                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 January 23, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,
              Plaintiff-Appellee,                        No. 08-3046
 v.                                            (D.C. No. 07-CR-10022-WEB-4)
 CHARLES LALIBERTE,                                        (D. Kan.)
              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before MURPHY, McKAY, and GORSUCH, Circuit Judges.


      Defendant Charles Laliberte entered a conditional plea of guilty to

conspiracy to distribute controlled substances and was sentenced to an eighty-

seven-month term of imprisonment. He appeals the district court’s denial of his

motion to suppress evidence obtained from his Minneapolis residence pursuant to

a search warrant, arguing that the warrant was invalid because the affidavit in

support erroneously stated that the residence was owned by his son, Robert



      *
        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       This order and judgment is not binding precedent, except under the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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Charles Laliberte, and failed to mention documents showing an Arizona address

for Robert Laliberte.

      In reviewing the district court’s denial of Defendant’s suppression motion,

we review the court’s factual findings for clear error and consider the evidence in

the light most favorable to the government. United States v. Zamudio-Carrillo,

499 F.3d 1206, 1209 (10th Cir. 2007). The ultimate question of reasonableness

under the Fourth Amendment is a legal conclusion that we review de novo.

United States v. Grimmett, 439 F.3d 1263, 1268 (10th Cir. 2006).

      After holding a Franks hearing, see Franks v. Delaware, 438 U.S. 154

(1978), the district court held that the false statement in the affidavit was not

made knowingly and intentionally or with reckless disregard for the truth, but was

the result of an innocent mistake or simple negligence. As the court noted, the

Minneapolis police officer who prepared the affidavit testified at the Franks

hearing that his record check pulled up information tying both Charles Laliberte

and Robert Charles Laliberte to the property and that he simply made an

inadvertent mistake in identifying Robert Charles Laliberte rather than Charles

Laliberte as the owner. We see nothing clearly erroneous about the court’s

decision to credit this testimony. We thus conclude that the warrant was not

invalidated by the misstatement. See United States v. Colonna, 360 F.3d 1169,

1174 (10th Cir. 2004) (“[A] misstatement in an affidavit that is merely the result

of simple negligence or inadvertence, as opposed to reckless disregard for the

                                          -2-
truth, does not invalidate a warrant.”)

      As for the omission of information regarding Robert’s Arizona address, the

court found that this information had not been forwarded to the Minneapolis

officer by the Wichita police department because they had not yet examined and

processed these documents. Moreover, Robert had specifically told the Wichita

police that he lived at the Minneapolis residence. The court therefore found that

the information was not deliberately or recklessly omitted from the affidavit. We

see nothing clearly erroneous about this finding.

      Because we conclude that the court did not clearly err in finding that the

misstatement regarding property ownership was inadvertent and that the

information regarding Robert’s possible Arizona address was not omitted

deliberately or recklessly, we hold that the warrant was properly issued.

Moreover, we note that the issue of Robert’s residence was not material to the

question of probable cause—regardless of whether Robert lived in Arizona or in

Minnesota, the affidavit showed that the Minnesota residence had previously been

used as a drug-trafficking destination and that it was the likely destination for the

current load of drugs being transported by Robert and his colleague. Thus, we

agree with the district court that the affidavit would still support probable cause

even if the omitted information were included and the false statement removed. 1

      1
        Defendant suggests that the warrant was invalid because he owned the
residence and there is no evidence that he himself was involved with any criminal
                                                                     (continued...)

                                          -3-
      For the foregoing reasons, we AFFIRM the district court’s denial of

Defendant’s suppression motion.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




      1
        (...continued)
activity. However, “[t]he critical element in a reasonable search is not that the
owner of the property is suspected of crime but that there is reasonable cause to
believe that the specific ‘things’ to be searched for and seized are located on the
property to which entry is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556
(1978).

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