United States v. Pulliam , 748 F.3d 967 ( 2014 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 8, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-1026
KEITH SCOTT PULLIAM, a/k/a Keith
Scott Drew,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:11-CR-00378-CMA-1) 
Submitted on the briefs:
Boston H. Stanton, Jr., Attorney at Law, Denver, Colorado, for Defendant - Appellant.
John F. Walsh, United States Attorney, James C. Murphy and Kurt J. Bohn, Assistant
U.S. Attorneys, Denver, Colorado, for Plaintiff - Appellee.
Before BRISCOE Chief Judge, O’BRIEN, and PHILLIPS, Circuit Judges.

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.
O’BRIEN, Circuit Judge.
Keith Scott Pulliam was indicted on charges of being a felon in possession of a
firearm and being an armed career criminal. He moved to suppress the fruits—several
firearms—of a search of his home. Pertinent to this appeal, he claimed the application
for the search warrant, issued by a state court judge, did not demonstrate probable cause
and the search by state officers was unreasonably executed. After the district judge
denied his suppression motion he pled guilty under a plea agreement, which reserved his
right to appeal from the denial. The judge accepted the plea and sentenced Pulliam to
imprisonment for 75 months. Exercising his reserved right, Pulliam now brings this
appeal. We affirm.
BACKGROUND
Colorado police officers executed the search warrant issued by a Colorado state
court judge. After the search was complete, they left the warrant itself and an inventory
of the property taken. The inventory was hand written on the back of the warrant. The
officers did not leave the attachments to the warrant: the affidavit submitted to obtain the
warrant (Attachment A) or the list of items to be seized. (Attachment B).1
1
The substance of Attachment B is reproduced, infra.
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DISCUSSION
Pulliam contends the evidence from the search should be suppressed because (1)
the search warrant was issued without a showing of probable cause; (2) the warrant
lacked the particularity required by the Fourth Amendment; and (3) police failed to give
him a complete copy of the search warrant as required under Fed. R. Crim. P. 41(f) and
the terms of the warrant.
“[T]he ultimate determination of reasonableness under the Fourth Amendment is
a question of law,” an issue we review de novo. United States v. Basham, 268 F.3d 1199,
1203 (10th Cir. 2001). However, as part of our de novo review, we “accept[] the district
court’s factual findings unless they are clearly erroneous” and “view[] the evidence in the
light most favorable to the government.” Id. “A finding of fact is ‘clearly erroneous’ if it
is without factual support in the record or if the appellate court, after reviewing all the
evidence, is left with a definite and firm conviction that a mistake has been made.”
Manning v. United States, 146 F.3d 808, 812 (10th Cir. 1998). We “must uphold any
district court finding that is permissible in light of the evidence.” Id. at 813.
A. Constitutional Issues
1. Probable Cause
Pulliam argues the warrant application was deficient because it contained
unreliable and uncorroborated statements from an informant who was untested and
dishonest. In Pulliam’s view, these statements failed to establish probable cause to
search. The district judge disagreed; so do we.
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Although our review of the district judge’s analysis of the validity of the warrant is
de novo, both this Court and the district court must accord “great deference” to the
probable-cause assessment of the state court judge who issued the warrant. United States
v. Biglow, 562 F.3d 1272, 1280-81 (10th Cir. 2009). Our review is limited to “ensur[ing]
the Government’s affidavit provided a substantial basis” for the issuance of the warrant.
Id. at 1281 (quotation marks omitted). Accordingly, even in a “doubtful or marginal
case,” we defer “to the [magistrate’s] determination of probable cause.” Id. at 1282.
Probable cause refers to “a probability or substantial chance of criminal activity,”
id. at 1281, based on the “‘commonsense’ [and] ‘practical considerations of everyday
life.’” Id. at 1281 (quoting Illinois v. Gates, 462 U.S. 213, 230-31 (1983)). When
assessing probable cause, we look to the totality of the circumstances as detailed in the
affidavit accompanying the application for the search warrant. Gates, 462 U.S. at 230;
see id. at 236.
To the extent the application relies on the statements of an informant, we pay close
attention to the veracity, reliability, and basis of knowledge of the informant about the
target of the proposed search. Id. at 230. Here, the affidavit supporting the application
for the warrant was based on the statements of an informant who demonstrated sufficient
veracity, reliability, and basis of knowledge. As the district judge noted, the identity of
the informant, Andre Herring, was known to the police at the time he made his
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statements.2 Police encountered him as a suspect in a burglary. In addition to taking
police to his own home to recover stolen property, he volunteered to provide information
about the others involved in the burglary in return for lenience. Based on his assertions
that stolen property could be found at a particular address, police searched the location
and discovered the items, just as Herring had predicted. Herring was released to uncover
more information about the stolen items. When he returned, he gave the police another
address where stolen items could be found. When the police searched this address, they
again discovered stolen property. Later, Herring told officers a revolver from another
burglary could be found at Pulliam’s residence. The affidavit for the warrant named
Herring as the informant and described how his tips had reliably led police to contraband
in the past. As regards to information specifically pertaining to Pulliam, the affidavit also
set forth the basis for Herring's personal knowledge of Pulliam's possession of guns. The
affidavit included Herring's detailed description of his sale of a handgun to Pulliam and
that he had witnessed Pulliam in possession of firearms on several occasions. The
issuing judge obviously considered Herring’s statements sufficiently reliable for a search
warrant. The reviewing district judge concluded they gave the issuing judge a substantial
2
This alone is one indicator of veracity and reliability. See United States v.
Johnson, 364 F.3d 1185, 1190 (10th Cir. 2004) (“A tipster who refuses to identify
himself may simply be making up the story, perhaps trying to use the police to harass
another citizen.”). Indeed, as the district judge observed, since Herring’s cooperation was
fueled by his hope of earning lenient treatment from the police and prosecutors, he had a
powerful incentive to provide accurate information.
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basis, see Biglow, 562 F.3d at 1280-81, to conclude there was probable cause to search
Pulliam’s home. See Florida v. J.L., 529 U.S. 266, 271 (2000) (corroboration allows
police to “test the informant’s knowledge [and] credibility” thereby ensuring reliability);
see also United States v. Hauk, 412 F.3d 1179, 1188 (10th Cir. 2005) (discussing the
special concerns attendant to the statements whose identity is not known). Indeed, under
these circumstances, Pulliam’s characterization of Herring as “new” and “untested” is
unwarranted. (Appellant Br. 11.) We see no error.
2. Particularity
Pulliam’s argument that the warrant violated the Fourth Amendment’s
particularity requirement has two prongs: (1) the warrant did not sufficiently
(particularly) describe the items to be seized, and (2) the copy of the warrant given to him
impermissibly omitted the attachment containing the list of places to be searched and
items to be seized.
The Fourth Amendment requires warrants to “particularly describ[e] the place to
be searched, and the persons or things to be seized.” U.S. Const. Amend. IV. The Fourth
Amendment’s “particularity requirement ensures that a search is confined in scope to
particularly described evidence relating to a specific crime for which there is
demonstrated probable cause.” Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985).
“A description is sufficiently particular when it enables the searcher to reasonably
ascertain and identify the things authorized to be seized.” United States v. Riccardi, 405
F.3d 852, 862 (10th Cir. 2005) (citation omitted). “[A] warrant that describes the items
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to be seized in broad or generic terms may be valid when the description is as specific as
the circumstances and the nature of the activity under investigation permit.” Id. (citation
omitted). And the warrant may cross-reference other documents, such as the affidavit in
support of the application, to satisfy the particularity requirement. United States v.
Cooper, 654 F.3d 1104, 1126 (10th Cir. 2011).
Here, the warrant to search Pulliam’s home expressly referred to Attachment B to
describe the targets of the search. Attachment B detailed the following targets:
1. Any and all firearms and ammunition.
2. Any and all firearm manufacturer packing materials receipts and transfer
documents.
3. All items of indicia for proof of ownership and occupancy for the address
identified as 1935 Carmel Dr 103, which is located in the City of Colorado
Springs, County of El Paso and State of Colorado is a first floor apartment
within a multi-family dwelling . . . .
(R. Vol. 1 at 48.) The district judge concluded Attachment B was sufficiently particular
“because defendant is a convicted felon . . . [m]eaning that any and all firearms he
possesses constitute a crime.” (R. Vol. 2 at 148 (quotation marks omitted).) We agree.
The police knew of Pulliam’s felony conviction when they sought the warrant and
disclosed his status to the state court judge in their application for the search warrant.
Since Pulliam was a felon, and both the police and the issuing judge knew it, any guns in
his possession were contraband. No specific description of a gun was necessary.
Pulliam also claims the copy of the warrant provided to him after the search
violated the Fourth Amendment’s particularity requirements because it lacked
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“Attachment B,” which particularly described the items to be seized. According to him,
disclosure is necessary to allow the person or persons targeted by the warrant to ensure
police adhere to the scope of the searches and seizures identified in the warrant. In
support he cites Ramirez v. Butte-Silver Bow County, 298 F.3d 1022, 1026-27 (9th Cir.
2002), where the Ninth Circuit endorsed this rationale. However, since the Ninth Circuit
decided Ramirez, the Supreme Court has abrogated this line of jurisprudence. In United
States v. Grubbs, it explained:
“The absence of a constitutional requirement that the warrant be exhibited
at the outset of the search, or indeed until the search has ended, is . . .
evidence that the requirement of particular description does not protect an
interest in monitoring searches.” United States v. Stefonek, 179 F.3d 1030,
1034 ([7th Cir.] 1999) (citations omitted). The Constitution protects
property owners not by giving them license to engage the police in a debate
over the basis for the warrant, but by interposing, ex ante, the “deliberate,
impartial judgment of a judicial officer . . . between the citizen and the
police,” Wong Sun v. United States, 371 U.S. 471, 481–482 (1963), and by
providing, ex post, a right to suppress evidence improperly obtained and a
cause of action for damages.
547 U.S. 90, 98 (2006) (parallel citations omitted); see also United States v. SDI Future
Health Inc., 568 F.3d 684, 701 (9th Cir. 2009) (recognizing Grubbs abrogated the Ninth
Circuit’s requirement that “officers . . . present any curative document . . . to the persons
whose property is to be subjected to the search.”). In short, under Grubbs, persons
targeted by a search warrant have no right rooted in the Fourth Amendment’s
particularity clause in using their copy of the warrant in an attempt to monitor or control
the search during its execution. See Grubbs, 547 U.S. at 98.
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On the contrary, the plain language of the Fourth Amendment requires us to focus
solely on the warrant as issued to police rather than any copy given to the person or
persons targeted by the search. U.S. Const. Amend. IV (“[N]o warrants shall issue but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the person or things to be seized.”) (emphasis added); see
Grubbs, 547 U.S. at 98. This focus on the warrant as issued to the police is consistent
with the particularity clause’s purpose of “allow[ing] the executing officers to distinguish
between items that may and may not be seized.” United States v. Leary, 846 F.2d 592,
602 (10th Cir. 1988). Pulliam’s particularity argument fails.
B. Other Search Issues
Finally, according to Pulliam, the police were required, under both Fed. R. Crim.
P. 41(f)(1)(C) and the terms of the warrant, to provide him and his spouse with a copy of
the search warrant contemporaneous with their search. He asserts “the police refused to
provide either of them a copy of the warrant.” (Appellant Br. 6.) In his view, the
police’s failure to honor these requirements should have led to the exclusion of any
evidence resulting from the search. He is wrong.
1. Rule 41(f)
There are two problems with Pulliam’s Rule 41 argument. First, it raises a
question about the remedies available for a violation of Rule 41. As we have recognized,
some violations of Rule 41 can lead to the suppression of evidence regardless of whether
the search was reasonable under the Fourth Amendment. See United States v. Sims, 428
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F.3d 945, 955 (10th Cir. 2005). Yet, to obtain suppression for such a violation, we
require the defendant to show either “‘(1) there was prejudice in the sense that the search
might not have occurred or would not have been so abrasive if the Rule had been
followed, or (2) there is evidence of intentional and deliberate disregard of a provision in
the Rule.’” Id. (quoting United States v. Pennington, 635 F.2d 1387, 1389-90 (10th Cir.
1980)). Here, Pulliam makes no attempt to show either prejudice or deliberate disregard
of the Rule’s requirements. As such, he would not be entitled to suppression even if the
Rule were violated.
Second, as the government notes, Rule 41 does not apply to “state warrants.”
(Appellee Br. 12.) See United States v. Bookout, 810 F.2d 965, 966-67 (10th Cir. 1987).
It is correct. Rule 41 applies only “when federal officers are directly involved in carrying
out the search itself and in taking immediate custody of the fruits of the search,” id.; see
United States v. Barrett, 496 F.3d 1079, 1090 (10th Cir. 2007), or “if from the beginning
it was assumed a federal prosecution would result.” Barrett, 496 F.3d at 1091 (quotation
marks omitted). Here, the warrant issued from a state court and state officers executed it;
Pulliam does not claim any federal officers were involved in the search or that anyone
assumed the search would lead to federal prosecution. Rule 41 does not apply.
2. Conditions Contained in the Warrant
“[A] search must be reasonable not only in its inception, but also in its execution.”
United States v. Gordon, 741 F.3d 64, 70 (10th Cir. 2014); see Basham, 268 F.3d at
1204; see also Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (“The touchstone of
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our analysis under the Fourth Amendment is always the reasonableness in all the
circumstances of the particular invasion of a citizen's personal security.”) (quotation
marks omitted and emphasis added).
The warrant issued here required “a copy of this warrant . . . be left with the
person whose premises or person is searched along with a list of any and all items seized
at the time of its execution.” (R. Vol. 1 at 42.) Even assuming police violated this term
of the warrant, Pulliam has again failed to explain why the remedy of suppression is
legally justified. He merely assumes “[t]he police’s failure . . . to provide a copy of the
warrant . . . renders the police’s search unreasonable.” (Appellant Br. 7.)
We have acknowledged the violation of a warrant’s terms can make suppression
appropriate even when a search is reasonable under the Fourth Amendment. As we
explained in Sims, when police violate the terms of a federal judge’s warrant, a court may
suppress the resulting evidence, but, again, only when the violation was prejudicial or
intentional. 428 F.3d at 955; see also United States v. Garcia, 707 F.3d 1190, 1196 (10th
Cir.) (concluding federal standards also apply to violations of warrants issued by state
court judges), cert. denied, 133 S. Ct. 2875 (2013).
For the fruits of this search to be suppressed, Pulliam would, at a minimum, have
to show (1) the violation rendered the search unreasonable under the Fourth Amendment,
or (2) the violation was intentional or resulted in prejudice. He has failed to make either
showing. He does not explain why—other than police’s failure to give him a complete
copy of the warrant—the search was unreasonable. Given that the search was supported
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by probable cause and a warrant issued properly limiting the scope of the search and
adequately describing the items to be seized, we cannot see how the failure of a
ministerial act—failure to include all attachments to the warrant—made the search
unreasonable. As to the second required showing, Pulliam has made no attempt to show
how the alleged violation was intentional or prejudicial to him. He is not entitled to
suppression of the evidence from the search.
Moreover, as we read the warrant, the police officers did not violate its terms.
Nothing in the warrant expressly required them to provide Pulliam a copy of the
warrant’s attachments. Although the better practice might have been to provide a
complete copy of the warrant, including any attachments, the rationales at the core of the
warrant’s requirement to provide a copy of the warrant are, as far as we can tell, to notify
the target of the search that the police’s search occurred under the authority of a warrant
and to apprise him or her of any property taken. See Grubbs, 547 U.S. at 98 (reasoning
the search warrant’s list of the places to be searched and items to be seized is not
intended to allow the persons targeted by the search to attempt to ensure officers’
compliance during the course of the search). After all, a complete copy of the warrant,
including all attachments and a copy of the inventory are available in the files of the
issuing judge and can be inspected for possible irregularities. A post hoc review of the
warrant under judicial supervision is preferable to a confrontation with the police during
an ongoing search. As the district judge found, the police “gave the face sheet of the
warrant, with the inventory of the property taken, written on the back of the face sheet, to
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defendant . . . .”3 (R. Vol. 2 at 149.) The documents Pulliam received satisfied the
warrant’s command.
AFFIRMED.
3
Since this finding is supported by the testimony of the detective who gave the
warrant to defendant, we are bound by it. See Basham, 268 F.3d at 1203.
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