* This order and judgment is not binding precedent, except under the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 10 TH C IR
. R. 36.3. 

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

### June 30, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 05-8004

v. (D. Wyoming) RICHARD THOMAS SCHIRBER,

Defendant-Appellant. (D.C. No. 04-CR-151-B)

ORDER AND JUDGMENT *

Before EBEL , McKAY , and HENRY , Circuit Judges.
After examining the briefs and appellate record, th e panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See F ED
. R. A PP
. P. 34(a)(2); 10 TH C IR
. R. 34.1(G). The case is therefore ordered submitted without oral argument. In a one-count indictment, Richard Schirber was cha rged with being an unlawful user of a controlled substance in possessi on of nineteen firearms, in-2-

violation of 18 U.S.C. § 922(g)(3). The district c ourt denied his motion to suppress evidence, and he entered a conditional gui lty plea. He was sentenced to twenty-one months of imprisonment and two years of supervised release. He received a $100 special assessment and a $250 fine. Mr. Schirber now timely appeals. We exercise jurisdiction pursuant to 28 U .S.C. § 1291. Because we hold that (1) the warrant was supported by probable caus e, and in the alternative (2) the good faith exception of United States v. Leon , 468 U.S. 897 (1984) applies, we affirm. I. BACKGROUND On February 5, 2004, a Wyoming state court judge is sued a search warrant for Mr. Schirber’s residence in Thermopolis, Wyomin g. The search warrant authorized officers to search for controlled substa nces and evidence of the use or trafficking of controlled substances. The judge is sued the search warrant based on an affidavit from Officer Mark Nelson of the The rmopolis Police Department. In his affidavit, Officer Nelson set forth facts pe rtaining to his investigation of Mr. Schirber, information relating to the reliability of the informants he interviewed, and detailed information regarding numerous other individuals unrelated to this case. Officer Nelson stated in the affidavit that on January 19, 2004, he interviewed Chad Harris, who d iscussed his drug involvement during a period of time he had lived in Thermopolis. Mr. Harris’s-3-

involvement included one occasion when he purchasedmethamphetamine from Chad Severance in February 2003. According to Mr. Harris, Mr. Severance told him that his source was Mr. Schirber. Mr. Harris a lso stated that on one occasion “6 months prior to this incident,” Mr. Schirber sho wed him a rock of methamphetamine that was “[a]pproximately the size of a [b]aseball.” Rec. vol. I, doc. 31, Ex. A (Affid. of Chad Harris, dated Jan . 26, 2004). Officer Nelson also interviewed Lahoma Martin, who had been involved in a romantic relationship with Mr. Harris. Ms. Marti n admitted she used both methamphetamine and marijuana. She stated that she knew through other people involved with drugs that Mr. Schirber was a Thermop olis-based drug dealer. Ms. Martin also stated that Mr. Harris obtained methamp hetamine from Mr. Severance, and that she knew of a purchase Mr. Seve rance made from Mr. Schirber during the summer of 2002. Ms. Martin als o stated that she had used marijuana and methamphetamine with a woman named St ormy Jeffres, and that Ms. Jeffres advised Ms. Martin that she obtained he r drugs through Mr. Schirber. Officer Nelson also interviewed Jason Krueger on January 27, 2004. Mr. Krueger confirmed he frequently injected methamphet amine, and had done so with Mr. Severance. Mr. Krueger stated he purchase d several grams of methamphetamine from Mr. Schirber, but he did not g ive specifics as to this transaction. During the eight months preceding the interview, however, Mr.-4-

Krueger and his wife primarily used sources outside of Thermopolis. Mr. Krueger also stated that Mr. Schirber sold methamphetamine to Mr. Severance, and that he knew Mr. Schirber was associated with Dean Willenbr echt, who was bringing methamphetamine, LSD, and cocaine to town. Officer Nelson’s affidavit also included informatio n from surveillance he and other officers performed on Mr. Schirber’s res idence. From January 29 to February 3, 2004, among the vehicles parked at Mr. Schirber’s residence included those registered to Mr. Severance, Sherry Krueger ( Mr. Krueger’s spouse), and a Harold Willenbrecht. When officers executed the warrant on February 5, 2 004, they retrieved numerous pills, electronic scales, a drug kit, and nineteen firearms that were in plain view. Mr. Schirber filed a motion to suppres s the evidence found during the search, claiming that (1) Officer’s Nelson’s affidavit did not establish probable causes for the search, and (2) the firearms should be suppressed because the warrant did not authorize a search for firearms. T he district court denied the motion. It found probable cause, and in the altern ative, evidence to support the application of the good faith exception to the excl usionary rule. The district court also found that the firearms were in plain view and lawfully seized. Mr. Schirber appeals only the probable cause finding.-5- II. DISCUSSION “On appeal from the denial of a motion to suppress evidence, we review the district court’s factual findings for clear error, viewing the evidence in the light most favorable to the government. The district cou rt’s determination of reasonableness under the Fourth Amendment is review ed de novo.” United States v. Cantu, 405 F.3d 1173, 1176 (10th Cir. 2005) (citations om itted). “Where the search or seizure was pursuant to a warr ant, our review of the issuing magistrate’s finding of probable cause is v ery deferential: Our duty is to ensure that the magistrate judge had a substantial basis for concluding that the affidavit in support of the warrant established pro bable cause.” United States v. Riccardi, 405 F.3d 852, 860 (10th Cir. 2005) (internal quotation marks omitted). “The task of the issuing magistrate is simply to ma ke a practical, commonsense decision whether, given all the circumstances set f orth in the affidavit . . . there is a fair probability that contraband or evidence of acrime will be found in a particular place.” Illinois v. Gates , 462 U.S. 213, 238 (1983). “Moreover, [e]ven if we conclude that the warrant was not supported b y probable cause, we may still uphold the search if we conclude that the good-fait h exception to the exclusionary rule contained in United States v. Leon , 468 U.S. 897 (1984) . . . applies.” Riccardi , 405 F.3d at 860 (internal quotation marks and alt erations omitted). We review de novo the applicability of the Leon good-faith exception. Id.-6-

Mr. Schirber contends that Officer Nelson’s affidav it contains insufficient evidence to support probable cause for the issuance of the warrant. The three witnesses each attested to an incident involving th e sale or use of methamphetamine by Mr. Severance, and each witness mentions that Mr. Schirber was Mr. Severance’s source. The record also contai ns Mr. Harris’s statement that in the fall of 2002, Mr. Schirber showed him a larg e piece of methamphetamine. Drugs were purchased by Mr. Harris in February 2003 , by Ms. Martin in the summer 2002, and by Mr. Krueger around April 2003. Officer Nelson submitted the application for the warrant on February 4, 2004

. The government argues the affidavit establishes that Mr. Schirber’s drug activity was ongoing over a considerable period of time. The district court found that the information was “certainly not stale.” Re c. vol. II, at 40. As the court noted, Officer “Nelson’s affidavit contained allegations of illegal drug possession and distribution occurring over a period of months so there was evidence of ongoing and continuous criminal activity by Defenda nt.” Rec. vol. I, doc. 36, at 5. We acknowledge that “the determination of whether i nformation is stale depends on the nature of the crime and the length o f criminal activity, not simply the number of days that have elapsed between the fa cts relied upon and the issuance of the warrant.” United States v. Myers , 106 F.3d 936, 939 (10th Cir.-7-

1997) (concluding that a gap of five months between tip and search warrant did not render information stale when drug activities w ere demonstrated to be continuous and ongoing). “Where the affidavit reci tes amere isolated violation it would not be unreasonable to imply that probable ca use dwindles rather quickly with the passage of time. However, where the affid avit properly recites facts indicating 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) (emphasis added). Standing alone, the information here would be stale

. See United States v. Jardine, 364 F.3d 1200, 1205 (10th Cir. 2004) (noting that “[t]aken alone, it is doubtful that [eight-month old] information would e stablish probable cause to search”), vacated on other grounds by 125 S. Ct. 1024 (2005); United States v. Neal , 500 F.2d 305, 309 (10th Cir. 1974) (three-month o ld information from participant in stolen-auto ring was stale since the re was no information “from which it could be inferred that the operation conti nued or that the material sought to be recovered remained on the described premises” ); 2 Wayne R. LaFave, S EARCH AND S EIZURE § 3.7(a) (4th ed. 2004) (“Absent additional facts tending to show otherwise, a one-shot type of crime, such as asingle instance of possession or sale of some form of contraband, will support a finding of probable cause only for a few days at best.”). We note that methamphet amine is readily moved, not-8-

affixed to the home, and easily destroyed. See State v. Gillespie, 503 N.W.2d 612, 6167 (Iowa Ct. App. 1993) (taking into conside ration the nature of the criminal activity, the length of the activity, and the nature of the property seized, reversing the denial of a motion to suppress given evidence of sale of methamphetamine fifty-four days before the applicat ion for the warrant). Without more, we agree with Mr. Schirber that it is doubtfu l that this information would establish probable cause to search his current resi dence. However, unlike the majority of our cases in which probable cause is not established, the above information was not all the magistrate judge had before him when issuing the warrant. As the government no tes, Mr. Harris, Mr. Krueger and Ms. Martin each gave statements against their p enal interests. Moreover, the three statements “cross-corroborate” one other. Fo r example, each statement identified Mr. Severance as someone who obtained me thamphetamine from Mr. Schirber. The district court found this consistenc y persuasive: Considering the admissions of Harris and Krueger, t he consistent statements about other individuals who purchased il legal drugs from the Defendant, and the subsequent surveillance of Defen dant’s residence, Nelson’s affidavit contained a substantial basis fo r the finding of probable cause. Rec. vol. I, doc. 36, at 4-5. Furthermore, the surveillance of Mr. Schirber’s home provided independent corroboration of his ties withMr. Severance. See id. at 5-6. We acknowledge that other courts, when faced with a ging information-9-

concerning drug transactions have determined that s uch information was stale. For instance, in United States v. Grant , 108 F. Supp.2d 1172, 1176 (D. Kan. 2000), the district court granted the defendant’s m otion to suppress, finding that evidence of two sales of drugs that occurred six mo nths and four-and-a-half months prior to the application for a warrant did n ot establish continuous and ongoing activity. The court noted “[t]here is no indication, for instance, that defendant had recently kept a supply of drugs at hi s house or that he was receiving more contraband in the future or that he was continuing to use or sell illegal drugs or that it was likely that he still k ept records or other evidence of drug sales at his house.” Id. Similarly, in State v. Newton , 489 S.E.2d 147, 151 (Ga. Ct. App. 1997), the appellate court noted thatevidence of a single sale one month prior to the application for the warrant, sta nding alone, failed to create any inference that the circumstances described still ex isted at the time application for the warrant was made. In the case before us, howev er, the information regarding the drug transactions, coupled with the various met hamphetamine sales, was sufficient to tip the scale in favor of deferring t o the state court judge’s finding that Officer’s Nelson’s affidavit contained a subst antial basis for the finding of probable cause. Even if we were to conclude the warrant was not sup ported by probable cause, we note that evidence seized pursuant to an invalid warrant need not always be suppressed. “In Leon [468 U.S. 897 (1984)], the Supreme Court-10-

modified the Fourth Amendment exclusionary rule by holding that evidence seized pursuant to a search warrant later found to be invalid need not be suppressed if the executing officers acted in objec tively reasonable, good-faith reliance on the warrant.” United States v. Rowland, 145 F.3d 1194, 1206 (10th Cir. 1998). In Leon the Court also identified four specific situations in which an officer’s reliance on a subsequently invalidated wa rrant could not be considered to be objectively reasonable: (1) when the warrant is issued on the basis of an affidavit that the affiant knows (or is reckless in not knowing) to contain false information; (2) when the issuing magistrate abando ns his neutral and detached role and serves as a rubber stamp for police activi ties; (3) when the affidavit is so lacking in indicia of probable cause that a belief in its existence is objectively unreasonable; and (4) when the warrant is so facial ly deficient that it cannot reasonably be presumed to be valid. See Leon, 468 U.S. at 914-923. Here, Mr. Schirber argues that the warrant was base d on a bare-boned affidavit that the officers could not have presumed to be valid. He cites a Colorado appellate court decision holding that evid ence indicating two illegal drug transactions – four months old and a one monthold – was too stale to support a warrant. People v. Miller , 75 P.3d 1108, 1115 (Colo. 2003). In this case, the district court found in the alter native that “[e]ven if there was no probable cause, the evidence would not need to be suppressed because Nelson acted conscientiously and in good faith reli ance upon the search warrant.”-11-

Rec. vol. I, doc. 36, at 6. Having reviewed the en tire record de novo, see United States v. Nolan , 199 F.3d 1180, 1184 (10th Cir. 1999), we agree. In determining whether the good-faith exception sho uld apply in a particular case, the “inquiry is confined to the objectively ascertainab le question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate' s authorization .” Leon , 468 U.S. at 922 n. 23. In answering this questio n, the court should consider all of the circumstances and assume t hat the executing officers have a “reasonable knowledge of what the l aw prohibits.” Id. at 919 n.20. Riccardi, 405 F.3d at 863 (emphasis added). Here, the affidavit indicated several people were aware of Mr. Schirber’s activities, and the affidavit indicated that police surveillance confirmed the association of an alleged purchaser of drugs with M r. Schirber only days before the warrant’s execution. There is no evidence thatthe officers were unreasonable when they relied upon the issuance of the warrant. Furthermore there is no suggestion that the officers were involved in any m isconduct in the application for or the execution of the warrant. “As the Courtstated in Leon , the exclusionary rule should only be applied in those u nusual cases when its purpose, to deter police misconduct, will be furthered.” Rowland, 145 F.3d at 1208. Here, Officer Nelson acted promptly upon receiving the in formation contained in his affidavit, and there is no indication that he acted with reckless disregard for the1 Although we could have simply affirmed the distri ct court on the basis of

the good faith exception, we recognize that “the po licy of avoiding ‘freezing’ Fourth Amendment jurisprudence, discussed by the Co urt in Leon , compels us in this case to resolve the constitutional issue” so t hat magistrate judges and law enforcement officers are given some guidance in the ir decisionmaking. United States v. Dahlman , 13 F.3d 1391, 1398 (10th Cir 1993); see Leon , 468 U.S. at 924-925.

-12- truth. Officer Nelson’s reliance upon the warrant was objectively reasonable. The good-faith exception under Leon applies. 1

III. CONCLUSION The district court properly denied Mr. Schirber’s m otion to suppress evidence obtained through the search of his residen ce, and we AFFIRM his conviction. Entered for the Court,
Robert H. Henry Circuit Judge