* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 2 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. CHRISTIAN JONES,

Defendant - Appellant. No. 02-1107 (D. Ct. No. 00-CR-439-S) (D. Colo.)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, BRORBY , Senior Circuit Judge, and O’BRIEN , Circuit Judge.

Defendant-Appellant Christian Jones pled guilty to possession with intent to distribute cocaine and cocaine base, in violatio n of 21 U.S.C. § 841(a)(1) and (b)(1)(B), reserving his right to appeal the distri ct court’s denial of his motion to suppress. Mr. Jones filed a timely notice of appea l on March 4, 2002. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.- 2 - I. B ACKGROUND Beginning in April 1999, federal agents in the Sout hern Colorado Drug Task Force (“Task Force”), a joint operation betwee n the Bureau of Alcohol, Tobacco, & Firearms (“ATF”) and the Drug Enforcement Administration (“DEA”), began a long-term investigation into the c ocaine trafficking activities of a number of individuals in Pueblo and Colorado Spri ngs, Colorado. ATF Special Agent James Deir was a member of the Task Force, ba sed in Colorado Springs, Colorado. On July 5, 2000, a confidential informant purchased $200 worth of crack cocaine from Lionel Amos. Approximately two hours later, the informant purchased an additional, similar amount of crack co caine from Amos. Task Force officials monitored both of these controlled purcha ses and subsequently set up a surveillance team to monitor Amos’ activities. On July 7, 2000, the informant attempted to page Am os in order to purchase more crack cocaine, but Amos did not respo nd. The informant told Task Force officials this meant that Amos was out of coc aine and going to Colorado Springs to resupply. On July 10, 2000, ATF Special Agent Deir set up a s urveillance team outside the apartment of Mapajuana Naki, in Colorad o Springs, Colorado. Task Force officials had observed Amos’ vehicle parked o utside Naki’s apartment and1 Following this search, Agent Pat Crouch, with the Colorado Bureau of

Investigation, interviewed Amos. During that interview, Amos denied that he had obtained the cocaine from 3928 Red Cedar Drive and instead claimed that he had stolen it on July 9, 2000. Amos also denied being at the defendant’s residence on July 10, 2000. The district court, however, found that Special Agent Deir was unaware of these statements at the time he prepared his affidavit, and we accept this finding as it is not clearly erroneous. - 3 - knew that Naki was Amos’ girlfriend. At approximat ely 11:40 a.m., Amos left Naki’s apartment. Special Agent Deir and other Tas k Force officials followed Amos to 3928 Red Cedar Drive – the residence of def endant and Celeste Abeyta. Amos remained at defendant’s residence for approxim ately four and one half hours before a taxi arrived at 3928 Red Cedar Drive from the airport. A woman, later identified as Abeyta, exited the taxi with on e bag and entered the house. Minutes later, Amos left defendant’s residence, bri efly returned to Naki’s apartment, and then proceeded southbound on Interst ate 25, toward Pueblo. Special Agent Deir, accompanied by Task Force offic ials and other state and local law-enforcement officers, followed Amos o n Interstate 25. During this surveillance, DEA Special Agent Mark Recht contacte d the Colorado State Patrol and informed them of their suspicions of Amos’ acti vity. At some point later, a Colorado State Patrol trooper, Steven Ortiz, stoppe d Amos based on his excessive speed, searched Amos’ car after he consented, and f ound approximately three ounces of cocaine. 1 On that same day, Special Agent Deir prepared an ap plication and affidavit- 4 -

for the issuance of a warrant to search the defenda nt’s residence at 3928 Red Cedar Drive. Special Agent Deir’s affidavit includ ed all the information chronicled above. In addition, Special Agent Deir stated that Amos routinely used women as carriers in his cocaine-trafficking b usiness, information he had learned during the course of the investigation, and noted further that, based on his law-enforcement experience, drug traffickers common ly use women to smuggle drugs on airplanes using single carry-on bags. Based on all this information, a magistrate in El P aso County issued a search warrant for defendant’s residence at 3928 Re d Cedar Drive. Special Agent Deir and other Task Force officials executed the wa rrant on July 11, 2000, and found seventeen grams of cocaine base and just unde r one kilogram of powder cocaine at defendant’s residence. Jones filed a motion to suppress the evidence foundat 3928 Red Cedar Drive, which the district court denied in an order dated November 28, 2001. This appeal followed.
II. D ISCUSSION On appeal, Jones argues that the district court err ed in denying his motion to suppress for two reasons: (1) the search warrant was not supported by probable cause; and (2) the good-faith exception announced i n United States v. Leon , 468 U.S. 897 (1984), does not apply. For the reasons s et forth below, we disagree- 5 -

with the first proposition and find it unnecessary to consider the second. A. Standard of Review In reviewing Jones’ Fourth Amendment suppression cl aim, we accept the district court’s factual findings unless they are c learly erroneous and view the evidence in the light most favorable to the distric t court’s ruling. United States v. Smith , 63 F.3d 956, 960 (10th Cir. 1995), vacated on oth er grounds , 516 U.S. 1105 (1995). The ultimate question of whether a Fo urth Amendment violation occurred, however, is an issue of law, which we rev iew de novo. Id

. B. Probable Cause The Fourth Amendment requires that “no Warrants sha ll issue, but upon probable cause, supported by Oath or affirmation, a nd particularly describing the place to be searched and the persons or things to b e seized.” U.S. C ONST
. A MEND IV. We recognize that “‘probable cause is a fluid concept – turning on the assessment of probabilities in particular factual c ontexts – not readily, or even usefully, reduced to a neat set of legal rules.’” United States v. Soussi , 29 F.3d 565, 568 (10th Cir. 1994) (quoting Illinois v. Gate s , 462 U.S. 213, 232 (1983)). An issuing magistrate must make a practical, common sense decision whether, given the totality of the circumstances set forth i n the affidavit, there is a fair probability that a search will reveal contraband orevidence of a crime in a particular place. Id

.- 6 -

“A reviewing court must give ‘great deference’ to t he magistrate’s determination of probable cause and should uphold that conclusion if the ‘totality of the information contained in the affidavit provi ded a substantial basis for finding there was a fair probability that evidence of criminal activity would be found.’” Id . at 568-69. In making this determination, the mag istrate may properly consider an affiant’s experience and expertise. Id . at 569. In this case, Jones alleges that the affidavit was deficient for three reasons: (1) the affidavit, which chronicled Special Agent D eir’s observation of Amos’ activities of July 10, 2000, did not support the ma gistrate’s probable-cause determination; (2) information in the affidavit sup plied by the confidential informant was unsubstantiated and uncorroborated; and (3) Special Agent Deir failed to provide adequate information about his tr aining and experience. For the reasons set forth below, we disagree. 1. Special Agent Deir’s Observation of Amos’ Activit ies on July 10,
2001 Jones first argues that Special Agent Deir’s observ ation of Amos’ activities on July 10, 2000, did not provide probable cause to support the search of his home. Jones is correct in pointing out that neithe r his association with Amos nor Amos’ mere presence at his residence, standing alon e, could give rise to probable cause to search his house. See United States v. Anderson , 981 F.2d 1560, 1566- 7 -

(10th Cir. 1992) (holding that, without more, agent s lacked probable cause to arrest defendant who visited a house that contained drugs, walked by the place of arrest of alleged co-conspirators, and parked in th e same parking lot with a UHaul previously seen at the same place). In this c ase, however, it was Amos’ presence at Jones’ home under all the surrounding c ircumstances that gave rise to probable cause. The relevant circumstances include the following: (1) the informant told Agent Deir that Amos would be travel ing to Colorado Springs to obtain more drugs; (2) Special Agent Deir observed Amos enter Jones’ residence and remain there for over four and one half hours; (3) Special Agent Deir observed Abeyta arrive from the airport in a taxi c arrying one bag, and, seven minutes later, Amos left Jones’ residence; (4) Spec ial Agent Deir provided the magistrate with statements indicating that drug tra ffickers commonly use air travel to smuggle drugs, oftentimes women with sing le carry-on bags; and (5) shortly after Amos left Jones’ residence, Colorado State Patrol troopers found him in possession of three ounces of cocaine. Thus, itwas not Amos’ mere presence at Jones’ Red Cedar Drive residence that gave rise to probable cause; rather, it was the “totality of the information” in the affidavit taken as a whole, which provided the magistrate with a “‘substantial basis for finding there was a fair probability that evidence of criminal activity woul d be found.’” Soussi , 29 F.3d at 568-69 (citation omitted).- 8 -

2. Confidential Informant’s Statements Jones next challenges the affidavit’s inclusion of the confidential informant’s statements, arguing that the informant’ s information was unsubstantiated and uncorroborated. We disagree. “In making a probable cause determination [involving a confidential informant], the issuing magistrate must examine the totality of the circumstances set forth in the affidavit, including an informant’s veracity and basis of knowledge.” Unit ed States v. Danhauer , 229 F.3d 1002, 1006 (10th Cir. 2000). We have previous ly held that “the successful completion of [a] controlled buy . . . [is] suffici ent to establish the reliability of the informant.” Smith , 63 F.3d at 961. Further, “[w]hen there is suffic ient independent corroboration of an informant’s information, there is no need to establish the veracity of the informant.” Danhauer , 229 F.3d at 1006. In this case, the informant’s successful completionof two controlled purchases of cocaine demonstrated her familiarity w ith Amos and personal knowledge of his drug-trafficking activities. Cf. Smith , 63 F.3d at 961. Further, Special Agent Deir provided “independent corroborat ion” in his affidavit, see Danhauer , 229 F.3d at 1006. Specifically, Deir stated thatColorado State Patrol troopers found Amos in possession of cocaine shortl y after leaving Jones’ residence. Thus, the magistrate reasonably relied on the informant’s statements contained in Special Agent Deir’s affidavit in maki ng his probable-cause- 9 -

determination. 3. Special Agent Deir’s Training and Experience Finally, Jones challenges the sufficiency of the af fidavit based on the fact that Special Agent Deir failed to provide adequate detail about his training and experience. Although Special Agent Deir did not li st his specific training in the affidavit, he did note that he was an ATF agent wor king with the Southern Colorado Drug Task Force, a joint operation betweenthe ATF and the DEA. Further, Special Agent Deir indicated in the affidavit that he was intimately involved in the investigation of this case. The fa ct that Special Agent Deir did not include an exhaustive account of his relevant e xperience does not alter the reasonableness of the magistrate’s probable-cause d etermination. Jones specifically challenges Special Agent Deir’s statement in the affidavit that, based on his experience, drug traff ickers routinely use females on commercial planes to smuggle narcotics. We agree w ith the district court that even the slightest familiarity with drug traffickin g could support this opinion. Certainly, this would be well within the training a nd experience of an ATF agent working with a drug task force. Because we affirm the district court’s finding th at the warrant was supported by probable cause, we need not address the applicability of the Leon good-faith exception.- 10 - III. C ONCLUSION Based on the foregoing, we AFFIRM the district court’s denial of Jones’ motion to suppress and AFFIRM his conviction under 21 U.S.C. § 841(a)(1) and (b)(1)(B). ENTERED FOR THE COURT,

Deanell Reece Tacha Chief Circuit Judge