                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             DEC 17 1999
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 99-4046
                                                            (D. Utah)
 JESUS JOSE MACIAS,                                (D.Ct. No. 98-CR-355-01-K)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before SEYMOUR, BALDOCK, and BRORBY 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.



      Appellant Jesus Jose Macias entered a conditional plea of guilty to one


      *
          This order and judgment is not binding precedent except under the doctrines of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.
count of possession of a controlled substance with intent to distribute in violation

of 21 U.S.C. § 841(a)(1), and was sentenced to seventy-eight months

imprisonment and sixty months supervised release. Mr. Macias now appeals the

trial court’s denial of his motion to suppress. We exercise jurisdiction under 28

U.S.C. § 1291 and affirm.



                                  BACKGROUND

      On February 27, 1998, Deputy Salt Lake County Sheriff Dave Broadhead

supervised several deputies in an attempted undercover purchase of marijuana.

The officers made arrangements to purchase twenty pounds of marijuana from two

men, neither of whom was Mr. Macias. After meeting with the officers, the two

suspects were eventually followed to a location later determined to be Mr.

Macias’ residence. The suspects were observed entering Mr. Macias’ residence,

then returning to their vehicle carrying a large orange garbage bag which

appeared to be full. After leaving Mr. Macias’ residence, the suspects realized

they were being followed. A high-speed chase ensued resulting in the

apprehension and arrest of the two men. During the chase, the orange garbage

bag was thrown from the suspects’ vehicle. The bag was subsequently recovered

by officers and determined to be full of marijuana.




                                         -2-
      Approximately thirty minutes after the suspects were observed leaving Mr.

Macias’ residence, Deputy Broadhead led a group of officers back to the

residence, where he knocked on the door and announced his presence. Mr.

Macias’ girlfriend, Angelica Munoz, answered the door. 1 The testimony of Ms.

Munoz and Deputy Broadhead differs substantially as to what happened next, but

the district court determined Ms. Munoz allowed the officers to enter the

residence, either through express words of consent, or through her actions by

stepping back and opening the door after Deputy Broadhead asked for permission

to enter. Upon entering the home, Deputy Broadhead smelled marijuana and

asked Ms. Munoz if there was marijuana in the home, to which she replied “there

could be.” During a subsequent protective search of the home, Deputy Broadhead

observed numerous orange bags full of marijuana in the basement. Deputy

Broadhead then left the residence to obtain a search warrant while the other

officers remained at the house. The search warrant was issued, and Deputy

Broadhead returned to the house to participate in the search. The officers

ultimately seized several firearms in addition to the marijuana from the basement.



      Mr. Macias filed a motion to suppress the evidence seized from his home


      1
          Ms. Munoz married Mr. Macias prior to the suppression hearing, but we will
refer to her herein as Ms. Munoz.


                                          -3-
on the grounds “the information which forms the basis of the affidavit in support

of the search warrant[] was obtained as a result of a search of the premises

without consent and without a search warrant, in violation of the Fourth

Amendment to the United States Constitution.” The district court, after briefing

by the parties and an evidentiary hearing, denied Mr. Macias’ motion. The court

determined the officers had at least implied consent to enter the home; the

protective sweep constituted an illegal search; the warrant was valid based on the

probable cause the officers had prior to entering the home and conducting the

illegal protective sweep; and despite its initial discovery during the illegal search,

the marijuana was admissible under the “inevitable discovery” doctrine. After

issuance of the court’s order, Mr. Macias entered a conditional plea of guilty to

one count of possession of a controlled substance with intent to distribute in

violation of 21 U.S.C. § 841(a)(1), preserving his right to appeal the trial court’s

denial of his motion.



                                    DISCUSSION

      This case presents two basic issues as they relate to the district court’s

denial of Mr. Macias’ motion to suppress: (1) whether the warrant, when stripped

of evidence obtained through the illegal protective search, was supported by

sufficient probable cause; and (2) whether the fruits of the illegal protective


                                          -4-
search – the orange garbage sacks full of marijuana – can be saved through the

doctrines of good faith, inevitable discovery, or independent source. 2



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

the court’s factual findings unless they are clearly erroneous and consider the

evidence in the light most favorable to the government. However, we review de

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

See United States v. Flores, 149 F.3d 1272, 1277 (10th Cir. 1998), cert. denied,

119 S. Ct. 849 (1999). When reviewing a finding of probable cause for the

issuance of a search warrant, we “must consider the totality of the circumstances

and determine whether the affidavit established the probability that evidence of

criminal activity would be located in the desired search area.” United States v.



       2
          Mr. Macias spends a good deal of energy in his brief arguing the protective
sweep doctrine does not apply in this case. This issue is not before us on appeal because
the district court agreed with Mr. Macias and held the search of the home was an illegal
search and did not qualify as a protective sweep. In addition, the government does not
argue the point in its brief. Therefore, our decision assumes, without deciding, the search
of the home was not a valid protective search.

        We take a similar position with Mr. Macias’ argument that the officers’ initial
entry into his home was not consensual. We need not decide this issue in order to uphold
the district court’s determination the warrant was supported by probable cause based on
evidence obtained prior to the entry into the house. As such, we refuse to reach the issue
of consent. We ignore the evidence concerning the aroma of marijuana, and Ms.
Munoz’s statement to the officers that marijuana might have been in the house.


                                            -5-
Wittgenstein, 163 F.3d 1164, 1171 (10th Cir. 1998), cert. denied, 119 S. Ct. 2355

(1999). The issuing magistrate judge’s determination that probable cause exists is

entitled to “great deference such that we ask only whether the issuing magistrate

had a substantial basis for determining probable cause existed.” Id. at 1172

(quotation marks and citations omitted).



      The affidavit supporting the search warrant in this case contained

information the district court determined was illegally obtained pursuant to the

improper “protective search.” The affidavit also included information the officers

obtained prior to entering Mr. Macias’ home. “An affidavit containing erroneous

or unconstitutionally obtained information invalidates a warrant if that

information was critical to establishing probable cause. If, however, the affidavit

contained sufficient accurate or untainted evidence, the warrant is nevertheless

valid.” United States v. Snow, 919 F.2d 1458, 1460 (10th Cir. 1990) (citing

United States v. Karo, 468 U.S. 705, 719 (1984)).



      The affidavit in this case, when stripped of the inappropriately obtained

information, provided sufficient probable cause to support issuance of the

warrant. The affidavit meticulously detailed Deputy Broadhead’s training and

experience in law enforcement and the facts surrounding the attempted


                                           -6-
undercover purchase of marijuana. Specifically, the affidavit makes the following

assertions: (1) the suspects offered to sell undercover officers twenty pounds of

marijuana; (2) the suspects were later observed entering Mr. Macias’ home; (3)

the suspects then exited the residence carrying a large plastic orange trash bag;

(4) when officers attempted to stop the suspects’ vehicle, a short chase ensued,

during which time the orange bag was thrown from the vehicle; (5) officers

recovered the bag and determined it contained a large amount of marijuana.

Deputy Broadhead stated in the affidavit that “[b]ased on the previous

observations of the orange plastic bag coming from the residence sought to be

searched, detectives felt that there was a strong possibility that additional

narcotics were being stored at the residence.” We have no difficulty in

determining, given the untainted evidence listed in the affidavit, the issuing

magistrate or judge had a “substantial basis” for finding probable cause, and

therefore the warrant was valid. 3 Cf. United States v. Anderson, 981 F.2d 1560,


       3
          Because we hold the warrant was valid, we do not reach Mr. Macias’ arguments
in relation to the good-faith exception to the exclusionary rule. Mr. Macias also argues
the search warrant affidavit intentionally or recklessly omitted material facts in violation
of Franks v. Delaware, 438 U.S. 154 (1978). While this issue was very briefly raised at
the district court in the context of the good- faith argument, Mr. Macias raises it as an
independent ground for holding the warrant facially invalid for the first time on appeal.
In support of his position, Mr. Macias relies primarily on the fact the affidavit did not
mention the suspects rendezvoused with a vehicle and exchanged a package with the
occupants of said vehicle prior to driving to Mr. Macias’ residence. This is not a material
fact as to the probable cause to search the residence – regardless of what occurred prior to
arriving at Mr. Macias’ home, the suspects were observed entering the residence, then

                                            -7-
1569 (10th Cir. 1992) (probable cause did not exist to search residence when

officers did not see suspect leave residence with bowl later determined to hold

marijuana); United States v. Shomo, 786 F.2d 981, 984 (10th Cir. 1986) (officers

did have probable cause to search residence for gun when resident seen leaving

home with gun).



      Having decided all the evidence from Mr. Macias’ home was ultimately

seized pursuant to a valid warrant, we now turn to whether the marijuana evidence

was admissible despite the illegal origins of its discovery. This evidence “is not

automatically subject to suppression under the exclusionary rule.” United States

v. Eylicio-Montoya, 70 F.3d 1158, 1164-65 (10th Cir. 1995). We have “identified

several circumstances in which evidence obtained following a Fourth Amendment

violation is not subject to suppression,” including situations where “illegally

seized evidence ... was also lawfully obtained through an independent source” and

“‘when ... the evidence in question would inevitably have been discovered

without reference to the police error or misconduct.’” Id. at 1165 (quoting Nix v.

Williams, 467 U.S. 431, 448 (1984)) (internal citations omitted). Citing Nix, the

district court determined the evidence was admissible under the inevitable



leaving with a large bag of what turned out to be marijuana. Mr. Macias’ argument in
this regard has no merit – the facts omitted from the affidavit are immaterial.


                                          -8-
discovery doctrine. We exercise our discretion “to affirm a district court decision

on any grounds for which there is a record sufficient to permit conclusions of law,

even grounds not relied upon by the district court,” United States v. Sandoval, 29

F.3d 537, 542 n.6 (10th Cir. 1994), and hold the evidence was admissible under

the closely-related independent source doctrine.



      “The independent source doctrine permits the introduction of ‘evidence

initially discovered during, or as a consequence of, an unlawful search, but later

obtained independently from activities untainted by the initial illegality.’” United

States v. Griffin, 48 F.3d 1147, 1150 (10th Cir.) (quoting Murray v. United States,

487 U.S. 533, 537 (1988)), cert. denied, 515 U.S. 1168 (1995). This doctrine

rests “upon the policy that, while the government should not profit from its illegal

activity, neither should it be placed in a worse position than it would otherwise

have occupied.” Murray, 487 U.S. at 542. Given Deputy Broadhead’s

independent knowledge that a large garbage bag full of marijuana had been taken

from Mr. Macias’ residence, which created sufficient probable cause to search the

residence prior to the improper protective sweep, the evidence seized pursuant to

the valid warrant was admissible. See United States v. Hogan, 38 F.3d 1148,

1150-51 (10th Cir. 1994), cert. denied, 514 U.S. 1008 (1995).




                                         -9-
     Accordingly, we AFFIRM the district court’s denial of the suppression

motion.



                                   Entered by the Court:

                                   WADE BRORBY
                                   United States Circuit Judge




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