                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                              February 19, 2014
                                    PUBLISH                  Elisabeth A. Shumaker
                                                                 Clerk of Court
                   UNITED STATES COURT OF APPEALS

                         FOR THE TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff – Appellee,

 v.                                                    No. 12-3269

 DENNIS AUGUSTINE,

       Defendant – Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                  (D.C. No. 5:12-CR-40006-RDR-3)


Ann Marie Taliaferro of Brown Bradshaw & Moffat, LLP, Salt Lake City, Utah,
for Defendant–Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United
States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff–Appellee.



Before LUCERO, McKAY, and MATHESON, Circuit Judges.


McKAY, Circuit Judge.


      Defendant Dennis Augustine was convicted on two counts of conspiracy to

distribute methamphetamine. Prior to trial, he filed two separate motions to

suppress evidence. The first motion was to quash a warrant to search Defendant’s
residence and to suppress evidence found in that search which led directly to his

arrest. The second motion was to suppress Defendant’s statements to law

enforcement officials after his arrest. The district court issued a memorandum

and order denying both motions. It denied the motion to quash and suppress

evidence found in the search of Defendant’s residence by applying the good-faith

exception to the exclusionary rule, declining to reach a determination regarding

whether probable cause existed to search the residence. The district court denied

the motion to suppress Defendant’s statements based on its factual findings

regarding the circumstances of Defendant’s interrogation. After the subsequent

trial, the jury found Defendant guilty on both counts of conspiracy. On appeal,

we consider the denial of both motions, starting with the motion relating to the

search of Defendant’s residence.

      In appealing the denial of his motion regarding the search of his residence,

Defendant challenges the district court’s application of the good-faith exception

to the exclusionary rule and renews his claim that the affidavit supporting the

search warrant was insufficient to show probable cause to search his residence.

The following evidence was submitted in the affidavit to the state court judge

who issued the warrant.

      In November 2011, the Salina/Saline County Drug Task Force began

conducting an investigation into drug trafficking activity in Saline County,

Kansas. The investigation identified an individual named Kevin Ashcraft as a

                                        -2-
distributor of methamphetamine in the county. A wire tap on Mr. Ashcraft’s

telephone allowed investigators to determine that another individual named

Lisandro Clara-Fernandez was Mr. Ashcraft’s supplier.

      A “pen register/telephone ping order” was subsequently acquired for a

telephone number being used by Mr. Clara-Fernandez. (Appellant’s Opening Br.,

App. C at 8 (capitalization standardized).) With this order, investigators began

“pinging” Mr. Clara-Fernandez’s telephone to track his geographical location.

(Id. at 8-9 (capitalization standardized).) Through a combination of physical

surveillance and telephone pinging, investigators established that, in addition to

meeting with Mr. Ashcraft, Mr. Clara-Fernandez had parked his car outside a

residence at 904 North Tenth Street on two different occasions—once in front of

the residence, and a second time behind the residence where investigators

witnessed Mr. Clara-Fernandez conversing with an unidentified white male.

      Eventually, investigators arranged for surveillance of a drug transaction

between Mr. Ashcraft and Mr. Clara-Fernandez. Upon witnessing the transaction,

law enforcement officials arrested Mr. Ashcraft and Mr. Clara-Fernandez. When

asked during an interview subsequent to his arrest whether he knew of anyone

else in Salina whom Mr. Clara-Fernandez would be supplying with drugs, Mr.

Ashcraft replied, “Dennis Augustine on North Tenth Street.” (Id. at 13

(capitalization standardized).) Mr. Ashcraft further stated he and Defendant had a

mutual acquaintance who had introduced them to Mr. Clara-Fernandez. When

                                         -3-
asked if Mr. Clara-Fernandez had any reason to visit Defendant’s residence, Mr.

Ashcraft answered, “Just to drop off to him.” (Id.) A subsequent computer check

for 904 North Tenth Street indicated Defendant had active water service at that

address.

      The affidavit also included information concerning Defendant’s criminal

history, particularly mentioning Defendant was previously convicted for a drug-

related crime in the 1990s. Additionally, it included information regarding the

training and experience in drug investigations of the affiant, who was a lieutenant

in the Salina Police Department. Finally, the affidavit included statements

regarding the affiant’s knowledge of certain behaviors common among drug

dealers, including their tendency to secrete contraband, proceeds of drug sales and

records of their transactions within their residences, and their tendency to possess

paraphernalia used in weighing and packaging controlled substances.

      “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.” United States v. Danhauer,

229 F.3d 1002, 1005 (10th Cir. 2000). However, “[d]eterminations relating to the

sufficiency of a search warrant and the applicability of the good-faith exception

are conclusions of law . . . which this court reviews de novo.” Id. Because the

district court did not make a decision regarding whether probable cause existed to

search Defendant’s residence, we begin, like the district court, with the question

                                         -4-
of the applicability of the good-faith exception to the exclusionary rule.

      Under the good-faith exception to the exclusionary rule, “[i]f a warrant is

not supported by probable cause, the evidence seized pursuant to the warrant need

not be suppressed if the executing officer acted with an objective good-faith

belief that the warrant was properly issued by a neutral magistrate.” United

States v. Campbell, 603 F.3d 1218, 1225 (10th Cir. 2010) (internal quotation

marks omitted). An executing officer is generally presumed to be acting in good-

faith reliance upon a warrant. Id. at 1230. However, this presumption is not

absolute. There are four situations in which the presumption of good faith and,

consequently, the good-faith exception to the exclusionary rule do not apply: (1)

when “the issuing magistrate was misled by an affidavit containing false

information or information that the affiant would have known was false if not for

his ‘reckless disregard of the truth’”; (2) when the “‘issuing magistrate wholly

abandon[s her] judicial role’”; (3) when “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’”; and (4) when “a warrant is so facially deficient that the

executing officer could not reasonably believe it was valid.” Danhauer, 229 F.3d

at 1007 (quoting United States v. Leon, 468 U.S. 897, 923 (1984)) (alteration in

original). Here, Defendant argues the good-faith exception to the exclusionary

rule does not apply to the execution of the warrant to search Defendant’s

residence because “the affidavit in support of the warrant [was] ‘so lacking in

                                          -5-
indicia of probable cause as to render official belief in its existence entirely

unreasonable.’” Id. (quoting Leon, 468 U.S. at 923).

      “[G]ood faith may exist when a minimal nexus between the place to be

searched and the suspected criminal activity is established.” United States v.

Gonzales, 399 F.3d 1225, 1231 (10th Cir. 2005). An officer’s reliance on a

warrant is not reasonable when the underlying documents are “devoid of factual

support.” Campbell, 603 F.3d at 1230. However, the “minimal nexus

requirement does not require that hard evidence or personal knowledge of illegal

activity link a Defendant’s suspected unlawful activity to his home.” Id. at 1231

(internal quotation marks omitted). “On the contrary, an affidavit establishes a

sufficient nexus when it describes circumstances which would warrant a person of

reasonable caution in the belief that the articles sought are at a particular place.”

Id. (internal quotations marks omitted). In this case, we cannot agree with

Defendant that the affidavit was so lacking in indicia of probable cause and so

devoid of factual support as to prevent application of the good-faith exception to

the exclusionary rule. Indeed, the affidavit readily satisfies the minimal nexus

requirement.

      The information in the affidavit indicated Defendant was receiving drugs

from Mr. Clara-Fernandez, whose asserted status as a drug supplier was

corroborated by information in the affidavit. The information linking Defendant

to Mr. Clara-Fernandez came from Mr. Ashcraft, a known informant, who could

                                          -6-
be held accountable if his allegations against Defendant proved to be untrue.

Florida v. J.L., 529 U.S. 266, 270 (2000) (stating that when the identities of

informants are known, their “reputation[s] can be assessed and [they] can be held

responsible if [their] allegations turn out to be fabricated”). Mr. Ashcraft made

statements against his own penal interest by admitting to drug transactions beyond

those of which law enforcement had knowledge, thereby further bolstering his

credibility. See United States v. Allen, 297 F.3d 790, 794 (8th Cir. 2002)

(indicating that an informant’s credibility was enhanced because “his statements

were against penal interest”). Furthermore, the affidavit showed that relevant

details provided by Mr. Ashcraft were corroborated by the police. For instance,

the affidavit demonstrated that police corroborated Mr. Ashcraft’s claim that

Defendant lived on North Tenth Street. The affidavit also showed that police

observed Mr. Clara-Fernandez at Defendant’s residence on two separate

occasions. See id. (stating that an informant’s credibility was established when

“his statements were against his penal interest and . . . the police were able to

corroborate some of the information he provided”). These factors support the

veracity of Mr. Ashcraft’s information and thereby strengthen the basis for the

affidavit’s conclusions. In addition to Mr. Ashcraft’s statements, the affidavit

included the statement of a veteran law enforcement officer that persons involved

in the drug trade often secrete contraband and evidence of drug transactions in

their homes. See United States v. Sanchez, 555 F.3d 910, 914 (10th Cir. 2009)

                                          -7-
(stating “it [is] merely common sense that a drug supplier will keep evidence of

his crimes at his home”).

      Taking this information from the affidavit into account, we hold that the

affidavit described circumstances that would warrant a person of reasonable

caution in the belief that drugs, drug records, or drug paraphernalia would be

found in Defendant’s residence and established a minimal nexus between

Defendant’s residence and the drug-related items being sought in the warrant.

Since a minimal nexus existed, the good-faith exception to the exclusionary rule

was properly applied by the district court. 1

      We turn then to Defendant’s appeal of the denial of his motion to suppress

his statements to law enforcement officers. Defendant’s argument on this point is

based on the claim that his waiver of his Miranda rights was not knowingly,

intentionally, and voluntarily made. See Miranda v. Arizona 384 U.S. 436, 444



      1
         Defendant also argued, for the first time on appeal, that the lieutenant
providing the affidavit “made material omissions in applying for th[e] warrant and
in doing so, misled the magistrate.” (Appellant’s Opening Br. at 53.)
Additionally, Defendant argued that we should review his trial attorney’s failure
to raise this “material omissions” issue before the district court as ineffective
assistance of counsel. (Id. at 56-57.) However, Defendant subsequently
abandoned both of these arguments in his reply brief, acknowledging that the
record contained insufficient facts concerning whether the lieutenant acted
knowingly or recklessly in allegedly omitting material information from his
affidavit and that this paucity of facts precluded appellate review. (Appellant’s
Reply Br. at 23-24.) Defendant further acknowledged that the “‘material
omissions’ issues must be further developed and are more appropriate for review
in collateral proceedings under 28 U.S.C. §2255.” (Id. at 24.)

                                          -8-
(1966).

      After being apprised of his Miranda rights, Defendant agreed to submit to

an interview by two law enforcement officials without an attorney. At the outset

of the interview, Defendant told the interrogating officers he was not under the

influence of alcohol or drugs. In the course of the interview, he acknowledged

that he did take a number of prescription medications—namely, Buspar,

Clonazepam, Zoloft, and occasionally Xanax. Throughout the interview,

Defendant sporadically indicated a desire to take his prescription medications;

however, he never indicated to the interrogating officers that he could not, or

would not, continue the interview without his medication.

      During the interview, Defendant made a number of inculpatory admissions.

He acknowledged that Mr. Clara-Fernandez had supplied him with drugs about

two dozen times. He further acknowledged that Mr. Clara-Fernandez often

“fronted” him methamphetamine for which he would pay later. (Tr. of Video-

Recorded Interview, R. Supplemental Vol. 2 at 33-34.) He also stated the average

amount of methamphetamine he received from Mr. Clara-Fernandez on these

occasions was a half-pound. Defendant further stated he had previously been

provided with drugs by Mr. Ashcraft, who supplied him with a couple of ounces

of methamphetamine every few days for about eight months. Additionally, he

confessed to having about a half-dozen customers to whom he sold the drugs he

received.

                                         -9-
      Defendant now claims his ability to properly waive his Miranda rights was

impaired because he was under the influence of controlled substances during the

interview. Defendant makes this claim despite having explicitly told the officers

during the interview he was not currently under the influence of drugs or alcohol.

Defendant also claims he was further impaired by his need for his prescription

drugs. Defendant thus argues his illicit drug use combined with his need for his

prescription drugs rendered his waiver of his Miranda rights invalid.

      “In reviewing a district court’s order granting or denying a motion to

suppress, this court accepts the district court’s factual findings unless clearly

erroneous and considers the evidence in the light most favorable to the district

court’s determination.” United States v. Toles, 297 F.3d 959, 965 (10th Cir.

2002). However, “[t]he ultimate question of whether a statement was voluntary is

a question of law reviewed de novo.” United States v. Hernandez, 93 F.3d 1493,

1501 (10th Cir. 1996). Employing this standard of review, we affirm the district

court’s denial of Defendant’s motion to suppress statements made in his post-

arrest interview.

      “In determining whether a waiver of rights was knowing and intelligent, we

employ a totality of the circumstances approach.” United States v. Burson, 531

F.3d 1254, 1256-57 (10th Cir. 2008). “The mere fact of drug or alcohol use will

not suffice” to overcome evidence showing that the defendant “was sufficiently in

touch with reality so that he knew his rights and the consequences of abandoning

                                         -10-
them.” Id. at 1258 “[A] defendant must be impaired to a substantial degree to

overcome his ability to knowingly and intelligently waive his privilege against

self-incrimination.” Id.; see also United States v. Curtis, 344 F.3d 1057, 1065-67

(10th Cir. 2003) (finding a valid waiver where the defendant was allegedly under

the influence of marijuana, crack cocaine, and alcohol); United States v. Morris,

287 F.3d 985, 988-89 (10th Cir. 2002) (holding that a defendant knowingly and

intelligently waived his Miranda rights while recovering from gunshot wounds in

the hospital, despite his argument that his mental capacity was affected by pain,

the effects of pain medication, and the post-traumatic stress associated with being

shot multiple times in the back)).

      After considering a video recording of Defendant’s interrogation and the

testimonies of the interrogating officers, the district court found that Defendant

appeared sober in the recording of the interview and that any alleged “presence of

drugs in [D]efendant’s system” did not render Defendant “unaware of the nature

of his rights and the consequences of his decision to speak with the police.”

United States v. Augustine, 2012 WL 1655170, at * 2 (D. Kan. May 10, 2012)

(unpublished decision). The district court also found that “[w]hile defendant may

have been more comfortable with his medication,” the absence of his medication

did not cause Defendant “to proceed involuntarily or in ignorance of the

consequences of his actions and statements.” Id. The district court therefore

denied Defendant’s motion to suppress.

                                         -11-
      Nothing in the record persuades us that the district court’s factual finding

that Defendant was “in control of his faculties and his conduct” throughout the

interview, id., was clearly erroneous. After reviewing the video recording of the

interview and other materials in the record, we agree with the district court’s

determination that Defendant was not so impaired that his waiver of his Miranda

rights was invalid.

      Defendant also argues, for the first time on appeal, that his waiver of his

rights was otherwise involuntary because it was coerced by threats and promises

of leniency from his interrogators. We hold that Defendant waived this claim by

failing to raise it before the district court. See Fed. R. Crim. P. 12(b)(3)(C) and

12(e). This circuit applies the waiver rule articulated in Fed. R. Crim. P. 12(e) 2

“not only when a defendant fails to file any pretrial motion to suppress, but also

when a defendant fails to assert a particular argument in a pretrial suppression

motion that he did file.” United States v. White, 584 F.3d 935, 948 (10th Cir.

2009). We hold that Defendant failed to “make . . . definite, specific, detailed

and nonconjectural factual allegations” regarding alleged coercive threats and

promises from his interrogators and therefore waived this argument. Id. at 949

(internal quotation marks omitted).


      2
        Fed. R. Crim. P. 12(b)(3)(C) requires that a party raise a motion to
suppress before trial. If a party fails to do so, it “waives any Rule 12(b)(3)
defense, objection, or request.” Fed. R. Crim. P. 12(e); see also United States v.
White, 584 F.3d 935, 948 (10th Cir. 2009).

                                         -12-
      In an attempt to avoid this holding, Defendant sought to invoke, in his reply

brief, the narrow good-cause exception to Rule 12(e)’s waiver rule. See Fed. R.

Crim. P. 12(e) (“For good cause, the court may grant relief from the waiver.”).

“We rarely, however, grant relief under the good-cause exception.” United States

v. Burke, 633 F.3d 984, 988 (10th Cir. 2011). We see no merit in Defendant’s

argument that good cause exists to excuse his counsel’s failure to raise the issue

of coercive police tactics because the district court obliquely considered it when

the government raised the issue. Neither do we see merit in Defendant’s

argument that his counsel’s failure to raise the issue before the district court,

whether as a result of inadvertence or ineffective assistance, is good cause to

allow the issue to be heard on appeal. In support of this argument, Defendant

cites dicta in our opinion in Burke, in which the good-cause exception to Rule

12(e)’s waiver rule is described in passing as “a safety valve for counsel’s

inadvertent failure to raise an argument at the suppression hearing.” Id. at 992.

However, we do not read Burke as expanding the good-cause exception such that

it swallows the waiver rule articulated in Fed. R. Crim. P. 12(e), as it would if

good cause warranting relief from waiver existed every time a defendant’s

attorney inadvertently failed to raise a suppression argument. See Burke, 633

F.3d at 988 (citing with approval the Fourth Circuit’s holding in United States v.

Wilson, 115 F.3d 1185, 1191 (4th Cir. 1997) that good cause did not exist where

“[t]he record shows that sufficient information was available to defense counsel

                                         -13-
before trial that would have enabled him to frame his suppression motion to

include the execution of the search warrant”). Our holding in Burke did not rely

on the apparent reasoning in the dicta cited by Defendant, and now that the issue

is squarely before us, we expressly hold that counsel’s inadvertent failure to raise

a suppression argument before the district court does not in itself constitute good

cause warranting relief from a Rule 12(e) waiver. Furthermore, our review of the

record reveals “no impediment to the defendant’s ability to [have] raise[d] the

issue” prior to appeal. United States v. Hamilton, 587 F.3d 1199, 1216 (10th Cir.

2009); see also Burke, 633 F.3d at 988. We therefore hold that the good-cause

exception to Rule 12(e)’s waiver rule does not apply to Defendant’s case.

      Finally, Defendant requests that insofar as he failed to preserve his

argument that coercive police tactics rendered his inculpatory statements

involuntary, this court should nevertheless review the claim for ineffective

assistance of counsel. We decline to do so. “[T]his court . . . consider[s]

ineffective assistance of counsel claims on direct appeal . . . only where the issue

was raised before and ruled upon by the district court and a sufficient factual

record exists.” United States v. Flood, 635 F.3d 1255, 1260 (10th Cir. 2011)

(italics in original). Defendant’s claim does not qualify under these prerequisites.

                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s order denying

Defendant’s motions to suppress.

                                         -14-
