UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. FREDERICK EUGENE JENKINS, Defendant - Appellant. No. 19-6014 (D.C. No. 5:18-CR -00065-SLP-1) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , KELLY , and PHILLIPS , Circuit Judges.

________________ _________________ Though “a ‘man’s house is his castle,’” Payton v. New York , 445 U.S. 573, 596 (1980), not all castles are impenetrable. Under the Four th Amendment, officers do not need a Trojan Horse or a trebuchet to breach a citizen’s home— all they need is a warrant supported by probable cause. This case pr esents the question whether officers had probable cause to search Frederick Jenkins’s home upon learning that the State of Oklahoma was currently prosecuting him for serious drug crimes and upon finding a small baggie with methamphetami ne residue among the trash left for

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This orde r and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 10, 2020 Christopher M. Wolpert Clerk of Court2 disposal on the street outside his house. We hold that together these factors provided the warrant-issuing judge with a substantial basis to conclude th at the officers had probable cause. Accordingly, because the search warrant was valid, and because Jenkins has waived any appellate challenge to his detention and confession, we affirm the district court’s denial of Jenkins’s motions to suppress. BACKGROUND
I. Sergeant Harmon’s Investigation In January 2018, a confidential source 1 gave Oklahoma City police officers 2 a vague tip that Jenkins was involved in criminal activity 3 and that he lived on Wilshire Boulevard in Oklahoma City, Oklahoma. 4 Those officers told Sergeant Harmon about

1 Though Sergeant Harmon’s affidavit does not use this term, at a suppression hearing he described the tipster as a “c onfidential source” and testified that he omitted further details “to protect that c onfidential source[.]” R. vol. 2 at 5. We adhere to Sergeant Harmon’s descripti on and call this person the “confidential source.”

2 The government asserts that “Sgt . Aaron Harmon received” this tip. Appellee’s Br. 2–3. But Sergeant Harmon testified that he “never spoke to [the confidential source].” R. vol. 2 at 15. Thus, it appears that Sergeant Harmon did not directly receive the tip; rath er, he indirectly learned ab out the tip from other officers.

3 The confidential source told the officers that Jenkins had been involved with a “firearms offense”—possibly a robbery or bur glary at a Cabela’s store. R. vol. 2 at 16. But in his probable-cause affidavit, Sergeant Harmon did not include this fact, mentioning instead that the confidential so urce had stated that Jenkins was “involved in various illegal activitie s[.]” R. vol. 1 at 25.

4 The government contends that the “i nitial tip” was “tha t Mr. Jenkins was involved in criminal activity at the Re sidence.” Appellee’s Br. 13. But Sergeant Harmon stated in his probable-cause affida vit that the tip was this: “[A] subject name[d] Frederick Eugene Jenki ns D.O.B. /88 is involved in various illegal activities and that he lives at . . . Wils hire Blvd.” R. vol. 1 at 25. Th at does not say that Jenkins3 the tip, and Sergeant Harm on began investigating. After consulting Oklahoma City Police Department records and Oklahoma Coun ty jail records, a nd after “learn[ing] that Jenkins has a 2001 Hyunda i sedan with Oklahoma tag 404KJX registered to him at [the Wilshire address] ,” Sergeant Harmon confirmed that Jenkins resided there. R. vol. 1 at 25–26; see also Appellant’s Principal Br. 12 ( noting that “[s]urely other records available to the affiant connected Mr. Jenki ns to the address”). Sergeant Harmon also searched the Okla homa City Police Department records to see whether Jenkins had any criminal history. He did: On June 18, 2017, Oklahoma City police officers arrested Jenkins after finding him with 4.3 grams of methamphetamine, 572 Alprazolam pills, 483 ecstasy pills, 0.6 grams of marijuana, and a digital scale. 5 Jenkins had also possessed a load ed .45 caliber Ta urus handgun. Sergeant Harmon further learned that “[d] uring the arrest a vehicle was also impounded.” 6 R. vol. 1 at 26.

was involved in criminal activity at the residence. And Sergeant Harmon later testified that, in fact, the tip was about “a firearms offense” that may have occurred at a Cabela’s store, not the residence. R. vol. 2 at 16.

5 Sergeant Harmon did not identify Jenki ns’s charges. Even so, Sergeant Harmon did provide a case number: “CF2017-4 096.” R. vol. 1 at 26. Public records show that Jenkins faced f our state-law felony charges: (1) possessing ecstasy with intent to distribute, (2) posse ssing alprazolam with intent to distribute, (3) possessing methamphetamine and marijuana, and (4) unl awfully carrying a firearm. Okla. State Courts Network, https://www.oscn.ne t/dockets/GetCaseInformation.aspx?db= oklahoma&number=CF-2017-4096 (last visite d June 8, 2020). We take judicial notice of these charges. See United States v. Ahidley , 486 F.3d 1184, 1192 n.5 (10th Cir. 2007).

6 In view of this ambiguous languag e—i.e., “a vehicle” was impounded—it is unclear whether the vehicle was Jenkins’s sedan. That said, Sergeant Harmon did4 In addition, Sergeant Harmon learne d that “Oklahoma Department of Corrections records show a [2 005] case filed against Jenkins for Trafficking in Illegal Drugs in Garfield County[.]” Id. Because Jenkins was then only seventeen years old, Sergeant Harmon wondered whether Jenkins had successfully petitioned to have the case expunged—records of the 2005 case app ear in only the Oklahoma Department of Corrections records, not the Okla homa State Courts Network records. Sergeant Harmon called the Oklahoma County district attorney, and one of those two men learned from the Garfield County district a ttorney that after Jenkins served out his sentence the 2005 convicti on was later expunged. Sergeant Harmon next planned and executed a “trash pull.” By checking online, Sergeant Harmon learned that garbag e-disposal workers would be picking up trash from the Wilshire residence on Febr uary 27, 2018. So that day, Sergeant Harmon and other officers went to the semi-rural residence, grabbed the two trashcans from the street outside the house, and dumped their cont ents into the back of his pickup truck. 7 Later sorting through the trash elsewhere, they found (1) “[a] small Ziploc bag with residue field test ing positive for methamphetamine,” (2) “[a] copy of an [Oklahoma City Police Depart ment] vehicle impound sheet [the sheet being from Jenkins’s arrest on 6/18/17]” and (3) “[a] St yrofoam tray from a box of rifle ammunition.” Id. note that whatever vehicle it was, th e “OCPD vehicle impound sheet” was from “Jenkins’ arrest on 6/18/ 17.” R. vol. 1 at 26.

7 A person has no reasonable expectation of privacy in discarded trash left on the curb for garbage collection. California v. Greenwood , 486 U.S. 35, 40–41 (1988).5 Having gathered this evidence, Serg eant Harmon drafted a probable-cause affidavit and submitted it to an Oklahoma County Dist rict Court Special Judge, requesting a search warrant for the Wilshire residence. As support for his opinion that “there is probable cause to believe that Frederick Eugene Jenki ns is involved in illegal activities at this location,” id. , Sergeant Harmon included most of the details from his investigation, but he omitted two: (1 ) that the tip had refe renced “a firearms offense,” and (2) that Jenkins’s 2005 case had been expunged. On February 28, 2018, the district court special judge approved a search warrant for the Wilshire residence. The sear ch warrant allowed offi cers to search for “Methamphetamine, Drug Paraphernalia , Digital and Manual Scales, Drug Proceeds . . . firearms, ledge rs, and other types of documentation regarding the sale of narcotics and tending to establish dom inion and control over the location being searched.” Id. at 23.
II. The Traffic Detention and Search Warrant On March 7, 2018, nine Oklahoma City Police Department officers and one agent from the Bureau of Al cohol, Tobacco, Firearms, and Explosives, were assigned to assist Sergeant Harmon with executi ng the search warrant. Sergeant Harmon selected March 7 because he knew that Jenkins had a 10:00 a.m. court hearing that day concerning his June 2017 arrest. Sergeant Harmon wanted Jenkins away from the home while the officers executed the search warrant. He suspected that Jenkins had been involved with “drive-by shootings” and that Jenkins might have “a rifle inside the house,” thus making him da ngerous. R. vol. 2 at 8–9.6 Sergeant Harmon and another officer, Li eutenant Merits, began surveilling Jenkins’s house at about 8:45 a.m. A few minutes later, they “saw a woman, later determined to be Mr. Jenkins ’ mother [Lucretia Viewins],” leave the residence and put an object in the trunk of a black Chrysler 300. Id. at 9, 31. She went back inside the residence for about twenty minutes, and then she return ed and sat in the driver’s seat. Soon after, “a male subj ect that appeared to be Mr . Jenkins” emerged and sat in the passenger’s seat, a nd the two drove away. Id. at 9. As Ms. Viewins turned south, Sergeant Harmon saw her fail to use her turn signal. Sergeant Harmon advised Sergeant Ra mbo and Sergeant Fowler about the traffic violation. Those sergeants were waiti ng for “the target” at a fire station along Jenkins’s route to the courthouse. Id. at 30–31. After Sergeant Rambo learned about Ms. Viewins’s traffic violati on, he followed her car and saw the Chrysler “straddle the lane lines twice.” Id. at 31 When Ms. Viewins and Jenkins were about a mile and a half from the residence, Sergeant Rambo pulled over the Chrysler. Sergeant Rambo went to the passenger’s side; Sergeant Fowler went to th e driver’s side. Once he had identified Jenkins, Sergeant Rambo asked him to step out of the car. Jenkins had one cell phone in his lap and another either there or n earby, and Sergeant Rambo asked if he would turn them over. Jenkins cooperated, turn ing over both his cell phones and stepping out of the car. After obt aining Jenkins’s cell phones, Sergeant Rambo handcuffed Jenkins’s hands behind his back, searched “his pockets for weapons,” and “secured him in the back of [his patrol] car.” Id. at 32.7 Soon after Sergeant Rambo detained Jenkins in his patrol car, Sergeant Harmon arrived 8 and spoke with Ms. Viewins. Sergea nt Harmon told her that he had a search warrant for the house and asked for the key so that he would not “have to break” the door in. Id. at 10. He also asked for he r cell phone. Ms. Viewins gave Sergeant Harmon the key to the house and he r cell phone but requested to be present while the officers executed the search wa rrant. When asked “whether or not there were other people in the house,” Ms. Viewin s told Sergeant Harmon that her sister was sleeping at the house and that “there might be a gun in her son’s bedroom.” 9 Id.
at 10–11. After obtaining, Ms. Viewins’s statem ents, Sergeant Harmon met the other officers—i.e., the “search team ”—at the fire station, and they put on their “vests and helmets” and made final preparati ons for executing the search warrant. Id. at 11. Sergeant Harmon did this while Sergean t Rambo and Sergeant Fowler watched Jenkins and Ms. Viewins, who both remained at the scene of the original stop. After donning their protective vests and helmet s, Sergeant Harmon a nd the search team then drove back to th e Wilshire residence. Sergeant Ra mbo transported Jenkins in his patrol car back to the residen ce, and Ms. Viewins drove herself.

8 The district court found that Serg eant Harmon “arrived at about the time Defendant exited his mother’s vehicle at Sergeant Rambo’s instruction.” R. vol. 1 at 102 n.3. But Sergeant Harmon testified that he “was close behind, but [he] wasn’t right there when [Jenkins] was getting out of the vehi cle[.]” R. vol. 2 at 22. Moreover, Sergeant Harmon testified that Je nkins was already secured in the patrol car by the time he arrived.

9 Ms. Viewins did not testif y at the suppression hearing.8 When Sergeant Harmon reached the reside nce, he repeatedly knocked on the door while announcing that he had a search warrant. Though he heard Jenkins’s aunt “say something,” she would not open the door. Id. So the search team entered the residence using Ms. Viewin s’s key. Once inside, Serg eant Harmon asked Jenkins’s aunt to wait on the porch, and he and the re st of the team then swept the residence, ensuring that no other people were inside the house. During the protective sweep, the search team saw in plain sight a Maadi 7. 62 x 39 rifle. Having cleared the residence, Sergeant Harmon then went to a police va n parked in the street outside, where Sergeant Rambo had placed Jenkins. Special Agent Chad Oubre (the agent from the Bureau of Alcohol, Tobacco, Firearms, and Explosives) entered the house af ter the search team’s initial sweep. On reaching the front porch, he smelled a “v ery strong” marijuana odor, and the odor grew stronger as he entered the house. Id. at 42. Special Agent Oubre walked through the kitchen into a garage, where he saw th e Maadi assault rifle and a marijuana blunt. Like Sergeant Harmon, Special Agent Oubr e then went to the van to interview Jenkins. Sergeant Harmon and Special Agent Oubre gave Jenkins the Miranda warning, both orally and in writing, and Jenkins signed a waiver form. During the interview, Jenkins admitted th at he had “purchased the [assault] rifle along with a .44 caliber revolver for $300 sometime in 2017” and had “smoked marijuana every day since he was 11[.]” 10 R. vol. 1 at 10; R. vol. 2 at 45. In addition, Jenkins “allowed

10 Technically, there were two intervie ws. Sergeant Harmon’s audio recorder malfunctioned during the first interview, so he and Special Agent Oubre re-9 officers to access his cellular phones, from whic h additional evidence was obtained.” 11 R. vol. 1 at 98. In the meantime, the search team continued searching. It seized ten items of evidence: (1) a “Taurus .44 magnum revolve r,” (2) the “Maadi 7.62 x 39 rifle,” (3) “Miscellaneous ammunition,” (4) “Miscellan eous shell casings,” (5) “Four items of dominion and control-documents,” (6) “O ne rifle magazine and two handgun magazines,” (7) a “Pill bottle,” (8) “Drug pa raphernalia with residue,” (9) “0.6 grams of powder field testing positive for both cocaine HCI and meth amphetamine,” and (10) a “Marijuana roach.” Id. at 24. On March 20, 2018, a grand jury indi cted Jenkins on one count: “being an unlawful user of marijuana, metham phetamine, and cocaine” while knowingly possessing the Maadi assault rifle and Taurus revolver, in violation of 18 U.S.C. § 922(g)(3). Id. at 13–14.
III. Procedural Background Jenkins filed two motions to suppress. In the first, he asserted that, under Bailey v. United States , 568 U.S. 186 (2013), his dete ntion and resulting confession were invalid because the police detained him away from the immedi ate vicinity of his residence. In his second, he argued that “the Affidavit by Sgt. Harmon to obtain the

interviewed Jenkins. Neither Jenkins nor the government has included this second recording in the record.

11 The record does not show what evidence Sergeant Harmon and Special Agent Oubre obtained from Jenkins’s cell ph ones. Without identi fying the evidence, Jenkins moved to suppress it in his first suppression motion.10 Search Warrant was insufficient, on its fa ce, to establish probable cause for the issuance of a warrant.” R. vol. 1 at 32. In a single order, the dist rict court denied both motions. Starting with Jenkins’s first mo tion, the court noted that, under Michigan v.
Summers , 452 U.S. 692, 705 (1981) , officers may detain an occupant while executing a search warrant, even without probable cause or reasonable suspicion. But the court agreed with Jenkins that, under Bailey , 568 U.S. at 199, such categorical detentions must occur within the “immediate vicin ity of the premises to be searched.” R. vol. 1 at 99 (internal quotation marks omitted). Th e court found that Jenkins had not been detained within the immediat e vicinity of his residence— Sergeant Rambo seized him “at least 1.5 miles away[.]” Id. at 100. As a result, the cour t ruled that the categoricaldetention rule was inapplicable. But that did “not end the Court’s inquiry ,” because it acknow ledged that, even if the categorical-detention rule did not jus tify Jenkins’s detenti on, ordinary Fourth Amendment principles still might: a suspect can be deta ined on reasonable suspicion or arrested on probable cause. Id. (citing Bailey , 568 U.S

. at 202). Ultimately, the court concluded that Je nkins’s stop was justifie d at its inception under Terry v. Ohio , 392 U.S. 1 (1968), and that th e stop was lawfully extended. Id. at 101–03. To explain, the court first reasoned that Ms. Viewins’s initial traffic stop was supported by reasonable suspicion base d on Sergeant Harmon’s and Sergeant Rambo’s observing Ms. Viewins’s traffic vi olations. Next, the c ourt concluded that, in addition to Ms. View ins’s stop, “[a] brief Terry -style stop of Defendant” was11 reasonable based on two factor s: “(i) Defendant’s previ ous arrest for possession of drugs and associated paraphe rnalia and his possession of a handgun at the time and (ii) the materials recovered from the trash pull, both indicating th at Defendant might be in possession of a firearm.” Id. at 101. That said, the cour t recognized that because Jenkins was not temporarily detained, add itional justification was needed to extend the Terry stop. Though Jenkins was committing no crime in the car and was not armed, the court explained that “the Terry stop was reasonably ex tended based on ‘an objectively reasonable and articu lable suspicion that illegal activity has occurred or is occurring.’” Id. at 102 (quoting United States v. Cervine , 347 F.3d 865, 871 (10th Cir. 2003)). For support, the court cited th e “pre-existing information available to Sergeant Harmon, combined with Defendant ’s mother’s statement regarding the possible presence of a firearm at Defendant’s residence[.]” Id. Significantly, the district court did not comment on a po ssible timing issue—Se rgeant Rambo had already handcuffed and detained Jenkins in his patrol car before his mother gave her statement. Acknowledging that the issue presented a “clos e call,” the court ultimately concluded that Jenkins’s Terry stop was lawfully extended “through the time it took for officers to sear ch his residence[.]” Id. at 102–03. The court then addressed Jenkins’s sec ond motion to suppress. First, it ruled that, even if the tip were unreliable, “probable cause would likely still exist for issuance of the warran t, albeit barely.” Id. at 105. As grounds, the court concluded that Jenkins and his past crim inal activity were tied to th e residence on account of the12 tip, the Oklahoma Police Department and Ok lahoma County jail records, and the vehicle-impound sheet. And the court ruled that evidence of wh at it considered additional criminal activity—the Ziploc baggie with methamphetamine residue and the Styrofoam tray with rifle ammunition—wa s linked to the reside nce in view of the trash pull. Finally, the court concluded that Sergeant Harmon’s omissions in the probable-cause affidavit did not warrant a hearing under Franks v. Delaware , 438 U.S. 154 (1978). It ruled that Sergeant Ha rmon’s failure to note that records of Jenkins’s 2005 arrest appeared in only one Oklahoma database rather than two “was, at most, negligence on the part of Se rgeant Harmon.” R. vol. 1 at 109 (citation omitted). And it reasoned that Sergeant Ha rmon’s failure to note that the tip concerned a “firearms o ffense” was irrelevant. Id. at 110 (“That su spicion existed in the minds of officers as to other crimes, if true, does not affect this case . . . .”). Accordingly, the court denied Jenkins ’s motions to suppress. Afterward, Jenkins signed a conditional plea agreement, re serving his right to appeal the district court’s suppression order. On January 17, 2017, the court sentenced Jenkins to twenty-four months’ imprisonment and three years’ supervised release. 12 Jenkins now

12 The Bureau of Prisons released Jenki ns on November 19, 2019. Nonetheless, because a successful appeal may affect th e length of his supervised release and overturn his conviction, Jenki ns’s appeal is not moot. See, e.g. , United States v. Hasan , 686 F.3d 1159, 1162 n.1 (10th Cir. 2012) (concluding that an appeal was not moot even though the appellant had “fin ished serving his sentence—including a period of supervised release”); Prost v. Anderson , 636 F.3d 578, 582 n.3 (10th Cir. 2011) (noting that past convictions can re sult in sentencing enha ncements for future convictions).13 appeals the district court’ s order, and we exercise appellate jurisdiction under 28 U.S.C. § 1291. DISCUSSION
I. Standard of Review When a defendant appeals the “denial of a motion to suppre ss, ‘we review the district court’s factua l findings for clear error and cons ider the evidence in the light most favorable to the Government.’” United States v. Edwards , 813 F.3d 953, 959 (10th Cir. 2015) (quoting United States v. Haymond , 672 F.3d 948, 958 (10th Cir. 2012)). We “accord ‘great deference’ to the probable-cause asse ssment of the state court judge who issued the warrant.” United States v. Pulliam , 748 F.3d 967, 971 (10th Cir. 2014) (quoting United States v. Biglow , 562 F.3d 1272, 1280–81 (10th Cir. 2009)). “‘[A]fter-the-fact, de novo scrutiny’ of a magistrate’s probable-cause determination is forbidden.” Biglow , 562 F.3d at 1281 (alteration in original) (quoting Massachusetts v. Upton , 466 U.S. 727, 733 (1984) (per curiam)); see also Pulliam , 748 F.3d at 971 (explai ning that we defer to th e warrant-issuing judge’s conclusion that probable cause backed the warrant even if probable cause was borderline). Rather, we “review ‘merely to ensure the Gove rnment’s affidavit provided a “substantial basis” fo r reaching that conclusion.’” United States v. Sadlowski , 948 F.3d 1200, 1203 ( 10th Cir. 2020) (quoting Biglow , 562 F.3d at 1280).
II. The Search Warrant A. Probable Cause14 The Fourth Amendment requires that se arch warrants be f ounded on probable cause: “The right of the people to be s ecure in their persons , houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . .” 13 U.S. Const. amend. IV. To satisfy the probable-cause sta ndard, police officers must dem onstrate that “there is a fair probability that contraba nd or evidence of a crime will be found in a particular place.” United States v. Grubbs , 547 U.S. 90, 95 (2006) (i nternal quotation marks and citation omitted). A “fair probability” is not an airtight guarantee; nor is it “proof that something is more likel y true than false.” United States v. Denson , 775 F.3d 1214, 1217 (10th Cir. 2014). Rather, a “fair proba bility,” if placed on a hierarchy, ranks somewhere between a naked suspicion a nd a preponderance of the evidence. Id. (explaining that probable caus e is “more than a ‘bare su spicion’ but less than a preponderance of the evidence” (quoting United States v. Ludwig , 641 F.3d 1243, 1252 & n.5 (10th Cir. 2011))). Th is standard is a low bar. Kaley v. United States , 571 U.S. 320, 338 (2014). B. The Search Warrant Was Support ed by Probable Cause. As discussed, Sergeant Harmon’s affi davit relied on the following evidence: (1) the confidential informant’s tip, (2 ) Oklahoma City Police Department and Oklahoma County jail reco rds that both provided Jenkin s’s address, (3) Jenkins’s vehicle-registration information, (4) Je nkins’s 2005 drug-traffi cking case and his

13 The Fourth Amendment applies to the States through the Fourteenth Amendment. Mapp v. Ohio , 367 U.S. 643, 655 (1961).15 ongoing drug-related prosecu tion, and (5) the trash-pull evidence, including the methamphetamine residue, the rifle amm unition, and vehicle- impound sheet. On appeal, Jenkins asserts that (i) the tip wa s unreliable and irrelevant, (ii) Sergeant Harmon’s failure to mention that the 2005 case had been expunged was an intentional omission, and (iii) the rifle ammunition ca nnot contribute to probable cause, because Jenkins was not yet a convicted felon. For the sake of argument, we will assu me that the tip, Jenki ns’s 2005 case, and the rifle ammunition cannot or do not assi st in establishing probable cause. But because, even without this evidence, the affidavit s till provided a “fair probability that contraband or evidence of a crime [would] be found in [the Wilshire residence],” Grubbs , 547 U.S. at 95 (interna l quotation marks and citati on omitted), we agree with the district court that the warrant was valid, see United States v. Cusumano , 83 F.3d 1247, 1250 (10th Cir. 1996) (en banc) (“In our review, we may disregard allegedly tainted material in the affida vit and ask whether sufficient facts remain to establish probable cause.” (citations omitted)). To start, Sergeant Harmon confirmed th at Jenkins lived at the Wilshire residence by checking Oklahoma City Po lice Department, Oklahoma County jail records, and Jenkins’s vehicl e-registration information. In addition, Sergeant Harmon found a vehicle-impound sheet from Jenkins’s June 2017 arrest in the trash outside of the residence. And Jenkins hims elf claims that “[s]urely ot her records available to the affiant connected Mr. Jenkins to the a ddress.” Appellant’s Principal Br. 12.16 In connection with his criminal history, Jenkins’s residing at the residence is a relevant factor in our proba ble-cause calculus. Though “[ c]riminal history alone is not enough to support a finding even of re asonable suspicion, much less probable cause,” it “can support a fi nding of reasonable suspicion or probable cause” when “combined with other factors[.]” United States v. Artez , 389 F.3d 1106, 1114–15 (10th Cir. 2004) (citations omitted). Other circuit c ourts are in step with Artez , treating a suspect’s criminal history—particularly past convictions or arrests analogous to the criminal activity under investigation—as proba tive to the probablecause analysis. E.g. , United States v. Green , 897 F.3d 173, 187 (3d Cir. 2018); United States v. Perkins , 850 F.3d 1109, 1120 (9th Cir. 2017); United States v. Dyer , 580 F.3d 386, 392 (6th Cir. 2009); see also 2 Wayne R. LaFave, Search and Seizure § 3.2(d) (5th ed., Oct. 2019 update). In Artez , in concluding that a search warrant for a residence was based on probable cause, we relied (in part) on evidence that four of the inhabitants “had prior convictions for na rcotics-related offenses” and “one of the residents had an active arrest warrant for possession of drug paraphernalia.” 14 389 F.3d at 1115. Here, Sergeant Harmon noted that the State of Oklahoma was currently prosecuting him on charges from his earlier “possession of 4.3 gr ams of a substance filed [sic] testing positive fo r methamphetamine, 572 pills id entified as Alprazolam,

14 In addition to challenging his 2005 conviction, Jenkins argues that his 2017 arrest and ongoing prosecuti on were stale as evidence of his ongoing drug activity because he was arrest ed “8 months earlier.” Appellant’s Principal Br. 12. We fail to see how the pending 2017 case is stale. If courts can rely on past convictions without deeming them stale, surely the same holds true for ongoing prosecutions.17 483 pills identified as ec stasy, 0.6 grams of mar ijuana, and various drug paraphernalia including a digital scale.” R. vol. 1 at 26. This June 2017 drug-related conduct was not remote from the February 28, 2018 search warrant. Though this previous arrest—for which Jenkins was currently being prosecuted—was not enough by itself to establish probable cause that he had drugs in his home, it certainly increased the likelihood that drugs w ould be found there during a search. Compare United States v. Sanchez , 555 F.3d 910, 914 (10th Cir. 2009) (“[W]e think it merely common sense that a drug supplier will keep evidence of his crimes at his home.”), with Artez , 389 F.3d at 1114–15 (noting that criminal history cannot by itself establish probable cause but reasoning that the residents’ drug-related criminal history increased the possibility “that drugs or re lated contraband was likely to be found at that location”). But what made such an outcome even more likely was that Sergeant Harmon found a small baggie containi ng methamphetamine residue in the trash outside of the Wilshire residence. In United States v. Colonna , 360 F.3d 1169, 1173, 1175 (10th Cir. 2004), overruled on other grounds by United States v. Little , 829 F.3d 1177 (10th Cir. 2016), the defenda nt argued that evidence a deputy found during a single trash pull—“two burnt roach ends of suspec ted marijuana cigarette s, a ‘twist’ torn from the corner of a plastic baggie, a plastic baggie with a corner to rn from it, and an empty container of Zig Zag cigarette papers”—showed “onl y personal use of marijuana by someone in the residence[.]” He asserted “that personal use alone does not justify the search of a home.” Id. at 1175. Rejecting that argument, we concluded18 that the evidence showed that someone in the residence was using drugs, an act that in turn supported “a ‘fair probability that c ontraband or evidence of a crime will be found in a particular place.’” Id. (quoting Illinois v. Gates , 462 U.S. 213, 238 (1983)); see also id. at 1174 (noting that probable cause existed without other statements in the deputy’s a ffidavit because “the assert ions concerning the evidence obtained from the trash [pull] support[ ed] probable cause”). If an amount of marijuana consistent with “ only personal use” was sufficien t for a search warrant in Colonna , the methamphetamine residue in this case, along with Jenkins’s ongoing prosecution for drug crimes , was more than enough. Out-of-circuit authority also supports this conclusion. In United States v.
Briscoe , 317 F.3d 906, 907–08 (8th Cir. 2003), the Eighth Ci rcuit addressed whether, standing alone, “forty marijuana seeds and tw enty-five marijuana st ems” that officers found during a single trash pu ll supported probable cause fo r a search warrant. The Eight Circuit held that “the marijuana s eeds and stems in Bris coe’s garbage were sufficient stand-alone evidence to establish probable cause,” reasoning that “the presence of discarded marijuana stems a nd seeds reasonably s uggest that ongoing marijuana consumption or trafficking is occurring within the premises[.]” Id. at 908. Likewise, in this case the presence of methamphetamine residue in the trash reflected ongoing methamphetamine use by some one in the Wilshi re residence. On the other hand, some recent cases have reasoned that more than a single trash pull is needed to support probable cause, particularly when the trash pull19 uncovers a small quantity of drugs. 15 For instance, in United States v. Abernathy , 843 F.3d 243, 248 (6th Cir. 2016) , the probable-cause affidav it omitted the defendant’s criminal history, even though the “Defe ndant had a lengthy history of drug and weapons charges[.]” Unab le to rely on this “ critical missing ingredient,” the court ruled that, standing alone, a single trash pull that uncover ed evidence of marijuana use was insufficient to support pr obable cause for a search warrant. Id. at 255–57 (emphasis added) (citation omitted).
But Abernathy ’s critical ingredient is pr esent and potent here: Sergeant Harmon’s affidavit underscored that the State of Oklahom a was currently prosecuting Jenkins for serious drug-rela ted crimes. Mixed together, Jenkins’s ongoing drug prosecution augmented the probable-cause value of the methamphetamine residue. 16 Remaining mindful that we must defer to the issuing-judge’s probable-cause conclusion “even in a ‘doubt ful or marginal case,’” Pulliam , 748 F.3d at 971 (citation

15 See, e.g. , United States v. Lyles , 910 F.3d 787, 791–92, 793–94 (4th Cir. 2018); United States v. Leonard , 884 F.3d 730, 734–3 5 (7th Cir. 2018); United States v. Abernathy , 843 F.3d 243, 255–57 (6th Cir. 2016).

16 Jenkins also argues that, “[a]ssuming weekly garbage coll ection,” the trashpull evidence was stale because it may have been sitting outside th e residence for as long as seven days before the February 27 trash pull. See Appellant’s Principal Br. 11. But whenever the metham phetamine residue was placed in the trash, the fact remains that Sergeant Harmon found it outsi de of the residenc e on February 27. See United States v. Le , 173 F.3d 1258, 1261, 1266–67 (10th Cir. 1999) (judging whether methamphetamine found during a trash pul l was stale based on when officers found it, not based on some hypotheti cal date when it might have been placed in the trash). When he applied for and received a search warrant the next day, the February 27 evidence was far from stale. See United States v. Thurmond , 782 F.3d 1042, 1046 (8th Cir. 2015) (“Seeking the warrant [t wo days after] the initial trash pull did nothing to lessen the probable cause determination.” (citation omitted)).20 omitted), we hold that Jenki ns’s ongoing drug-related pr osecution and the trash-pull evidence, when combin ed together, supplied probable cau se to believe that evidence of drug use or drug possession would be found at the Wilshire residence.
III. Jenkins’s Traffic Dete ntion and Confession Next, we address Jenkins’s argument that Sergeant Rambo unlawfully detained him by handcuffing him and transporting him b ack to the Wilshire residence after the roadside stop. We have serious concerns about the district court’s ruling on this issue—Jenkins’s pat down had showed that he was unarmed , Ms. Viewins did not tell Sergeant Harmon about the fire arm in Jenkins’s room until after Sergeant Rambo had handcuffed and detained Jenki ns, and by handcuffing Jenkins and transporting him to the residence for interroga tion, Sergeant Rambo arguably exceeded the scope of a permissible Terry stop. See Dunaway v. New York , 442 U.S. 200, 212, 216 (1979) (concluding that the defendant’s detention was an arrest, not a Terry stop, when “he was taken from a neighbor’s home to a poli ce car, transported to a police station, and placed in an interrogation room”). But Jenkins briefs none of th ese issues. Instead, he quotes Summers for three points. See 452 U.S. at 702–03. First, he states that “minimizi ng the risk of harm to the officers” while they execu ted the search warrant was not at issue, because Jenkins had left the Wilshire re sidence and the officers knew where he was going. Appellant’s Principal Br. 15 (internal quotation marks om itted). Second, he asserts that “the efficiency of the search being ‘facilitated if th e occupants of the premises are present,’ was not a factor,” because Ms. Viewins had given Sergeant Harmon the21 key to the residence and Jenkins had already been detained. Id. at 15–16. Third, he claims that “‘the legitimate law enforcement intere st in preventing f light in the event that incriminating evidence is found[]’ was non-existent,” because Jenkins and Ms. Viewins would have been unaware of th e search warrant had Sergeant Rambo not stopped them. Id. at 16. The Court in Summers relied on these three concerns to justify the categoricaldetention rule. See Bailey , 568 U.S. at 194 (“In Summers , the Court recognized three important law enforcement interests that, ta ken together, justify the detention of an occupant who is on the premises during th e execution of a sear ch warrant: officer safety, facilitating the comple tion of the search, and prev enting flight.” (citation omitted)). So Jenkins has confined his argument on appeal to explaining why a
Summers categorical detenti on was unjustified. But the district court agreed with him on that point, ruling that a Summers -type detention was inappropriate because Jenkins had been de tained far away from his home. R. vol. 1 at 100 (“Here, the Cour t agrees with Defendant that, per Bailey , a Summers -allowed detention made incident to the search of his residence does not authorize Defendant’s seizure at least 1.5 miles away—a distance farther than that disallowed in Bailey .” (citation omitted)). Even so, th e court concluded that the stop and continued detenti on were reasonable under Terry principles. Jenki ns’s briefing provides only one sentence in response to th at key ruling: “Mr. Jenkins respectfully disagrees.” Appellant’s Principal Br. 15. Yet his briefing casts no light on why he disagrees. Indeed, in the Summary of the Argument sec tion of his brief, Jenkins22 frames his appellate challenge this way: “Mr. Jenkins’ detention away from his residence and returning him to the residence violated Bailey .” Id. at 8. But that establishes nothing—the district c ourt said as much by ruling that Bailey “disallowed” a categorical detention because he had been detained “at least 1.5 miles away” from his home. With ev eryone in agreement on that point, the issue on appeal is whether Jenkins’s ex tended detention violated Terry , a topic Jenkins never tackles. In view of this briefing problem, the government argues that Jenkins has waived his appellate ch allenge on this issue. See, e.g. , Burke v. Regalado , 935 F.3d 960, 1014 (10th Cir. 2019) (“‘Cursory statements, wi thout supporting analysis and case law’ are inadequate to preser ve an issue.” (citation omitted)); United States v. Walker , 918 F.3d 1134, 1152 (10th Cir. 2019) (deeming the government-appellant’s argument waived when its “briefing demonstr ate[d] a lack of meaningful interaction with the district cour t’s . . . analysis”); Adler v. Wal–Mart Stores, Inc. , 144 F.3d 664, 679 (10th Cir. 1998) (“Argumen ts inadequately briefed in the opening brief are waived . . . .” (citations omitted)). We agree. Even li berally construed, Jenkins’s entire appellate argument focuses solely on wh y the district court correctly ruled that

a Summers detention was inappropriate, not why the district court incorrectly ruled that Jenkins’s extended de tention was valid under Terry

. 17 At this point, the only way

17 That Jenkins’s argum ents relate to only Summers and not Terry is clear by how he sums up his brief: ‘“The Summers exception is appropriately predicated only on law enforcement’s interest in carrying out the search unimpeded by violence or other disruptions.’ ( Summers , Scalia, J., concurring)).” A ppellant’s Principal Br. 16. But, as discussed, whether a Summers categorical detention wa s justified is not at issue—the district c ourt did not apply the Summers exception. We also note that23 we could consider a challenge to the district court’s Terry analysis would be by divining our own challenge. But “[i]t is not our role to sift through the record to find evidence not cited by the parties to s upport arguments they have not made.” Cordova v. Aragon , 569 F.3d 1183, 1191 (10th Ci r. 2009) (citation omitted). Moreover, we have explained that “[w]he n an appellee advances an alternative ground” to affirm, and the a ppellant fails to reply to the appellee’s argument, the appellant “waives, as a pr actical matter anyway, any ob jections not obvious to the court to specific points urged by the appellee.” Hasan v. AIG Prop. Cas. Co. , 935 F.3d 1092, 1099 (10th Cir. 2019) (interna l quotation marks and citations omitted); see also Eaton v. Pacheco , 931 F.3d 1009, 1031 (10th Cir. 2019) (“Notably, Eaton doesn’t respond to the state’s mootness argum ent in his reply brief. Accordingly, we treat any non-obvious responses he could have made as waived and assume the state’s mootness analysis is correct.” (citing Hardy v. City Optical Inc. , 39 F.3d 765, 771 (7th Cir. 1994))), cert. denied , No. 19-7810, 2020 WL 2515699 (U.S. May 18, 2020). Here, on top of its waiver argument—wh ich is itself an alternative ground for a non-merits affirmance—the government pr ovides a thorough analysis about how, “even if this Court were to find that Mr. Jenkins was illegally detained,” we should affirm on an alternative ground: the a ttenuation doctrine. Appellee’s Br. 32–37; see also Brown v. Illinois , 422 U.S. 590, 603–04 (1975).

Justice Scalia authored this concurrence in the Bailey decision, not Summers

. See Bailey , 568 U.S. at 203–06 (Scalia, J., concurring).24 In his briefing, Jenkins’s sole discu ssion about the attenuation doctrine is to acknowledge that the district court did not reach the attenua tion issue. He provides no argument against its application— indeed, he does not even cite Brown . And, as mentioned, Jenkins chose not to file a reply brief. Thus , Jenkins has waived any nonobvious responses to the gove rnment’s attenuation analys is, and we se e no obvious flaws in the government’s re asoning. Likewise, we see no obvious rejoinders to or errors in the government’s wa iver analysis. Hence Jenkins ’s waiver is twofold—his brief does not challenge the district court’s Terry ruling, and he did not reply to the government’s alternative grounds for upholding the di strict court’s ruling. CONCLUSION We affirm the district court’s dismi ssal of Jenkins’s motions to suppress.

Entered for the Court
Gregory A. Phillips Circuit Judge