* This order and judgment is not binding precedent, e xcept under the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

### October 4, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 05-3021 ERIC J. DUEGAW, Defendant-Appellant. (D.C. No. 04-40039-01-RDR) (D.Kan.)

ORDER AND JUDGMENT *

Before BRISCOE, LUCERO, and MURPHY , Circuit Judges.
Defendant Eric J. Duegaw, who entered a conditional guilty plea to possessing a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. §924(c)(1)(A), appeals the district co urt’s order denying his motion to suppress evidence obtained from the vehicle he w as driving at the time of his arrest. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.2 I. On March 24, 2004, Charity Kossin and Duegaw stoppe d at the Quick Cash store in Emporia, Kansas. Kossin went into the sto re and attempted to cash a Western Union money order using the name “Chrissy K elly.” Suspecting that the money order was counterfeit, the store clerk notifi ed police. When police arrived, Duegaw was outside the store in a 1996 Jeep. Afterlearning that Duegaw was associated with Kossin, police questioned him. Dur ing this questioning, Duegaw gave officers a false name and provided identificat ion which listed two different dates of birth and did not match the name he gave t o police. Duegaw also stated that there was a computer and a combination printer , fax, copier, and scanner in the Jeep, which he offered to allow the officers to view. He originally told police that he was enrolled in college and used the equipm ent for course work, but later admitted that he had lied about attending college. Duegaw also told police that he believed Kossin was cashing a check which she recei ved in payment for selling a vehicle and that he had no knowledge that the check/money order was counterfeit. Officers arrested Duegaw and impounded the vehicle. Police sought and obtained two search warrants for the vehicle, the f irst of which was directed at finding evidence of the alleged fraudulent money or der. During the first search, officers uncovered narcotics and a firearm in addit ion to numerous items related3

to the manufacture of false documents and identific ation. The police then sought a second search warrant directed at uncovering furt her evidence of gun and drug crimes. As a result of the search warrants, office rs located thirty-nine driver’s licenses, several of which bore pictures of Duegaw with different names, dates of birth, and addresses; a firearm; other forms of ide ntification; items associated with counterfeiting including photo paper, a paper cutter, glue, and bar codes; a second counterfeit Western Union money order; and c ontrolled substances including marijuana, cocaine hydrochloride, and met hamphetamine. Kossin and Duegaw were indicted by a grand jury andjointly charged with one count of conspiracy to make, utter, or possess a forged security (18 U.S.C. §§ 371, 2, 513(a)); two counts of making, uttering, orpossession of a forged security (18 U.S.C. § 513(a)); and possession of false ident ification documents (18 U.S.C. §§ 1028(a)(3), 2). Duegaw was also charged with po ssession of controlled substances (21 U.S.C. § 844(a)); possession of a fi rearm during and in relation to a drug trafficking crime (18 U.S.C. § 924(c)(1)(A)) ; and possession of a firearm by an addict, or alternatively, possession of a fir earm by a felon (18 U.S.C. § 922(g)). Duegaw filed a motion to suppress the evidence foun d in the Jeep, arguing that: 1) the evidence was the product of an illegal arrest; 2) the evidence was the product of an illegal impoundment of the vehicle; a nd 3) there was no probable4

cause to search the vehicle. After a hearing, the district court denied the motion. The court found that there was probable cause to ar rest Duegaw and to search the vehicle, and that even if probable cause had been l acking, the good faith exception under United States v. Leon , 468 U.S. 897 (1984) applied to the officers’ reliance on the warrant. Following the d istrict court’s ruling, Duegaw entered a conditional guilty plea to only one count– the count charging him with violating 18 U.S.C. § 924(c)(1)(A).
II. This court reviews de novo a district court’s determination of the reasonableness of a search and seizure under the Fo urth Amendment. United States v. Abdenbi , 361 F.3d 1282, 1287 (10th Cir. 2004). When revie wing a denial of a motion to suppress, we look at the tota lity of the circumstances and view the evidence in the light most favorable to th e government. United States v. Gay , 240 F.3d 1222, 1225 (10th Cir. 2001). Further, w e accept the factual findings of the district court unless they are clea rly erroneous. United States v. Williams , 271 F.3d 1262, 1266 (10th Cir. 2001).
III. Duegaw contends that his vehicle was illegally seiz ed and the affidavit submitted in support of the first search warrant fo r his vehicle was devoid of information upon which a finding of probable cause could be made. He further5

contends that the second warrant was also invalid b ecause it was based on evidence discovered during the first “unlawful” sea rch. Aplt Br. at 6-7. Moreover, Duegaw argues that the good faith excepti on from Leondoes not apply in this case because the affidavit in support of th e first search warrant was “so lacking in indicia of probable cause as to render o fficial belief in its existence entirely unreasonable.” Leon , 468 U.S. at 923. The government responds by relying on the same rationale adopted by the distri ct court and also the additional ground that the search was justified under the auto mobile exception to the warrant requirement. The Fourth Amendment requires that a search warrantmust be supported by probable cause. Probable cause must be based upon “more than mere suspicion but less evidence than is necessary to convict.” U nited States v. Burns , 624 F.2d 95, 99 (10th Cir. 1980). Probable cause “requires a nexus between suspected criminal activity and the place to be searched.” U nited States v. Corral-Corral , 899 F.2d 927, 937 (10th Cir. 1990). To obtain a se arch warrant, the affidavit “must contain facts sufficient to lead a prudent pe rson to believe that a search would uncover contraband or evidence of criminal ac tivity.” United States v. Danhauer , 229 F.3d 1002, 1005-06 (10th Cir. 2000). In dete rmining whether probable cause exists, the issuing magistrate judge must examine the totality of the circumstances set forth in the affidavit. Illi nois v. Gates , 462 U.S. 213, 2386

(1983). As a general rule, a reviewing court shoul d afford the magistrate judge’s ultimate probable cause decision “great deference.” United States v. Rowland , 145 F.3d 1194, 1204 (10th Cir. 1998). Nonetheless, it is the duty of the reviewing court to “ensure that the magistrate had a substantial basis for concluding that probable cause existed.” Gates , 462 U.S. at 238-239 (1983) (internal quotation omitted). In this case, the affidavit in support of the firstsearch warrant alleged facts sufficient to establish probable cause. The affidavit contained statements that Duegaw’s traveling companion had attempted to cash a fraudulent Western Union money order in a Quick Cash store while Duegaw wait ed outside in the Jeep in which the two were traveling. It further revealed that Duegaw provided police with identification which did not match his stated identity and listed two different dates of birth. Additionally, the affidavit noted that during a police interview, Duegaw stated that he was attending college, but wh en asked for the name of the college, he changed cities and college names, and e ventually admitted that he was lying about attending college. The affidavit also drew a connection between the suspected criminal activity and the place to be sea rched; Duegaw told police that a computer and a combination printer, fax, copier, and scanner were in the Jeep, and the officer who prepared the affidavit stated t hat, based on his experience, counterfeit money orders and identifications are ea sily manufactured/reproduced7

using such computer technology. Additionally, the affidavit noted: “[Duegaw] moved something from the front seat of the vehicle to the back of the window where the windows were tinted so it would not be vi sible when contacted by police officers while he was inside the vehicle.” Appellant Br., Attach. A at 2. In challenging the sufficiency of the affidavit, Du egaw also cites Franks v. Delaware , 438 U.S. 154 (1978) and states: “the affiant omit s the fact that Mr. Duegaw offered to let the officers see the equipmen t.” Appellant Br. at 10. Duegaw, however, fails to develop this argument wit h any detail. To the extent he contends that the omission of this fact would have negated the magistrate judge’s finding of probable cause, we do not find t his argument to be persuasive. While it is a violation of the Fourth Amendment to “knowingly or recklessly omit from the affidavit information which, if included, would have vitiated probable cause,” Pierce v. Gilchrist , 359 F.3d 1279, 1296 (10th Cir. 2004) (citation omitted), the defendant bears the burden to demonst rate the affiant’s reckless disregard for the truth. United States v. Knapp , 1 F.3d 1026, 1028 (10th Cir. 1993). In the instant case, Duegaw has failed to p resent any evidence of a deliberate or reckless disregard for the truth as t o any assertion in or omission from the affidavit in support of the first search w arrant. Accordingly, based on an examination of the totality of the circumstances se t forth in the affidavit, we conclude the magistrate judge had a sufficient basi s for drawing a reasonable1 Duegaw briefly mentions this argument in his openi ng brief but does not

devote much, if any, of the text to developing this issue. 8 inference that a search of the Jeep would uncover e vidence of counterfeiting. Likewise, we conclude that the affidavit in supportof the second search warrant alleged facts sufficient to establish proba ble cause. In addition to numerous items related to the manufacture of false documents and identification, officers uncovered narcotics and a firearm during t he execution of the first search warrant. The second affidavit contained statements detailing these findings and, therefore, contained facts sufficient to lead a pru dent person to believe that a search would uncover further evidence of gun and drug crimes. To the extent Duegaw argues, 1 as he did before the district court, that both searches of the vehicle were unlawful because the v ehicle was illegally seized or impounded, we also find this argument lacks merit. The Supreme Court has upheld temporary restraints in a variety of circums tances where necessary to preserve evidence until police could obtain a warra nt. See Illinois v. McArthur , 531 U.S. 326, 334 (2001). The Supreme Court has al so noted: “For constitutional purposes, we see no difference between on the one h and seizing and holding a car before presenting the probable cause issue to a mag istrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” Chambers v.9

Maroney , 399 U.S. 42, 52 (1970). In this case, the same f acts that gave officers probable cause to search the vehicle gave officers probable cause to impound it. Thus, the district court did not err in denying Due gaw’s motion to suppress. Because both warrants are supported by probable cause, we find it unnecessary to address the parties’ remaining argum ents. AFFIRMED.

Entered for the Court
Mary Beck Briscoe Circuit Judge