* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The 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 

### JAN 5 1999 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. RICHARD W. BUTTON, Defendant-Appellant. No. 97-2367 (D.C. No. CR-97-304-LH) (New Mexico)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, PORFILIO and BRORBY, Circuit Judges.

Richard Button pled guilty under 18 U.S.C. § 922(g) (1) and 18 U.S.C. § 924(a)(2) as a convicted felon unlawfully in posses sion of firearms. He was sentenced to thirty months imprisonment and two years supervised release. He appeals the district court’s denial of his motion t o suppress evidence, contending that the search warrant which led to the discovery of firearms at his home was not-2-

supported by probable cause. We affirm. On May 1, 1997, United States Magistrate Judge Galv an issued a search warrant for Mr. Button’s residence based on an affi davit DEA Special Agent James Baker submitted to him. The affidavit descri bed an ongoing drug trafficking conspiracy dating from 1989, with three drug seizures linked to Stephen Michael Pollack and those working with Mr. Pollock. Aplt. App., doc. 2 at 5-20. In a drug raid related to Mr. Pol lock’s alleged conspiracy, the police found Mr. Button’s phone number next to Mr. Pollock’s in a confiscated notebook. Id. at 16. The affidavit also indicated that a cooper ating source (CS2) had told agents Mr. Button was a courier of narcoti cs for Mr. Pollack. Id. at 17. Among other details, the source stated that Mr. Pol lack’s conspiracy involved drug trafficking in Alamogordo, New Mexico, and Dur ango, Colorado. Id. at 16. The affidavit showed police corroborated CS2's info rmation by telephone records between Mr. Pollock and Mr. Button, agent surveillance of Mr. Button’s car in Mr. Pollack’s drive, information showing Mr. Button ’s residence in Alamogordo, New Mexico, and Mr. Pollack’s residence in Durango, Colorado, and information provided by New Mexico state police that they had an informant who also said Mr. Button was a courier for Mr. Pollack. Id. at 16-17, 20. Agents executed the warrant at Mr. Button’s residen ce on May 2, 1997, and seized a semi-automatic pistol and a rifle. Mr. Button filed a motion to suppress-3-

evidence seized during the search, asserting the un derlying affidavit to the warrant was defective. The district court denied M r. Button’s motion. On August 8, 1997, Button entered a conditional plea of guilty and reserved his right to appeal the district court’s denial of his motion to suppress. We review whether a magistrate or judge properly is sued a search warrant by determining whether there was a “substantial bas is” for probable cause. Illinois v. Gates , 462 U.S. 213, 236 (1983). The task of the issuing magistrate is simply to mak e a practical common-sense decision whether, given all the circum stances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensu re that the magistrate had a “substantial basis for . . . concl ud[ing]” that probable cause existed. Id. at 238-39 (citations omitted). In making this det ermination, we view the totality of the evidence. United States v. Cusuman o , 83 F.3d 1247, 1250 (10th Cir. 1996) (en banc). While “probable cause does not demand the certaintywe associate with formal trials,” Gates , 462 U.S. at 246, we recognize that a magistrate o r judge must rely on more than a “mere ratification of the bare conclusions of others,” id. at 239. In particular, an affidavit containing onl y an informant’s tip would be unsatisfactory. However, corroborating evidence is one way to cure the insufficiencies. Id. at 241-42.-4-

In Gates , for example, the Supreme Court held that a corrob orated anonymous letter was sufficient basis for a search warrant. Police surveillance showed the reliability of the informant’s predictio ns on the Gates’ car location in Florida, Lance Gates’ flight to Florida, and his su bsequent drive northward. The Supreme Court held that the added reliability suffi ciently supported the magistrate judge’s determination of probable cause for a searc h warrant. Id. at 244. In the present case, Mr. Button contends that the u nderlying affidavit was defective because C2's information was not adequate ly corroborated, the totality of the evidence was primarily insufficient hearsay, and the reliance on his former 1989 conviction was stale evidence. We are not per suaded. . Mr. Button’s case is similar to Gates . Special Agent Baker submitted an affidavit that contained C2's information and corro borating investigative work. C2 asserted a link between Mr. Pollack and Mr. Butt on. In support, the affidavit described telephone logs between the two and survei llance evidence of Mr. Button’s car in Mr. Pollack’s drive. C2 alleged th at drug activity took place in Alamogordo, New Mexico, and Durango, Colorado. In corroboration, the affidavit presented evidence that Mr. Button lived in the first city and visited Mr. Pollack in the second. The affidavit also noted th at Mr. Button’s name and number were found next to Mr. Pollack’s in a previo us drug bust and that another informant had reported Mr. Button as a drug courierfor Mr. Pollack.-5-

In reviewing the record, we hold that the affidavitprovided a range of sensibly connected evidence beyond bare conclusions and that the totality of the evidence supports a “substantial basis” for a searc h warrant. For the reasons given above, we AFFIRM the districtcourt’s denial of the motion to suppress. ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge