                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                December 23, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 09-6201
          v.                                           (W.D. Oklahoma)
 CHARLEY EDWIN GENTRY,                          (D.C. No. 5:08-CR-00320-R-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, HOLLOWAY, and O’BRIEN, Circuit Judges.



I.    Introduction

      After appellant Charley Edwin Gentry was charged in a three-count

indictment with drug and firearms crimes, he filed a motion to suppress evidence

seized during a warrant-based search of his residence. He argued the affidavit

supporting the search warrant contained material misrepresentations and

omissions, without which no warrant would have been issued. Gentry also

requested a Franks hearing. See Franks v. Delaware, 438 U.S. 154, 171-72


      *
        This order and judgment is not binding precedent except under the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.
(1978). After the district court denied the motion, Gentry pleaded guilty to all

three counts. In the written plea agreement, he reserved his right to appeal the

denial of his motion to suppress. Gentry now challenges the district court’s

refusal to suppress the evidence obtained during the search and its refusal to hold

a Franks hearing. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we

affirm the district court’s decision.

II.   Background

      Beginning on June 23, 2008, officers from the Stephens County Sheriff’s

Department and the Duncan City Police Department began surveilling Gentry’s

Oklahoma residence in connection with an investigation into methamphetamine

trafficking. On June 26, officers obtained a search warrant authorizing a search

of the residence. That warrant was supported by an affidavit from Todd Nunley,

a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives.

The affidavit recounted that Gentry was a known methamphetamine user with

prior felony convictions for possession of methamphetamine and conspiracy to

distribute methamphetamine. The affidavit also contained facts gathered during

the surveillance, including the following.

      Over the course of three consecutive days and eighteen hours of

surveillance, officers observed fifty-four vehicles arrive at Gentry’s residence and

leave within a short period of time. Most of the visitors were known to

investigators to be methamphetamine users and three were known to manufacture

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methamphetamine. On June 25, officers observed an individual named Craig

Briscoe arrive at Gentry’s residence, enter, and depart a short time later. Officers

stopped Briscoe’s vehicle after they observed he was not wearing a seat belt.

Before pulling over, Briscoe threw items from his vehicle. The items were

retrieved and identified as a smoking pipe and a baggie containing a substance

which field-tested positive for methamphetamine. Briscoe confirmed that he had

been to Gentry’s residence. He also told the officers he would test positive for

the use of methamphetamine if tested. Briscoe was subsequently charged with

possession of methamphetamine.

      Later the same afternoon, officers stopped a second vehicle after the driver,

later identified as Francis Newkirk, was observed entering Gentry’s home and

exiting five minutes later. Officers initiated the stop when Newkirk failed to

signal a left turn. She was detained and eventually arrested for operating a motor

vehicle with a suspended driver’s license. When officers searched Newkirk’s

vehicle, they discovered methamphetamine, marijuana, and drug paraphernalia in

her purse. An additional amount of methamphetamine was found in her clothing

when she was processed at the Stephens County Jail.

      Believing that evidence might be destroyed or removed from Gentry’s

residence, officers decided to conduct a “knock and talk.” Deputy Rodney

Richards stated he forced his way into the home when he heard what sounded like

individuals running through the residence. Richards also stated he was

                                         -3-
overwhelmed by a chemical odor he associated with the manufacture of

methamphetamine once Gentry’s front door was opened. Officers searched the

home but found no one inside. When they exited the rear door, they found Gentry

outside. Gentry told the officers an individual named John was inside. When

officers failed to find John in the home, Gentry indicated he had exited the

residence and run to the south. Gentry’s statement was corroborated by a patrol

officer who observed a man running southward from Gentry’s home.

      On June 26, officers conducted a search of Gentry’s home pursuant to the

warrant obtained earlier in the day from a United States magistrate judge. Among

other things, they seized a plastic bag containing 1.9 grams of methamphetamine;

a bag containing 249 grams of red phosphorus, which contained a detectable

amount of methamphetamine; and assorted ammunition. Gentry was charged in a

three-count indictment with possession with intent to manufacture, distribute, and

dispense fifty grams or more of a mixture and substance containing a detectable

amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1); knowingly

and intentionally maintaining his residence for the purpose of distributing and

using methamphetamine, in violation of 21 U.S.C. § 856(a)(1); and being a felon

in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1).

      After Gentry was indicted, he moved to suppress the evidence found during

the June 26th search of his residence. He argued the evidence obtained during the

warrantless search of his home on June 25 could not serve as a basis for probable

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cause for the search warrant obtained and executed on June 26 because the June

25th search was conducted in violation of the Fourth Amendment. He also argued

Agent Nunley intentionally omitted information from his affidavit which, if

disclosed, would have caused the magistrate to refuse to issue the warrant. The

district court assumed, arguendo, that the June 25th warrantless entry into

Gentry’s home was not justified by exigent circumstances and excised from the

affidavit the evidence discovered during that search. See United States v.

Finnigin, 113 F.3d 1182, 1186 (10th Cir. 1997) (evaluating the sufficiency of an

affidavit after first excising suppressed statements). Specifically, the court

conducted its probable cause analysis without considering Deputy Richards’s

statement that he was “overwhelmed” by a smell he associated with the

manufacture of methamphetamine when he opened the front door to Gentry’s

residence. The court concluded that even without this statement, Agent Nunley’s

affidavit still provided the magistrate with a substantial basis for concluding

probable cause existed to support the warrant. The court further concluded that

none of the information Gentry alleged was intentionally omitted from Agent

Nunley’s affidavit was material to the magistrate’s probable cause determination.

Accordingly, the district court denied Gentry’s motion to suppress and concluded

a Franks hearing was not necessary.




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III.   Discussion

       A.    Probable Cause Determination

       The ultimate legal determination of whether a search was reasonable under

the Fourth Amendment is reviewed de novo. See United States v. Grimmett, 439

F.3d 1263, 1268 (10th Cir. 2006). When conducting our review, we accept the

factual findings made by the district court unless they are clearly erroneous. Id.

Here, Gentry argues Agent Nunley’s affidavit was insufficient to support the

magistrate judge’s probable cause determination. When a search is done pursuant

to a warrant, we are tasked with ensuring the issuing judge “had a substantial

basis for concluding that the affidavit in support of the warrant established

probable cause.” Id. (quotations omitted).

       Gentry asserts that any evidence discovered during the warrantless search

of his residence on June 25 cannot be considered in the probable cause

determination because the search violated the Fourth Amendment and, thus, the

evidence was obtained illegally. See Finnigin, 113 F.3d at 1185 (excising

suppressed statements from a supporting affidavit). The district court declined to

decide whether the June 25th warrantless entry into Gentry’s residence violated

the Fourth Amendment. Instead, it assumed for purposes of the motion that the

entry was unlawful. It then followed the approach taken by this court in Finnigin

and evaluated the magistrate’s probable cause determination without considering

the challenged evidence. See id. at 1185-86. Specifically, the district court

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refused to credit Deputy Richards’s statement that he was overwhelmed by a

smell he associated with the manufacture of methamphetamine when he opened

the door to Gentry’s residence.

      Gentry does not disagree with the approach taken by the district court. He

argues, instead, that the district court failed to excise all improperly obtained

information from Agent Nunley’s supporting affidavit. Gentry alleges the court

should not have considered Deputy Richards’s statement that he heard individuals

running through the residence after he knocked and announced his presence at

Gentry’s front door. The record, however, indicates Richards heard the noise

while standing in front of Gentry’s closed exterior door. Gentry does not explain

why he had an expectation of privacy with respect to the area near his front door.

Cf. United States v. Santana, 427 U.S. 38, 42 (1976) (holding defendant standing

in the doorway of her home was in an area where she had no expectation of

privacy for Fourth Amendment purposes). We will assume for purposes of our

review, however, that the district court should not have considered Richards’s

statement when it made its probable cause determination. Accordingly, we will

excise from Agent Nunley’s affidavit all information obtained during the June 25

warrantless search, including Deputy Richards’s statement that he heard the sound

of individuals running through Gentry’s residence and his statement that upon

opening Gentry’s front door he was overwhelmed by a chemical smell he

associated with the manufacture of methamphetamine.

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        Even without Deputy Richards’s statements, Agent Nunley’s affidavit

alleged facts sufficient to establish probable cause. The affidavit contains

uncontested statements that Gentry was a known methamphetamine user who had

previously been convicted of possessing and distributing methamphetamine. This

information on Gentry’s criminal history contributed to probable cause and

corroborated tips by confidential informants, included in Nunley’s affidavit, that

Gentry was involved in the manufacture and/or distribution of methamphetamine.

See United States v. Artez, 389 F.3d 1106, 1114-15 (10th Cir. 2004). These tips

were further corroborated by the three days of police surveillance which

“show[ed] an unusually high volume of visitors briefly entering and leaving

[Gentry’s] residence, consistent with drug trafficking.” United States v. Corral,

970 F.2d 719, 727 (10th Cir. 1992); see also Artez, 389 F.3d at 1114 (concluding

such activity can be used to “corroborate information from a confidential

informant that the residence is being used to distribute narcotics”). Gentry does

not dispute the previous convictions or the number of short-term visitors to his

home.

        Agent Nunley’s affidavit also stated that the short-term visitors to Gentry’s

home were known users of methamphetamine. Gentry challenges this statement

on the grounds that the affidavit does not identify the source of this information

and, thus, it is unreliable. We have previously held that “the complete failure of

an affidavit to discuss the reliability of an informant does not automatically

                                          -8-
preclude a finding of probable cause.” United States v. Avery, 295 F.3d 1158,

1167 (10th Cir. 2002). “When there is sufficient independent corroboration of an

informant’s information, there is no need to establish the veracity of the

informant.” United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000);

see also Corral, 970 F.2d at 727 (“All that is required to support probable cause

is that enough information—beyond the mere conclusions of the affiant—be

presented to the magistrate to enable him to make the judgment that the charges

are not capricious and are sufficiently supported to justify bringing into play the

further steps of the criminal process.” (quotation omitted)). Here, the statement

was corroborated when officers found methamphetamine and drug paraphernalia

in the possession of both Briscoe and Newkirk after each had briefly visited

Gentry’s home. This corroborating information was included in Nunley’s

affidavit and presented to the magistrate judge. Although Gentry argues the

investigating officers had no reason to believe that Briscoe and Newkirk obtained

the drugs while at his residence, this argument misses the mark. Even if Briscoe

and Newkirk obtained the drugs elsewhere, their arrests still corroborated the

statements in Nunley’s affidavit that visitors to Gentry’s home were known

methamphetamine users. Further, because Gentry has a prior felony conviction

for conspiracy to distribute methamphetamine and officers observed Briscoe and

Newkirk make short-term visits to Gentry’s home, it was not unreasonable for the




                                         -9-
magistrate judge to infer that Briscoe and Newkirk obtained the drugs from

Gentry.

      Even with both of Deputy Richards’s statements excised, we conclude

Agent Nunley’s affidavit provided the magistrate judge with a substantial basis

for determining probable cause existed because the remaining information “in the

affidavit would warrant a [person] of reasonable caution to believe that evidence

of a crime [would] be found at” Gentry’s residence. Artez, 389 F.3d at 1113

(quotation omitted). Accordingly, the district court properly denied Gentry’s

suppression motion.

      B.     Entitlement to a Franks Hearing

      Gentry also argues the district court erred by refusing to conduct a Franks

hearing. If an affidavit filed in support of a search warrant contains intentional or

recklessly asserted material falsehoods, it cannot provide probable cause to

support the warrant. Franks, 438 U.S. at 164-65. Gentry argues, as he did before

the district court, that Agent Nunley’s affidavit omitted material information. A

district court is not required to hold a hearing on the sufficiency of an affidavit

unless the defendant makes a “substantial preliminary showing that a false

statement knowingly and intentionally, or with reckless disregard for the truth,

was included by the affiant” and “the allegedly false statement [was] necessary to

the finding of probable cause.” Id. at 155-56. The district court refused Gentry’s

request for a Franks hearing, concluding Gentry failed to make a substantial

                                          -10-
showing that Agent Nunley’s affidavit contained material omissions. Gentry

asserts the district court’s ruling is reviewed for abuse of discretion; the

Government notes this court has not adopted a standard of review but other

Circuit Courts of Appeals apply either a clear error standard or a de novo

standard. See United States v. Archuleta, 222 F. App’x 710, 715 (10th Cir. 2007)

(collecting cases). Because the issue has not been fully briefed by the parties, we

decline to decide which standard of review to apply because the district court’s

ruling survives even a de novo review.

      Gentry identifies three facts not included in Agent Nunley’s affidavit.

First, on June 25, investigating officers stopped Harold Thompson as he left

Gentry’s house but a subsequent search of Thompson’s vehicle did not uncover

any drugs. Officers also stopped Cindy Brooks on June 25 and, again, did not

find any drugs. Finally, the large number of visitors to Gentry’s home on one day

can be explained by the funeral of Gentry’s friend, Kelly Weldon.

      Even assuming these assertions are true, we agree with the district court

that Gentry wholly failed to make a substantial preliminary showing that any of

this information was material to the probable cause determination. Although

officers did not find drugs when Thompson and Brooks were stopped, this does

not undermine the fact that they did find drugs when Briscoe and Newkirk were

stopped. The Weldon funeral does not explain the large number of visitors to

Gentry’s home on the remaining two days of surveillance and, additionally, does

                                          -11-
not negate the officers’ observations that each visitor stayed for a very short

period of time. Accordingly, Gentry failed to make a preliminary showing that

the information he alleged was omitted from Nunley’s affidavit was material to

the magistrate judge’s probable cause determination.

      Gentry also argues he was entitled to a Franks hearing so he could explore

the veracity of Deputy Richards. This court, however, has concluded that Agent

Nunley’s affidavit is sufficient even when the two contested statements of Deputy

Richards are not considered and Gentry has not specifically identified any other

material omissions or misrepresentations in the affidavit attributable to Richards.

See Franks, 438 U.S. at 171 (“[T]he challenger’s attack must be more than

conclusory and must be supported by more than a mere desire for cross-

examination. There must be allegations of deliberate falsehood or of reckless

disregard for the truth, and those allegations . . . should point out specifically the

portion of the warrant affidavit that is claimed to be false . . . .”). Accordingly,

this argument also fails.

IV.   Conclusion

      The denials of Gentry’s motion to suppress and his request for a Franks

hearing are affirmed.

                                                 ENTERED FOR THE COURT


                                                 Michael R. Murphy
                                                 Circuit Judge

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