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 ri ght to appeal the district court’s denial of his motion to suppress. Exercising jurisd iction under 28 U.S.C. § 1291, we affirm. I. Background After receiving a tip from an informan t 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, th is 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 Court2 opened an investigation. He began by researching Mr. Ewin g’s criminal history. He looked at an Oklahoma Department of Corr ections report that s howed Mr. Ewing had been convicted of multiple drug-related offe nses. 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 surveilla nce 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 st ayed for fifteen minutes to an hour. Based on his training and experience, Officer Os terdyk believed this type of activity indicated that drug-dealing was occurring. Officer Osterdyk and another officer condu cted a “trash pull” by collecting six trash bags that were n ear the curb for pickup. 1 A search of the bags yielded plastic baggies and glass smoking devices with a white residue that a fiel d test indicated was methamphetamine. Officer Osterdyk also found handwritten notes of names and money amounts, which he believed were “dr ug notations.” Aplt. App., Vol. I at 23. Based on his investigation, Officer Oste rdyk applied for a search warrant. The supporting affidavit incorrectly stated that Mr. Ewing ha d been convicted of four drug-related offenses. The affidavit also described the informat ion Officer Osterdyk received from the informan t, his observations from the surveillance, and the items

1 Mr. Ewing testified at th e suppression hearing that he did not place his trash cans near the curb, but the district court did not fi nd his testimony credible.3 discovered in the trash, incl uding the drug notations. A j udge issued the warrant, and police executed a search of the home, se izing about 36 grams of methamphetamine. After he was indicted, Mr. Ewing moved to suppress the sei zed evidence. He argued that the affidavit contained misrep resentations and material omissions and therefore failed to establish probable cause for issuing the warrant. Specifically, he argued that he had only one drug-related co nviction, which was over ten years old at the time of the affidavit. He also argued that his trash wa s in his driveway, not at the curbside, and therefore the ev idence from the trash could not be considered. And he argued that the affidavit contained no info rmation 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. Rega rding Mr. Ewing’s prior convi ctions, the court concluded that even though one of th e convictions on Mr. Ewing’s record belonged to another person, “the fact remains th at [Mr. Ewing] had, in fa ct, been convicted of a drug offense.” Id. , Vol. II at 70. The court cred ited 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 applicat ion for the search warrant.” Id. It further concluded that Officer Oste rdyk “relied in good faith on the warrant once it was signed by the judge.” Id. at 71. On appeal, Mr. Ewing argues that th e search was not supported by probable cause because of the affidavit’s false stat ements and material omissions. He also4 argues that the good-faith exception does not apply because the wa rrant’s flaws stem from recurring and systemic police negligence.
II. Law Evidence seized pursuant to a search warra nt must be suppressed if “the affiant knowingly or recklessly incl uded 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 fals ity 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 st ates that Mr. Ewing had been convicted of and imprisoned for four drug-relate d offenses. Nonetheless, we conclude the district court’s determination that Officer Oste rdyk did not intentionally misrepresent Mr. Ewing’s criminal history is not clear ly erroneous. Although Mr. Ewing appears to have only one such convicti on, the false statement is im material because even after excising it from the affidav it, the affidavit provided pr obable cause to issue the warrant. In light of the other evidence ci ted in the affidavit, including the items found in the trash, whether Mr. Ewing had one or four prior drug-related convictions5 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 e rrors 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 affidav it contains another false statement concerning the placement of his trash cans when the officers co llected 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 th e 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 a nd saw it up by the fence and chose to wait until it was by the curb as the law allows.” Aplt. App., Vo l. II at 44. The court found the officers’ testimony more credible th an Mr. Ewing’s on this issue. “We will not reweigh the evidence presented to the di strict court, second guess the district court’s credibility assessments, or question reasonable infe rences 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 statemen ts about the traffic at Mr. Ewing’s home were false, but we discer n no clear error by the district court in crediting those statements. Though the othe r officer testified he did not observe the traffic or draw any conclusions from th e surveillance, “[w] here there are two permissible views of the evidence, the fa ctfinder’s choice betwee n them cannot be clearly erroneous.” Id. at 1229 (internal quota tion marks omitted).6 Mr. Ewing also argues that Officer Osterdyk falsely stat ed in the affidavit that the handwritten notes from the tr ash were “drug notations.” Aplt. App., Vol. I at 23. However, next to the other evidence se ized 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 legiti mate business as he conte nds, he has made no showing that Officer Osterdyk’s as sessment of the notes was deliberately or recklessly misleading. B. Material Omissions Mr. Ewing argues that material facts we re not included in the affidavit which would have altered the issuing judge’s de termination of probable cause. He argues that Officer Osterdyk should have reported that Mr. Ewi ng operated two legitimate businesses out of his home and that four other people lived there. These facts, he contends, would explain any highe r-than-expected levels of tr affic. But even if there could have been an innocent explanati on for the traffic, “innocent conduct will inevitably support some show ings 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 differen ce with respect to the determination of probable cause. Mr. Ewing also argues that the omi ssion of the informan t’s identity was material and should have been disclosed. He contends th at his wife may have been the informant and that she had a motivation to falsify informatio n because they were7 “embroiled in a bitter break up of their marr iage.” Opening Br. at 21. But “[w]hen there is sufficient independe nt corroboration of an inform ant’s information, there is no need to establish the ver acity of the informant.” United States v. Tuter , 240 F.3d 1292, 1297 (10th Cir. 2001). As stated in the affi davit, the info rmant’s tip was independently corroborated by Officer Oste rdyk’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 re sult, we need not reach Mr. Ewing’s arguments with respect to the good-faith excepti on to the warrant requirement. IV. Conclusion The judgment is affirmed.

Entered for the Court
Carolyn B. McHugh Circuit Judge