* This order and judgment is not binding precedent, e xcept under the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

### APR 2 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 03-3168

v. (D. Kansas) JAMES B. LANDSAW,

Defendant - Appellant. (D.C. No. 02-CR-40066-RDR)

ORDER AND JUDGMENT *

Before EBEL , MURPHY , and McCONNELL , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

I. INTRODUCTION Defendant Landsaw was charged, by indictment, with: (1) possession of a listed chemical knowing or having reason to believe that the chemical would be used to manufacture methamphetamine; and (2) conspi racy to manufacture and distribute methamphetamine. Landsaw moved to suppr ess evidence seized from his vehicle, arguing that the officers had no reaso nable suspicion to stop his vehicle. Landsaw also moved to suppress evidence s eized from his residence, arguing that the officer who obtained the search wa rrant should have informed the magistrate that the pseudoephedrine pills had alrea dy been seized from his vehicle. Both motions were denied by the district court. Th e district court reasoned that the police officers had reasonable suspicion o f criminal activity. The district court partially based this conclusion on its findin g that defendant had just left his residence, where he purchased pseudoephedrine from a confidential informant (“CI”) who was wearing a transmitting wire. Landsaw pleaded guilty to Count 1 of the indictment , and the United States dismissed Count 2. Landsaw reserved his right to appeal the district court’s denial of his motions to suppress. He was sentence d to 108 months’ imprisonment and three years’ supervised release. Landsaw appeals the denial of his motions to suppress the evidence seized from hi s vehicle and his residence.-3-

Exercising jurisdiction pursuant 28 U.S.C. § 1291, this court affirms Landsaw’s conviction.
II. BACKGROUND The government sent a CI to Landsaw’s house as partof a methamphetamine investigation. The CI had made arr angements to deliver ephedrine or pseudoephedrine pills to Landsaw and t ook the pills with him when he went to Landsaw’s residence. The CI was wired, and the monitoring detective, one Dierks, overheard Landsaw talking about breakin g down the pills. Landsaw told the CI that he would use the pills to make met hamphetamine. Before the CI left Landsaw’s residence, he delivered the pseudoep hedrine pills to Landsaw as planned. Meanwhile, officer Smith observed the informant andtwo or three people leave the residence. Shortly thereafter, the offic er saw Landsaw drive away in his car. Smith radioed Dierks, who directed Smith to s top Landsaw’s vehicle. Smith did not observe any traffic violations. He activat ed his emergency lights in an attempt to stop Landsaw’s vehicle. Landsaw sped up and turned into his father’s driveway, then stopped the car. Once the vehicle w as stopped, Smith advised Landsaw that a warrant was being obtained to searchhis vehicle and his house as part of a narcotics investigation. Landsaw then co nsented to a search of his-4-

vehicle. Smith searched the car and found a sack c ontaining pseudoephedrine pills. Dierks was called to the scene and saw the bag of p ills in the back of the vehicle. It is unclear whether all the pills sold to Landsaw by the CI were in this bag. Afterwards, Dierks filed an affidavit for a w arrant to search Landsaw’s residence. The affidavit did not mention that Land saw’s car had been stopped and that it contained pseudoephedrine. The search warrant was issued and executed shortly thereafter. The officers who exec uted the warrant found several items in the residence related to the manufacture o f methamphetamine, including lithium batteries and antifreeze.
III. DISCUSSION When reviewing a district court’s denial of a motio n to suppress, this court considers the totality of the circumstances and vie ws the evidence in the light most favorable to the government. United States v. McKissick, 204 F.3d 1282, 1296 (10th Cir. 2000). This court accepts the dist rict court’s factual findings unless those findings are clearly erroneous. Id. The ultimate determination of whether there was reasonable suspicion or probable cause to conduct a search are reviewed de novo

. See Ornelas v. United States , 517 U.S. 690, 691 (1996); U.S. v. Colonna , 2004 WL 233297, at *2 (10th Cir. Feb. 9, 2004).-5-

A. Denial of the Motion to Suppress the Evidence S eized from the Vehicle Landsaw argues that the district court erred in denying his motion to suppress the evidence seized from his vehicle. He argues that the evidence seized from his vehicle was the “fruit of the poisonous tr ee” because his vehicle was illegally stopped. Landsaw argues the stop was ill egal because the police officers did not have reasonable suspicion to stop his vehic le. This court disagrees. An investigative stop is a seizure within the meani ng of the Fourth Amendment, and must be justified at its inception. Terry v. Ohio , 392 U.S. 1, 19- 20 (1968). The investigative stop must, given the totality of the circumstances, be justified by a particularized and objective basis f or suspecting that the person stopped is, or is about to be, engaged in criminal activity. United States v.
Cortez , 449 U.S. 411, 417-18 (1981). Landsaw argues thatthere was no reasonable suspicion in this case because “the offi cers did not even know who they were stopping.” This argument is unavailing. The officers testified that they recognized Landsaw and were reasonably sure that Landsaw was driving the vehicle. Furthermore, the totality of the circumstances supp ort a finding of reasonable suspicion that Landsaw was engaged in cr iminal activity. The manufacture of methamphetamine and the possession o f pseudoephedrine with intent to manufacture methamphetamine are both crim es. See 21 U.S.C.1 Landsaw appeals the denial of his motion to suppres s the evidence derived

from the Terry stop solely on the grounds that the stop was not ju stified at its inception. Therefore, this court need not reach th e second part of the inquiry of the reasonableness of the investigative search—whether the search was reasonably related in scope to the circumstances which justifi ed the stop in the first place, see United States v. Hunnicutt , 135 F.3d 1345, 1348 (10th Cir. 1998)—because Landsaw waived his appeal on that ground. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). -6- § 841(a)(1) and § 841(c); 21 C.F.R. § 1310.02(a)(3) . The district court found that while in the house, Landsaw had purchased pseudoeph edrine from the CI, who was wearing a transmitting wire. Nothing in the re cord suggests that this finding is clearly erroneous. Because the CI was wired, th e officers knew that Landsaw had purchased pseudoephedrine from the CI shortly b efore he got into his car. Landsaw also told the CI that he intended to use th e pills to make methamphetamine. Dierks heard Landsaw say that he would break down the pills, and Dierks knew that pseudoephedrine pills are brok en down with chemicals to manufacture methamphetamine. Thus, the officers ha d a particularized and objective basis for suspecting that Landsaw was in possession of pseudoephedrine pills with intent to manufacture methamphetamine. For these reasons, the district court correctly con cluded that the officers had, at a minimum, reasonable suspicion that Landsaw was engaging in criminal activity, which justified the investigative stop atits inception. 1 The district court-7-

therefore did not err in denying Landsaw’s motion t o suppress the evidence derived from the search of the vehicle. B. Denial of the Motion to Suppress the Evidence S eized from the Residence Landsaw further argues that the district court erre d in denying his motion to suppress the evidence seized from his residence. L andsaw argues that Dierks made a material omission in the affidavit, and thatthe remainder of the affidavit did not provide probable cause to support the issuance of the warrant to search his residence. The court concluded that the warrant wa s valid because there was sufficient probable cause despite the omission, andthat regardless, the warrant is saved by the good-faith exception as delineated in United States v. Leon , 468 U.S. 897, 919-22 (1984). The court reasoned that even i f all the pseudoephedrine pills had been found in Landsaw’s vehicle (a fact which t he court found was uncertain), there would still have been sufficient probable cause in the affidavit to search for evidence of manufacturing and distributi on of drugs. This court need not reach the question of whether t he good-faith exception applies because the affidavit establishes probable cause. See Colonna , 2004 WL 233297, at *2 (reasoning there is no need to apply the good-faith exception where the affidavit, despite its falsehoods, supports a f inding of probable cause). Probable cause to conduct a search exists if there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v.-8-

Gates , 462 U.S. 213, 238 (1983). When making a probable cause determination, a magistrate may draw reasonable inferences from the information in the affidavit. See United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir. 1998). Dierks’ affidavit described: (1) Landsaw’s involvement in methamphetamine manufacturing activities dating back to July 2001; (2) a search of Landsaw’s residence in August 2001 which produced evidence of methamphetamine manufacture; (3) information from several differentCIs, throughout 2001-2002, that Landsaw was manufacturing methamphetamine and intended to continue doing so; (4) the events in April 2002 leading to t he controlled sale of the pseudoephedrine pills to Landsaw which resulted in his arrest; (5) Landsaw’s purchase of the pseudoephedrine pills in April 2002 for the purpose of manufacturing methamphetamine; (6) that it is commo n for drug traffickers to conceal contraband, proceeds of drug sales, receipt s of drug transactions, and paraphernalia for packaging, cutting, weighing and distributing drugs within or near their property; and (7) the officer’s belief t hat controlled substances and paraphernalia used to manufacture, process, harvest , weigh, package, sell, store, transport, distribute, and convey methamphetamine c ould be found in Landsaw’s residence. Based on the above information, the magistrate reas onably inferred that Landsaw was involved in ongoing and continuous manu facture of-9-

methamphetamine. Landsaw argues that the informati on in the affidavit was stale because part of the affidavit tracks his activities as far back as July 2001. Mere passage of time, however, does not render informati on stale where drug activities are ongoing and continuous. See United States v. Myers , 106 F.3d 936, 939 (10th Cir. 1997). The totality of the information in the affidavit suggests that Landsaw was involved in the manufacture of methamphetamine from July 2001 until the day of his arrest. In addition, the affidavit supports the inference t hat evidence of Landsaw’s illegal activities would be found in his residence. Courts may rely on the opinion of police officers as to where contraband may be ke pt. United States v. Hargus , 128 F.3d 1358, 1362 (10th Cir. 1997). In this case , the officer noted that controlled substances and paraphernalia necessary t o manufacture and distribute methamphetamine could be found at Landsaw’s residen ce. In addition, there was a controlled sale of pseudoephedrine to Landsaw at his home on the evening that the warrant was issued. Both these facts support an inference that evidence of methamphetamine manufacture and distribution would be found at Landsaw’s residence. The affidavit therefore provided probab le cause for a warrant to search Landsaw’s residence. Moreover, the affidavit would have provided probabl e cause for the warrant even if it had included the information about the p ills recovered from Landsaw’s-10-

car. A warrant is valid if the affidavit still giv es rise to probable cause when the omitted information is included in it. See Colonna , 2004 WL 233297 at *2; Stewart v. Donges , 915 F.2d 572, 583 n.13 (10th Cir. 1990). The aff idavit sought a warrant to search for: (1) “[c]ontrolled substan ces and paraphernalia used to . . . manufacture . . . weigh, package, sell, store , transport, [or] distribute . . . any controlled substance;” (2) “methamphetamine . . . ; chemicals, compounds and substances used in the manufacture of methamphetami ne . . . ; laboratory equipment, apparatus and glassware; documents, reci pes, notes . . . ; records of drug production, activities and confederates; recor ds of drug proceeds; and weapons.” The validity of the warrant did not depe nd on the presence of the pseudoephedrine pills at Landsaw’s residence becaus e there was probable cause to search for otherevidence of manufacture and distribution of methamphetamine. Because the affidavit, even with the omission inclu ded, would still provide a substantial basis for concluding that probable caus e existed, the evidence seized from Landsaw’s residence need not be suppressed.-11-

IV. CONCLUSION For the foregoing reasons, this court AFFIRMS the district court’s denial of Landsaw’s suppression motions and AFFIRMS his conviction.
ENTERED FOR THE COURT
Michael R. Murphy Circuit Judge