* This order and judgment is not binding precedent, e xcept under the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

### SEP 9 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JOHNNY CRAIG JAMES,

Defendant-Appellant. No. 96-7123 (D.C. No. CR-96-43-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA, MCKAY, and BALDOCK, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Defendant Johnny Craig James entered a conditional plea of guilty to possession of a firearm after a previous felony con viction, in violation of 18 U.S.C. § 922(g), reserving, pursuant to Fed. R. Crim. P. 11(a)(2), his right to bring this appeal from the district court’s denial of his motion to suppress. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. Upon presentation of an application and supporting affidavit to a magistrate judge, Alcohol, Tobacco, and Firearms Agent Timothy Kelly was granted a search warrant to search defendant’s house. The search re sulted in the seizure of a large number of weapons and illegal drugs and drug paraph ernalia, including the glassware needed to “cook” methamphetamine. After his arrest, defendant moved to suppress the evidence seized during the search, claiming that the search warrant lacked probable cause, was not properly exe cuted, and failed to describe with particularity the place to be searched. Follo wing a hearing, the district court denied defendant’s motion. In denying the motion, the district court found that Agent Kelly’s affidavit provided sufficient probable cause to support issuance of the warrant. Moreover, the court concluded that even if probable cause was lacking, the “good faith” exception to the exclusionary rule set forth in Uni ted States v. Leon , 468 U.S. 897, 918-22 (1984), would apply to validate the sea rch. On appeal, defendant claims that the information contained in the affidavit in support of the application-3-

for a search warrant was stale and lacking in credi bility, and that the Supreme Court’s decision in Leondoes not necessarily validate all search warrants. We review the district court’s decision to deny defend ant’s motion to suppress under a clearly erroneous standard. See United States v. Pace , 981 F.2d 1123, 1133 (10th Cir. 1992). Probable cause to issue a search warrant exists onl y when the supporting affidavit sets forth facts that would lead a pruden t person to believe there is a fair probability that contraband or evidence of a crime will be found in a particular place. See generallyUnited States v. Wicks , 995 F.2d 964, 972-73 (10th Cir. 1993). In determining the existence of probable ca use, the court applies a totality of the circumstances approach. See Illinois v. Gates , 462 U.S. 213, 238 (1983). Initially, defendant asserts that the information i n the affidavit was stale.
See United States v. Snow , 919 F.2d 1458, 1459 (10th Cir. 1990) (“Probable cause to search cannot be based on stale informatio n that no longer suggests that the items sought will be found in the place to be s earched.”). Here, the information in the affidavit spanned a time period between 1994 and the time the warrant issued on November 21, 1995. Whether the i nformation in the affidavit is stale, however, does not depend upon the time elaps ed between the facts and the issuance of the warrant, but instead is dependant upon “‘the nature of the criminal-4-

activity, the length of the activity, and the natur e of the property to be seized.’” Id. at 1460 (quoting United States v. Shomo , 786 F.2d 981, 984 (10th Cir. 1986)). Agent Kelly’s lengthy and detailed affidavit contai ned cumulative information regarding defendant’s suspected drug ac tivities and weapons possession as well as information linking defendantto Rocky Miller, aka Rocky Rothrock, who was also being investigated in connec tion with illegal drug activities. The affidavit indicated that Miller ha d numerous previous arrests and convictions on weapons and illegal drug charges. I t provided information that Miller collected his mail sporadically, moved aroun d a lot, and, in early November 1995, was seen loading a truck in front of defendant’s house. In addition, the affidavit indicated that the Carter C ounty Sheriff’s Department received an anonymous letter advising that Miller w as residing at defendant’s house. The affidavit contained information from informants that defendant was manufacturing and trafficking methamphetamine and t hat he possessed drugs and weapons in his house. As late as November 14, 1995 , a week before Agent Kelly applied for the warrant, a female, later identified as defendant’s girlfriend, was observed firing a shotgun near defendant’s residenc e. We have held that “[s]uch ongoing and continuous activity makes the passage o f time less critical.” Id.-5-

Moreover, many of the items sought by way of the se arch, “firearms, ammunition, documents relating to illegal firearms possession, acquisition or disposition, illegal narcotics and paraphernalia us ed in the manufacturing and distribution of narcotics,” Suppl. R. Vol. I, Affid avit at 11, are “of the type that would be kept for some time given the nature of def endant’s activities,” Snow , 919 F.2d at 1460. Under these circumstances, we ho ld that the information contained in Agent Kelly’s affidavit was not too st ale to provide probable cause to search defendant’s residence. See Shomo , 786 F.2d at 984 (if property likely to remain in the same place for a lengthy time, pro bable cause may be found despite delay between events relied on and issuance of warrant). Next, defendant asserts that the information in the affidavit lacked credibility. Specifically, defendant alleges that the search warrant was nothing more than a fishing expedition in an investigation of Miller. He contends that two anonymous letters regarding Miller, received bythe Carter County Sheriff’s Department, one indicating that Miller was living at defendant’s residence, lacked any indicia of reliability and credibility. In his affidavit, Agent Kelly related that he interviewed Undersheriff T.E. Burton of the Carter County Sheriff’s Departme nt who informed him that during the week of November 8, 1995, the departmenthad received two anonymous letters regarding Miller. The first lett er indicated that Miller was-6-

living in defendant’s home. The letter described M iller’s physical appearance, advised that he carried a firearm and was dangerous , and indicated that he had a girlfriend, Terry Miller, who had been arrested wit h Miller on drug charges. The second letter advised that Miller was making threat s against people using a weapon, and that he was a known drug dealer. When issuing a search warrant, the magistrate judge makes “a practical, common-sense decision whether, given all the circum stances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair prob ability that contraband or evidence of a crime will be found in a particular p lace.” Gates , 462 U.S. at 238. We give this determination of probable cause substa ntial deference. See id. at 236; accordWicks , 995 F.2d at 972. The Supreme Court has held that “‘corroboration thr ough other sources of information’” can serve to substantiate hearsay forpurposes of assessing probable
cause. Gates , 462 U.S. at 244-45 (quoting Jones v. United State s , 362 U.S. 257, 271 (1960), overruled on other grounds byUnited States v. Salvucci , 448 U.S. 83 (1980)). Here, it is clear that the information in the anonymous letters had been partially substantiated by Agent Kelly’s investigat ion. The affidavit contained information regarding defendant’s illegal drug acti vities and weapons violations. In addition, surveillance had placed Miller at defe ndant’s residence and1 In light of the nature of our decision in this case , we need not consider

defendant’s “good faith” arguments arising under Un ited States v. Leon , 468 U.S. 897, 918-22 (1984) (even though probable cause may be lacking, court’s denial of suppression can be affirmed based on officer’s “goo d faith” actions in obtaining and relying on the warrant). We are satisfied, how ever, that the execution of the warrant clearly falls within the Leon exception to the exclusionary rule. -7- substantiated the anonymous information regarding M iller’s involvement with illegal drug trafficking. Therefore, despite defen dant’s contentions to the contrary, Agent Kelly’s affidavit clearly provided a credible likelihood of connections among defendant, Miller, drug trafficki ng, weapons possession, and defendant’s residence. See id. at 244 n.13 (“[P]robable cause requires only a probability or substantial chance of criminal activ ity, not an actual showing of such activity.”). Accordingly, based on the totality of the circumsta nces, probable cause for issuance of the search warrant was established. 1 The district court’s decision to deny defendant’s motion to suppress was correct, an d defendant’s conviction in this case is hereby AFFIRMED. Entered for the Court

Deanell Reece Tacha Circuit Judge