FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 04/02/99 

 THOMAS K. KAHN 

 CLERK

PUBLISH 

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 98-2200

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D. C. Docket No. 3:97-CR-104-LAC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHANCEY WADE BRUNDIDGE,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Florida 

 

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(April 2, 1999)

Before EDMONDSON and BLACK, Circuit Judges, and RESTANI*,

Judge.

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* Honorable Jane A. Restani, Judge, U.S. Court of International

Trade, sitting by designation.
2

PER CURIAM:

Chancey Brundidge (“Brundidge”) appeals the district court’s denial

of his motion to suppress evidence. He also appeals his sentence. We see

no reversible error, so we affirm.

Background

A confidential informant (“CI”), with a companion, went to a

motel room where they met Brundidge, also known as “Smoke.” Based on

this meeting, the CI contacted Investigator Frank Forte (“Forte”). Forte

drove the CI to the motel, and the CI pointed out Brundidge’s room. The

CI also described Brundidge’s car. Forte left the motel to get a search

warrant, after calling a surveillance unit to the scene.
3

The affidavit supporting the warrant was the only information

on probable cause provided to the judge. Although some other information

was included in the affidavit, the following facts provided the main

support for the showing of probable cause:

On September 11th, 1997, your affiant [Forte] was

contacted by a reliable confidential informant, hereafter

referred to as RCI who stated to your affiant that a black

male known only to the RCI as Smoke, was selling Cocaine

Base and Cocaine HCL at the above described location. The RCI

stated to your affiant that on this same date, the RCI

accompanied another individual to the above described

location and entered. The RCI stated to your affiant that

individual to [sic] whom the RCI was with, purchased a

quantity of Cocaine Base from Smoke while inside the above

described location. The RCI stated to your affiant that Smoke

attempted to sell the individual to [sic] whom the RCI was with

a quantity of Cocaine HCL, however the individual refused. The

RCI stated to your affiant that while inside the above

described location, the RCI observed two cookies of Cocaine

Base, a large quantity of Cocaine Base cut for distribution,

approximately three eighth of an ounce quantities of Cocaine

HCL, and a semi-automatic handgun.
4

The RCI is familiar with the physical appearance of

Cocaine Base and Cocaine HCL and has seen Cocaine Base on

at least one hundred (100) occasions, and has seen Cocaine HCL

on at least two hundred (200) occasions. The RCI has provided

information to law enforcement concerning illegal activity

on at least eight occasions and has proven to be truthful and

reliable on every occasion. The RCI is responsible for the

arrests of at least five persons and the recovery of

approximately $3,500.00 in illegal narcotics.

The judge issued the search warrant for Brundidge’s motel room.

Brundidge was arrested after leaving the motel room later that

afternoon. Police found cocaine and a weapon in Brundidge’s car during

a warrantless search. Then, a search of Brundidge’s motel room, based on

Forte’s search warrant, found more drugs.

Brundidge pled guilty to three counts: (1) possession of a firearm by

a felon, in violation of 18 U.S.C. §§ 922(g), 924(c); (2) knowing and

intentional possession of cocaine and cocaine base with intent to
5

distribute, in violation of 18 U.S.C. §§ 841(a), 841(b)(1)(B)(iii); and (3)

possession of a firearm during and in relation to a drug trafficking

crime, in violation of 18 U.S.C. § 924(c).

Discussion

First, we address Brundidge’s claim that the district court should

have granted his motion to suppress the evidence obtained from the

search of Brundidge’s motel room. Rulings on motions to suppress

evidence involve mixed questions of law and fact. We review the factual

findings of the district court for clear error and the application of the

law to those facts de novo. See United States v. Anderton, 136 F.3d 747,

749 (11th Cir. 1998).
6

Probable cause to support a search warrant exists when the totality

of the circumstances allow a conclusion that there is a fair probability

of finding contraband or evidence at a particular location. See United

States v. Gonzalez, 940 F.2d 1413, 1419 (11th Cir. 1991). We give “[g]reat

deference” to a lower court judge’s determination of probable cause. Id. 

We think it will be useful to the resolution of Brundidge’s claim to

recite some well-established law on probable cause. “[P]robable cause is a

fluid concept -- turning on the assessment of probabilities in particular

factual contexts[.]” Illinois v. Gates, 462 U.S. 213, 232 (1983). To avoid

“rigid” legal rules, Gates changed the “two-pronged test” of Aguilar v. Texas,

378 U.S. 108, 114 (1964), into a totality of the circumstances test. See Gates,

462 U.S. at 230-35. Under the Gates totality of the circumstances test,

the “veracity” and “basis of knowledge” prongs of Aguilar, for assessing
 1

Independent police corroboration of a CI’s tip must be

distinguished from other kinds of corroboration. For example,

corroboration of a CI’s tip can also occur by “creating

circumstances under which [the informant] is unlikely to lie.” 

United States v. Foree, 43 F.3d 1572, 1576 (11th Cir. 1995).

7

the usefulness of an informant’s tips, are not independent. “[T]hey are

better understood as relevant considerations in the totality of the

circumstances analysis that traditionally has guided probable cause

determinations: a deficiency in one may be compensated for . . . by a

strong showing as to the other[.]” Id. at 233.

Brundidge’s main contention is that probable cause for the search

warrant did not exist because the affidavit failed to reflect independent

police corroboration of the CI’s story. But we think requiring

independent police corroboration1

 -- as a per se rule in each and every

case -- is contrary to Gates and other precedent for two reasons. First,
 2

Brundidge relies heavily on United States v. Foree, 43 F.3d

1572 (11th Cir. 1995), a case purporting to “demarcat[e] the outer

limits of probable cause.” Id. at 1577 n.6. Because Foree was an

“outer limit[],” and the case contained some independent police

corroboration of an informant’s affidavit, says Brundidge, a

case with less independent police corroboration cannot create

probable cause. We disagree for two reasons. First, the veracity

8

as we have discussed, Gates criticizes per se rules for the determination

of probable cause. Second, independent police corroboration has never

been treated as a requirement in each and every case. See United

States v. Harris, 403 U.S. 573, 576 (1971) (approving, without discussing

corroboration, an affidavit with no police corroboration); United States

v. Farese, 612 F.2d 1376, 1378 (5th Cir. 1980) (even though some

corroboration of informant’s story took place, probable cause likely

existed without corroboration). Brundidge cites to no case in which

independent police corroboration was treated as a requirement.2
of the Foree informant was not impressive because of the

near-conclusory allegations about the informant’s reliability

in the search-warrant affidavit. In this case, the CI has more

demonstrated veracity (as discussed later). Second, once Foree

concluded that probable cause existed on the circumstances

before it, the Foree court could say nothing binding as precedent

about the “outer limits” of probable cause.

9

Even under Aguilar’s “two-pronged test,” independent police

corroboration was not explicitly required: the test talks only about the

informant’s veracity and basis of knowledge. 

Using the CI’s “veracity” and “basis of knowledge” as guides for

assessing the affidavit’s showing of probable cause, we think Forte’s

affidavit made a sufficient showing of probable cause to justify the

search warrant. The CI’s basis of knowledge was good: The CI gave a

detailed description of the drugs in the room and the sale of some of

those drugs in his presence. An “explicit and detailed description of
10

alleged wrongdoing, along with a statement that the event was observed

firsthand, entitles [the CI’s] tip to greater weight than might otherwise

be the case.” Gates, 462 U.S. at 234. 

The CI’s basis of knowledge made up for any weaknesses in the CI’s

veracity. But we think the CI’s veracity was satisfactory, too. The

affidavit explained that the CI had provided information to law

enforcement “at least” eight times in the past and that the CI was

“truthful and reliable” on each occasion. Also, the CI’s past tips led to the

arrest of five persons and the recovery of $3,500 in illegal drugs. 

Although some information is not included -- like whether the CI’s tips

were essential to past arrests, or whether the tips were the result of the

CI’s own drug activity -- it is apparent that the CI had not lied about

these past events, had provided useful enough information to provide
 3

We note that Forte kept track of the CI’s whereabouts after

receiving tips from the CI.

11

probable cause for five arrests, and helped recover some illegal drugs. We

agree with the district court’s finding that the CI “was reliable in the

past instances.” 

In addition to providing the basis of the CI’s knowledge, the level of

detail meant that the CI was unlikely to lie, because “if the warrant

issued, lies would likely be discovered in short order and favors falsely

curried would dissipate rapidly.” Foree, 43 F.3d at 1576 (creating

circumstances under which CI is unlikely to lie is a way to corroborate

informant’s veracity).3
 4

Because of our resolution of the probable cause issue, we do

not decide the government’s alternative reason for affirming

the district court: that Brundidge waived his right to appeal the

search warrant of the motel room because it was not in his

written suppression motion. We note that the government’s

waiver argument was close. Although the district court relied in

part on the waiver argument to deny the suppression motion,

Brundidge may not have seen the motel room search warrant

affidavit before submitting his written suppression motion,

and he disputed the existence of probable cause to search the

motel room at the hearing on the suppression motion.

12

We think the CI’s veracity and basis of knowledge, in the totality of

these circumstances, justify the district court’s decision that the search

warrant was supported by probable cause.4
 5

Brundidge’s claim that 18 U.S.C. § 924(e) conflicts with 18 U.S.C. §

924(A)(2) is without substantial merit, so we decline to address

it.

13

Brundidge makes one sentencing argument worthy of discussion.5

The district court sentenced Brundidge to 294 months on Counts I and

II, served concurrently, and five years on Count III (for violating 18

U.S.C. § 924(c)), served consecutively to his 294-month sentence. 

Sentences for violating Section 924(c) must be served consecutively. 

Brundidge correctly notes that a Section 924(c) sentence must be

served before a sentence for the underlying offense. See Jackson v.

United States, 976 F.2d 679, 682 (11th Cir. 1992). So, the district court

committed an error in sentencing Brundidge to serve his five-year

sentence for violating Section 924(c) after the sentence for Counts I

and II.
 6

Jackson does not require reversal in this case: Jackson’s

underlying offense was parolable, but Brundidge’s underlying

offense is not parolable. So, unlike Jackson’s sentence,

Brundidge’s sentence for the underlying offense cannot be

shortened.

14

Brundidge, however, cannot explain why this error was harmful. 

Brundidge admits he “is unclear how an amended sentence might affect

Mr. Brundidge.” He does suggest that, “possibl[y],” changing Brundidge’s

sentence would make a difference to the Bureau of Prisons. But without a

sufficiently concrete harm, we will not remand the case for

resentencing.6

 See Barnes v. Estelle, 518 F.2d 182,183 (5th Cir. 1975)

(finding harmless error when resentencing would produce same

sentence); see also United States v. Langford, 946 F.2d 798, 804-805 (11th

Cir. 1991) (multiple counts for same offense not prejudicial and not
15

creating danger of receiving multiple sentences for single offense

because sentences were concurrent).

We conclude that Brundidge’s motion to suppress evidence was

properly denied and that no harmful error requires us to remand this

case for resentencing. Therefore, we affirm.

AFFIRMED.