UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

WALTER BROWN EWING, 

 Defendant - Appellant. 

No. 16-5179 

(D.C. No. 4:16-CR-00091-GKF-1) 

(N.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges. 

_________________________________ 

Walter Brown Ewing pleaded guilty to one count of possession of 

methamphetamine with intent to distribute but reserved the right to appeal the district 

court’s denial of his motion to suppress. Exercising jurisdiction under 28 U.S.C. 

§ 1291, we affirm. 

I. Background 

 After receiving a tip from an informant who wished to remain anonymous that 

Mr. Ewing was selling methamphetamine out of his home, Officer Keith Osterdyk 

 *

 After examining the briefs and appellate record, this panel 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 This order and judgment is not binding precedent, 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 

August 2, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

opened an investigation. He began by researching Mr. Ewing’s criminal history. He 

looked at an Oklahoma Department of Corrections report that showed Mr. Ewing had 

been convicted of multiple drug-related offenses. However, one of those offenses 

actually belonged to someone else, and the report indicated that the person was still 

incarcerated. The remaining drug-related offenses shared a single case number. 

Officer Osterdyk conducted surveillance of Mr. Ewing’s home on three 

occasions and observed numerous vehicles pulling into the driveway. The occupants 

were admitted to the home and typically stayed for fifteen minutes to an hour. Based 

on his training and experience, Officer Osterdyk believed this type of activity 

indicated that drug-dealing was occurring. 

Officer Osterdyk and another officer conducted a “trash pull” by collecting six 

trash bags that were near the curb for pickup.1

 A search of the bags yielded plastic 

baggies and glass smoking devices with a white residue that a field test indicated was 

methamphetamine. Officer Osterdyk also found handwritten notes of names and 

money amounts, which he believed were “drug notations.” Aplt. App., Vol. I at 23. 

Based on his investigation, Officer Osterdyk applied for a search warrant. The 

supporting affidavit incorrectly stated that Mr. Ewing had been convicted of four 

drug-related offenses. The affidavit also described the information Officer Osterdyk 

received from the informant, his observations from the surveillance, and the items 

 1

 Mr. Ewing testified at the suppression hearing that he did not place his trash 

cans near the curb, but the district court did not find his testimony credible. 
3 

discovered in the trash, including the drug notations. A judge issued the warrant, and 

police executed a search of the home, seizing about 36 grams of methamphetamine. 

After he was indicted, Mr. Ewing moved to suppress the seized evidence. He 

argued that the affidavit contained misrepresentations and material omissions and 

therefore failed to establish probable cause for issuing the warrant. Specifically, he 

argued that he had only one drug-related conviction, which was over ten years old at 

the time of the affidavit. He also argued that his trash was in his driveway, not at the 

curbside, and therefore the evidence from the trash could not be considered. And he 

argued that the affidavit contained no information from which to conclude that the 

informant was reliable. 

The district court held a hearing on the motion, at which the officers and 

Mr. Ewing testified. Regarding Mr. Ewing’s prior convictions, the court concluded 

that even though one of the convictions on Mr. Ewing’s record belonged to another 

person, “the fact remains that [Mr. Ewing] had, in fact, been convicted of a drug 

offense.” Id., Vol. II at 70. The court credited the officers’ testimony about the 

location of the trash cans at the time of the “trash pull,” and it denied the motion, 

concluding that Officer Osterdyk “did not intentionally misrepresent the material 

facts which constituted his application for the search warrant.” Id. It further 

concluded that Officer Osterdyk “relied in good faith on the warrant once it was 

signed by the judge.” Id. at 71. 

 On appeal, Mr. Ewing argues that the search was not supported by probable 

cause because of the affidavit’s false statements and material omissions. He also 
4 

argues that the good-faith exception does not apply because the warrant’s flaws stem 

from recurring and systemic police negligence. 

II. Law 

 Evidence seized pursuant to a search warrant must be suppressed if “the affiant 

knowingly or recklessly included false statements in or omitted material information 

from an affidavit in support of a search warrant and . . . the corrected affidavit does 

not support a finding of probable cause.” United States v. Garcia-Zambrano, 

530 F.3d 1249, 1254 (10th Cir. 2008). “[W]e review for clear error the district 

court’s findings regarding the truth or falsity of statements in the affidavit and 

regarding the intentional or reckless character of such falsehoods.” Id. We review 

de novo whether the corrected affidavit (after excising any false statements and 

considering any material omissions) supports a finding of probable cause. Id.

III. Analysis 

A. False Statements 

 The affidavit falsely states that Mr. Ewing had been convicted of and 

imprisoned for four drug-related offenses. Nonetheless, we conclude the district 

court’s determination that Officer Osterdyk did not intentionally misrepresent 

Mr. Ewing’s criminal history is not clearly erroneous. Although Mr. Ewing appears 

to have only one such conviction, the false statement is immaterial because even after 

excising it from the affidavit, the affidavit provided probable cause to issue the 

warrant. In light of the other evidence cited in the affidavit, including the items 

found in the trash, whether Mr. Ewing had one or four prior drug-related convictions 
5 

is an insubstantial detail. It is not clear why the case erroneously appeared on 

Mr. Ewing’s criminal history report, but nothing suggests that Officer Osterdyk was 

responsible for the error, and “honest errors by the affiant are not grounds for 

suppression.” United States v. Sanchez, 725 F.3d 1243, 1247 (10th Cir. 2013). 

 Mr. Ewing argues that the affidavit contains another false statement 

concerning the placement of his trash cans when the officers collected the trash. 

However, he has not shown that the court’s factual finding that the cans were at the 

curb is clearly erroneous. Both officers testified at the suppression hearing that the 

cans were at the curb. Officer Osterdyk stated, “As a matter of fact, there was 

another day that I attempted a trash-pull and saw it up by the fence and chose to wait 

until it was by the curb as the law allows.” Aplt. App., Vol. II at 44. The court 

found the officers’ testimony more credible than Mr. Ewing’s on this issue. “We will 

not reweigh the evidence presented to the district court, second guess the district 

court’s credibility assessments, or question reasonable inferences the district court 

drew from the evidence.” United States v. Campbell, 603 F.3d 1218, 1228 (10th Cir. 

2010) (internal quotation marks omitted). 

 Mr. Ewing also argues that Officer Osterdyk’s statements about the traffic at 

Mr. Ewing’s home were false, but we discern no clear error by the district court in 

crediting those statements. Though the other officer testified he did not observe the 

traffic or draw any conclusions from the surveillance, “[w]here there are two 

permissible views of the evidence, the factfinder’s choice between them cannot be 

clearly erroneous.” Id. at 1229 (internal quotation marks omitted). 
6 

 Mr. Ewing also argues that Officer Osterdyk falsely stated in the affidavit that 

the handwritten notes from the trash were “drug notations.” Aplt. App., Vol. I at 23. 

However, next to the other evidence seized from Mr. Ewing’s trash—baggies and 

glass smoking devices with a white residue that tested presumptively positive for 

methamphetamine—this statement is insubstantial. Further, even if the notes were 

related to Mr. Ewing’s legitimate business as he contends, he has made no showing 

that Officer Osterdyk’s assessment of the notes was deliberately or recklessly 

misleading. 

B. Material Omissions 

 Mr. Ewing argues that material facts were not included in the affidavit which 

would have altered the issuing judge’s determination of probable cause. He argues 

that Officer Osterdyk should have reported that Mr. Ewing operated two legitimate 

businesses out of his home and that four other people lived there. These facts, he 

contends, would explain any higher-than-expected levels of traffic. But even if there 

could have been an innocent explanation for the traffic, “innocent conduct will 

inevitably support some showings of probable cause.” United States v. Biglow, 

562 F.3d 1272, 1281 (10th Cir. 2009). Mr. Ewing has not shown that consideration 

of the businesses and other residents would have made a difference with respect to 

the determination of probable cause. 

 Mr. Ewing also argues that the omission of the informant’s identity was 

material and should have been disclosed. He contends that his wife may have been 

the informant and that she had a motivation to falsify information because they were 
7 

“embroiled in a bitter break up of their marriage.” Opening Br. at 21. But “[w]hen 

there is sufficient independent corroboration of an informant’s information, there is 

no need to establish the veracity of the informant.” United States v. Tuter, 240 F.3d 

1292, 1297 (10th Cir. 2001). As stated in the affidavit, the informant’s tip was 

independently corroborated by Officer Osterdyk’s investigation; therefore, the 

informant’s identity was immaterial. 

 We conclude the district court correctly determined that the affidavit provided 

probable cause to issue the search warrant. As a result, we need not reach 

Mr. Ewing’s arguments with respect to the good-faith exception to the warrant 

requirement. 

IV. Conclusion 

 The judgment is affirmed. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge