                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS                  April 30, 2014
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                 Nos. 12-5212 and 13-5000
 v.                                           (D.C. No. 4:09-CR-00143-GKF-1)
                                                       (N.D. of Okla.)
 JAMES EDWARD MONTRAIL
 PEEL,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, HOLLOWAY **, and MATHESON, Circuit Judges.


      James Peel was charged with and pleaded guilty to firearms possession by a

felon. The charges arose from a search of his house that uncovered a gun. He


      *
         This order and judgment is not binding precedent except under the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.
      **
          The late Honorable William J. Holloway, Jr., United States Senior
Circuit Judge, was assigned to this matter originally but passed away before final
disposition. “The practice of this Court permits the remaining two panel judges if
in agreement to act as a quorum in resolving the appeal.” United States v. Wiles,
106 F.3d 1516, 1516 n.* (10th Cir.1997); see also 28 U.S.C. § 46(d) (noting
circuit court may adopt procedures permitting disposition of an appeal where
remaining quorum of panel agrees on the disposition). The remaining panel
members have acted as a quorum with respect to this Order and Judgment.
argues the gun should have been suppressed because the search warrant was based

on information the officers conducting the search should have known was

inadequate to establish probable cause under the Fourth Amendment. 1

      We AFFIRM. We agree with the district court that even if the probable

cause supporting the affidavit could have been more robust, the officers executing

the search acted in good faith in relying upon the warrant. The affidavit in

support of the warrant was not so wholly lacking in indicia of probable cause that

a reasonable officer could not rely on the warrant. Since we affirm the

conviction, we need not address the district court’s revocation of Peel’s probation

and imposition of supervised release.

                                 I. Background

      Based on information developed through a confidential informant, Tulsa

Police suspected Peel of distributing marijuana. They applied for a warrant to

search Peel’s residence.




      1
         Peel previously filed a § 2255 motion alleging ineffective assistance of
counsel for failure to file a direct appeal of the suppression order. The district
court agreed and granted the motion, vacated the judgment and sentence, and
issued an amended judgment. Peel timely filed a notice of appeal from the
amended judgment, which forms the basis of this appeal. In a separate
proceeding, the district court revoked Peel’s probation and sentenced him to six
months of imprisonment for violating the terms of his supervised release. Peel
timely appealed from the revocation judgment and sentence, which has been
consolidated with this appeal. Peel raised no independent claims of error with
regard to the district court’s revocation of supervised release.

                                         -2-
      In support of the search warrant application, officers supplied an affidavit

based on their interactions with the informant. In particular, the affidavit stated

the informant had been to Peel’s residence and had observed Peel, “who had a

large amount of marijuana inside his residence.” App. Vol. 1, 48. According to

the affidavit, the informant also told police that “the marijuana was packaged for

sale” and that the informant had observed Peel “conduct drug transactions” from

the residence. The informant described the marijuana and also stated that Peel

invited the informant to purchase marijuana whenever the informant decided to

return. Id.

      After learning where Peel’s residence was located, police verified that the

utilities at the residence were in Peel’s name. They also searched the Tulsa

Police Records and other state databases, revealing that Peel had prior felony

convictions for false impersonation, possession of marijuana, and unlawful

possession of a controlled substance. Surveillance of the home disclosed “short

term traffic” and officers “observed vehicles pull up in front of the residence” and

that “the occupants of the vehicles would go inside for a short period of time and

return to their vehicle [sic] and leave.” Id. The affidavit included statements

regarding the officer’s knowledge of certain activities common among drug users

and drug dealers, including their tendency to keep drug paraphernalia, money, and

firearms at their residences.




                                         -3-
      As corroboration, the officer’s affidavit explained:

                The RCI [reliable confidential informant] has in the past
                given information to your affiant and other law
                enforcement agencies in excess of three occasions. All
                subjects arrested subsequent to information received
                from this RCI have been successfully charged with
                narcotic violations. Your affiant further states that the
                information that the RCI [sic] has never been untrue or
                misleading. The information the RCI has provided in the
                past has been up to date and vital on several narcotics
                investigations. Your affiant further states that the RCI
                has shown knowledge of the trafficking of narcotics.
                Your affiant further states that the RCI has distributed
                narcotics in the past. Your affiant further states that the
                RCI stated that a black male named ‘James Peel’ was
                selling marijuana from his residence . . . .

Id. at 47–48.

      Based on the affidavit, an Oklahoma state court judge issued a search

warrant for Peel’s residence. A search revealed a loaded .45 caliber semi-

automatic pistol on a kitchen cabinet shelf, an SKS semi-automatic rifle, and

three unloaded magazines. Though officers detected a strong odor of marijuana,

they did not locate any marijuana during their search.

      After he was indicted in federal court for illegal possession of firearms by a

convicted felon, Peel moved to suppress the items obtained in the search. The

district court denied the motion, finding there was probable cause to search the

residence and, alternatively, that the good-faith exception applied to justify the

search.




                                            -4-
                                  II. Discussion

      “[W]hile we review the district court’s ruling on the sufficiency of a search

warrant de novo, we do not review de novo the determination of probable cause

by the issuing judge or magistrate.” United States v. Haymond, 672 F.3d 948, 958

(10th Cir. 2012) (citations and internal quotation marks omitted). Rather, “we

give great deference to the issuing judge’s finding of probable cause” and ask

only whether, under the totality of the circumstances, the judge had a “substantial

basis” to find that probable cause existed. Id. (citations omitted).

      Probable cause must be based on a “fair probability that contraband or

evidence of a crime will be found in a particular place.” United States v. Cooper,

654 F.3d 1104, 1124 (10th Cir. 2011) (quotations omitted). When probable cause

is based on information given by a confidential informant, we evaluate the totality

of the circumstances by looking to a number of factors that, taken together, “may

usefully illuminate the commonsense, practical question whether there is

‘probable cause’” to search. Illinois v. Gates, 462 U.S. 213, 230 (1983). These

factors include the veracity, reliability, and basis of knowledge of the informant.

Id. But the inquiry is holistic—the “factors are not absolute, independent

requirements that must be satisfied in order for probable cause to exist . . . . [A]

deficiency in one factor may be compensated for by a strong showing of another

or by other indicia of reliability.” United States v. Quezada-Enriquez, 567 F.3d

1228, 1233(10th Cir. 2009) (citation omitted).

                                         -5-
      Peel argues that these standards have not been met. He contends the

officer’s affidavit inadequately disclosed to the state court judge both the specific

reliability of the informant and that police had done enough to corroborate the

statements of the informant that would confirm his veracity. But even assuming

the affidavit was inadequate, we conclude that the officers who executed the

search acted in good faith in relying upon the warrant, and, therefore, that the

district court properly denied Peel’s motion to suppress.

      It is well established that courts will not suppress evidence obtained from a

search pursuant to a warrant if the officers who relied upon the warrant “acted

with an objective good faith belief that the warrant was properly issued by a

neutral magistrate.” See United States v. Augustine, 742 F.3d 1258, 1262 (10th

Cir. 2014) (citations and internal quotation marks omitted); United States v.

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

marks omitted); see also United States v. Leon, 468 U.S. 897, 923 (1984). When

an officer relies on a warrant, we presume the officer acts in objective good faith.

Augustine, 742 F.3d at 1262. A defendant can rebut the presumption in a number

of ways, including among others (1) where “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

                                         -6-
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.” Id. (quoting United States v. Danhauer, 229 F.3d 1002, 1007 (10th Cir.

2000)) (alteration in original).

      Peel argues the third exception applies. He contends that the affidavit

lacked indicia of probable cause because it did not establish the informant was

reliable or independently corroborate the information supplied by the informant.

In analyzing good faith, we examine the underlying documents before the judge to

determine whether they are “devoid of factual support” and therefore not

objectively reliable. Campbell, 603 F.3d at 1230 (citations and quotation marks

omitted). But the “absence of information establishing the informant’s reliability

or basis of knowledge does not necessarily preclude an officer from manifesting a

reasonable belief that the warrant was properly issued, particularly when the

officer takes steps to investigate the informant’s allegations.” Danhauer, 229

F.3d at 1007. Rather, it is only when an officer’s reliance was wholly

unwarranted that good faith is absent. Id. Thus, for example, an officer’s good

faith belief might be belied by a “bare bones affidavit, containing only conclusory

statements and completely devoid of factual support.” United States v. Rowland,

145 F.3d 1194, 1207 (10th Cir. 1998).

      That is not the case here. The affidavit included both facts and

corroboration highly suggestive of criminal activity. For example, the affidavit

                                         -7-
stated that police had investigated the informant’s tip by conducting surveillance

of the property and observing short term traffic consistent with drug trafficking,

verifying that the utilities for the residence were in Peel’s name, and conducting a

criminal history check on Peel which revealed prior drug-related convictions.

      Peel argues that the good-faith exception does not apply because the

affidavit contained no evidence of the informant’s reliability or veracity. He

argues that this case is distinguishable from our decision in Quezada-Enriquez, in

which we applied the good-faith exception to circumstances where the informant

had some “track record of reliability and some indication of veracity.” 567 F.3d

at 1234.

      But the informant here had a track record of previous reliability (at least

three successful prosecutions based on his tips). And, unlike in Quezada-

Enriquez, the informant here possessed first-hand knowledge of Peel’s activities

and police independently corroborated some of the details of the informant’s

allegations. Cf. 567 F.3d at 1234 (affidavit indicated no first-hand basis of

knowledge and no corroboration). These facts are sufficient to support an

objectively reasonable belief that the warrant was supported by probable cause.

See, e.g., Campbell, 603 F.3d at 1234–35 (finding good-faith reliance where

affidavit stated that informant had first-hand knowledge of allegations and

affidavit represented that informant’s allegations had been “verified and deemed

reliable through independent investigation”); United States v. Tuter, 240 F.3d

                                         -8-
1292, 1300 (10th Cir. 2001) (applying good-faith exception even though

informant was anonymous and information was not sufficiently corroborated);

Danhauer, 229 F.3d at 1006–07 (concluding that good-faith exception applied

where officer took steps to investigate informant’s allegation even though

affidavit did not reveal informant’s basis of knowledge or adequately verify

informant’s allegations).

      In sum, the information supplied to the state court judge was not so facially

deficient to defy belief in the existence of probable cause. We therefore agree

with the district court that the good-faith exception to the exclusionary rule

properly applies.

                                 III. Conclusion

      We AFFIRM the district court’s denial of Peel’s motion to suppress.

Because Peel raises no independent arguments regarding the consolidated appeal

of the district court’s revocation of probation and imposition of supervised

release, we also AFFIRM the district court’s revocation judgment and sentence.

                                       ENTERED FOR THE COURT

                                       Timothy M. Tymkovich
                                       Circuit Judge




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