* This order and judgment is not binding precedent, e xcept under the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

### DEC 24 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 01-2341

v. (D. New Mexico) SAMUEL ALLEN PRINGLE,

Defendant - Appellant. (D.C. No. CR-00-1242-LH)

ORDER AND JUDGMENT *

Before O’BRIEN , McWILLIAMS , and ANDERSON , Circuit Judges.

Reserving the right to appeal the district court’s denial of his motion to suppress evidence, Appellant Samuel Pringle pled gu ilty to possessing with intent to distribute more than 50 grams of a substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)B), and 18 U.S.C. § 2, and was sentenced to 70 months imprisonment. On appeal, Mr . Pringle contends that: (1) when stripped of improper material, the affidavit i n support of the search warrant-2-

was insufficient to establish probable cause; (2) the warrant was not sufficiently particular in its description of the items to be se ized or the criminal activity alleged; and (3) the officers exceeded the scope of the warrant when they opened a locked safe in Pringle’s residence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

BACKGROUND On the evening of August 16, 2000, Officers Scott and Briseno of the Region II Narcotics Task Force in New Mexico conduc ted a “knock and talk” at the home of Samuel Pringle and Darcy Clevenger. Th e previous day a fellow narcotics officer, Officer Burnham, had told them t hat two sources, a confidential informant with whom he was working and an anonymous concerned citizen, had informed him that Pringle was growing and drying marijuana in his house. Without getting a warrant, Scott and Briseno procee ded to Pringle’s house in hopes of getting further information supporting probable cause to search the house. As they approached the house, Scott noticeda strong scent of air freshener, which, from his training, he knew was of ten used by drug dealers to mask the smell of drugs. When Pringle opened the d oor Scott smelled an “overwhelming” odor of “raw” marijuana coming from inside the house, whereupon the officers sought, but were denied, permission to enter the house and-3-

talk with Pringle. Scott informed Briseno, who hadalso smelled the marijuana, that he had smelled marijuana. He then asked Pring le if anyone else was in the house. Pringle told them that only Darcy Clevenger , his girlfriend, was inside. Officer Briseno stepped inside the home and asked C levenger to come outside. After she complied he conducted a quick s weep of the house because he feared someone else might be inside destroying evid ence. He also believed the sweep was necessary to insure his and Scott’s safety against potential attack from others who might still be inside the house. While inside, Briseno saw growing marijuana plants as well as marijuana drying. While Briseno was conducting the sweep, Scott told Pringle that he had smelled a strong odor of marijuana coming from insi de the house. According to Scott, Pringle replied that he smoked a lot of mari juana and that there was a quarter or a half pound of marijuana inside the hou se. After Briseno was finished with the sweep, Scott as ked Pringle if they could continue the conversation inside the house. Scott claimed, and Pringle denied, that Pringle consented. In any event, the questioning moved inside the house. While inside the house, Scott saw growing m arijuana plants and marijuana drying. Together with backup officers who had since arrivedat the scene, Briseno detained Pringle and Clevenger while Scott went to get a warrant. In his affidavit-4-

requesting a warrant, Scott relied on the following facts to establish probable cause: (1) the tip from the confidential informant ; (2) the tip from the anonymous concerned citizen; (3) the overpowering smell of ai r freshener; (4) the smell of raw marijuana emanating from the house; (5) Pringle ’s statement that there was a quarter pound of marijuana inside the house; (6) Pr ingle’s statement that he smoked a lot of marijuana; (7) Officer Briseno’s ob servation of marijuana inside the house; and (8) Officer Scott’s observation of m arijuana inside the house. The magistrate judge issued a warrant directing the pol ice to search anything within the curtilage of the house and to seize any item am ong a long list of items related to drug use, manufacture, and sale. Scott then returned with the warrant, and the offic ers commenced a search. In the course of the search the officers found two locked safes in one of the bedrooms. Scott obtained the keys from Pringle andopened the safes. In one of the safes he found a substance that was identified as methamphetamine. Pringle was charged with possessing with intent to distribute more than 50 grams of a substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)B), and 18 U.S.C. § 2. Subsequently Pringle filed a motion in district cou rt to suppress the evidence obtained during the search of his home. H e argued that the evidence should be suppressed because: (1) he alleged that some of the information upon1 It is not clear from the district court’s opinion w hether it also excluded

items 5 and 6 – the statements allegedly made by th e Appellant that there was a quarter pound of marijuana in the house and that he smoked a lot of marijuana. It is clear, however, that the district court did not rely on these statements in its opinion. Because we find that even without these s tatements there were sufficient facts on the record for the magistrate to have a su bstantial basis to find probable cause, we need not determine whether these statements were illegally obtained. -5- which probable cause was based was illegally obtain ed and when that information was excluded from consideration, the affidavit did not provide sufficient basis to find probable cause; (2) the warrant was not suffic iently particular because it allowed the officers to seize “anything within the curtilage” of the house, the list of items to be seized did not effectively constrain the officers, and the allegation of criminal activity was not specific enough; and ( 3) the officers exceeded the scope of the warrant by opening a locked safe that was found in the residence. After a hearing, the district court found that Prin gle had not consented, either initially or after Briseno’s protective swee p, to a search of his house and that there were no exigent or other circumstances j ustifying a warrantless entry into the house. Therefore, the court excluded items 7 and 8 1 (the marijuana seen by the officers inside the house) from the affidavi t. It then found that the remaining evidence in the affidavit was sufficient to establish a substantial basis for probable cause. The court rejected Pringle’s o ther arguments for suppression and denied his motion to suppress.-6-

On appeal, Pringle renews the arguments he made in his motion to
suppress.

DISCUSSION
I. Probable Cause for the Issuance of the Warrant The Fourth Amendment provides that “no Warrants sha ll issue, but upon probable cause.” U.S. Const. amend IV. “In determ ining whether probable cause supported the issuance of a search warrant, we give ‘great deference’ to the decision of the issuing magistrate.” United States v. Cusumano , 83 F.3d 1247, 1250 (10th Cir. 1996) (quoting United States v. Williams , 45 F.3d 1481, 1485 (10th Cir. 1995)); see Illinois v. Gates , 462 U.S. 213, 236 (1983). Accordingly we ask only whether the issuing magistrate had a “s ubstantial basis” under the totality of the circumstances for finding probable cause. See Gates , 462 U.S. at 238; see also Cusumano , 83 F.3d at 1250 . “In our review, we may disregard allegedly tainted material in the affidavit and askwhether sufficient facts remain to establish probable cause.” Cusumano , 83 F.3d at 1250 (citing Franks v. Delaware , 438 U.S. 154, 171-72 (1978)). As indicated above, the district court found that b ecause the initial entry into the house was improper, the evidence obtained while Officers Briseno and Scott were in the house prior to obtaining the sear ch warrant could not be a part2 The district court’s ruling on the motion to suppre ss focused largely on the

smell of marijuana as the basis for probable cause. Though it is not clear whether the district court found probable cause on the basi s of smell alone, we need not pursue the point since the affidavit as excised all eged more than smell. See Ruiz v. McDonnell , 299 F.3d 1173, 1182 (10th Cir. 2002) (noting that“we may affirm on any grounds supported by the record”). -7- of the probable cause calculus. See Mem. Op. and Order at 7 R. Vol. I, tab 39. After excising that material, the following facts f rom the affidavit remained: (1) a confidential informant, with whom a fellow na rcotics officer was working, informed the police that Pringle was growing and drying marijuana in his home; (2) an anonymous concerned citizen provided a simil ar tip; (3) Officer Scott smelled a strong odor of air freshener, which he kn ew was used to mask the odor of controlled substances, emanating from the house prior to knocking on the door; and (4) Officer Scott smelled the odor of “raw mari juana” coming from inside the house when Pringle opened the door. 2 Pringle first argues that the evidence from the con fidential informant should be treated as an anonymous tip because there is nothing in the affidavit that attests to the informant’s basis of knowledge or reliability as a source of information. We disagree. The affidavit avers that the confidential informant was a person with whom Officer Burnham, a police of ficer in the Narcotics Division, was working. The magistrate could reason ably deduce that a confidential informant working with an officer in t he Narcotics Division was-8-

known to the officer and that the information given was more reliable than an anonymous tip. Supported by this and the facts reg arding odor discussed below, the information given by the anonymous tipster coul d also be taken into account by the magistrate in the affidavit. Pringle next challenges the odor evidence. He alle ges that the district court’s factual finding that the officers smelled m arijuana when Pringle opened the door was clearly erroneous. We review the district court’s factual findings for clear error and interpret all evidence in the lightmost favorable to the district court’s ruling. United States v. Hudson , 210 F.3d 1184, 1190 (10th Cir. 2000). Viewed in the light most favorable to the government, Officer Scott’s testimony at the hearing on the motion to suppress that there were fans blowing directly from the rooms where the marijuana was drying to th e front door was sufficient to establish that, notwithstanding the relatively smal l amount of marijuana and the attempts to mask its smell, the officers could have smelled the marijuana while standing on the front porch. Tr. of Mot. to Suppre ss Proceedings at 41-42, R. Vol. III. Pringle also contends that Officer Scott’s affidavi t does not suffice under the standard established in Johnson v. United States , 333 U.S. 10 (1948) because the magistrate had no basis on which to conclude th at Scott was trained to detect the odor of marijuana. Id . at 13 (holding that magistrate must find affiant-9-

qualified to recognize an odor). To the contrary, the affidavit avers that Scott has received training in “the detection . . . of crimes relating to the controlled substance laws of the State of New Mexico.” Aff. f or Search Warrant at 3, R. Vol. I, tab 20, Exhibit C. It also established that he was assigned to the Region II Narcotics Enforcement Task Force. See id . Evidence of training and experience in the field of drug crime investigation is suffici ent to establish a substantial basis on which the magistrate could conclude that OfficerScott was trained to recognize the odor of marijuana. The magistrate co uld also conclude that Scott’s training alerted him to the use of air freshener as a masking agent, thus giving the magistrate an additional factor to consider in his probable cause determination. We conclude that the facts remaining in the affidav it were more than sufficient for the magistrate properly to conclude that there was a substantial probability that contraband – marijuana – and evide nce of a crime – cash and other accouterments of drug manufacture and sale – would be found at the location specified in the search warrant.

II. Scope of the Warrant Pringle claims that the warrant was insufficiently particular in three ways: (1) it allowed the officers to seize “anything with in the curtilage” of the house; (2) the length of the list of items to be seized to gether with language that the-10-

search was “not limited to” those items gave the of ficers too much discretion in what they could seize; and (3) the warrant did not adequately describe the criminal activity alleged. We review all of these claims de novo. See United States v. Guidry , 199 F.3d 1150, 1154 (10th Cir. 1999). The Fourth Amendment requires that a warrant “descr ibe the items to be seized with sufficient particularity to prevent a ‘ general, exploratory rummaging in a person’s belongings.’” United States v. Snow , 919 F.2d 1458, 1461 (10th Cir. 1990) (quoting Coolidge v. New Hampshire , 403 U.S. 443, 467 (1971)). “The particularity requirement ensures that a searc h is confined in scope to particularly described evidence relating to a speci fic crime for which there is demonstrated probable cause.” Voss v. Bergsgaard , 774 F.2d 402, 404 (10th Cir. 1985). “We apply a practical test to this requirem ent . . . . [A] warrant’s description of things to be seized is sufficiently particular if it allows the searcher to reasonably ascertain and identify the things authorized to be seized.” United States v. Finnigin , 113 F.3d 1182, 1186-87 (10th Cir. 1997) (quotatio n omitted). Pringle cites no case to support his first argument , that a warrant authorizing the police to search “anything within t he curtilage” is insufficiently particular in its description of the items to be se ized. Taken in context, the language Pringle challenges describes the place to be searched, not the items to be seized. See Aff. for Search Warrant at 3-4, R. Vol. I, tab 20, Exhibit C. Indeed,-11-

he concedes that he “does not argue that there were areas at the residence where officers could not go using the warrant.” Appellant’s Br. at 28. Therefore his attack on the “anything within the curtilage” langu age is misplaced. Pringle next challenges the list of items to be sei zed. The warrant directed the officers to seize: drugs packaging materials such as baggies, tools fo r cutting, such as razor blades or knives, scales for weighing [drugs] , booklets on how to cultivate marijuana, equipment used to cultivate marijuana, and records of their illicit dealings on notepads or other similar paper products, or on computer hard drives or floppy driv es . . . cash . . . property which may indicate ownership or use of the above described location and vehicles, including, but not limited t o letters addressed to the occupants, insurance and registration papers , notes, photos, and clothes that indicate the size, age and sex of the occupants. Aff. for Search Warrant at 5, R. Vol. I, tab 20, Ex hibit C. He cites no case supporting his argument that lists such as this vio late the Fourth Amendment. Furthermore, we have upheld a nearly identical warr ant, which also included a “but not limited to” clause. See United States v. Sullivan , 919 F.2d 1403, 1424 and n.31 (10th Cir. 1990). Though broadly drawn, i n cases dealing with probable drug trafficking, such lists provide the particular ity that allows searchers to “reasonably ascertain and identify the things autho rized to be seized,” as required by the Fourth Amendment. Finnigin , 113 F.3d at 1187 (quotation omitted); see United States v. Wicks , 995 F.2d 964, 973 (10th Cir. 1993) (“We have uphe ld search warrants cast in comparably broad terms, whe re the subject of the search-12-

was a drug trafficking or drug dealing business, an d where circumstances permitted only a more general listing of the items to be seized.”). While we recognize that the warrant in this case authorized the officers to examine many documents and items of a personal nature, “allowing some latitude in this regard simply recognizes the reality that few people keep documents of their criminal transactions in a folder marked ‘drug records.’” United States v. Riley , 906 F.2d 841, 845 (2nd Cir. 1990). Finally, Pringle argues that the search warrant was insufficiently particular because it did not specify whether the criminal act ivity alleged was “drug possession, drug manufacture, or drug distribution. ” Appellant’s Br. at 28. Pringle cites no case requiring the type of specifi city that he seeks. Rather, what is required of a warrant, including its descriptionof the criminal activity alleged, is that it “allow the executing officers to disting uish between items that may and may not be seized.” United States v. Leary , 846 F.2d 592, 602 (10th Cir. 1998). We conclude that the description of criminal activi ty in the affidavit, which was incorporated into the search warrant, was specific enough to accomplish this
purpose.3 Pringle argues for the first time on appeal that wi thout the observation of

the marijuana by Officers Scott and Briseno when th ey were illegally in the house there would be no basis to conclude that Pringle wa s selling marijuana rather than simply growing it for personal consumption. There would, therefore, be no basis to search for cash, thus undermining the district c ourt’s ruling that the search for cash justified the opening of the safes. We review arguments raised for the first (continued...) -13- III. Search of the Safes Pringle’s final argument is that a warrant authoriz ing a search of a house does not authorize the search of locked safes withi n the house. In effect, he contends that every time the police find a locked s afe they must suspend the search to get an additional warrant. We disagree.

A lawful search of fixed premises generally extends to the entire area in which the object of the search may b e found and is not limited by the possibility that separate acts of en try or opening may be required to complete the search. Thus, a warran t that authorizes an officer to search a home for illegal weapons als o provides authority to open closets, chests, drawers, and containers in which the weapon might be found . . . . [N]ice distinctio ns between closets, drawers, and containers . . . must give way to the interest in the prompt and efficient completion of the task at hand

. United States v. Ross , 456 U.S. 798, 820-21 (1982) (footnote omitted). “This rule applies equally to all containers.” Id . at 822. Following this rule, we have allowed the search of a locked safe where the items in the search warrant were likely to be found therein. See Snow , 919 F.2d at 1461 (“The locked safe was a likely source for the specified documents and couldtherefore be opened.”). Here the warrant directed the officers to seize cash. 3 A locked safe is a “likely source”3 (...continued)

time on appeal for plain error. United States v. A very , 295 F.3d 1158, 1182-82 (10th Cir.), cert. denied , 123 S. Ct. 546 (2002). There was no plain error here. -14- for cash. Therefore, as the district court found, the search warrant directing the officers to search for cash authorized the opening of the safes. No additional warrant was necessary.

CONCLUSION For the foregoing reasons the decision of the distr ict court is AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge