                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 31 2000
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 00-4001
v.                                                   (District of Utah)
                                                  (D.C. No. 98-CR-250-S)
MARTEN BERROCAL,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before MURPHY, McKAY, and ANDERSON, Circuit Judges.


I. INTRODUCTION

      Defendant-Appellant Marten Berrocal entered a conditional guilty plea to

one count of possession of methamphetamine with intent to distribute in violation

of 21 U.S.C. § 841(a)(1). Berrocal appeals the denial of his motion to suppress

evidence obtained during a no-knock, nighttime search of his residence.

Jurisdiction to consider Berrocal’s appeal arises under 28 U.S.C. § 1291. This


      *
       This order and judgment is not binding precedent, except under the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.
court affirms the order of the district court denying Berrocal’s motion to

suppress.



II. FACTS AND PROCEDURAL HISTORY

      Officer John Christoffersen of the Provo City Police Department received

information from a concerned citizen regarding the Berrocal residence. The

citizen suspected drug trafficking in the residence due to the number of

individuals who stopped at Berrocal’s residence but remained only briefly.

Christoffersen then conducted what he called a “trash cover” of Berrocal’s

residence. Christoffersen found in Berrocal’s trash container numerous items

consistent with the manufacturing of methamphetamine, including empty “Mini-

Thin” bottles, PH test strips, isopropyl alcohol, over 500 matchbooks with their

strikers removed, “Red Devil” lye, “Heat” methyl alcohol, coffee filters with

binders, latex gloves, and disposable masks.

      Christoffersen prepared a proposed warrant to search Berrocal’s residence.

The warrant authorized a no-knock, nighttime search of Berrocal’s residence to

search for methamphetamine and items used in the production and distribution of

methamphetamine. Christoffersen presented the proposed warrant to a Utah state

judge in the early morning hours of April 21, 1998. The state judge issued the

warrant.


                                        -2-
      The search warrant was executed by federal DEA Task Force Officers on

the evening of April 21, 1998. Many items associated with the manufacturing and

distribution of methamphetamine were found, including 2.8 grams of

methamphetamine.

      Berrocal was charged with one count of attempting to manufacture

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count

of possession of methamphetamine with intent to distribute in violation of 21

U.S.C. § 841(a)(1). He filed a motion to suppress the evidence obtained during

the search, arguing, among other things, that the search violated the Fourth

Amendment, federal statutory law, and state statutory law because it was

conducted at night, without prior notice (i.e., no-knock), and without probable

cause. The matter was referred to a United States magistrate judge for initial

proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge issued a

report and recommendation rejecting Berrocal’s arguments. The district court

adopted the report and recommendation of the magistrate judge and denied

Berrocal’s motion to suppress. Berrocal then pleaded guilty to possession of

methamphetamine with intent to distribute under 21 U.S.C. § 841(a)(1), and, upon

the motion of the government, the court dismissed the charge of attempt to

manufacture methamphetamine. Berrocal retained the right to appeal the decision

of the district court denying his motion to suppress evidence.


                                         -3-
III. DISCUSSION

A. Standard of Review

      When reviewing a trial court’s denial of a motion to suppress, this court

considers the totality of the circumstances and views the evidence in a light

favorable to the government. See United States v. Long, 176 F.3d 1304, 1307

(10th Cir.), cert denied, 120 S. Ct. 283 (1999). This court accepts the district

court’s findings of facts unless clearly erroneous. See id. The determination of

whether those facts satisfy the Fourth Amendment and statutory standards for a

no-knock search are questions of law subject to de novo review. See United

States v. Hill, 60 F.3d 672, 681 (10th Cir. 1995); United States v. Stewart, 867

F.2d 581, 584 (10th Cir. 1989). Review of the issuance of a search warrant for

probable cause, however, is more deferential: “[S]o long as the magistrate had a

‘substantial basis for ... conclud[ing]’ that a search would uncover evidence of

wrongdoing, the Fourth Amendment requires no more.” Illinois v. Gates, 462

U.S. 213, 236 (1983) (quoting Jones v. United States, 362 U.S. 257, 271 (1960)).



B. Probable Cause

      Berrocal argues that neither the citizen informant nor the “trash cover” was

sufficient to establish probable cause. As the district court correctly noted,

however, Berrocal’s analysis calling for a piece-by-piece evaluation of the


                                         -4-
evidence is at odds with controlling precedent. “The determination of whether

there was a substantial basis for concluding probable cause existed must be based

on the totality-of-the-circumstances.” United States v. Glover, 104 F.3d 1570,

1577 (10th Cir. 1997).

      In this case probable cause was supported by two factors. First was the

information provided by the citizen informant indicating visitation patterns to

Berrocal’s residence consistent with drug trafficking. It was not clear from the

record whether the citizen informant was anonymous or known. As a general

rule, at least some corroboration is required to support probable cause when the

police receive anonymous information. See J.B. v. Washington County, 127 F.3d

919, 929-30 (10th Cir. 1997). The citizen informant’s information was

corroborated by the “trash cover” conducted by Officer Christoffersen, which

revealed numerous items associated with the manufacturing of methamphetamine.

      Berrocal argues that the affidavit submitted by Officer Christoffersen in

support of the warrant does not indicate when the citizen witnessed the suspicious

traffic, and thus does not rule out the possibility that the report was stale. See

United States v. Le, 173 F.3d 1258, 1266-67 (10th Cir. 1999) (considering

whether information supporting probable cause was stale). This argument fails,

however, because of the corroborative effect of the “trash cover.” Similarly, the




                                          -5-
information provided by the informant undermines Berrocal’s argument that the

items found in his trash container were dropped there by someone else.

      In light of the deference accorded probable cause determinations by state

magistrates, this court affirms the district court’s conclusion that the totality of

the circumstances provide a substantial basis for the state magistrate’s finding of

probable cause.



C. No-Knock Warrant

      Berrocal argues that both the Fourth Amendment and federal statutory law

were violated by the authorization of the no-knock entry. In a federal

prosecution, a search that is “federal in character” must comply with both federal

constitutional standards and federal statutory standards, while a search that is

“state in character” must comply only with federal constitutional standards. See

United States v. Millar, 543 F.2d 1280, 1283-84 (10th Cir. 1976). In this case,

state officials applied to a state judge for a state warrant. Federal officials

conducted the search of Berrocal’s residence, and a federal prosecution followed.

It is not necessary to determine whether the search of Berrocal’s residence was

federal in nature, however, because the same conclusion is reached regardless of

whether federal statutory law applies in addition to the Fourth Amendment.




                                           -6-
      In Wilson v. Arkansas, 514 U.S. 927 (1995), the Supreme Court held that

the common law knock and announce requirement forms a part of the Fourth

Amendment reasonableness inquiry. See id. at 931. The Court explained,

however, that “law enforcement interests may also establish the reasonableness of

an unannounced entry.” Id. at 936. The Court noted that no-knock searches may

be justified when evidence might be destroyed if advance notice was given. See

id.; see also Richards v. Wisconsin, 520 U.S. 385, 395 (upholding a no-knock

search because the officers had a reasonable suspicion that evidence would be

destroyed if notice was given).

      The district court concluded it was reasonable to suspect that evidence

might be destroyed absent a no-knock search based on the material found during

the “trash cover.” Officer Christoffersen explained in his affidavit in support of

the warrant that the material found during the “trash cover” indicated an amount

of methamphetamine located in Berrocal’s residence which could be easily

destroyed or hidden if police officers announced their presence before entering.

Berrocal challenges the district court’s conclusion that it was reasonable to

believe evidence might be destroyed upon notice. Berrocal also argues that he

was entitled to an evidentiary hearing under Franks v. Delaware, 438 U.S. 154

(1978), to demonstrate that Officer Christoffersen’s statement in the affidavit

concerning the amount of methamphetamine likely to be found was a deliberate


                                         -7-
falsehood or a reckless disregard for the truth. Berrocal must make a “substantial

preliminary showing” that Christoffersen’s affidavit was false, however, before he

is entitled to an evidentiary hearing. See id. at 169-70.

      For both of these arguments, Berrocal relies on a statement made by

Christoffersen in the police report after the garbage search. In this report

Christoffersen indicated that the items found were “evidence of a large field

processing taking place at the residence.” Berrocal asserts that a “large field

processing” is not consistent with an amount of methamphetamine that can be

easily destroyed. As the district court noted, however, the police report does not

contradict Christoffersen’s statement in the affidavit that the methamphetamine

could be easily destroyed. Christoffersen states in his affidavit that there were

numerous materials found during the “trash cover,” but also explains that these

materials would produce only a small amount of methamphetamine. We agree

with the district court that Christoffersen’s statements are easily reconciled.

Because Berrocal failed to make a preliminary showing that Christoffersen’s

statements were false, he was not entitled to an evidentiary hearing. In light of

the items found during the “trash cover,” it was reasonable to conclude that

evidence might be destroyed if notice was given. Therefore, the no-knock search

complied with the Fourth Amendment.

      The no-knock search also complies with 18 U.S.C. § 3109, which provides:


                                          -8-
            The officer may break open any outer or inner door or window of a
      house, or any part of a house, or anything therein, to execute a search
      warrant, if, after notice of his authority and purpose, he is refused
      admittance or when necessary to liberate himself or a person aiding him in
      the execution of the warrant.

The Supreme Court has stated that 18 U.S.C. § 3109, like the Fourth Amendment,

adopts the common law rule regarding no-knock entries. See Sabbath v. United

States, 391 U.S. 585, 591 n.8 (1968). This court has recognized the correlation

between the § 3109 and the Fourth Amendment knock and announce standards.

See United States v. Smith, 63 F.3d 956, 962 (10th Cir. 1995), rev’d on other

grounds, 516 U.S. 1105 (1996); United States v. Ruminer, 786 F.2d 381, 383

(10th Cir. 1986).

      As with the Fourth Amendment knock and announce requirement,

compliance with § 3109 may be excused when the officers have an objectively

reasonable belief that exigent circumstances exist. See United States v. Knapp, 1

F.3d 1026, 1030 (10th Cir. 1993); United States v. Stewart, 867 F.2d 581, 584

(10th Cir. 1989). Exigent circumstances exist when there is a “likelihood that

notice would result in the destruction of evidence.” United States v. Dahlman, 13

F.3d 1391, 1398 (10th Cir. 1993). As discussed above, it was reasonable to

believe that Berrocal could easily destroy or hide the amount of evidence believed

to be in his residence. Thus, exigent circumstances existed and the search

complied with § 3109.


                                        -9-
D. Nighttime search

      Finally, Berrocal argues that the nighttime search was invalid under Utah

Code Ann. § 77-23-205. It is well established, however, that in a federal

prosecution state law cannot serve as a basis for the suppression of evidence. See

On Lee v. United States, 343 U.S. 747, 754-55 (1952); United States v. Mitchell,

783 F.2d 971, 973 (10th Cir. 1986). Berrocal’s claim must therefore be rejected. 1



IV. CONCLUSION

      For the reasons stated above, this court affirms the district court’s denial

of Berrocal’s motion to suppress.

                                      ENTERED FOR THE COURT:



                                      Michael R. Murphy
                                      Circuit Judge




      1
       The case of Mason v. United States, 719 F.2d 1485 (10th Cir. 1983), does
not require an examination of state law in this case. While it is true that the
Mason court considered the validity of a search involved in a federal prosecution
by reference to Wyoming law, both the government and the defendant conceded
that Wyoming law governed. See id. at 1489.


                                        -10-
