                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        July 13, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
 v.                                                      No. 06-1297
 RA YSEA N ALLEN W ILLIAM S,                   (D.C. No. 05-CR-506-W DM -01)
                                                          (D . Colo.)
          Defendant-Appellant.


                                OR D ER AND JUDGM ENT *


Before M U R PHY , B AL DOC K, and HO LM ES, Circuit Judges.


      After a Colorado Springs police officer discovered a gun w hile searching

D efendant Raysean W illiams incident to an arrest, a grand jury indicted him on one

count of being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1). Defendant moved to suppress the firearm. According to Defendant, the

officer did not have probable cause to arrest him in the first instance. After the

district court orally denied his motion to suppress, Defendant entered a conditional

guilty plea and reserved his right to appeal the district court’s order. See Fed. R.

Crim. P. 11(a)(2). Defendant now appeals. W e have jurisdiction pursuant to 28



      *
         This order and judgment is not binding precedent except under the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.
U.S.C. § 1291. W e review the district court’s determination of probable cause de

novo and its findings of historical fact upon which such determ ination is based for

clear error.   See United States v. Gordon, 173 F.3d 761, 765 (10th Cir. 1999).

Applying these standards, we affirm.

                                          I.

      The relevant historical facts are taken from the transcript of the suppression

hearing. On October 15, 2005, C olorado Springs Police Officer Scott Carnes was

dispatched to the Ramada Inn. Kevin Beiker, the motel’s front desk clerk, reported

housekeeping had found a gun and drugs in room 128. The housekeeper, M aria

Herrera, informed her housekeeping supervisor, Felicia Peake, who in turn informed

Beiker. W hile en route to the motel, Officer Carnes learned from dispatch that one

W alter Turner was the individual who checked into room 128 the prior evening.

Dispatch relayed that an individual, described as 5 feet 9 inches tall, in his forties,

and wearing a white T-shirt and dark pants, appeared at the motel’s front desk and

demanded return of the contraband.

      W hen Officer Carnes arrived at the motel Beiker gave him a copy of the

Colorado identification card Turner presented upon check-in.          Officer Carnes,

accompanied by Officer Joe Brown, began looking for Turner.            Officer Carnes

encountered a man wearing a black T-shirt and blue pants. The officer asked him if

he was staying at the motel and, if so, in which room. The man answered he was

staying in room 228. Officer Carnes asked for identification. The man presented a

                                          2
Colorado identification card identifying him as W alter Turner. The record reflects

Turner is 5 feet 11 inches tall and weighs 200 pounds. He is in his early forties and

lacks a muscular build.

      W hen questioned about the motel’s records indicating he rented room 128,

Turner admitted he rented room 128 but stated he spent the night in room 228 with

a woman. Turner also indicated that no one, other than himself, had access to room

128. Turner, along with Officers Carnes and Brown, returned to the front desk.

Officer Carnes asked Beiker if Turner was the man inquiring about the gun and the

drugs earlier that morning. Beiker said he was not sure. B eiker stated he thought

the man asking about the contraband was shorter and was wearing a light-colored

shirt. Beiker’s answers gave Officer Carnes the impression that Turner was not the

man w ho asked about the gun and drugs.

      After their conversation with Beiker, Officers Carnes and Brown searched

room 128 per Turner’s consent. Thereafter, they again questioned Beiker. Beiker

stated he believed the man w ho asked about the gun and drugs was bald and had a

muscular build. Beiker thought the man had a scar or scars on his forehead. Again,

Beiker’s description gave Officer Carnes the impression Turner w as not the man

asking for the gun and drugs. Even though Beiker could not identify Turner as the

individual the officers were seeking, they arrested him because he indicated no one

other than himself had access to the room where the gun and drugs were found.

      M eanwhile, Detective M ark Robertson, also of the Colorado Springs Police

                                          3
Department, became involved in the investigation. Officer Carnes briefed Detective

Robertson on the recent events. Detective Robertson conducted two interview s w ith

Turner w ho vehem ently denied ownership of the gun and drugs found in room 128.

Then, on October 19, 2005, Detective Robertson received a phone call from an

anonymous woman, who he later learned was Turner’s sister, Beatrice. Beatrice

stated the police had the w rong person in custody. She told Detective Robertson she

overheard her boyfriend, Troy Sago, bragging on the phone that the gun and drugs

found in the motel room belonged to him.

      After the anonymous phone call, Detective Robertson prepared two photo

lineups. The first lineup included a photo of Troy Sago and the second included a

photo of Turner. Detective Robertson, along with Special Agent Shaw, took the

lineups to the Ramada Inn. They first questioned M aria Herrera, the housekeeper

who found the items in room 128.      The officers learned from Herrera, through

Officer Shaw who speaks Spanish, that she w as confronted by the man seeking the

return of the gun and drugs before he w ent to the front desk and confronted B eiker.

The officers asked Herrera to identify the man from the photo lineups. In the lineup

featuring Sago, she said Sago was definitely not the man who had confronted her.

In the line-up featuring Turner, she stated the man looking for the gun and drugs was

younger than Turner.

      Detective Robertson also interviewed Beiker. B eiker described the person

who asked him about the gun and drugs as betw een 5 feet 7 inches and 5 feet 9

                                          4
inches tall, in his 20’s or 30’s, and either bald or very closely shaven with a scar on

his forehead and a muscular build. Beiker stated he was certain Turner was not the

man asking about the gun and drugs. Detective Robertson also showed Beiker the

lineups. Beiker did not identify either Sago or Turner as the man asking for the

return of the items.

      On October 22, 2005, D etective Robertson received a phone call from Felicia

Peake, the m otel’s housekeeping supervisor. Peake informed the detective that the

individual who demanded the return of the gun and drugs had just checked into the

motel. Detective Robertson went to the motel and first spoke with Beiker. Beiker

told Detective Robertson that the man who had just checked in was definitely the

man who demanded the gun and drugs on October 15th. In particular, Beiker stated

he remembered the scar on the Defendant’s forehead and his defined m uscles.

Beiker provided Detective Robertson with a copy of the man’s identification and told

the detective the man w as in room 133. Detective Robertson noticed the address

listed on Defendant’s identification card was only tw o or three blocks from the

motel. The identification card described Defendant as 5 feet 9 inches tall, 200

pounds, and 38 years old. Detective Robertson unsuccessfully attempted to contact

Defendant. The detective asked Beiker to notify him when Defendant returned.

      The next morning, Detective Robertson arrived at the motel to check if

Defendant had returned to his room. W hile Detective Robertson was looking around

the parking lot, Felicia Peake contacted him and pointed out the vehicle Defendant

                                          5
drove to the motel. Detective Robertson retrieved the license plate number, drove

to a nearby substation, ran the license plate, and discovered the car was a rental.

W hile at the substation, Detective Robertson learned Defendant’s criminal history

reflected a drug distribution charge. Detective Robertson tried to verify the address

listed on Defendant’s identification by contacting the utility companies.        The

detective w as unable to verify the address.

      After D etective Robertson conducted record checks, he called O fficer Carnes.

The detective informed the officer that the man inquiring about the gun and drugs the

previous week had returned to the Ramada Inn. Detective Robertson asked Officer

Carnes to go to the motel and make contact with Defendant. Officer Carnes and

Officer Adam Sandoval went to the motel and knocked on the door of room 133.

Several seconds after they knocked, Defendant opened the curtains and asked the

officers w hat they wanted. Officer Carnes responded that the officers needed to talk

to him. Defendant told the officers to w ait a second and closed the blinds. Officer

Carnes heard several thuds coming from inside the room before Defendant

reappeared at the door. He again asked the officers what they w anted. Officer

Carnes repeated they needed to speak with him. Defendant again told them to wait

a minute. A fter another 30 seconds, Defendant opened the door just enough to exit

the room.

      Officer Carnes told Defendant he had information D efendant inquired about

a gun and some drugs found at the motel the week before.         Instead of denying

                                          6
knowledge of the situation, Defendant asked Officer Carnes where he received such

information.    Officer Carnes explained the police frequently get tips regarding

criminal activity. Officer Carnes then asked if he could go inside the room to talk

to Defendant and look for w eapons. Defendant declined. The officers returned to

their cars where they contacted Detective Robertson and asked him to meet them

across the street from the motel.

      Officer C arnes reported his conversation with Defendant to Detective

Robertson.     The detective communicated that Beiker had positively identified

Defendant as the individual w ho asked about the gun and drugs on October 15th.

D etective R obertson told the officers to return to the motel and arrest Defendant. A s

instructed, Officers C arnes and Sandavol returned to the motel.         They spotted

Defendant approaching a vehicle outside room 133. Officer Carnes approached

Defendant and told him he needed to speak with him again. Officer Carnes asked

Defendant if he had any weapons on him. D efendant did not answer the question.

Officer Carnes then patted Defendant down and place him under arrest. In the

process the officer found the gun that became the subject of the indictment. After

Defendant’s arrest, Detective Robertson questioned him about his whereabouts on

October 15, 2005. Defendant reported he was on a plane to Los Angeles on the

morning of October 15th.

                                          II.

      For purposes of the suppression hearing, the parties stipulated Defendant was

                                           7
indeed on a plane to Los Angeles on October 15th and Beiker had mistaken

Defendant for the person demanding the return of the gun and drugs. Thus, the only

issue before us is whether the district court properly held that Officer Carnes had

probable cause to arrest D efendant at the time he did so. W e easily conclude the

court properly so held. Probable cause to arrest exists if the facts and circumstances

within the officer’s knowledge are sufficient to justify a prudent officer in believing

the defendant committed or is committing an offense.           See U nited States v.

Stephenson, 452 F.3d 1173, 1178 (10th Cir. 2006). Probable cause only requires a

fair probability of criminal activity, not a prima facie showing of such activity. See

Illinois v. Gates, 462 U.S. 213, 243 n. 13 (1983). The law requires no “greater proof

– certainly not conclusive proof – of any particular factor establishing probable

cause.” United States v. Jurado-Vallejo, 380 F.3d 1235, 1239 (10th Cir. 2004). W e

determine probable cause from the totality of the circumstances taking into account

both inculpatory as well as exculpatory evidence. See Stephenson, 452 F.3d at 1178.

      Several factors inform our conclusion that the district court properly held

Officer Carnes had probable cause to arrest Defendant. At the time of D efendant’s

arrest, Beiker had positively identified D efendant as the individual who asked about

the gun and drugs on October 15th.         Detective Robertson relied on Beiker’s

identification when he decided to order Defendant’s arrest. Officer Carnes knew of

that identification. See United States v. M atthew s, 615 F.2d 1279, 1284 n.5 (10th

Cir. 1980) (“It is well settled that an officer may rely upon his fellow officers to

                                          8
supply the information which forms the basis of the arresting officer’s reasonable

grounds for believing that the law is being or has been violated.”). W e are convinced

Detective Robertson’s reliance on Beiker’s identification was reasonable. W e have

stated that “w hen examining informant evidence used to support a claim of probable

cause for a . . . warrantless arrest, the skepticism and careful scrutiny usually found

in cases involving informants, sometimes anonymous, from the criminal milieu, is

appropriately relaxed if the informant is an identified victim or ordinary citizen

witness.” Easton v. City of Boulder, 776 F.2d 1441, 1449 (10th Cir. 1985); see

generally 2 W ayne R. LaFave, Search and Seizure § 3.4(a), at 209-11 (3d ed. 1996)

(explaining that “when an average citizen tenders information to the police, the

police should be permitted to assume that they are dealing with a credible person in

the absence of special circumstances suggesting that such might not be the case”).

B ecause Beiker w as an “ordinary citizen witness,” we may lower the scrutiny w e

apply to Detective Robertson’s reliance on Beiker’s identification. Yet even absent

the lower level of scrutiny, we would conclude Detective Robertson reasonably

relied on Beiker’s identification.

      First, we note B eiker w as definitive about his identification of Defendant.

According to Detective Robertson’s testimony at the suppression hearing, Beiker

used the words, “this is definitely him.” The detective stated Beiker seemed “100

percent sure that this w as the gentleman.” N ot only w as Beiker positive about his

identification, Beiker was specific about the consistencies between the man he

                                          9
encountered on October 15th and Defendant.           In particular, Beiker identified

Defendant’s defined muscles and the scar on Defendant’s forehead as consistent with

the individual he encountered on October 15th. Also, Beiker’s description of the

m an seeking the gun and drugs was largely consistent throughout the investigation.

Beiker’s description was not vague, but instead was detailed and included

descriptions of the man’s physique, his hair cut, and the scars on his face. That tw o

other individuals, Sago and Turner, were possible suspects does not make Detective

Robertson’s reliance on Beiker’s identification of Defendant unreasonable. No one

identified Sago or Turner as the individual who asked for the contraband on October

15th, and neither of them matched the description which Beiker provided.

Defendant, however, did match that description.

      In addition to Beiker’s identification, several other factors support the district

court’s probable cause determination.          First, Defendant’s identification card

indicated he lived only a few blocks from the Ramada Inn. Detective Robertson

testified that in his experience, drug dealers often do not conduct their business

directly out of their hom es. Instead, they “get a motel room for a night or whatever

and conduct their business, so . . .    not to let police know where they reside.”

Second, the fact Defendant was driving a rental car added suspicion considering he

only lived a couple of blocks from the motel. Third, Detective Robertson knew

Defendant had a prior drug distribution conviction.

      Defendant’s strange behavior during Officer Carnes visit to his room further

                                          10
added to police suspicion. Defendant gave the appearance he was hiding something

by asking the police twice what they wanted, waiting some time to come to the door,

causing loud bangs or thuds from inside the room, and opening the door only enough

to squeeze himself out of the room. W hen Officer Carnes confronted Defendant with

the information that someone had told them he w as asking about the gun and the

drugs a week earlier, Defendant did not deny it was him, but instead asked where the

officer had received the information.      All these factors, along with Beiker’s

identification, lead us to conclude the facts within the knowledge of Officer Carnes

gave him probable cause to arrest Defendant. Because Officer Carnes found the

weapon on Defendant’s person during a search incident to a lawful arrest, the district

court properly denied Defendant’s motion to suppress.           See United States v.

Anchondo, 156 F.3d 1043, 1045-46 (10th Cir. 1998).

      A FFIR ME D.

                                       Entered for the Court,



                                       Bobby R. Baldock
                                       Circuit Judge




                                         11
