                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 3, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 09-4143
                                               (D.C. No. 1:08-CR-00045-DB-1)
    MICHAEL RAY HOWARD,                                   (D. Utah)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and HOLMES, Circuit Judges.



         Michael Ray Howard entered a conditional guilty plea to possessing, with

intent to distribute, more than fifty grams of methamphetamine in violation of

21 U.S.C. § 841(a)(1), in which he preserved his right to appeal the denial of his

motion to suppress evidence. On appeal, Mr. Howard argues the district court

erred in denying his motion to suppress because the affidavit in support of the



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
warrant did not establish probable cause to search his vehicle. We exercise

jurisdiction under 28 U.S.C. § 1291 and affirm.

                                     Background

      On March 12, 2008, Officer Mike Tribe of the North Ogden Police

Department applied for a search warrant to search the premises at 462 Doxey

Street and to search a 1988 Dodge Ram Charger that was parked at the curb in

front of the Doxey Street address. Attached to the warrant application was a

supporting affidavit. Based upon the information contained in the affidavit, Judge

Patrick Lambert of the Second District Court in Weber County, Utah authorized

the search. Officer Tribe executed the search warrant and located several items of

drug paraphernalia inside the residence and 164 grams of methamphetamine in the

car. Mr. Howard was subsequently indicted on federal drug charges. Prior to

trial, he moved to suppress the evidence of the methamphetamine obtained from

his vehicle. The district court denied the motion, finding that the totality of the

evidence was sufficient to establish probable cause to search Mr. Howard’s

vehicle. Alternatively, the district court concluded that, even if the search

warrant was ultimately found to be lacking in probable cause, the evidence would

not be suppressed because the police were entitled to the good-faith exception to

the exclusionary rule. Mr. Howard then entered into a conditional guilty plea,

which preserved his right to appeal from the denial of his motion to suppress.

This appeal followed.

                                          -2-
                                     Discussion

      “In reviewing the denial of a motion to suppress, this court considers the

totality of the circumstances and views the evidence in the light most favorable to

the government. We accept the district court’s factual findings unless they are

clearly erroneous, although the ultimate determination of reasonableness under

the Fourth Amendment is reviewed de novo.” United States v. Colonna, 360 F.3d

1169, 1173 (10th Cir. 2004) (citation omitted). Mr. Howard argues that Officer

Tribe’s affidavit did not establish probable cause to search his vehicle because

there was not a sufficient nexus between the suspected drug activity and the

vehicle.

      In order to issue a search warrant, a magistrate judge must determine that

probable cause exists to support the search. United States v. Roach, 582 F.3d

1192, 1200 (10th Cir. 2009), cert. denied, 78 U.S.L.W. 3417 (U.S. Jan. 19, 2010)

(No. 09-8010).

      An affidavit establishes probable cause for a search warrant if the
      totality of the information it contains establishes the fair probability
      that contraband or evidence of a crime will be found in a particular
      place. The affidavit must show a nexus between [the] suspected
      criminal activity and the place to be searched . . . . Searches
      conducted pursuant to a warrant are favored, and, as such, the
      [magistrate judge’s] determination that probable cause exists is
      entitled to great deference.

Id. (quotations omitted). On review, this court will “revers[e] only if the affidavit

supporting the warrant application provides no substantial basis for concluding


                                         -3-
that probable cause existed.” Id. (quotation omitted). A review of the totality of

the evidence in the light most favorable to the government reveals that Officer

Tribe’s affidavit provided sufficient information to establish probable cause to

search the Dodge Ram Charger.

      The affidavit detailed events occurring between September 8, 2007, and

March 12, 2008, which revealed that Mr. Howard and his live-in girlfriend,

Melinda Davis, were involved with methamphetamine and other illegal drugs. In

September 2007, Ms. Davis was stopped in her car near the apartment she shared

with Mr. Howard at 4041 Palmer Drive. She had two baggies of suspected

marijuana, thirteen red baggies commonly used for packaging illegal drugs, a

digital scale and Oxycodone. In November 2007, the police were alerted about

increasing drug activity at 4041 Palmer Drive. While executing a search warrant

for Apartment A at 4041 Palmer Drive, the resident of that apartment told the

police they should check into the activities occurring in Apartment B—the

apartment shared by Mr. Howard and Ms. Davis. The police then ran criminal

history checks on Mr. Howard and Ms. Davis and learned that both had been

previously arrested on drug charges.

      That same month, Ms. Davis drove Mr. Howard’s Dodge Ram Charger to a

parking lot adjacent to their Palmer Drive residence for a drug deal. Police

apprehended the buyer and he informed police that he was planning on purchasing

a quarter ounce of methamphetamine from Ms. Davis, but the deal fell through so

                                         -4-
he was going to purchase marijuana instead. Police received information from a

confidential informant that Ms. Davis was Mr. Howard’s live-in girlfriend and

that they lived at 4041 Palmer Drive, Apartment B. Police confirmed that

Mr. Howard was the registered owner of the Dodge Ram Charger and during

surveillance of 4041 Palmer Drive, Officer Tribe observed the Dodge Ram

Charger parked in front of the residence.

      On January 17, 2008, Officer Tribe executed a search warrant for 4041

Palmer Drive, Apartment B. The police seized methamphetamine, marijuana, a

methamphetamine pipe, and syringes, all of which Mr. Howard later admitted

were his. After the January 2008 search, Officer Tribe learned from an

unidentified source that he had missed a portion of Mr. Howard’s

methamphetamine that was hidden in the engine compartment of the Dodge Ram

Charger. On March 11, Officer Tribe received information from an informant

that Mr. Howard had moved from the 4041 Palmer Drive apartment to 462 Doxey

Street, and he was selling a pound of methamphetamine a week. The next day,

the same informant notified the police that Mr. Howard was going to receive a

large quantity of methamphetamine that day.

      That night, the police conducted surveillance on 462 Doxey Street. When

they saw Mr. Howard outside of the residence, they took him into custody on an

outstanding state warrant. At the time of his arrest, Mr. Howard was in

possession of a bag of methamphetamine and a methamphetamine pipe, as well as

                                        -5-
three pills he stated were Lortab, a prescription narcotic. Mr. Howard told

Officer Tribe that he had been kicked out of his Palmer Drive apartment and had

just recently moved to Doxey Street. He also admitted that he had drug

paraphernalia inside his Doxey Street home. Upon receiving this information,

Officer Tribe obtained a search warrant for both Mr. Howard’s residence and his

vehicle.

      Mr. Howard contends that the affidavit contains only three facts connecting

the Dodge Ram Charger to his drug activity: (1) the Ram Charger was observed

in a drug transaction that occurred in a parking lot near his Palmer Drive

apartment; (2) the Ram Charger was registered to him and was observed parked in

front of his Palmer Drive residence; and (3) after the execution of the January

search warrant, Officer Tribe learned from an anonymous source that he had

missed methamphetamine that was hidden in the engine compartment of the Ram

Charger. Mr. Howard then attacks each fact individually for not establishing

probable cause. But “[i]n assessing whether the warrant was based on probable

cause, we do not view each supporting fact or episode in isolation.” United States

v. Cantu, 405 F.3d 1173, 1177 (10th Cir. 2005). “While one fact alone may not

support a finding of probable cause, a cumulative assessment may indeed lead to

that conclusion.” Id. The three facts Mr. Howard identifies, considered together

with the rest of the information in the affidavit supported a finding of probable

cause to search his vehicle.

                                         -6-
      “[M]agistrate judges may draw their own reasonable conclusions, based on

the . . . affidavit and the practical considerations of everyday life, as to the

likelihood that certain evidence will be found at a particular place.” United States

v. Biglow, 562 F.3d 1272, 1280 (10th Cir. 2009) (quotation omitted). Allowing

normal inferences about the location of evidence “to establish a Fourth

Amendment nexus is appropriate because probable cause is a matter of

probabilities and common sense conclusions, not certainties.” Id. (quotation

omitted). The magistrate judge could infer that drugs or drug paraphernalia

would be found in Mr. Howard’s vehicle based on Mr. Howard’s past drug-related

conduct, the use of his vehicle in a previous drug transaction, the fact that he had

just recently moved to the Doxey Street address, the information that the police

had missed drugs that were hidden in his car during the earlier search, the

information that he was expecting a large shipment of drugs, his possession of

drugs and paraphernalia when he was arrested, and his admission during his arrest

that additional drug paraphernalia was in his house. For example, one could infer

that a person who had recently moved from a home containing methamphetamine

and paraphernalia to a new home, and who that very day had methamphetamine

and paraphernalia on his person and admitted that he had additional paraphernalia

in his new home, would also have drugs or paraphernalia in his vehicle. In

addition, one could infer that a person expecting a large shipment of drugs would

use his vehicle to transport those drugs. Accordingly, viewing the totality of the

                                           -7-
evidence in the light most favorable to the government, we conclude that the

affidavit established probable cause to search Mr. Howard’s vehicle. 1

      The judgment of the district court is AFFIRMED.


                                                   Entered for the Court



                                                   Paul J. Kelly, Jr.
                                                   Circuit Judge




1
      Based on this conclusion, we need not reach the district court’s alternative
holding regarding the applicability of the good-faith exception to the exclusionary
rule.

                                        -8-
