United States v. Augustine , 742 F.3d 1258 ( 2014 )


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  •                                                                      FILED
    United States Court of Appeals
    Tenth Circuit
    February 19, 2014
    PUBLISH                  Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES COURT OF APPEALS
    FOR THE TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.                                                    No. 12-3269
    DENNIS AUGUSTINE,
    Defendant – Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF KANSAS
    (D.C. No. 5:12-CR-40006-RDR-3)
    Ann Marie Taliaferro of Brown Bradshaw & Moffat, LLP, Salt Lake City, Utah,
    for Defendant–Appellant.
    James A. Brown, Assistant United States Attorney (Barry R. Grissom, United
    States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff–Appellee.
    Before LUCERO, McKAY, and MATHESON, Circuit Judges.
    McKAY, Circuit Judge.
    Defendant Dennis Augustine was convicted on two counts of conspiracy to
    distribute methamphetamine. Prior to trial, he filed two separate motions to
    suppress evidence. The first motion was to quash a warrant to search Defendant’s
    residence and to suppress evidence found in that search which led directly to his
    arrest. The second motion was to suppress Defendant’s statements to law
    enforcement officials after his arrest. The district court issued a memorandum
    and order denying both motions. It denied the motion to quash and suppress
    evidence found in the search of Defendant’s residence by applying the good-faith
    exception to the exclusionary rule, declining to reach a determination regarding
    whether probable cause existed to search the residence. The district court denied
    the motion to suppress Defendant’s statements based on its factual findings
    regarding the circumstances of Defendant’s interrogation. After the subsequent
    trial, the jury found Defendant guilty on both counts of conspiracy. On appeal,
    we consider the denial of both motions, starting with the motion relating to the
    search of Defendant’s residence.
    In appealing the denial of his motion regarding the search of his residence,
    Defendant challenges the district court’s application of the good-faith exception
    to the exclusionary rule and renews his claim that the affidavit supporting the
    search warrant was insufficient to show probable cause to search his residence.
    The following evidence was submitted in the affidavit to the state court judge
    who issued the warrant.
    In November 2011, the Salina/Saline County Drug Task Force began
    conducting an investigation into drug trafficking activity in Saline County,
    Kansas. The investigation identified an individual named Kevin Ashcraft as a
    -2-
    distributor of methamphetamine in the county. A wire tap on Mr. Ashcraft’s
    telephone allowed investigators to determine that another individual named
    Lisandro Clara-Fernandez was Mr. Ashcraft’s supplier.
    A “pen register/telephone ping order” was subsequently acquired for a
    telephone number being used by Mr. Clara-Fernandez. (Appellant’s Opening Br.,
    App. C at 8 (capitalization standardized).) With this order, investigators began
    “pinging” Mr. Clara-Fernandez’s telephone to track his geographical location.
    (Id. at 8-9 (capitalization standardized).) Through a combination of physical
    surveillance and telephone pinging, investigators established that, in addition to
    meeting with Mr. Ashcraft, Mr. Clara-Fernandez had parked his car outside a
    residence at 904 North Tenth Street on two different occasions—once in front of
    the residence, and a second time behind the residence where investigators
    witnessed Mr. Clara-Fernandez conversing with an unidentified white male.
    Eventually, investigators arranged for surveillance of a drug transaction
    between Mr. Ashcraft and Mr. Clara-Fernandez. Upon witnessing the transaction,
    law enforcement officials arrested Mr. Ashcraft and Mr. Clara-Fernandez. When
    asked during an interview subsequent to his arrest whether he knew of anyone
    else in Salina whom Mr. Clara-Fernandez would be supplying with drugs, Mr.
    Ashcraft replied, “Dennis Augustine on North Tenth Street.” (Id. at 13
    (capitalization standardized).) Mr. Ashcraft further stated he and Defendant had a
    mutual acquaintance who had introduced them to Mr. Clara-Fernandez. When
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    asked if Mr. Clara-Fernandez had any reason to visit Defendant’s residence, Mr.
    Ashcraft answered, “Just to drop off to him.” (Id.) A subsequent computer check
    for 904 North Tenth Street indicated Defendant had active water service at that
    address.
    The affidavit also included information concerning Defendant’s criminal
    history, particularly mentioning Defendant was previously convicted for a drug-
    related crime in the 1990s. Additionally, it included information regarding the
    training and experience in drug investigations of the affiant, who was a lieutenant
    in the Salina Police Department. Finally, the affidavit included statements
    regarding the affiant’s knowledge of certain behaviors common among drug
    dealers, including their tendency to secrete contraband, proceeds of drug sales and
    records of their transactions within their residences, and their tendency to possess
    paraphernalia used in weighing and packaging controlled substances.
    “In reviewing the denial of a motion to suppress, this court views the
    evidence in the light most favorable to the government and upholds the district
    court’s factual findings unless clearly erroneous.” United States v. Danhauer,
    
    229 F.3d 1002
    , 1005 (10th Cir. 2000). However, “[d]eterminations relating to the
    sufficiency of a search warrant and the applicability of the good-faith exception
    are conclusions of law . . . which this court reviews de novo.” 
    Id. Because the
    district court did not make a decision regarding whether probable cause existed to
    search Defendant’s residence, we begin, like the district court, with the question
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    of the applicability of the good-faith exception to the exclusionary rule.
    Under the good-faith exception to the exclusionary rule, “[i]f a warrant is
    not supported by probable cause, the evidence seized pursuant to the warrant need
    not be suppressed if the executing officer acted with an objective good-faith
    belief that the warrant was properly issued by a neutral magistrate.” United
    States v. Campbell, 
    603 F.3d 1218
    , 1225 (10th Cir. 2010) (internal quotation
    marks omitted). An executing officer is generally presumed to be acting in good-
    faith reliance upon a warrant. 
    Id. at 1230.
    However, this presumption is not
    absolute. There are four situations in which the presumption of good faith and,
    consequently, the good-faith exception to the exclusionary rule do not apply: (1)
    when “the issuing magistrate was misled by an affidavit containing false
    information or information that the affiant would have known was false if not for
    his ‘reckless disregard of the truth’”; (2) when the “‘issuing magistrate wholly
    abandon[s her] judicial role’”; (3) when “the affidavit in support of the warrant is
    ‘so lacking in indicia of probable cause as to render official belief in its existence
    entirely unreasonable’”; and (4) when “a warrant is so facially deficient that the
    executing officer could not reasonably believe it was valid.” 
    Danhauer, 229 F.3d at 1007
    (quoting United States v. Leon, 
    468 U.S. 897
    , 923 (1984)) (alteration in
    original). Here, Defendant argues the good-faith exception to the exclusionary
    rule does not apply to the execution of the warrant to search Defendant’s
    residence because “the affidavit in support of the warrant [was] ‘so lacking in
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    indicia of probable cause as to render official belief in its existence entirely
    unreasonable.’” 
    Id. (quoting Leon,
    468 U.S. at 923).
    “[G]ood faith may exist when a minimal nexus between the place to be
    searched and the suspected criminal activity is established.” United States v.
    Gonzales, 
    399 F.3d 1225
    , 1231 (10th Cir. 2005). An officer’s reliance on a
    warrant is not reasonable when the underlying documents are “devoid of factual
    support.” 
    Campbell, 603 F.3d at 1230
    . However, the “minimal nexus
    requirement does not require that hard evidence or personal knowledge of illegal
    activity link a Defendant’s suspected unlawful activity to his home.” 
    Id. at 1231
    (internal quotation marks omitted). “On the contrary, an affidavit establishes a
    sufficient nexus when it describes circumstances which would warrant a person of
    reasonable caution in the belief that the articles sought are at a particular place.”
    
    Id. (internal quotations
    marks omitted). In this case, we cannot agree with
    Defendant that the affidavit was so lacking in indicia of probable cause and so
    devoid of factual support as to prevent application of the good-faith exception to
    the exclusionary rule. Indeed, the affidavit readily satisfies the minimal nexus
    requirement.
    The information in the affidavit indicated Defendant was receiving drugs
    from Mr. Clara-Fernandez, whose asserted status as a drug supplier was
    corroborated by information in the affidavit. The information linking Defendant
    to Mr. Clara-Fernandez came from Mr. Ashcraft, a known informant, who could
    -6-
    be held accountable if his allegations against Defendant proved to be untrue.
    Florida v. J.L., 
    529 U.S. 266
    , 270 (2000) (stating that when the identities of
    informants are known, their “reputation[s] can be assessed and [they] can be held
    responsible if [their] allegations turn out to be fabricated”). Mr. Ashcraft made
    statements against his own penal interest by admitting to drug transactions beyond
    those of which law enforcement had knowledge, thereby further bolstering his
    credibility. See United States v. Allen, 
    297 F.3d 790
    , 794 (8th Cir. 2002)
    (indicating that an informant’s credibility was enhanced because “his statements
    were against penal interest”). Furthermore, the affidavit showed that relevant
    details provided by Mr. Ashcraft were corroborated by the police. For instance,
    the affidavit demonstrated that police corroborated Mr. Ashcraft’s claim that
    Defendant lived on North Tenth Street. The affidavit also showed that police
    observed Mr. Clara-Fernandez at Defendant’s residence on two separate
    occasions. See 
    id. (stating that
    an informant’s credibility was established when
    “his statements were against his penal interest and . . . the police were able to
    corroborate some of the information he provided”). These factors support the
    veracity of Mr. Ashcraft’s information and thereby strengthen the basis for the
    affidavit’s conclusions. In addition to Mr. Ashcraft’s statements, the affidavit
    included the statement of a veteran law enforcement officer that persons involved
    in the drug trade often secrete contraband and evidence of drug transactions in
    their homes. See United States v. Sanchez, 
    555 F.3d 910
    , 914 (10th Cir. 2009)
    -7-
    (stating “it [is] merely common sense that a drug supplier will keep evidence of
    his crimes at his home”).
    Taking this information from the affidavit into account, we hold that the
    affidavit described circumstances that would warrant a person of reasonable
    caution in the belief that drugs, drug records, or drug paraphernalia would be
    found in Defendant’s residence and established a minimal nexus between
    Defendant’s residence and the drug-related items being sought in the warrant.
    Since a minimal nexus existed, the good-faith exception to the exclusionary rule
    was properly applied by the district court. 1
    We turn then to Defendant’s appeal of the denial of his motion to suppress
    his statements to law enforcement officers. Defendant’s argument on this point is
    based on the claim that his waiver of his Miranda rights was not knowingly,
    intentionally, and voluntarily made. See Miranda v. Arizona 
    384 U.S. 436
    , 444
    1
    Defendant also argued, for the first time on appeal, that the lieutenant
    providing the affidavit “made material omissions in applying for th[e] warrant and
    in doing so, misled the magistrate.” (Appellant’s Opening Br. at 53.)
    Additionally, Defendant argued that we should review his trial attorney’s failure
    to raise this “material omissions” issue before the district court as ineffective
    assistance of counsel. (Id. at 56-57.) However, Defendant subsequently
    abandoned both of these arguments in his reply brief, acknowledging that the
    record contained insufficient facts concerning whether the lieutenant acted
    knowingly or recklessly in allegedly omitting material information from his
    affidavit and that this paucity of facts precluded appellate review. (Appellant’s
    Reply Br. at 23-24.) Defendant further acknowledged that the “‘material
    omissions’ issues must be further developed and are more appropriate for review
    in collateral proceedings under 28 U.S.C. §2255.” (Id. at 24.)
    -8-
    (1966).
    After being apprised of his Miranda rights, Defendant agreed to submit to
    an interview by two law enforcement officials without an attorney. At the outset
    of the interview, Defendant told the interrogating officers he was not under the
    influence of alcohol or drugs. In the course of the interview, he acknowledged
    that he did take a number of prescription medications—namely, Buspar,
    Clonazepam, Zoloft, and occasionally Xanax. Throughout the interview,
    Defendant sporadically indicated a desire to take his prescription medications;
    however, he never indicated to the interrogating officers that he could not, or
    would not, continue the interview without his medication.
    During the interview, Defendant made a number of inculpatory admissions.
    He acknowledged that Mr. Clara-Fernandez had supplied him with drugs about
    two dozen times. He further acknowledged that Mr. Clara-Fernandez often
    “fronted” him methamphetamine for which he would pay later. (Tr. of Video-
    Recorded Interview, R. Supplemental Vol. 2 at 33-34.) He also stated the average
    amount of methamphetamine he received from Mr. Clara-Fernandez on these
    occasions was a half-pound. Defendant further stated he had previously been
    provided with drugs by Mr. Ashcraft, who supplied him with a couple of ounces
    of methamphetamine every few days for about eight months. Additionally, he
    confessed to having about a half-dozen customers to whom he sold the drugs he
    received.
    -9-
    Defendant now claims his ability to properly waive his Miranda rights was
    impaired because he was under the influence of controlled substances during the
    interview. Defendant makes this claim despite having explicitly told the officers
    during the interview he was not currently under the influence of drugs or alcohol.
    Defendant also claims he was further impaired by his need for his prescription
    drugs. Defendant thus argues his illicit drug use combined with his need for his
    prescription drugs rendered his waiver of his Miranda rights invalid.
    “In reviewing a district court’s order granting or denying a motion to
    suppress, this court accepts the district court’s factual findings unless clearly
    erroneous and considers the evidence in the light most favorable to the district
    court’s determination.” United States v. Toles, 
    297 F.3d 959
    , 965 (10th Cir.
    2002). However, “[t]he ultimate question of whether a statement was voluntary is
    a question of law reviewed de novo.” United States v. Hernandez, 
    93 F.3d 1493
    ,
    1501 (10th Cir. 1996). Employing this standard of review, we affirm the district
    court’s denial of Defendant’s motion to suppress statements made in his post-
    arrest interview.
    “In determining whether a waiver of rights was knowing and intelligent, we
    employ a totality of the circumstances approach.” United States v. Burson, 
    531 F.3d 1254
    , 1256-57 (10th Cir. 2008). “The mere fact of drug or alcohol use will
    not suffice” to overcome evidence showing that the defendant “was sufficiently in
    touch with reality so that he knew his rights and the consequences of abandoning
    -10-
    them.” 
    Id. at 1258
    “[A] defendant must be impaired to a substantial degree to
    overcome his ability to knowingly and intelligently waive his privilege against
    self-incrimination.” Id.; see also United States v. Curtis, 
    344 F.3d 1057
    , 1065-67
    (10th Cir. 2003) (finding a valid waiver where the defendant was allegedly under
    the influence of marijuana, crack cocaine, and alcohol); United States v. Morris,
    
    287 F.3d 985
    , 988-89 (10th Cir. 2002) (holding that a defendant knowingly and
    intelligently waived his Miranda rights while recovering from gunshot wounds in
    the hospital, despite his argument that his mental capacity was affected by pain,
    the effects of pain medication, and the post-traumatic stress associated with being
    shot multiple times in the back)).
    After considering a video recording of Defendant’s interrogation and the
    testimonies of the interrogating officers, the district court found that Defendant
    appeared sober in the recording of the interview and that any alleged “presence of
    drugs in [D]efendant’s system” did not render Defendant “unaware of the nature
    of his rights and the consequences of his decision to speak with the police.”
    United States v. Augustine, 
    2012 WL 1655170
    , at * 2 (D. Kan. May 10, 2012)
    (unpublished decision). The district court also found that “[w]hile defendant may
    have been more comfortable with his medication,” the absence of his medication
    did not cause Defendant “to proceed involuntarily or in ignorance of the
    consequences of his actions and statements.” 
    Id. The district
    court therefore
    denied Defendant’s motion to suppress.
    -11-
    Nothing in the record persuades us that the district court’s factual finding
    that Defendant was “in control of his faculties and his conduct” throughout the
    interview, 
    id., was clearly
    erroneous. After reviewing the video recording of the
    interview and other materials in the record, we agree with the district court’s
    determination that Defendant was not so impaired that his waiver of his Miranda
    rights was invalid.
    Defendant also argues, for the first time on appeal, that his waiver of his
    rights was otherwise involuntary because it was coerced by threats and promises
    of leniency from his interrogators. We hold that Defendant waived this claim by
    failing to raise it before the district court. See Fed. R. Crim. P. 12(b)(3)(C) and
    12(e). This circuit applies the waiver rule articulated in Fed. R. Crim. P. 12(e) 2
    “not only when a defendant fails to file any pretrial motion to suppress, but also
    when a defendant fails to assert a particular argument in a pretrial suppression
    motion that he did file.” United States v. White, 
    584 F.3d 935
    , 948 (10th Cir.
    2009). We hold that Defendant failed to “make . . . definite, specific, detailed
    and nonconjectural factual allegations” regarding alleged coercive threats and
    promises from his interrogators and therefore waived this argument. 
    Id. at 949
    (internal quotation marks omitted).
    2
    Fed. R. Crim. P. 12(b)(3)(C) requires that a party raise a motion to
    suppress before trial. If a party fails to do so, it “waives any Rule 12(b)(3)
    defense, objection, or request.” Fed. R. Crim. P. 12(e); see also United States v.
    White, 
    584 F.3d 935
    , 948 (10th Cir. 2009).
    -12-
    In an attempt to avoid this holding, Defendant sought to invoke, in his reply
    brief, the narrow good-cause exception to Rule 12(e)’s waiver rule. See Fed. R.
    Crim. P. 12(e) (“For good cause, the court may grant relief from the waiver.”).
    “We rarely, however, grant relief under the good-cause exception.” United States
    v. Burke, 
    633 F.3d 984
    , 988 (10th Cir. 2011). We see no merit in Defendant’s
    argument that good cause exists to excuse his counsel’s failure to raise the issue
    of coercive police tactics because the district court obliquely considered it when
    the government raised the issue. Neither do we see merit in Defendant’s
    argument that his counsel’s failure to raise the issue before the district court,
    whether as a result of inadvertence or ineffective assistance, is good cause to
    allow the issue to be heard on appeal. In support of this argument, Defendant
    cites dicta in our opinion in Burke, in which the good-cause exception to Rule
    12(e)’s waiver rule is described in passing as “a safety valve for counsel’s
    inadvertent failure to raise an argument at the suppression hearing.” 
    Id. at 992.
    However, we do not read Burke as expanding the good-cause exception such that
    it swallows the waiver rule articulated in Fed. R. Crim. P. 12(e), as it would if
    good cause warranting relief from waiver existed every time a defendant’s
    attorney inadvertently failed to raise a suppression argument. See 
    Burke, 633 F.3d at 988
    (citing with approval the Fourth Circuit’s holding in United States v.
    Wilson, 
    115 F.3d 1185
    , 1191 (4th Cir. 1997) that good cause did not exist where
    “[t]he record shows that sufficient information was available to defense counsel
    -13-
    before trial that would have enabled him to frame his suppression motion to
    include the execution of the search warrant”). Our holding in Burke did not rely
    on the apparent reasoning in the dicta cited by Defendant, and now that the issue
    is squarely before us, we expressly hold that counsel’s inadvertent failure to raise
    a suppression argument before the district court does not in itself constitute good
    cause warranting relief from a Rule 12(e) waiver. Furthermore, our review of the
    record reveals “no impediment to the defendant’s ability to [have] raise[d] the
    issue” prior to appeal. United States v. Hamilton, 
    587 F.3d 1199
    , 1216 (10th Cir.
    2009); see also 
    Burke, 633 F.3d at 988
    . We therefore hold that the good-cause
    exception to Rule 12(e)’s waiver rule does not apply to Defendant’s case.
    Finally, Defendant requests that insofar as he failed to preserve his
    argument that coercive police tactics rendered his inculpatory statements
    involuntary, this court should nevertheless review the claim for ineffective
    assistance of counsel. We decline to do so. “[T]his court . . . consider[s]
    ineffective assistance of counsel claims on direct appeal . . . only where the issue
    was raised before and ruled upon by the district court and a sufficient factual
    record exists.” United States v. Flood, 
    635 F.3d 1255
    , 1260 (10th Cir. 2011)
    (italics in original). Defendant’s claim does not qualify under these prerequisites.
    CONCLUSION
    For the foregoing reasons, we AFFIRM the district court’s order denying
    Defendant’s motions to suppress.
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