* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### OCT 31 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. MARTEN BERROCAL, Defendant-Appellant. No. 00-4001 (District of Utah) (D.C. No. 98-CR-250-S)

ORDER AND JUDGMENT *

Before MURPHY , McKAY, and ANDERSON , Circuit Judges.

I. INTRODUCTION Defendant-Appellant Marten Berrocal entered a condi tional guilty plea to one count of possession of methamphetamine with int ent to distribute in violation of 21 U.S.C. § 841(a)(1). Berrocal appeals the den ial of his motion to suppress evidence obtained during a no-knock, nighttime sear ch of his residence. Jurisdiction to consider Berrocal’s appeal arises u nder 28 U.S.C. § 1291. This-2-

court affirms the order of the district court denying Berrocal’s motion to
suppress.

II. FACTS AND PROCEDURAL HISTORY Officer John Christoffersen of the Provo City Polic e Department received information from a concerned citizen regarding the Berrocal residence. The citizen suspected drug trafficking in the residence due to the number of individuals who stopped at Berrocal’s residence butremained only briefly. Christoffersen then conducted what he called a “tra sh cover” of Berrocal’s residence. Christoffersen found in Berrocal’s tras h container numerous items consistent with the manufacturing of methamphetamin e, including empty “MiniThin” bottles, PH test strips, isopropyl alcohol, o ver 500 matchbooks with their strikers removed, “Red Devil” lye, “Heat” methyl al cohol, coffee filters with binders, latex gloves, and disposable masks. Christoffersen prepared a proposed warrant to searc h Berrocal’s residence. The warrant authorized a no-knock, nighttime searchof Berrocal’s residence to search for methamphetamine and items used in the pr oduction and distribution of methamphetamine. Christoffersen presented the prop osed warrant to a Utah state judge in the early morning hours of April 21, 1998. The state judge issued the
warrant.-3-

The search warrant was executed by federal DEA TaskForce Officers on the evening of April 21, 1998. Many items associat ed with the manufacturing and distribution of methamphetamine were found, includi ng 2.8 grams of methamphetamine. Berrocal was charged with one count of attempting t o manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a) (1) and 846, and one count of possession of methamphetamine with intent to dis tribute in violation of 21 U.S.C. § 841(a)(1). He filed a motion to suppress the evidence obtained during the search, arguing, among other things, that the s earch violated the Fourth Amendment, federal statutory law, and state statuto ry law because it was conducted at night, without prior notice (i.e., no- knock), and without probable cause. The matter was referred to a United States magistrate judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge issued a report and recommendation rejecting Berrocal’s argu ments. The district court adopted the report and recommendation of the magist rate judge and denied Berrocal’s motion to suppress. Berrocal then plead ed guilty to possession of methamphetamine with intent to distribute under 21 U.S.C. § 841(a)(1), and, upon the motion of the government, the court dismissed the charge of attempt to manufacture methamphetamine. Berrocal retained the right to appeal the decision of the district court denying his motion to suppres s evidence.-4-

III. DISCUSSION A. Standard of Review When reviewing a trial court’s denial of a motion t o suppress, this court considers the totality of the circumstances and vie ws the evidence in a light favorable to the government. See United States v. Long , 176 F.3d 1304, 1307 (10th Cir.), cert denied, 120 S. Ct. 283 (1999). This court accepts the di strict court’s findings of facts unless clearly erroneous. See id . The determination of whether those facts satisfy the Fourth Amendment an d statutory standards for a no-knock search are questions of law subject to de novo review. See United States v. Hill , 60 F.3d 672, 681 (10th Cir. 1995); United States v. Stewart , 867 F.2d 581, 584 (10th Cir. 1989). Review of the issu ance of a search warrant for probable cause, however, is more deferential: “[S]o long as the magistrate had a ‘substantial basis for ... conclud[ing]’ that a sea rch would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Illinois v. Gates , 462 U.S. 213, 236 (1983) (quoting Jones v. United States , 362 U.S. 257, 271 (1960)).

B. Probable Cause Berrocal argues that neither the citizen informant nor the “trash cover” was sufficient to establish probable cause. As the dis trict court correctly noted, however, Berrocal’s analysis calling for a piece-by -piece evaluation of the-5-

evidence is at odds with controlling precedent. “T he determination of whether there was a substantial basis for concluding probab le cause existed must be based on the totality-of-the-circumstances.” United States v. Glover , 104 F.3d 1570, 1577 (10th Cir. 1997). In this case probable cause was supported by two fa ctors. First was the information provided by the citizen informant indic ating visitation patterns to Berrocal’s residence consistent with drug trafficki ng. It was not clear from the record whether the citizen informant was anonymous or known. As a general rule, at least some corroboration is required to support probable cause when the police receive anonymous information. See J.B. v. Washington County , 127 F.3d 919, 929-30 (10th Cir. 1997). The citizen informan t’s information was corroborated by the “trash cover” conducted by Offi cer Christoffersen, which revealed numerous items associated with the manufac turing of methamphetamine. Berrocal argues that the affidavit submitted by Off icer Christoffersen in support of the warrant does not indicate when the c itizen witnessed the suspicious traffic, and thus does not rule out the possibilitythat the report was stale. See United States v. Le , 173 F.3d 1258, 1266-67 (10th Cir. 1999) (consider ing whether information supporting probable cause was s tale). This argument fails, however, because of the corroborative effect of the “trash cover.” Similarly, the-6-

information provided by the informant undermines Be rrocal’s argument that the items found in his trash container were dropped the re by someone else. In light of the deference accorded probable cause d eterminations by state magistrates, this court affirms the district court’ s conclusion that the totality of the circumstances provide a substantial basis for the state magistrate’s finding of probable cause.

C. No-Knock Warrant Berrocal argues that both the Fourth Amendment and federal statutory law were violated by the authorization of the no-knock entry. In a federal prosecution, a search that is “federal in character ” must comply with both federal constitutional standards and federal statutory stan dards, while a search that is “state in character” must comply only with federal constitutional standards. See United States v. Millar , 543 F.2d 1280, 1283-84 (10th Cir. 1976). In this case, state officials applied to a state judge for a stat e warrant. Federal officials conducted the search of Berrocal’s residence, and afederal prosecution followed. It is not necessary to determine whether the searchof Berrocal’s residence was federal in nature, however, because the same conclu sion is reached regardless of whether federal statutory law applies in addition t o the Fourth Amendment.-7-

In Wilson v. Arkansas , 514 U.S. 927 (1995), the Supreme Court held that the common law knock and announce requirement forms a part of the Fourth Amendment reasonableness inquiry. See id . at 931. The Court explained, however, that “law enforcement interests may also e stablish the reasonableness of an unannounced entry.” Id . at 936. The Court noted that no-knock searches m ay be justified when evidence might be destroyed if ad vance notice was given. See id. ; see also Richards v. Wisconsin , 520 U.S. 385, 395 (upholding a no-knock search because the officers had a reasonable suspic ion that evidence would be destroyed if notice was given). The district court concluded it was reasonable to s uspect that evidence might be destroyed absent a no-knock search based o n the material found during the “trash cover.” Officer Christoffersen explaine d in his affidavit in support of the warrant that the material found during the “tra sh cover” indicated an amount of methamphetamine located in Berrocal’s residence which could be easily destroyed or hidden if police officers announced th eir presence before entering. Berrocal challenges the district court’s conclusionthat it was reasonable to believe evidence might be destroyed upon notice. B errocal also argues that he was entitled to an evidentiary hearing under Franks v. Delaware , 438 U.S. 154 (1978), to demonstrate that Officer Christoffersen’ s statement in the affidavit concerning the amount of methamphetamine likely to be found was a deliberate-8-

falsehood or a reckless disregard for the truth. B errocal must make a “substantial preliminary showing” that Christoffersen’s affidavi t was false, however, before he is entitled to an evidentiary hearing. See id. at 169-70. For both of these arguments, Berrocal relies on a s tatement made by Christoffersen in the police report after the garba ge search. In this report Christoffersen indicated that the items found were “evidence of a large field processing taking place at the residence.” Berroca l asserts that a “large field processing” is not consistent with an amount of methamphetamine that can be easily destroyed. As the district court noted, how ever, the police report does not contradict Christoffersen’s statement in the affidavit that the methamphetamine could be easily destroyed. Christoffersen states i n his affidavit that there were numerous materials found during the “trash cover,” but also explains that these materials would produce only a small amount of meth amphetamine. We agree with the district court that Christoffersen’s state ments are easily reconciled. Because Berrocal failed to make a preliminary showi ng that Christoffersen’s statements were false, he was not entitled to an ev identiary hearing. In light of the items found during the “trash cover,” it was re asonable to conclude that evidence might be destroyed if notice was given. T herefore, the no-knock search complied with the Fourth Amendment. The no-knock search also complies with 18 U.S.C. § 3109, which provides:-9- The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purp ose, he is refused admittance or when necessary to liberate himself ora person aiding him in the execution of the warrant. The Supreme Court has stated that 18 U.S.C. § 3109, like the Fourth Amendment, adopts the common law rule regarding no-knock entri es. See Sabbath v. United
States , 391 U.S. 585, 591 n.8 (1968). This court has rec ognized the correlation between the § 3109 and the Fourth Amendment knock and announce standards. See United States v. Smith , 63 F.3d 956, 962 (10th Cir. 1995), rev’d on other grounds , 516 U.S. 1105 (1996); United States v. Ruminer , 786 F.2d 381, 383 (10th Cir. 1986). As with the Fourth Amendment knock and announce req uirement, compliance with § 3109 may be excused when the offi cers have an objectively reasonable belief that exigent circumstances exist. See United States v. Knapp , 1 F.3d 1026, 1030 (10th Cir. 1993); United States v. Stewart , 867 F.2d 581, 584 (10th Cir. 1989). Exigent circumstances exist whenthere is a “likelihood that notice would result in the destruction of evidence. ” United States v. Dahlman , 13 F.3d 1391, 1398 (10th Cir. 1993). As discussed abo ve, it was reasonable to believe that Berrocal could easily destroy or hide the amount of evidence believed to be in his residence. Thus, exigent circumstance s existed and the search complied with § 3109.1 The case of Mason v. United States , 719 F.2d 1485 (10th Cir. 1983), does

not require an examination of state law in this cas e. While it is true that the Mason court considered the validity of a search involved in a federal prosecution by reference to Wyoming law, both the government an d the defendant conceded that Wyoming law governed. See id. at 1489.

-10- D. Nighttime search Finally, Berrocal argues that the nighttime search was invalid under Utah Code Ann. § 77-23-205. It is well established, how ever, that in a federal prosecution state law cannot serve as a basis for the suppression of evidence. See On Lee v. United States , 343 U.S. 747, 754-55 (1952); United States v. Mitchell , 783 F.2d 971, 973 (10th Cir. 1986). Berrocal’s cla im must therefore be rejected. 1

IV. CONCLUSION For the reasons stated above, this court affirms the district court’s denial of Berrocal’s motion to suppress.
ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge