                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         APR 2 2004
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 03-3168
          v.                                            (D. Kansas)
 JAMES B. LANDSAW,                             (D.C. No. 02-CR-40066-RDR)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 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       This order and judgment is not binding precedent, except under the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.
I.    INTRODUCTION

      Defendant Landsaw was charged, by indictment, with: (1) possession of a

listed chemical knowing or having reason to believe that the chemical would be

used to manufacture methamphetamine; and (2) conspiracy to manufacture and

distribute methamphetamine. Landsaw moved to suppress evidence seized from

his vehicle, arguing that the officers had no reasonable suspicion to stop his

vehicle. Landsaw also moved to suppress evidence seized from his residence,

arguing that the officer who obtained the search warrant should have informed the

magistrate that the pseudoephedrine pills had already been seized from his

vehicle.

      Both motions were denied by the district court. The district court reasoned

that the police officers had reasonable suspicion of criminal activity. The district

court partially based this conclusion on its finding that defendant had just left his

residence, where he purchased pseudoephedrine from a confidential informant

(“CI”) who was wearing a transmitting wire.

      Landsaw pleaded guilty to Count 1 of the indictment, and the United States

dismissed Count 2. Landsaw reserved his right to appeal the district court’s

denial of his motions to suppress. He was sentenced to 108 months’

imprisonment and three years’ supervised release. Landsaw appeals the denial of

his motions to suppress the evidence seized from his vehicle and his residence.


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      Exercising jurisdiction pursuant 28 U.S.C. § 1291, this court affirms

Landsaw’s conviction.

II.   BACKGROUND

      The government sent a CI to Landsaw’s house as part of a

methamphetamine investigation. The CI had made arrangements to deliver

ephedrine or pseudoephedrine pills to Landsaw and took the pills with him when

he went to Landsaw’s residence. The CI was wired, and the monitoring detective,

one Dierks, overheard Landsaw talking about breaking down the pills. Landsaw

told the CI that he would use the pills to make methamphetamine. Before the CI

left Landsaw’s residence, he delivered the pseudoephedrine pills to Landsaw as

planned.

      Meanwhile, officer Smith observed the informant and two or three people

leave the residence. Shortly thereafter, the officer saw Landsaw drive away in his

car. Smith radioed Dierks, who directed Smith to stop Landsaw’s vehicle. Smith

did not observe any traffic violations. He activated his emergency lights in an

attempt to stop Landsaw’s vehicle. Landsaw sped up and turned into his father’s

driveway, then stopped the car. Once the vehicle was stopped, Smith advised

Landsaw that a warrant was being obtained to search his vehicle and his house as

part of a narcotics investigation. Landsaw then consented to a search of his




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vehicle. Smith searched the car and found a sack containing pseudoephedrine

pills.

         Dierks was called to the scene and saw the bag of pills in the back of the

vehicle. It is unclear whether all the pills sold to Landsaw by the CI were in this

bag. Afterwards, Dierks filed an affidavit for a warrant to search Landsaw’s

residence. The affidavit did not mention that Landsaw’s car had been stopped

and that it contained pseudoephedrine. The search warrant was issued and

executed shortly thereafter. The officers who executed the warrant found several

items in the residence related to the manufacture of methamphetamine, including

lithium batteries and antifreeze.

III.     DISCUSSION

         When reviewing a district court’s denial of a motion to suppress, this court

considers the totality of the circumstances and views the evidence in the light

most favorable to the government. United States v. McKissick, 204 F.3d 1282,

1296 (10th Cir. 2000). This court accepts the district court’s factual findings

unless those findings are clearly erroneous. Id. The ultimate determination of

whether there was reasonable suspicion or probable cause to conduct a search are

reviewed de novo. See Ornelas v. United States, 517 U.S. 690, 691 (1996); U.S.

v. Colonna, 2004 WL 233297, at *2 (10th Cir. Feb. 9, 2004).




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A. Denial of the Motion to Suppress the Evidence Seized from the Vehicle

      Landsaw argues that the district court erred in denying his motion to

suppress the evidence seized from his vehicle. He argues that the evidence seized

from his vehicle was the “fruit of the poisonous tree” because his vehicle was

illegally stopped. Landsaw argues the stop was illegal because the police officers

did not have reasonable suspicion to stop his vehicle. This court disagrees.

      An investigative stop is a seizure within the meaning of the Fourth

Amendment, and must be justified at its inception. Terry v. Ohio, 392 U.S. 1, 19-

20 (1968). The investigative stop must, given the totality of the circumstances, be

justified by a particularized and objective basis for suspecting that the person

stopped is, or is about to be, engaged in criminal activity. United States v.

Cortez, 449 U.S. 411, 417-18 (1981). Landsaw argues that there was no

reasonable suspicion in this case because “the officers did not even know who

they were stopping.” This argument is unavailing. The officers testified that they

recognized Landsaw and were reasonably sure that Landsaw was driving the

vehicle.

      Furthermore, the totality of the circumstances support a finding of

reasonable suspicion that Landsaw was engaged in criminal activity. The

manufacture of methamphetamine and the possession of pseudoephedrine with

intent to manufacture methamphetamine are both crimes. See 21 U.S.C.


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§ 841(a)(1) and § 841(c); 21 C.F.R. § 1310.02(a)(3). The district court found that

while in the house, Landsaw had purchased pseudoephedrine from the CI, who

was wearing a transmitting wire. Nothing in the record suggests that this finding

is clearly erroneous. Because the CI was wired, the officers knew that Landsaw

had purchased pseudoephedrine from the CI shortly before he got into his car.

Landsaw also told the CI that he intended to use the pills to make

methamphetamine. Dierks heard Landsaw say that he would break down the pills,

and Dierks knew that pseudoephedrine pills are broken down with chemicals to

manufacture methamphetamine. Thus, the officers had a particularized and

objective basis for suspecting that Landsaw was in possession of pseudoephedrine

pills with intent to manufacture methamphetamine.

      For these reasons, the district court correctly concluded that the officers

had, at a minimum, reasonable suspicion that Landsaw was engaging in criminal

activity, which justified the investigative stop at its inception. 1 The district court




      1
        Landsaw appeals the denial of his motion to suppress the evidence derived
from the Terry stop solely on the grounds that the stop was not justified at its
inception. Therefore, this court need not reach the second part of the inquiry of
the reasonableness of the investigative search—whether the search was reasonably
related in scope to the circumstances which justified the stop in the first place,
see United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998)—because
Landsaw waived his appeal on that ground. See State Farm Fire & Cas. Co. v.
Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).

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therefore did not err in denying Landsaw’s motion to suppress the evidence

derived from the search of the vehicle.

B. Denial of the Motion to Suppress the Evidence Seized from the Residence

      Landsaw further argues that the district court erred in denying his motion to

suppress the evidence seized from his residence. Landsaw argues that Dierks

made a material omission in the affidavit, and that the remainder of the affidavit

did not provide probable cause to support the issuance of the warrant to search his

residence. The court concluded that the warrant was valid because there was

sufficient probable cause despite the omission, and that regardless, the warrant is

saved by the good-faith exception as delineated in United States v. Leon, 468 U.S.

897, 919-22 (1984). The court reasoned that even if all the pseudoephedrine pills

had been found in Landsaw’s vehicle (a fact which the court found was

uncertain), there would still have been sufficient probable cause in the affidavit to

search for evidence of manufacturing and distribution of drugs.

      This court need not reach the question of whether the good-faith exception

applies because the affidavit establishes probable cause. See Colonna, 2004 WL

233297, at *2 (reasoning there is no need to apply the good-faith exception where

the affidavit, despite its falsehoods, supports a finding of probable cause).

Probable cause to conduct a search exists if there is a fair probability that

contraband or evidence of a crime will be found in a particular place. Illinois v.


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Gates, 462 U.S. 213, 238 (1983). When making a probable cause determination, a

magistrate may draw reasonable inferences from the information in the affidavit.

See United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir. 1998). Dierks’

affidavit described: (1) Landsaw’s involvement in methamphetamine

manufacturing activities dating back to July 2001; (2) a search of Landsaw’s

residence in August 2001 which produced evidence of methamphetamine

manufacture; (3) information from several different CIs, throughout 2001-2002,

that Landsaw was manufacturing methamphetamine and intended to continue

doing so; (4) the events in April 2002 leading to the controlled sale of the

pseudoephedrine pills to Landsaw which resulted in his arrest; (5) Landsaw’s

purchase of the pseudoephedrine pills in April 2002 for the purpose of

manufacturing methamphetamine; (6) that it is common for drug traffickers to

conceal contraband, proceeds of drug sales, receipts of drug transactions, and

paraphernalia for packaging, cutting, weighing and distributing drugs within or

near their property; and (7) the officer’s belief that controlled substances and

paraphernalia used to manufacture, process, harvest, weigh, package, sell, store,

transport, distribute, and convey methamphetamine could be found in Landsaw’s

residence.

      Based on the above information, the magistrate reasonably inferred that

Landsaw was involved in ongoing and continuous manufacture of


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methamphetamine. Landsaw argues that the information in the affidavit was stale

because part of the affidavit tracks his activities as far back as July 2001. Mere

passage of time, however, does not render information stale where drug activities

are ongoing and continuous. See United States v. Myers, 106 F.3d 936, 939 (10th

Cir. 1997). The totality of the information in the affidavit suggests that Landsaw

was involved in the manufacture of methamphetamine from July 2001 until the

day of his arrest.

      In addition, the affidavit supports the inference that evidence of Landsaw’s

illegal activities would be found in his residence. Courts may rely on the opinion

of police officers as to where contraband may be kept. United States v. Hargus,

128 F.3d 1358, 1362 (10th Cir. 1997). In this case, the officer noted that

controlled substances and paraphernalia necessary to manufacture and distribute

methamphetamine could be found at Landsaw’s residence. In addition, there was

a controlled sale of pseudoephedrine to Landsaw at his home on the evening that

the warrant was issued. Both these facts support an inference that evidence of

methamphetamine manufacture and distribution would be found at Landsaw’s

residence. The affidavit therefore provided probable cause for a warrant to search

Landsaw’s residence.

      Moreover, the affidavit would have provided probable cause for the warrant

even if it had included the information about the pills recovered from Landsaw’s


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car. A warrant is valid if the affidavit still gives rise to probable cause when the

omitted information is included in it. See Colonna, 2004 WL 233297 at *2;

Stewart v. Donges, 915 F.2d 572, 583 n.13 (10th Cir. 1990). The affidavit sought

a warrant to search for: (1) “[c]ontrolled substances and paraphernalia used to

. . . manufacture . . . weigh, package, sell, store, transport, [or] distribute . . . any

controlled substance;” (2) “methamphetamine . . . ; chemicals, compounds and

substances used in the manufacture of methamphetamine . . . ; laboratory

equipment, apparatus and glassware; documents, recipes, notes . . . ; records of

drug production, activities and confederates; records of drug proceeds; and

weapons.” The validity of the warrant did not depend on the presence of the

pseudoephedrine pills at Landsaw’s residence because there was probable cause to

search for other evidence of manufacture and distribution of methamphetamine.

Because the affidavit, even with the omission included, would still provide a

substantial basis for concluding that probable cause existed, the evidence seized

from Landsaw’s residence need not be suppressed.




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IV. CONCLUSION

     For the foregoing reasons, this court AFFIRMS the district court’s denial

of Landsaw’s suppression motions and AFFIRMS his conviction.

                                            ENTERED FOR THE COURT


                                            Michael R. Murphy
                                            Circuit Judge




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