## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 17 2002 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. SERGIO PINUELAS-SAUCEDA, also known as Marco Antonio Magnino,

Defendant-Appellant. No. 02-8023 (D.C. No. 01-CR-03-B) (D. Wyo.)

ORDER AND JUDGMENT

Before BRISCOE , Circuit Judge, BRORBY , Senior Circuit Judge, and HARTZ , Circuit Judge.

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(G). The case is therefore ordered 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 This orde r and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.-2-

Defendant Sergio Pinuelas-Sauceda pleaded guilty to illegal reentry of a previously deported alien, and also entered a condi tional guilty plea to one count of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841, subject to his right to appeal the district court’s denial of his motion to suppress. See Fed. R. Crim. P. 11(a)(2) (conditional pleas). On appeal defendant contends that the district court erred by not suppr essing evidence obtained as a result of a warrant issued to search the house wher e he was arrested in Torrington, Wyoming. In particular, defendant argu es that the warrant was based on “stale” information and on unreliable statements from a police informant. We affirm.
I. Background Beginning in August 2000, law enforcement officers began an investigation into methamphetamine trafficking in Scotts Bluff Co unty, Nebraska. Between August and December of 2000, officers made three co ntrolled buys of methamphetamine from Anna Adams. Adams was arreste d on December 10, 2000, and agreed to cooperate with the police by pr oviding statements identifying her supplier. Adams admitted buying at least four pounds of methamphetamine over the preceding three to six months from a man she knew a s “Kia-amo,” from Phoenix, Arizona. Adams stated that she traveled to Phoenixon numerous occasions to-3-

buy half-pound to one-pound amounts of methamphetam ine from Kia-amo, paying between $7,000 to $8,000 per pound. Adams stated that she also met with Kia-amo and his associates to buy methamphetamine at a trailer house located at 527 E . 3rd in Torrington, Wyoming. Adams admitted buying methamphetamine fro m Kia-amo at that location on December 9, 2000, the day before her arrest and interview. She stated that she bought two ounces of methamphetamine that day, but that she saw approximately two pounds of the drug in the house. Adams also admitted that $4,200 in cash found in her car at the time of her arrest belonged to Kia-amo, and that she had been instructed to send the money to o ne of Kia-amo’s associates in Phoenix. Adams stated that she did not know Kia-amo’s real i dentity, but that she had seen a Mexico identification card with the name Mauricio Moreno. She also stated that she had traded two cars to Kia-amo in e xchange for drugs within the past six months. Further, Adams said that Kia-amo and two of his associates were currently in Room 12 of the Sands Motel in Scottsbl uff, Nebraska. According to Adams, one of the two bartered vehicles was parked outside that motel. The other car, she said, was parked outside the trailer house in Torrington. Finally, based on her association with Kia-amo, Adams stated that she believed Kia-amo was a large-scale drug trafficker.-4-

Acting on this information, officers went to Room 1 2 of the Sands Motel, where they found three Hispanic men. One of the me n had an identification card with the name Mauricio Moreno. That man told offic ers that a vehicle parked outside the motel belonged to him, although it was registered to Adams. Police arrested the three men after determining they were in the United States illegally. Later that day police transported Adams to Torringt on, Wyoming, where they met Special Agent Propps of the Wyoming Division of Criminal Investigation. Adams identified the trailer house at 527 E. 3rd as the house in which she bought methamphetamine. Additionally, sh e identified a car parked in the driveway of that house as one of the two vehicl es she traded to Kia-amo for drugs. The next day, December 11, 2000, Special Agent Prop ps prepared an affidavit requesting a warrant to search the house at 527 E. 3rd for methamphetamine and for paraphernalia commonly asso ciated with the sale and use of the drug. The affidavit included a narrativ e of events surrounding Adams’ arrest as well as her statements to police and subs equent identification of the house and car in Torrington. The warrant was issue d and executed the same day, resulting in the seizure of a quantity of methamphe tamine. During the search, police arrested defendant attempting to flee the ho use. He was subsequently charged with illegal reentry of a previously deport ed alien, in violation of 8-5-

U.S.C. § 1326, and of possession with intent to dis tribute more than 500 grams of methamphetamine, in violation of 21 U.S.C. § 841. Defendant moved to suppress the evidence obtained p ursuant to the search warrant arguing, among other things , that the information in the affidavit was impermissibly stale and that Adams’ incriminating s tatements were unreliable. The district court rejected those arguments and den ied the motion. Defendant ultimately pleaded guilty to both counts, reserving the right to appeal the district court’s denial of his motion to suppress. Defendant was sentenced, and now appeals the court’s ruling on the motion.

II. Standard of Review A judge’s task in assessing whether probable cause exists to issue a search
warrant is simply to make a practical, common-sense decisio n whether, given all the circumstances set forth in the affidavit be fore him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability th at contraband or evidence of a crime will be found in a particular p lace. Illinois v. Gates , 462 U.S. 213, 238 (1983). “[A] magistrate judge’ s decision to issue a warrant is entitled to great deference fromthe reviewing court.” United States v. Tuter , 240 F.3d 1292, 1295 (10th Cir.) (internal quotati on marks omitted), cert. denied , 122 S. Ct. 195 (2001). “Accordingly, we need onl y ask whether, under the totality of the circumstances pr esented in the affidavit, the-6-

magistrate judge had a substantial basis for determ ining that probable cause existed.” Id. (internal quotation marks omitted); see also Gates , 462 U.S. at 238- 39. Probable cause exists when the affidavit “sets forth facts that would lead a prudent person to believe there is a fair probabili ty that contraband or evidence of a crime will be found in a particular place.” United States v. Basham , 268 F.3d 1199, 1203 (10th Cir. 2001), cert. denied , 122 S. Ct. 1336 (2002). When reviewing the district court’s denial of a motion t o suppress, we view the evidence in the light most favorable to the governm ent and accept the district court’s findings of fact unless they are clearly erroneous. Id. But the ultimate determination of reasonableness under the Fourth Am endment is reviewed de

novo. Id.

III. Staleness Defendant first contends that the information conta ined in the affidavit was stale because Adams’ observation of drugs in the To rrington, Wyoming, house was two days before the execution of the warrant. We have held that “[p]robable 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 searched.” United States v. Snow, 919 F.2d 1458, 1459 (10th Cir. 1990). To determine whether information is stale, however, we look not only at the element of time, but also at “the nature of the criminal activity, the length of the activity, and the nature of the property-7-

to be seized.” Id. at 1460 (internal quotation marks omitted). In particular, “where the affidavit properly recites facts indicat ing activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.” United States v. Johnson , 461 F.2d 285, 287 (10th Cir. 1972). In the present case we agree with the district court that the information used to support the warrant was not impermissibly s tale. In addition to the relatively brief period of time between Adams’ obse rvation and the execution of the warrant, cf. Andresen v. Maryland , 427 U.S. 463, 478-79 n.9 (1976) (noting three-month time lapse was not unreasonable under the circumstances); Johnson , 461 F.2d at 287 (holding that information obtained three weeks before affidavit was filed was not stale), the affidavit contains in formation evidencing a largescale and continuing drug distribution operation. The affidavit recounts a three-month criminal investigation into Adams’ drug activity. The affidavit also contains Adams’ statements that she had purchased m ethamphetamine on “numerous occasions” (totaling at least four pounds of the drug) over the past three to six months from the man whom she believed rented the Torrington, Wyoming, house. Additionally, the affidavit indicates Adams and Kia-amo routinely dealt with large amounts of cash; Adams s tated she paid Kia-amo $7,000 to $8,000 per pound of methamphetamine and admittedshe was holding $4,200 for his benefit at the time of her arrest. The cum ulative nature of this-8-

information, coupled with Adams’ statement of seein g a two-pound supply of methamphetamine at the Torrington house during her most recent purchase, is enough to suggest that the items listed in the warr ant were likely to be found in the place to be searched. See United States v. $149,442.43 in U.S. Currency , 965 F.2d 868, 873 (10th Cir. 1992) (holding that ev idence of past drug activity, coupled with recent purchases with large amounts of cash, demonstrated “a strong probability of continuous ongoing criminal involvem ent covering a broad span of time”). Thus, we conclude that the warrant was notbased on stale information.
IV. Informant Reliability Defendant next contends that Adams’ incriminating s tatements to the police were unreliable. “We evaluate informant informatio n for probable cause in a search warrant affidavit under the ‘totality of the circumstances’ test.” United States v. Sturmoski , 971 F.2d 452, 457 (10th Cir. 1992) (quoting Gates , 462 U.S. at 238). In his brief on appeal, defendant challenges the affidavit’s validity based on the lack of an attestation that A dams was reliable. But “even if we entertain some doubt as to an informant’s motive s, h[er] explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles h[er] tip to greater weight than might otherwise be the case.” Gates , 462 U.S. at 234. Thus, the detail of Adams’ info rmation lends it substantial credibility. In addition, we have h eld that “there is no need for a-9-

declaration of the reliability of an informant whenthe informant’s information is corroborated by other information.” Sturmoski , 971 F.2d at 457. An informant’s allegations of criminal conduct may be corroboratedby independent verification of facts not in themselves incriminatory, because s uch verification provides a “substantial basis for crediting” the incriminating allegation. Gates , 462 U.S. at 245 (internal quotations marks deleted). See Draper v. United States , 358 U.S. 307, 309-10, 312-13 (1959). In the present case, the district court concluded that Adams’ statements concerning methamphetamine sales in the Torrington house were independently verified by the following inform ation: 1) on December 10, 2000, [police officers] went to room number 12 at the Sands Motel and contacted three Hispanic mal es, one of whom was carrying a Mexico Identification card with the name Mauricio Moreno; 2) [police officers] located a vehicle regi stered to [Adams] parked outside room number 12; and 3) the man carry ing the Mexico Identification card with the name Mauricio Moreno t old [police officers] that the vehicle registered to [Adams] wa s in fact his vehicle. R., Vol. 1, Doc. 70 at 14. Moreover, the affidavitfor the warrant states that officers determined that the utilities for the Torr ington house were in the name of Ed Perez, thereby confirming Adams’ statement that the landlord was a man named “Ed” with an Hispanic last name. Hence, we c onclude that the issuing judge could properly credit Adams’ allegations of c riminal activity.-10- V. Conclusion Because we conclude that the judge had a substantia l basis for finding probable cause to issue the warrant, the judgment o f the United States District Court for the District of Wyoming is AFFIRMED.

Entered for the Court

Harris L Hartz Circuit Judge