                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                            October 5, 2012

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                           No. 11-2133
                                                    (D.C. No. 2:09-CR-00760-RB-1)
 FRANK L. GUTIERREZ,                                           (D.N.M.)

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before O’BRIEN, HOLMES, and MATHESON, Circuit Judges.


       After stopping Appellant Frank Gutierrez’s car in New Mexico, police seized the

vehicle, took it to the station, and searched it pursuant to a warrant. They discovered

approximately 70 grams of methamphetamine in the vehicle’s trunk. Mr. Gutierrez was

later indicted and convicted on one count of possessing with intent to distribute more than

50 grams of methamphetamine.




       * This order and judgment is not binding precedent, except under the doctrines of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.
       Before trial, Mr. Gutierrez unsuccessfully moved to suppress the

methamphetamine evidence, arguing that the search of his vehicle violated his Fourth

Amendment right against unreasonable search and seizure. He appeals.

       Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                   I.   BACKGROUND

       A. Factual History

           1. The Stop

       Around 3 a.m. on November 12, 2008, Sergeant Arthur De La Garza observed a

tan Honda Accord with its tires riding the shoulder line of Interstate 10 near Lordsburg,

New Mexico. Sergeant De La Garza, an officer with the Lordsburg Police Department,

initiated a stop of the vehicle.

       He approached the passenger side and asked the driver, Mr. Gutierrez, for his

license, insurance, and registration. As Mr. Gutierrez produced the documents, Sergeant

De La Garza noticed that Mr. Gutierrez’s hands were noticeably shaking and that he

appeared nervous and agitated. Mr. Gutierrez complained that he had been pulled over

multiple times while traveling near Lordsburg.

       Brisa Martinez was in the passenger seat. Sergeant De La Garza noticed her eyes

were droopy and glossy and that she was lethargic. Based on his training and experience,

he suspected Ms. Martinez was under the influence of narcotics.

       Sergeant De La Garza asked Mr. Gutierrez to accompany him to the police cruiser,

where a citation was prepared. Mr. Gutierrez explained he was driving from Tucson,
                                            -2-
Arizona. Lordsburg, the location of the stop, is on Interstate 10 approximately two hours

east of Tucson.

       Mr. Gutierrez stated he had driven to Tucson to see a friend, but he hesitated when

asked his friend’s name. Mr. Gutierrez said his friend’s name was “Ketcho,” but

Sergeant De La Garza also heard him say “Cowboy.” Mr. Gutierrez explained he had

visited his friend for a couple of hours and that he had driven through Lordsburg just

three to four hours earlier.

       Sergeant De La Garza found Mr. Gutierrez’s story confusing. Although it may

have been common for people in the Lordsburg area to travel to Tucson for day trips, he

thought it was uncommon for people to take quick trips late at night. And because

Tucson is located two hours from Lordsburg, Sergeant De La Garza determined that Mr.

Gutierrez would have spent a very short amount of time in Tucson if it were true that he

had driven through Lordsburg three to four hours earlier. Sergeant De La Garza also

knew Tucson to be a source city for the purchase of narcotics.

       After checking the VIN on the Honda, Sergeant De La Garza asked Ms. Martinez

about the trip to Tucson. She gave inconsistent information on how long the two had

been there, at first saying she was not sure, then saying it had been one hour, and finally

stating they had been in Tucson all day. Ms. Martinez’s estimate of when they had left

Tucson also differed from Mr. Gutierrez’s. Sergeant De La Garza noticed that she

avoided eye contact, continued to appear lethargic, and seemed evasive.


                                             -3-
       Sergeant De La Garza issued Mr. Gutierrez a citation, said he was “good to go,”

and then told Mr. Gutierrez that he had some questions. ROA, Vol. I at 293. He told Mr.

Gutierrez that he was suspicious about what had transpired during the stop and requested

to search the vehicle.

       Mr. Gutierrez originally stated, “You can search it; you can bring the dog if you

want to.” Id. at 293-92. Based on this statement, Sergeant De La Garza believed he had

Mr. Gutierrez’s consent to search the vehicle. Later, Mr. Gutierrez clarified that he

would only allow a police dog to sniff the vehicle. Sergeant De La Garza suspected that

Mr. Gutierrez revised the scope of his consent after overhearing a radio dispatch that no

canines were available.

       Sergeant De La Garza then approached Ms. Martinez a second time. He observed

that she was lethargic and mumbling, and he believed she was still under the influence of

narcotics. Ms. Martinez could not recall when she and Mr. Gutierrez had left Deming,

New Mexico, to begin the trip or when they had left Tucson. Sergeant De La Garza

suspected her answers were designed to avoid differences with Mr. Gutierrez’s responses.

Sergeant De La Garza then learned from dispatch that Ms. Martinez had a warrant for her

arrest in another county. Because he did not know whether the warrant was extraditable,

he did not arrest Ms. Martinez.

       Sergeant De La Garza then contacted his brother, Agent Luke De La Garza of the

Border Operations Task Force, and asked whether he had information about Mr.

Gutierrez. Luke De La Garza contacted a Deming-area undercover narcotics agent with
                                            -4-
the Border Operations Task Force. The undercover agent relayed that Mr. Gutierrez was

“moving” methamphetamine in the Deming area. ROA, Vol. III at 90.

       After learning this information, Sergeant De La Garza told Mr. Gutierrez he was

free to go but that his vehicle was being seized. A tow truck took the vehicle to the

Lordsburg Police Department. Police took Mr. Gutierrez and Ms. Martinez to a nearby

truck stop.

           2. The Search Warrant

       At 7:30 a.m., Sergeant De La Garza and his brother faxed a search warrant

application to a state district court judge. The judge asked the officers questions about

the traffic stop and requested changes to Sergeant De La Garza’s affidavit. At 8:11 a.m.,

the officers faxed to the judge a revised affidavit, and the search warrant was approved.

       Sergeant De La Garza’s affidavit in support of the warrant relates the following

relevant facts:

       1. On November 12, 2008, Sergeant De La Garza stopped Mr. Gutierrez’s vehicle
          on Interstate 10 after observing that it did not maintain its lane of travel.

       2. Mr. Gutierrez complained of being pulled over on four occasions in the
          Lordsburg area.

       3. Mr. Gutierrez appeared to be “extremely nervous,” and his “hands were
          shaking profusely as he handed [Sergeant] De La Garza his documents.”




                                            -5-
       4. Mr. Gutierrez stated he was coming from Tucson. He was in Tucson “for only
          a couple of hours” to visit a friend and was “hesitant of knowing his friend[’s]
          name,” responding that it was Ketcho but then saying Cowboy.1

       5. Ms. Martinez, the passenger, “was very lethargic” and had “droopy and
          glossy” eyes.

       6. Ms. Martinez said they had been in Tucson all day, not just two or three hours.

       7. Lordsburg is on a pipeline for narcotics transported to and from Tucson.

       8. Sergeant De La Garza believed it reasonable to request a search of the vehicle
          based on Mr. Gutierrez’s “evasive and nervous behavior,” the couple’s
          inconsistent stories, and the fact that they were “returning from . . . a known
          path where narcotics are being distributed to and from.”

       9. Mr. Gutierrez initially consented to a search of his vehicle “but then recanted
          and said he would only allow a canine to sniff the outside of his vehicle.”

ROA, Vol. I at 53-54.

       Sergeant De La Garza and other officers executed the search warrant. During the

search, Sergeant De La Garza found a coffee canister in the vehicle’s trunk containing

approximately 70 grams of methamphetamine.

       B. Procedural History

       On March 26, 2009, Mr. Gutierrez was indicted on a single count of possessing

with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(A). Before trial, Mr. Gutierrez filed two motions to suppress the

physical evidence seized from his vehicle. Among other challenges, he argued that


       1
         In the recording of the stop, it appears that Mr. Gutierrez stated that his friend’s
name is “Ketcho,” who is a cowboy in Tucson for a rodeo. In the recording, however,
Mr. Gutierrez did hesitate when asked his friend’s name.

                                             -6-
Sergeant De La Garza’s affidavit supporting the search warrant failed to establish

probable cause. He also asserted that the evidence was not admissible under United

States v. Leon, 468 U.S. 897 (1984), because officers could not have relied on the warrant

in objective good faith.

       After conducting an evidentiary hearing, the federal district court denied Mr.

Gutierrez’s motions to suppress. The court ruled that (1) Sergeant De La Garza had

probable cause to seize Mr. Gutierrez’s vehicle and await a search warrant, and (2) the

evidence was admissible under Leon because the officers conducting the search could

have relied in objective good faith on the warrant.

       After a one-day trial, a jury found Mr. Gutierrez guilty on the methamphetamine

charge. The district court sentenced him to 20 years in prison. Mr. Gutierrez filed a

timely appeal.

                                  II.    DISCUSSION

       Mr. Gutierrez appeals from the district court’s order denying his motions to

suppress. He does not challenge the legality of the vehicle stop or Sergeant De La

Garza’s questioning during the stop. Nor does Mr. Gutierrez challenge that probable

cause existed to seize his vehicle. His appeal is limited to whether the warrant-based

search of his vehicle violated his Fourth Amendment right against unreasonable search

and seizure. He argues that Sergeant De La Garza’s affidavit in support of the search

warrant lacks probable cause and that officers executing the warrant could not have relied

on it in objective good faith.
                                            -7-
        We review the district court’s application of the Leon good-faith exception de

novo. United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir. 2000). “In reviewing

the denial of a motion to suppress, this court views the evidence in the light most

favorable to the government and upholds the district court’s factual findings unless

clearly erroneous.” Id. As explained below, we conclude that the evidence seized from

Mr. Gutierrez’s vehicle was admissible at trial because officers conducting the search

could have relied in objective good faith on the search warrant.2

        A. The Good-Faith Exception

        To be valid under the Fourth Amendment, “[a] search warrant must be supported

by probable cause, requiring more than mere suspicion but less evidence than is

necessary to convict.” Id. (quotations omitted). Before approving a warrant, the issuing

judge “must examine the totality of the circumstances,” as set forth in the supporting

documents, and determine whether there are “facts sufficient to lead a prudent person to

believe that a search would uncover contraband or evidence of criminal activity.” Id. at

1006.

        If a search warrant is later found to lack probable cause, evidence seized pursuant

to the warrant “does not necessarily have to be suppressed.” United States v. Riccardi,


        2
         As an alternative basis for affirmance, the Government argues that Sergeant De
La Garza had probable cause to search the vehicle on the roadside, which also justified a
search at the police station regardless of whether he obtained a warrant. Because we
affirm the district court’s good-faith ruling, we need not reach this alternative ground.


                                             -8-
405 F.3d 852, 863 (10th Cir. 2005). “Ordinarily, courts will remedy a Fourth

Amendment violation by invoking the exclusionary rule to exclude the Government’s

introduction of the unlawfully seized evidence as direct evidence against the defendant in

a criminal prosecution.” United States v. Herrera, 444 F.3d 1238, 1248 (10th Cir. 2006).

But in United States v. Leon, 468 U.S. 897 (1984), the Supreme Court established that

“[w]hen police act under a warrant that is invalid for lack of probable cause, the

exclusionary rule does not apply if the police acted ‘in objectively reasonable reliance’ on

the subsequently invalidated search warrant.” Herring v. United States, 555 U.S. 135,

142 (2009) (quoting Leon, 468 U.S. at 922). Leon’s holding has become known as the

“good-faith exception” to the exclusionary rule. See id. (noting that in Leon the Court

“(perhaps confusingly) called . . . objectively reasonable reliance ‘good faith’”); Herrera,

444 F.3d at 1249.

       Leon’s good-faith exception does not apply in every instance where police execute

a search warrant. See Danhauer, 229 F.3d at 1007 (describing Leon’s “four situations in

which an officer would not have reasonable grounds for believing a warrant was properly

issued”). For instance, it does not apply if the affidavit in support of the warrant is “so

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

unreasonable.” Leon, 468 U.S. at 923 (quotations omitted). The burden is on the

government to show that its officers’ reliance upon a warrant was objectively reasonable.

United States v. Corral-Corral, 899 F.2d 927, 932 (10th Cir. 1990).


                                              -9-
       “When we consider whether the officer relied in good faith upon a warrant, we

must look to the underlying documents to see whether they are devoid of factual support,

not merely whether the facts they contain are legally sufficient.” United States v.

Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985); see United States v. Roach, 582 F.3d

1192, 1204 (10th Cir. 2009); United States v. Gonzales, 399 F.3d 1225, 1230 (10th Cir.

2005). A “‘bare bones’ affidavit” may be so lacking in probable cause that an officer

could not reasonably rely upon it. Corral-Corral, 899 F.2d at 934 (quoting Leon, 468

U.S. at 926). But the affidavit does not have to be a “model of specificity.” See id. “An

affidavit has enough factual support to justify reliance if it establishes a minimally

sufficient nexus between the illegal activity and the place to be searched.” United States

v. Henderson, 595 F.3d 1198, 1202 (10th Cir. 2010) (emphasis added) (quotations

omitted).

       Our analysis of objective reasonableness presumes that the officer has “a

reasonable knowledge of what the law prohibits,” Leon, 468 U.S. at 919 n.20, and we

consider “whether a reasonably well trained officer would have known that the search

was illegal despite the magistrate’s authorization.” Id. at 922 n.23. But “officers are

generally not required to second-guess the magistrate’s decision in granting a warrant,”

which is “entitled to great deference.” Gonzales, 399 F.3d at 1228-29. “[T]he

knowledge and understanding of law enforcement officers and their appreciation for

constitutional intricacies are not to be judged by the standards applicable to lawyers.”

Cardall, 773 F.2d at 1133.
                                             -10-
       B. Sergeant De La Garza’s Affidavit

       Mr. Gutierrez argues that Leon’s good-faith exception does not apply because

Sergeant De La Garza’s affidavit is so lacking in indicia of probable cause that reliance

on it was entirely unreasonable. He contends that the district court’s good-faith ruling

improperly considered facts that are not contained in the affidavit. The Government

responds that the methamphetamine evidence was admissible under Leon because

Sergeant De La Garza’s affidavit contains facts that form “a minimally sufficient nexus

between the suspected illegal activity of possessing and transporting narcotics and [Mr.]

Gutierrez’s car.” Aplee. Br. at 17.3

       We conclude that the Leon good-faith exception applies because it was objectively

reasonable for officers conducting the search of Mr. Gutierrez’s vehicle to rely on the

warrant. In this case, the supporting affidavit is not “so lacking in indicia of probable

cause as to render official belief in its existence entirely unreasonable,” Leon, 468 U.S. at

923 (quotations omitted).

       Sergeant De La Garza’s affidavit is not bare bones or devoid of facts in support of

probable cause. See Corral-Corral, 899 F.2d at 934. For example, the affidavit states

       3
         The Government acknowledges that the district court’s Leon analysis considered
some facts outside the affidavit. It urges this court to join those circuits that allow courts
conducting a good-faith analysis to consider uncontroverted facts known to officers but
inadvertently omitted from the supporting affidavit. See, e.g., United States v. McKenzie-
Gude, 671 F.3d 452, 460 (4th Cir. 2011); United States v. Martin, 297 F.3d 1308, 1318-
19 (11th Cir. 2002). Because we affirm the district court’s decision based solely on the
facts contained in Sergeant De La Garza’s affidavit, we need not decide whether courts
may consider uncontroverted facts outside the affidavit.

                                             -11-
that Mr. Gutierrez was “extremely nervous,” his hands were “shaking profusely,” and he

exhibited “evasive” behavior. ROA, Vol. I at 53-54. This court has explained that

“extraordinary and prolonged nervousness can weigh significantly in the assessment of

probable cause or reasonable suspicion.” United States v. Ledesma, 447 F.3d 1307, 1318

(10th Cir. 2006) (quotations omitted); see also United States v. West, 219 F.3d 1171,

1179 (10th Cir. 2000) (“Although normal nervousness exhibited by those stopped for a

traffic citation is usually entitled to limited significance in the probable cause analysis, in

this case it is entitled to somewhat more weight because of the extreme and continued

nervousness exhibited by [the defendant].”).

       The affidavit also recounts that Mr. Gutierrez and Ms. Martinez gave inconsistent

travel descriptions. Mr. Gutierrez stated they had been in Tucson for a couple of hours,

but Ms. Martinez said they had been in Tucson all day. Mr. Gutierrez also hesitated in

stating the name of the friend he had allegedly visited just hours earlier. Inconsistent and

vague travel descriptions are proper considerations in the probable-cause determination.

See Ledesma, 447 F.3d at 1318; United States v. Ozbirn, 189 F.3d 1194, 1200 (10th Cir.

1999); United States v. Arango, 912 F.2d 441, 447 (10th Cir. 1990).

       The affidavit further states that Ms. Martinez was “very lethargic” and that her

eyes were “droopy and glossy.” ROA, Vol. I at 53. Mr. Gutierrez argues that this

description does not mention that Ms. Martinez appeared to be under the influence of

narcotics. He is correct that Sergeant De La Garza could have stated more clearly that, in

his training and experience, Ms. Martinez appeared to be under the influence of narcotics.
                                             -12-
But the affidavit also mentions twice that Ms. Martinez and Mr. Gutierrez were traveling

on a route known for narcotics transportation. In the context of this information, a

reasonably well-trained officer could infer that Ms. Martinez’s appearance and behavior

suggested she was under the influence of narcotics, constituting further indicia of

probable cause. Cf. United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir. 1998) (“In

making the probable cause determination, the issuing magistrate may draw reasonable

inferences from the material provided in the warrant application.”).

       Finally, as noted above, the affidavit indicates that Lordsburg is on a pipeline for

narcotics distribution and that Mr. Gutierrez was “returning from [Tucson] . . . a known

path where narcotics are being distributed to and from.” ROA, Vol. I at 54. The

relevance of this information to the probable cause determination may be minimal. See

United States v. White, 584 F.3d 935, 951-52 (10th Cir. 2009) (“Because law

enforcement officers have offered countless cities as drug source cities and countless

others as distribution cities, . . . the probativeness of a particular defendant’s route is

minimal.”); United States v. Williams, 271 F.3d 1262, 1270 (10th Cir. 2001) (“Standing

alone, a vehicle that hails from a purported known drug source area is, at best, a weak

factor in finding suspicion of criminal activity.”). But it is objectively reasonable for an

officer to place some reliance on this fact as relevant to probable cause. Although a

route’s designation as a “pipeline” for narcotics may not by itself indicate criminal

activity, it is at least one consideration in the totality of the circumstances supporting

probable cause.
                                              -13-
       We conclude that Sergeant De La Garza’s affidavit is not so lacking in indicia of

probable cause as to render reliance on the warrant entirely unreasonable. Sergeant De

La Garza may have omitted from the affidavit facts made known to him during the stop

that would have provided further indicia of probable cause. But the affidavit contains

information that provides a minimal nexus between the suspected illegal activity

(transporting narcotics) and the place to be searched (Mr. Gutierrez’s vehicle). Given the

facts in the affidavit, a reasonably well-trained officer would be entitled to rely on the

warrant and would not be required to second-guess the issuing judge’s probable cause

determination.

                                  III.   CONCLUSION

       For the foregoing reasons, we affirm the district court’s denial of Mr. Gutierrez’s

motions to suppress.

                                                    ENTERED FOR THE COURT



                                                    Scott M. Matheson, Jr.
                                                    Circuit Judge




                                             -14-
