                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                      February 14, 2007
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                          Clerk of Court



 U N ITED STA TES O F A M ER ICA,                       No. 06-4036

          Plaintiff-Appellant,                            (D. Utah)

 v.                                              (D.C. No. 2:05-CR -95 TS)

 PAUL LIAPIS,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before KELLY, A LA RC ÓN, ** and H ENRY, Circuit Judges.




      Paul Liapis has appealed from the judgment entered following his

conditional plea of guilty to each count in the superseding indictment. He

reserved the right to appeal the denial of his motion to suppress the evidence and

his motion to dismiss two counts of the superseding indictment.



      *
             This order and judgment is not binding precedent except under the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 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
      **
             The Honorable Arthur L. Alarcón, Senior Circuit Judge, United
States Court of Appeals, Ninth Circuit, sitting by designation.
      M r. Liapis contends that his home was searched pursuant to a warrant that

lacked probable cause. He also asserts that the District Court erred in denying his

motion to dismiss two counts of the superseding indictment that charged him with

a violation of 18 U.S.C. § 922(g)(9) because the crime of battery under Utah law

does not require the prosecution to prove as an element of the offense that the

defendant was a current or former spouse, parent, guardian of the victim or shared

a child with the victim. W e affirm because we conclude that the search warrant

was supported by probable cause and proof of a domestic relationship is only a

required element of 18 U.S.C. § 922(g)(9), and not of the underlying state law

conviction.

                                          I

                                         A

      On January 11, 2005, Detective Lance Swanson of the W est Jordan City

Police Department presented an affidavit for a search warrant to Judge Pat Brian

of the Utah Third District Court. On the same day, Judge Brian issued the

warrant based on the facts set forth in D etective Swanson’s affidavit. It

authorized the search of M r. Liapis’s residence and the surrounding grounds for

methamphetamine, drug paraphernalia, and items relating to the distribution of

methamphetamine.

      The search warrant was executed on January 13, 2005. Officers seized

actual methamphetamine, cocaine and various firearms. Officers also seized

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marijuana and additional firearms belonging to M r. Liapis during a subsequent

search of a storage shed, authorized under a separate search warrant.

                                         B

      On June 1, 2005, a federal grand jury issued a seven count superseding

indictment charging M r. Liapis with: (1) possession of five grams or more of

methamphetamine w ith intent to distribute in violation of 21 U.S.C. § 841(a)(1);

(2) knowing possession of a mixture or substance containing cocaine with intent

to distribute in violation of 21 U.S.C. § 841(a)(1); (3) knowing possession of a

firearm after having being convicted of a misdemeanor crime of domestic

violence in violation of 18 U.S.C. § 922(g)(9); (4) knowing possession of

firearms in furtherance of a drug-trafficking crime in violation of 18 U.S.C. §

924(c)(1)(A); (5) knowing possession of a mixture or substance containing

marijuana in violation of 21 U.S.C. § 841(a)(1); (6) knowing possession of a

firearm after having being convicted of a misdemeanor crime of domestic

violence in violation of 18 U.S.C. § 922(g)(9); and (7) knowing possession of a

firearm that had the manufacturer’s serial number removed, obliterated, or altered

in violation of 18 U.S.C. § 922(k).

                                        C

      On July 14, 2005, M r. Liapis moved to suppress the evidence seized from

his residence on January 13, 2005. He contended that the search warrant was not

supported by probable cause.

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      Detective Swanson alleged the following facts in his affidavit. He had

been a police officer for over seven years. He was assigned to the Detective

Division as a narcotics detective. He received specialized training and experience

in investigating narcotics offenses.

      Detective Swanson was contacted by a confidential informant (“CI”) who

reported that there was an ongoing drug distribution operation being conducted by

M r. Liapis at his home. The CI informed Detective Swanson that M r. Liapis had

counter-surveillance cameras around his house, and it was guarded by his

operatives. The CI also stated that M r. Liapis was in possession of a large caliber

firearm that he kept under a pillow in his bedroom.

      Detective Swanson alleged that the CI was reliable because he or she

disclosed “complete information about him or herself, including name, date of

birth, social security [number], and all [other] pertinent information.” Detective

Sw anson also concluded that the CI was reliable because, during a prior search of

M r. Liapis’s home, M r. Liapis has been found sitting on a loaded firearm.

      In order to corroborate the CI’s information, Detective Swanson arranged

for a controlled buy from M r. Liapis’s home approximately seven days before

seeking the search warrant. He used the CI and an unwitting informant (“UI”) in

the controlled buy. Detective Swanson met with the CI beforehand and checked

his or her person and vehicle for any contraband or U.S. currency. He found

none. Detective Swanson gave the CI a predetermined amount of U.S. currency

                                         -4-
to use in the controlled buy. Officers followed the CI to the residence of the UI.

The CI picked up the UI and drove to M r. Liapis’s residence while under the

officers’ surveillance. The U I exited the C I’s vehicle and entered M r. Liapis’s

residence. The UI was inside the residence for less than 10 minutes and then

returned to the CI’s vehicle.

      After dropping off the UI, the CI handed a plastic baggie containing a white

crystalline substance to Detective Swanson. Detective Swanson again searched

the CI and his or her vehicle for any other contraband or currency. He found

none. The CI told Detective Swanson that he or she gave the money to the UI and

drove the UI to M r. Liapis’s residence. The UI then entered the residence and

returned with the contraband. The UI gave the contraband to the CI in exchange

for the money. The white crystalline substance tested positive as

methamphetamine.

      After the controlled buy, Detective Swanson conducted several

surveillances of M r. Liapis’s residence. He observed what appeared to be short-

term vehicle and pedestrian traffic going into the residence. Detective Swanson

alleged that, based on his training and experience in narcotics distribution cases,

he knew that persons involved in the sale of narcotics from their residences tend

to have this type of traffic. D etective Swanson also received citizen complaints

about the short stay traffic and drug activity at M r. Liapis’s address. A criminal

background check disclosed that M r. Liapis had been arrested eleven times for

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domestic assault, possession of a firearm, and drug related offenses. Based on the

facts alleged in Detective Swanson’s affidavit, Judge Ted Stewart of the United

States District Court of Utah found that the search warrant was supported by

probable cause.

                                          D

      On November 14, 2005, M r. Liapis moved to dismiss Counts III and VI of

the superseding indictment on the ground that the misdemeanor conviction of

battery alleged in the indictment was insufficient to establish a violation of §

922(g)(9) because it was only a violation of a city ordinance and not federal or

state law, and it did not require the prosecution to prove that a domestic

relationship existed between the defendant and the victim. The D istrict Court

denied M r. Liapis’s motion to dismiss Counts III and VI.

      On November 16, 2005, M r. Liapis entered a conditional guilty plea to all

seven counts, reserving his right to appeal the District Court’s denial of his

motion to suppress and his motion to dismiss. M r. Liapis has timely appealed the

final judgment in this matter.

                                         II

                                          A

      On appeal, M r. Liapis contends that the District Court erred in denying his

motion to suppress because “[t]he [a]ffidavit in this case was insufficient to

support a finding of probable cause.” (Appellant’s Opening Br. at 6.) This Court

                                         -6-
“review[s] de novo the district court’s determination of probable cause and

review[s] its findings of historical fact for clear error.” United States v. Artez,

389 F.3d 1106, 1111 (10th Cir. 2004). “A magistrate’s determination of probable

cause should be paid great deference by reviewing courts.” Illinois v. Gates, 462

U.S. 213, 236 (1983) (internal quotation marks omitted). Accordingly, “the duty

of a review ing court is simply to ensure that the magistrate had a substantial basis

for . . . concluding that probable cause existed.” Id. at 238-39 (internal quotation

marks omitted).

      The Supreme Court has instructed that “[t]he task of the issuing magistrate

is simply to make a practical, common-sense decision whether, given all the

circumstances set forth in the affidavit before him . . . there is a fair probability

that contraband or evidence of a crime will be found in a particular place.”

Gates, 462 U.S. at 238. “If the affidavits submitted by police officers are

subjected to the type of scrutiny some courts have deemed appropriate, police

might well resort to warrantless searches, with the hope of relying on consent or

some other exception to the W arrant Clause that might develop at the time of the

search.” Id. at 236.

      Recently, this Court has upheld the issuance of a search warrant under a

similar set of circumstances. In Artez, an officer was contacted by a confidential

informant (“CI”) who claimed to have information regarding an alleged

methamphetamine dealer. Artez, 389 F.3d at 1109. The officer drafted an

                                           -7-
affidavit and requested a warrant to search Artez’s residence after corroborating

the CI’s information by 1) verifying Artez’s residence; 2) determining that Artez

had a criminal record; 3) obtaining similar information from an anonymous

informant; 4) executing two controlled purchases of methamphetamine utilizing

the CI and an unwitting informant as an intermediary; and 5) conducting a brief

surveillance of the Artez residence, where he observed several people arriving

and staying for short periods of time. Id. at 1109-10. This Court concluded that

“the affidavit was sufficient to give the magistrate a ‘substantial basis’ for

determining the existence of probable cause to search [Artez’s] residence.” Id. at

1115 (quoting United States v. Tuter, 240 F.3d 1292, 1295 (10th Cir. 2001)).

      Detective Swanson’s affidavit substantially parallels the one upheld by this

Court in Artez. The CI’s information to Detective Swanson was corroborated by,

inter alia, the controlled buy and the surveillance of M r. Liapis’s residence that

revealed persons arriving for short periods of time. In addition, Detective

Sw anson alleged in his affidavit that he received complaints from citizens

regarding potential drug activities at M r. Liapis’s residence. M r. Liapis’s

criminal history also supports the District Court’s conclusion. See Artez, 389

F.3d at 1114 (“[C]riminal history, combined with other factors, can support a

finding of reasonable suspicion or probable cause”).

      In determining the existence of probable cause, the Supreme Court has

cautioned against viewing individual pieces of evidence “in isolation, rather than

                                          -8-
as [] factor[s] in the totality of the circumstances.” M aryland v. Pringle, 540 U.S.

366, 372 n.2 (2003). This Court has concluded that “courts may not engage in a

‘divide-and-conquer’ analysis of facts to determine w hether probable cause

existed.” United States v. Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004) (citing

United States v. Arvizu, 534 U.S. 266, 274 (2002)).

      M r. Liapis attacks Detective Swanson’s affidavit’s sufficiency by isolating

specific pieces of evidence without considering the totality of the circumstances.

For example, he argues that the one controlled purchase executed by Detective

Sw anson was insufficient as the officer in Artez executed two controlled

purchases. Appellant’s Opening Brief at 25. He also argues that Detective

Swanson did not provide a detailed enough description of the surveillance of M r.

Liapis’s home, such as describing exactly the number of people living there and

the exact vantage point of the Detective. Id. at 18-20, 24-25. M r. Liapis further

faults Detective Swanson’s allegations on the ground that he failed to provide

enough detail in describing his prior search of M r. Liapis’s home. Id. at 14-17,

25-26. W hether any of these pieces of evidence would be sufficient in themselves

to support probable cause, the District Court did not err in determining that

probable cause was established by the totality of the circumstances set forth in

Detective Swanson’s affidavit.




                                         -9-
                                         B

      M r. Liapis further contends that the District Court erroneously denied his

motion to dismiss Counts III and VI of the superseding indictment because his

prior misdemeanor battery conviction under Salt Lake City, Utah, M unicipal

Ordinance § 11.08.020 is not a predicate “misdemeanor crime of domestic

violence” under 18 U.S.C. § 922(g)(9). He argues that to support a conviction

under § 922(g)(9) the underlying misdemeanor crime must have had as an element

that a domestic relationship existed between the defendant and the victim.

      This contention is foreclosed by this Court’s decision in United States v.

Heckenliable, 446 F.3d 1048 (10th Cir. 2006).    This Court held in Heckenliable

that “a ‘misdemeanor crime of domestic violence’ requires the domestic

relationship element to be charged and proven as an element of a § 922(g)(9)

violation, not as an element of the underlying misdemeanor.” Id. at 1051 n.8.

      The D istrict Court did not err in denying M r. Liapis’s motion to dismiss

Counts III and VI of the superseding indictment.

      A FFIR ME D.

                                              Entered for the court



                                              Arthur L. Alarcón
                                              Senior Circuit Judge




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