                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        October 4, 2005
                                   TENTH CIRCUIT
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 05-3021
 ERIC J. DUEGAW,                                (D.C. No. 04-40039-01-RDR)
                                                          (D.Kan.)
          Defendant-Appellant.




                                ORDER AND JUDGMENT      *




Before BRISCOE, LUCERO,            and MURPHY , Circuit Judges.


      Defendant Eric J. Duegaw, who entered a conditional guilty plea to

possessing a firearm during and in relation to a drug trafficking crime in violation

of 18 U.S.C. §924(c)(1)(A), appeals the district court’s order denying his motion

to suppress evidence obtained from the vehicle he was driving at the time of his

arrest. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.



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       This order and judgment is not binding precedent, except under the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

      On March 24, 2004, Charity Kossin and Duegaw stopped at the Quick Cash

store in Emporia, Kansas. Kossin went into the store and attempted to cash a

Western Union money order using the name “Chrissy Kelly.” Suspecting that the

money order was counterfeit, the store clerk notified police. When police arrived,

Duegaw was outside the store in a 1996 Jeep. After learning that Duegaw was

associated with Kossin, police questioned him. During this questioning, Duegaw

gave officers a false name and provided identification which listed two different

dates of birth and did not match the name he gave to police. Duegaw also stated

that there was a computer and a combination printer, fax, copier, and scanner in

the Jeep, which he offered to allow the officers to view. He originally told police

that he was enrolled in college and used the equipment for course work, but later

admitted that he had lied about attending college. Duegaw also told police that he

believed Kossin was cashing a check which she received in payment for selling a

vehicle and that he had no knowledge that the check/money order was counterfeit.

      Officers arrested Duegaw and impounded the vehicle. Police sought and

obtained two search warrants for the vehicle, the first of which was directed at

finding evidence of the alleged fraudulent money order. During the first search,

officers uncovered narcotics and a firearm in addition to numerous items related


                                         2
to the manufacture of false documents and identification. The police then sought

a second search warrant directed at uncovering further evidence of gun and drug

crimes. As a result of the search warrants, officers located thirty-nine driver’s

licenses, several of which bore pictures of Duegaw with different names, dates of

birth, and addresses; a firearm; other forms of identification; items associated

with counterfeiting including photo paper, a paper cutter, glue, and bar codes; a

second counterfeit Western Union money order; and controlled substances

including marijuana, cocaine hydrochloride, and methamphetamine.

      Kossin and Duegaw were indicted by a grand jury and jointly charged with

one count of conspiracy to make, utter, or possess a forged security (18 U.S.C. §§

371, 2, 513(a)); two counts of making, uttering, or possession of a forged security

(18 U.S.C. § 513(a)); and possession of false identification documents (18 U.S.C.

§§ 1028(a)(3), 2). Duegaw was also charged with possession of controlled

substances (21 U.S.C. § 844(a)); possession of a firearm during and in relation to

a drug trafficking crime (18 U.S.C. § 924(c)(1)(A)); and possession of a firearm

by an addict, or alternatively, possession of a firearm by a felon (18 U.S.C. §

922(g)).

      Duegaw filed a motion to suppress the evidence found in the Jeep, arguing

that: 1) the evidence was the product of an illegal arrest; 2) the evidence was the

product of an illegal impoundment of the vehicle; and 3) there was no probable


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cause to search the vehicle. After a hearing, the district court denied the motion.

The court found that there was probable cause to arrest Duegaw and to search the

vehicle, and that even if probable cause had been lacking, the good faith

exception under United States v. Leon, 468 U.S. 897 (1984) applied to the

officers’ reliance on the warrant. Following the district court’s ruling, Duegaw

entered a conditional guilty plea to only one count – the count charging him with

violating 18 U.S.C. § 924(c)(1)(A).

                                         II.

      This court reviews de novo a district court’s determination of the

reasonableness of a search and seizure under the Fourth Amendment. United

States v. Abdenbi, 361 F.3d 1282, 1287 (10th Cir. 2004). When reviewing a

denial of a motion to suppress, we look at the totality of the circumstances and

view the evidence in the light most favorable to the government. United States v.

Gay, 240 F.3d 1222, 1225 (10th Cir. 2001). Further, we accept the factual

findings of the district court unless they are clearly erroneous. United States v.

Williams, 271 F.3d 1262, 1266 (10th Cir. 2001).

                                         III.

      Duegaw contends that his vehicle was illegally seized and the affidavit

submitted in support of the first search warrant for his vehicle was devoid of

information upon which a finding of probable cause could be made. He further


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contends that the second warrant was also invalid because it was based on

evidence discovered during the first “unlawful” search. Aplt Br. at 6-7.

Moreover, Duegaw argues that the good faith exception from Leon does not apply

in this case because the affidavit in support of the first search warrant was “so

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

entirely unreasonable.” Leon, 468 U.S. at 923. The government responds by

relying on the same rationale adopted by the district court and also the additional

ground that the search was justified under the automobile exception to the warrant

requirement.

      The Fourth Amendment requires that a search warrant must be supported by

probable cause. Probable cause must be based upon “more than mere suspicion

but less evidence than is necessary to convict.” United States v. Burns, 624 F.2d

95, 99 (10th Cir. 1980). Probable cause “requires a nexus between suspected

criminal activity and the place to be searched.” United States v. Corral-Corral,

899 F.2d 927, 937 (10th Cir. 1990). To obtain a search warrant, the affidavit

“must contain facts sufficient to lead a prudent person to believe that a search

would uncover contraband or evidence of criminal activity.” United States v.

Danhauer, 229 F.3d 1002, 1005-06 (10th Cir. 2000). In determining whether

probable cause exists, the issuing magistrate judge must examine the totality of

the circumstances set forth in the affidavit. Illinois v. Gates, 462 U.S. 213, 238


                                           5
(1983). As a general rule, a reviewing court should afford the magistrate judge’s

ultimate probable cause decision “great deference.” United States v. Rowland,

145 F.3d 1194, 1204 (10th Cir. 1998). Nonetheless, it is the duty of the

reviewing court to “ensure that the magistrate had a substantial basis for

concluding that probable cause existed.” Gates, 462 U.S. at 238-239 (1983)

(internal quotation omitted).

      In this case, the affidavit in support of the first search warrant alleged facts

sufficient to establish probable cause. The affidavit contained statements that

Duegaw’s traveling companion had attempted to cash a fraudulent Western Union

money order in a Quick Cash store while Duegaw waited outside in the Jeep in

which the two were traveling. It further revealed that Duegaw provided police

with identification which did not match his stated identity and listed two different

dates of birth. Additionally, the affidavit noted that during a police interview,

Duegaw stated that he was attending college, but when asked for the name of the

college, he changed cities and college names, and eventually admitted that he was

lying about attending college. The affidavit also drew a connection between the

suspected criminal activity and the place to be searched; Duegaw told police that

a computer and a combination printer, fax, copier, and scanner were in the Jeep,

and the officer who prepared the affidavit stated that, based on his experience,

counterfeit money orders and identifications are easily manufactured/reproduced


                                          6
using such computer technology. Additionally, the affidavit noted: “[Duegaw]

moved something from the front seat of the vehicle to the back of the window

where the windows were tinted so it would not be visible when contacted by

police officers while he was inside the vehicle.” Appellant Br., Attach. A at 2.

      In challenging the sufficiency of the affidavit, Duegaw also cites Franks v.

Delaware, 438 U.S. 154 (1978) and states: “the affiant omits the fact that Mr.

Duegaw offered to let the officers see the equipment.” Appellant Br. at 10.

Duegaw, however, fails to develop this argument with any detail. To the extent

he contends that the omission of this fact would have negated the magistrate

judge’s finding of probable cause, we do not find this argument to be persuasive.

While it is a violation of the Fourth Amendment to “knowingly or recklessly omit

from the affidavit information which, if included, would have vitiated probable

cause,” Pierce v. Gilchrist, 359 F.3d 1279, 1296 (10th Cir. 2004) (citation

omitted), the defendant bears the burden to demonstrate the affiant’s reckless

disregard for the truth. United States v. Knapp, 1 F.3d 1026, 1028 (10th Cir.

1993). In the instant case, Duegaw has failed to present any evidence of a

deliberate or reckless disregard for the truth as to any assertion in or omission

from the affidavit in support of the first search warrant. Accordingly, based on an

examination of the totality of the circumstances set forth in the affidavit, we

conclude the magistrate judge had a sufficient basis for drawing a reasonable


                                          7
inference that a search of the Jeep would uncover evidence of counterfeiting.

      Likewise, we conclude that the affidavit in support of the second search

warrant alleged facts sufficient to establish probable cause. In addition to

numerous items related to the manufacture of false documents and identification,

officers uncovered narcotics and a firearm during the execution of the first search

warrant. The second affidavit contained statements detailing these findings and,

therefore, contained facts sufficient to lead a prudent person to believe that a

search would uncover further evidence of gun and drug crimes.

      To the extent Duegaw argues, 1 as he did before the district court, that both

searches of the vehicle were unlawful because the vehicle was illegally seized or

impounded, we also find this argument lacks merit. The Supreme Court has

upheld temporary restraints in a variety of circumstances where necessary to

preserve evidence until police could obtain a warrant. See Illinois v. McArthur,

531 U.S. 326, 334 (2001). The Supreme Court has also noted: “For constitutional

purposes, we see no difference between on the one hand seizing and holding a car

before presenting the probable cause issue to a magistrate and on the other hand

carrying out an immediate search without a warrant. Given probable cause to

search, either course is reasonable under the Fourth Amendment.” Chambers v.



      1
       Duegaw briefly mentions this argument in his opening brief but does not
devote much, if any, of the text to developing this issue.

                                          8
Maroney, 399 U.S. 42, 52 (1970). In this case, the same facts that gave officers

probable cause to search the vehicle gave officers probable cause to impound it.

Thus, the district court did not err in denying Duegaw’s motion to suppress.

       Because both warrants are supported by probable cause, we find it

unnecessary to address the parties’ remaining arguments.

      AFFIRMED.


                                            Entered for the Court


                                            Mary Beck Briscoe
                                            Circuit Judge




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