United States v. Windom ( 2023 )

Appellate Case: 22-1077 Document: 010110815825 Date Filed: 02/21/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 21, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-1077
(D.C. No. 1:20-CR-00068-CMA-1)
SAMUEL TERRAYE WINDOM, (D. Colo.)
Defendant - Appellant.
–––––––––––––––––––––––––––––––––––
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-1119
(D.C. No. 1:15-CR-00202-RM-1)
SAMUEL TERRAYE WINDOM, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before PHILLIPS, MURPHY, and EID, Circuit Judges.
_________________________________
*
This order and judgment is not binding precedent, except under the doctrines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.
Appellate Case: 22-1077 Document: 010110815825 Date Filed: 02/21/2023 Page: 2
I. INTRODUCTION
In September 2019, a confidential informant notified Denver police detective,
Joshua Vance, that someone named Trey “was selling” methamphetamine from his
apartment in south Denver. The tipster, who Vance described as previously reliable,
said he or she had purchased methamphetamine “in the past” from Trey’s apartment
and had observed firearms and drugs inside his residence “during the past six
months.” Further investigation revealed the identity of “Trey” to be Appellant,
Samuel Windom. Authorities successfully arranged a controlled buy to corroborate
this information, at which Windom was observed selling methamphetamine to a
confidential informant. 1 As a result, Vance submitted an affidavit to support the
search of Windom’s residence. A warrant was issued, and officers executed a search
of Windom’s home on December 2, 2019. The search yielded approximately 78
grams of methamphetamine and two semi-automatic guns. Windom admitted to
police that he owned both guns and had previously sold methamphetamine.
Windom was charged with possession of a gun by a previously convicted felon
in violation of 18 U.S.C. § 922(g)(1) (Count 1); knowingly and intentionally
possessing methamphetamine with the intent to distribute in violation of 21 U.S.C.
1
At one point in its description of the controlled buy, the affidavit appears to
refer to the dealer of drugs as “Anthony” and not Samuel or Windom. R. Vol. I, at
45. The same paragraph correctly identifies the subject of the controlled buy as
Samuel seven times. Id. Further, the name Anthony appears at no other point
throughout the affidavit. Given the context of the description and the singularity of
the reference, this court interprets the use of Anthony as a simple error that does not
affect the substance of the affidavit. Therefore, we do not conclude the affidavit is
inherently suspect on these grounds.
2
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§ 841(a)(1) and (b)(1)(B)(viii) (Count 2); and knowingly using and carrying a firearm
in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i)
(Count 3). Prior to trial, Windom moved to suppress the evidence recovered during
the search of his apartment. He argued the warrant failed to establish probable cause
for two reasons: first, it did not prove a sufficient nexus between the purported drug
sales and his residence; and second, the information provided by the informant was
several months old and, thus, stale. In turn, he asserted the affidavit was so lacking in
probable cause that executing officers could not have relied upon the resulting
warrant in good faith. Windom requested an evidentiary hearing on the issue of
suppression, which the district court denied on the grounds that his motion did not
raise any material factual dispute.
The district court denied Windom’s motion to suppress. It determined the
informant’s tip was not stale because it demonstrated ongoing drug activity and was
effectively corroborated by the controlled buy. Further, the district court concluded
an appropriate nexus was formed by an investigation linking Windom to the
apartment and the informant’s direct implication of Windom’s residence. A jury trial
was set for July 26, 2021, and concluded with guilty verdicts on Counts 1 and 2 of
the superseding indictment. On appeal, Windom argues the district court erred in
denying a hearing on the motion to suppress and renews his probable cause
challenges. We conclude the district court did not abuse its discretion by forgoing a
suppression hearing and affirm the district court’s rulings that neither staleness nor
lack of nexus undermined the probable cause supporting a search of Windom’s home.
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II. ANALYSIS
Review of a district court’s analysis on the validity of a warrant is de novo.
United States v. Pulliam, 748 F.3d 967, 970–71 (10th Cir. 2014). This court,
however, “must accord ‘great deference’ to the probable-cause assessment of the
state court judge who issued the warrant.” Id. at 971. Probable cause requires “only a
probability or substantial chance of criminal activity, not an actual showing of such
activity.” Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983). When making such a
probable cause determination “we look to the totality of the circumstances as detailed
in the affidavit accompanying the application for the search warrant.” Pulliam, 748
F.3d at 971.
a. SUPPRESSION HEARING
This court reviews the denial of an evidentiary hearing on a motion to suppress
for abuse of discretion. See United States v. Glass, 128 F.3d 1398, 1408 (10th Cir.
1997). A trial court is required to grant a suppression hearing only when a defendant
both presents facts justifying relief and demonstrates disputed issues of material fact.
Id. An evidentiary hearing on suppression is warranted when the motion raises
“factual allegations that are sufficiently definite, specific, detailed, and
nonconjectural to enable the court to conclude that contested issues of fact going to
the validity of the search are in issue.” United States v. Chavez-Marquez, 66 F.3d
259, 261 (10th Cir. 1995) (internal quotations omitted). A hearing is not required
when a motion only challenges questions of law and not any underlying facts. United
States v. Mathews, 928 F.3d 968, 978 (10th Cir. 2019).
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Rather than outline factual disputes, Windom’s motion to suppress offered
three legal arguments—staleness, nexus, and lack of good faith—for why the
affidavit was insufficient to support a search warrant. These arguments contained
only perfunctory factual references, with none rising to the level of definite, detailed,
and nonconjectural allegations. See United States v. Barajas-Chavez, 358 F.3d 1263,
1266–67 (10th Cir. 2004). This absence of disputed facts and primary reliance on
issues of law alone demonstrate the district court did not abuse its discretion by
proceeding without a hearing. Recognizing this deficiency in his motion, Windom
argues on appeal that the affidavit raised several material factual disputes on its face,
including the exact timing and number of drug sales between the informant and
Windom, and whether the original tipster was the same informant who participated in
the controlled buy. Not only was this argument not presented to the district court,
thereby subjecting it to the heightened standard of plain error review, but it also lacks
definite, material facts “that, if established, would entitle [Windom] to relief.”
Chavez-Marquez, 66 F.3d at 261. Given the totality of the circumstances, the timing,
numerosity, and party identity of Windom’s drug exchanges do not alter the probable
cause determination in this case. Thus, even if disputed facts were present on the face
of the affidavit, the district court did not err in bypassing a suppression hearing.
b. STALENESS
“[P]robable cause to search cannot be based on stale information that no longer
suggests that the items sought will be found in the place to be searched.” United
States v. Burkhart, 602 F.3d 1202, 1206 (10th Cir. 2010) (internal quotations
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omitted). Whether staleness exists depends “on the nature of the criminal activity, the
length of the activity, and the nature of the property to be seized.” United States v.
Mathis, 357 F.3d 1200, 1207 (10th Cir. 2004) (internal quotations omitted).
Indication of “ongoing and continuous activity makes the passage of time less
critical” when making determinations of staleness. Id. (internal quotations omitted).
Additionally, “otherwise stale information may be refreshed by more recent events”
for the purpose of probable cause analysis. United States v. Cantu, 405 F.3d 1173,
1178 (10th Cir. 2005).
As the district court articulated, staleness is not at issue here because the
allegations offered by the informant indicated Windom’s drug activity was ongoing
and the controlled buy effectively refreshed the information provided. The informant
offered three critical pieces of information: a) Windom “was selling”
methamphetamine from his apartment; b) he or she had purchased methamphetamine
“in the past from [Windom’s] apartment;” and c) he or she had observed drugs and
guns inside Windom’s apartment “during the past six months.” Although these details
are not highly specific, they collectively suggest the type of ongoing trafficking that
diminishes the significance of when the alleged activity took place. See United States
v. Iiland, 254 F.3d 1264, 1269 (10th Cir. 2001). Despite Windom’s arguments to the
contrary, there is no reason to doubt the reliability of the informant. The affidavit
clearly contains hallmark indicia of trustworthiness: the informant had provided prior
accurate tips to police and gave ample facts that were successfully corroborated by
authorities. United States v. Quezada-Enriquez, 567 F.3d 1228, 1233 (10th Cir.
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2009). Most significantly, the officers fully corroborated the informant’s core drug
trafficking allegation through a carefully constructed controlled buy. To the degree
any information offered by the informant was in danger of being stale, the controlled
buy cured this threat by comprehensively refreshing the allegation that Windom was,
in fact, dealing methamphetamine.
c. NEXUS
Probable cause also requires a nexus between the suspected criminal activity
and the place to be searched. United States v. Gonzales, 399 F.3d 1225, 1228 (10th
Cir. 2005). Personal knowledge of illegal activity taking place in the area to be
searched is not required to establish nexus. United States v. Biglow, 562 F.3d 1272,
1279 (10th Cir. 2009). Rather, “a sufficient nexus is established once an affidavit
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
omitted).
Although the controlled buy did not take place at Windom’s home, the
informant’s tip directly implicated his apartment. The tip referenced purchasing and
observing drugs inside Windom’s residence. Further, independent investigation by
police makes it clear that the apartment searched both belonged to Windom and was
the scene of the tip’s allegations. This court has held it is “merely common sense that
a drug supplier will keep evidence of his crimes at his home.” United States v.
Sanchez, 555 F.3d 910, 914 (10th Cir. 2009); see also United States v. Garcia, 707
F.3d 1190, 1195 (10th Cir. 2013); United States v. Sparks, 291 F.3d 683, 689–90
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(10th Cir. 2002). Given this context, the strong evidence that Windom was engaged
in drug trafficking, and the direct implication of his residence as a part of his drug
activity, a reasonable person could certainly believe Windom kept drugs in his home.
Accordingly, the affidavit successfully established a proper nexus to support the
search warrant. 2
III. CONCLUSION
The judgment 3 of the United States District Court for the District of Colorado
is hereby AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
2
Windom argues that if this court were to deem the search warrant invalid, the
“good-faith exception” should not apply. See United States v. Leon, 468 U.S. 897,
922 (1984). This court concludes the warrant in this case is valid, and therefore, it
need not reach the application of the exception.
3
Because no party makes any argument about the second appeal, we dismiss
that appeal as abandoned. See Johnson v. Unified Gov’t of Wyandotte Cnty./Kan.
City, 371 F.3d 723, 727 (10th Cir. 2004) (“The cross-appeals were not briefed and
deemed to have been abandoned. Accordingly we dismiss the cross-appeals.”).
Similarly, Appellant’s Second Unopposed Motion to Supplement the Record on
Appeal is denied as moot because it only supplemented the second appeal and did not
implicate any argument made to this court.
8