, the district court recognized the affidavit

lacked pinpoint accuracy and was perhaps inartfully drawn, but neither the

Supreme Court nor the Tenth Circuit has ever suggested that those facts alone

necessarily dictate a finding of malfeasance on the part of the affiant. The Fourth

Amendment does not impose “[t]echnical requirements of elaborate specificity”

upon nonlawyer affiants seeking to procure a search warrant. Illinois v. Gates,

462 U.S. 213, 235 (1983).

      But even assuming the contrary, the district court did not err in deciding

that Defendant still was not entitled to an evidentiary hearing on his motion to

suppress. A corrected affidavit would have undoubtedly supported a finding of

probable cause in this case. The Supreme Court has long held that reliable

hearsay may support the issuance of a search warrant. See Jones v. United States,

362 U.S. 257, 271 (1960). If the affidavit had read as Defendant suggests it

should have, the affidavit would have provided the reviewing magistrate a

substantial basis on which to conclude that contraband was probably present in

Defendant’s residence. Here, the affiant swore to a basis for accepting the

                                           8
informant’s version of events, namely that the informant was truthful and reliable

based on past experience. See United States v. Campbell, 603 F.3d 1218, 1234

(10th Cir. 2010) (“Veracity, reliability, and basis of knowledge are extremely

relevant factors in deciding whether a tip can support probable cause.”).

Defendant presented the district court with absolutely nothing to suggest

the informant’s version of events was inaccurate. And that sounds the death knell

of his request for an evidentiary hearing on his motion to suppress.

      AFFIRMED.

                                       Entered for the Court,

                                       Bobby R. Baldock
                                       United States Circuit Judge




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