United States v. Green , 178 F.3d 1099 ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 28 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 98-3243
GLENN L. GREEN,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. CR-97-10164)
Brian K. Holland, Holland, Kaplan & Pagliuca, P.C., Denver, Colorado, for
appellant.
Lanny D. Welch, Assistant United States Attorney (Jackie N. Williams, United
States Attorney, with him on the brief), Wichita, Kansas, for appellee.
Before ANDERSON , McWILLIAMS , and LUCERO , Circuit Judges.
ANDERSON , Circuit Judge.
Glenn L. Green was convicted by a jury of two counts of possession of
methamphetamine with intent to distribute and one count of possession of cocaine
with intent to distribute, in violation of 21 U.S.C. § 841. Green appeals these
convictions, arguing that (1) the officers who investigated him, obtained warrants
to search his residence, executed those warrants, and discovered incriminating
evidence were acting outside their jurisdiction, and that therefore the searches
violated the Fourth Amendment to the U.S. Constitution, and (2) the government
improperly refused, until trial, to disclose the identity of a confidential informant.
For the reasons stated below, we affirm.
BACKGROUND
In late October or early November 1997, officers of the Wichita Police
Department (WPD) received information from a confidential informant that Green
was engaged in narcotics distribution at his residence. At that time, Green
resided outside the city limits of Wichita, in rural Butler County, Kansas. 1
On
November 12, 1997, in an attempt to corroborate the information received from
the informant, WPD Officer Chris Bannister set up a “controlled buy” of narcotics
at Green’s house in Butler County. WPD officers thoroughly searched the
Wichita is the county seat of Sedgwick County, Kansas. Butler County is
1
adjacent to Sedgwick County. At all times relevant to this appeal, Green resided
between Andover, Kansas and Augusta, Kansas, in rural Butler County.
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informant’s person and ascertained that she had no narcotics on her person.
Bannister gave the informant $1100 in cash, which had been photocopied to
record the serial numbers. In the early evening of November 12, Bannister and
the informant traveled together, in the informant’s vehicle, to Green’s residence
in Butler County, which was already under surveillance by several WPD officers.
While Bannister hid in the vehicle, the informant entered Green’s house and
returned in a few minutes with a small package. Bannister and WPD officer
Frank Cook, who was conducting surveillance, both saw the informant with Green
as she exited the residence. The informant then got back into the car with
Bannister and drove off. A few minutes later, the informant gave the small
package to Bannister; the contents of the small package were determined to be
methamphetamine.
Bannister then set about obtaining a search warrant for Green’s Butler
County residence. He contacted Bob Bartlett, a member of the Butler County
Drug Task Force, 2
who directed him to the Butler County district attorney and a
Butler County judge. Bannister proceeded to fill out an application for a Butler
2
After his conviction, Green filed a motion for a new trial in the district
court, alleging that new evidence had come to light that Bannister had, contrary to
his testimony at the suppression hearing, not sought out the assistance of Butler
County officials until after he had obtained the November search warrant.
Appellant’s App. Tab S, at 2. However, the government strongly disputed the
accuracy of this assertion, Appellants’ App. Tab T, at 3, and, in any event, no
such evidence was ever introduced into the record.
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County search warrant, complete with an affidavit describing the controlled buy.
Butler County Judge John Jaworsky signed the warrant late in the evening on
November 12. The warrant was addressed to “Officer John C. Bannister #1624,
Wichita Police Department, or any peace officer of the State of Kansas,” and
authorized a search of Green’s residence for methamphetamine and related items.
Appellant’s App. at 40.
After the search warrant was obtained, WPD officers waited for Green to
leave his house. About 11:30 P.M., Green was seen leaving the residence in his
truck. Two WPD officers stopped Green’s truck and arrested Green. In his truck
and/or on his person, WPD officers found and seized a ziploc bag containing
methamphetamine, over $1400 in cash, a cellular phone, and a pager. Officers
also confiscated Green’s keys.
A few hours later, in the early hours of November 13, WPD officers
executed the Butler County search warrant. Butler County’s Bartlett was present
at the execution of the warrant, as were two other Butler County detectives.
Using the keys found in Green’s truck, the officers entered the residence. Inside
the residence, officers found two ounces of methamphetamine in a plastic drink
holder, as well as other small amounts of methamphetamine at other locations in
the house. Officers also discovered various kinds of drug paraphernalia,
including scales, plastic wrap, and baggies, as well as a firearm and two bundles
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of cash. Some of this money was later determined to be part of the $1100 that
Bannister had given the informant. Officers also discovered a surveillance
camera mounted in one of the upstairs bedrooms of the house. This camera was
pointed at an old pickup truck in the driveway of the house, and the camera was
set up so that a person in the living room of the house could view, on the
television screen, the truck in the driveway. Officers subsequently searched the
truck, and discovered 12-14 ounces of methamphetamine in a jacket under the
front seat of the truck.
Approximately one month later, the same WPD officers received
information from the same informant that Green was again conducting narcotics
sales out of his residence. On December 10, 1997, Bannister conducted another
largely identical controlled buy, using the same confidential informant, at the
Butler County residence. The informant again entered the house with
photocopied money given to her by WPD officers, and returned with one ounce of
methamphetamine. This time, however, Bannister did not contact Butler County
authorities or ask a Butler County judge for a search warrant. Rather, Bannister
contacted an Assistant United States Attorney, who helped Bannister seek a
federal search warrant from a United States Magistrate Judge. Bannister
completed an affidavit to support his application for a federal search warrant. In
that affidavit, Bannister described the results of the November search of the
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residence and the results of the second controlled buy conducted earlier that
evening. Bannister further stated in his affidavit that, during the controlled buy,
Green told the informant that he would be coming into Wichita to purchase
cocaine at a specified address that same evening. Magistrate Judge Karen
Humphreys issued the warrant at 12:45 A.M. on December 11. The warrant was
addressed to “John Bannister and any Authorized Officer of the United States.” 3
Appellant’s App. at 44.
While Bannister was obtaining the warrant, other WPD officers observed
Green leave his residence in a van. Green proceeded to drive into Wichita, to
precisely the address identified by the informant as the address at which Green
was to purchase drugs, and to which Green told her, during the controlled buy,
that he would travel that evening. Officers observed Green pull into the driveway
at this Wichita address, exit his vehicle, and enter the front door of the house.
Green was in the house for approximately one hour. After Green left the Wichita
address, officers followed Green’s vehicle until they observed him fail to signal a
3
Green does not argue, either here or before the district court, that this
warrant violated Fed. R. Crim. P. 41(c), which requires that federal search
warrants “be directed to a civil officer of the United States authorized to enforce
or assist in enforcing any law thereof or to a person so authorized by the President
of the United States.” Therefore, any such argument is deemed waived, Walker v.
Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992); Jordan v. Bowen , 808
F.2d 733, 736 (10th Cir. 1987), and may not have led to suppression of the fruits
of that warrant in any event, see United States v. Pennington , 635 F.2d 1387,
1389-91 (10th Cir. 1980).
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turn. At that point, WPD officers stopped Green’s vehicle, arrested Green, and
searched both Green and the vehicle. In the passenger compartment of the vehicle
and/or on Green’s person, officers discovered a plastic bag containing one ounce
of white powder later determined to be cocaine, and over $1700 in cash ($300 of
which was determined to be photocopied money from the second controlled buy).
Officers also confiscated Green’s keys.
Using the keys confiscated at the traffic stop, WPD officers returned to
Green’s Butler County residence and again entered it and searched it, pursuant to
the federal warrant. This time, however, they were unassisted by Butler County
law enforcement officers, but they were accompanied by Bruce Watts, a WPD
officer who had apparently been granted statewide authority to conduct narcotics
investigations by the Attorney General of Kansas. A search of the house yielded
two ounces of methamphetamine and various drug paraphernalia, including scales,
razor blades, and a mirror. Officers also discovered a semiautomatic pistol, as
well as a new surveillance camera trained on the front yard of the house.
Based on the evidence discovered in the various searches, a federal grand
jury returned a multiple-count indictment against Green, charging him with (1)
possessing, with intent to distribute, 450 grams of methamphetamine discovered
in the November search of the house, in violation of 21 U.S.C. § 841; (2)
possessing, with intent to distribute, one ounce of cocaine discovered in the
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December search of his vehicle, in violation of 21 U.S.C. § 841; and (3)
possessing, with intent to distribute, 55 grams of methamphetamine discovered in
the December search of his house, in violation of 21 U.S.C. § 841. 4
In February 1998, Green moved to suppress the evidence discovered in the
November search of his house, the December search of his van, and the December
search of his house, on the ground that the WPD officers who investigated him,
conducted the controlled buy, obtained and executed the search warrants, and
discovered the incriminating evidence, were acting outside their jurisdiction.
Green argued that searches conducted by law enforcement officers outside their
jurisdiction violate the Fourth Amendment. On March 9, 1998, the district court
began to hear arguments on the suppression motion. Officer Bannister testified
on March 9. However, due to time constraints, the district court was unable to
conclude the hearing that day. The hearing was continued on March 13, 1998,
and completed on March 30.
On March 23, 1998, after the suppression hearing was substantially
completed, Green and his co-defendant filed a motion to compel the government
to disclose the identity of the confidential informant.
4
Green and a co-defendant were also charged with conspiracy to distribute
methamphetamine, but this count was dismissed when Green’s co-defendant
entered into a plea bargain with prosecutors on the first day of trial.
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On May 1, 1998, the district court denied Green’s motion to suppress on all
counts. However, because “[t]he government ha[d] not responded in opposition”
to the defendants’ motion for disclosure of the informant’s identity, the district
court granted that motion. Appellant’s App. Tab Q, at 16. One week later, the
government filed a motion for reconsideration, asking the court to reconsider its
ruling ordering the disclosure of the informant’s identity, stating that it had been
unaware that the district court desired a written response to the defendants’
motion to disclose. At some point between May 8 and the beginning of trial on
May 19, the district court denied this motion for reconsideration.
The weekend before the trial was to begin, Green and his counsel were still
unaware of the informant’s identity. In an effort to obtain that information, Green
hired an investigator to contact, and place under subpoena, various individuals
who he thought might either be the confidential informant or have some
information relating to the informant. One of the individuals he placed under
subpoena, Linda McReynolds, turned out to be the confidential informant,
although Green was apparently unaware of this fact when he placed McReynolds
under subpoena.
On May 19, 1998, the trial began. On the third day of trial, the government
informed Green that, despite earlier representations to the contrary, it did not
intend to call the confidential informant to the stand. Later that afternoon, the
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government finally informed Green and his counsel that the confidential
informant was Linda McReynolds, and Green’s counsel was afforded the
opportunity to interview McReynolds out of court. Green, however, opted not to
call McReynolds, despite the fact that he had served her with a subpoena. In fact,
Green called no witnesses of his own, and did not testify in his own defense.
On May 27, 1998, the jury found Green guilty on all three counts. After
Green’s various motions for a new trial were denied, none of which are at issue
here, the district court held a sentencing hearing at which it sentenced Green to
135 months’ imprisonment on each of the three counts, with the sentences to run
concurrently. Green now appeals his convictions.
DISCUSSION
I. Fourth Amendment Issues
When reviewing a district court’s denial of a suppression motion, “we
accept its factual findings unless clearly erroneous and view the evidence in the
light most favorable to the government.” United States v. Hargus , 128 F.3d 1358,
1361 (10th Cir. 1997), cert. denied , 118 S. Ct. 1526 (1998). We grant the district
court’s credibility determinations due deference, but “[t]he ultimate determination
of reasonableness under the Fourth Amendment . . . is a question of law which we
review de novo, considering the totality of the circumstances.” Id.-10-
A. The Searches of Green’s House
Green argues that incriminating evidence from the November and
December searches of his house 5
should be suppressed because the WPD officers
who investigated him, obtained warrants to search his residence, and executed
that warrant were acting outside their jurisdiction. It is evident, and indeed the
government does not contest, Appellee’s Br. at 11, that the WPD officers were
acting outside their jurisdiction in violation of Kansas law, which provides that
(2) Law enforcement officers employed by any city may exercise
their powers as law enforcement officers:
(a) Anywhere within the city limits of the city employing
them and outside of such city when on property owned
or under the control of such city; and
(b) in any other place when a request for assistance has been
made by law enforcement officers from that place or
when in fresh pursuit of a person.
5
The searches of Green’s house may also be valid for another reason, not
discussed below. The record reflects that Butler County authorities, who
undisputably were acting within their jurisdiction even under Kansas law, assisted
the WPD officers in obtaining and executing the November Butler County search
warrant, and the record also reflects that Bruce Watts, who apparently has
statewide jurisdiction to conduct narcotics investigations, was present at the
execution of the December federal search warrant. In similar cases involving the
application of the same Kansas statute, we have held that assistance by authorities
possessing jurisdiction can serve to validate a search, even if officers acting
outside their jurisdiction also participate. See United States v. Price, 75 F.3d
1440, 1443 (10th Cir. 1996); United States v. Occhipinti, 998 F.2d 791, 798-99
(10th Cir. 1993). However, because of the existence of some factual dispute as to
the extent of the Butler County authorities’ involvement, Appellant’s App. Tabs
S, T, and because of some uncertainty with respect to Bruce Watts’ statewide
authority, see id. at Tab N, we do not pursue this avenue further.
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Kan. Stat. Ann. § 22-2401a(2) (West 1995); see State v. Sodders , 872 P.2d 736,
738-40 (Kan. 1994).
“It is, however, well established in this circuit that ‘in federal prosecutions
the test of reasonableness in relation to the Fourth Amendment protected rights
must be determined by Federal law even though the police actions are those of
state police officers.’” United States v. Le , -- F. 3d --, --, 1999 WL 176192, at *4
(10th Cir. Mar. 31, 1999) (quoting United States v. Miller , 452 F.2d 731, 733
(10th Cir. 1971)). This is because “‘the exclusionary rule is only concerned with
deterring [federal] Constitutional violations.’” Id. (quoting United States v.
Wright , 16 F.3d 1429, 1437 (6th Cir. 1994)). Thus, “the fact that the arrest,
search, or seizure may have violated state law is irrelevant as long as the
standards developed under the Federal Constitution were not offended.” Id.(citation omitted).
Green argues that we have applied state law in past cases where we have
considered whether a search was lawful, citing United States v. Richardson , 86
F.3d 1537 (10th Cir. 1996); United States v. Price , 75 F.3d 1440 (10th Cir. 1996);
United States v. Occhipinti , 998 F.2d 791 (10th Cir. 1993); and United States v.
Ibarra , 955 F.2d 1405 (10th Cir. 1992). Indeed, in Price and Occhipinti , Kan.
Stat. Ann. 22-2401a was the state statute at issue. Green, however, misinterprets
our cases. In Price , we explained that our discussion regarding whether the
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Kansas statute was complied with in that case was secondary to the federal
constitutional inquiry mandated by the Fourth Amendment. We stated that, in that
case, the defendant’s argument that the Kansas statute was violated failed in any
event, because the officers had not acted in violation of the statute. Price , 75
F.3d at 1443; see also Richardson , 86 F.3d at 1544; Occhipinti , 998 F.2d at 798-
99. However, we were careful to point out that even if the Kansas statute had
been violated, that would not have ended the inquiry, because “[t]he authority in a
federal case for suppressing evidence due to an unlawful search is the Fourth
Amendment to the Federal Constitution. A violation of state law may or may not
form the basis for suppression on Fourth Amendment grounds.” Price , 75 F.3d at
1443-44 (citations omitted); cf. Ibarra , 955 F.2d at 1409-10 (conducting a Fourth
Amendment inquiry even after finding that the state statute was violated).
In an effort to link the WPD officers’ violation of state statutory law to the
Fourth Amendment, Green cites Ross v. Neff , 905 F.2d 1349 (10th Cir. 1990). In
that case, we held that “an arrest made outside of the arresting officer’s
jurisdiction violates the Fourth Amendment . . . .” Id. at 1353-54. That case,
however, is distinguishable from the case at hand in one major respect: Ross
involved a warrantless arrest outside the arresting officer’s jurisdiction. Id. at
1354 (stating that “[a] warrantless arrest outside the arresting officer’s
jurisdiction is analogous to a warrantless arrest without probable cause” and that
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“[a]bsent exigent circumstances, such an arrest is presumptively unreasonable”).
A warrantless arrest is vastly different from a warranted search. In the case
before us, there is no dispute that the WPD officers obtained search warrants from
magistrates of the relevant jurisdiction. We decline to extend Ross to the context
of warranted searches.
The federal constitutional standards for evaluating the validity of search
warrants are well established. The Fourth Amendment requires only that the
warrant contain “probable cause supported by an oath or affirmation and a
particular description of the place, persons and things to be searched and seized.”
United States v. Wicks , 995 F.2d 964, 972 (10th Cir. 1993). These requirements
were clearly met in this case. Green does not contest that probable cause, albeit
allegedly tainted by the violation of the Kansas statute, 6
existed to support each of
the three challenged searches, including the December search of the van discussed
below, see Appellant’s Br. at 19, 24, and he has not attempted to argue, either on
Green argues that the probable cause was tainted by the violation of the
6
Kansas statute, and therefore cannot provide a valid basis for the search warrants.
In support of this proposition, Green cites Wong Sun v. United States, 371 U.S.
471 (1963), and United States v. Owens, 782 F.2d 146 (10th Cir. 1986). While
Green may be correct that probable cause obtained in violation of the federal
Constitution may not form the basis for a valid search warrant, the cases cited by
Green (or any other cases of which we are aware) do not lend support to the
contention that probable cause obtained in violation of a state statute may never
be used to support a constitutionally valid search warrant.
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appeal or before the district court, that the warrants were not sufficiently
particular.
In sum, there was no federal constitutional violation in this case. The
Fourth Amendment is satisfied where, as here, officers obtain a warrant, grounded
in probable cause and phrased with sufficient particularity, from a magistrate of
the relevant jurisdiction 7
authorizing them to search a particular location, even if
those officers are acting outside their jurisdiction as defined by state law.
B. The Stop and Search of Green’s Van
Green also argues that the stop and search of his van on December 10-11,
1997, was unlawful. Green’s argument is twofold. First, he argues that the
“probable cause to stop and search” the van was based on information obtained by
WPD officers acting outside their jurisdiction, and therefore the stop and search
was unlawful under Ross v. Neff . Appellant’s Br. at 13. Second, he argues that
the stop and search violated the standards set forth in Terry v. Ohio , 392 U.S. 1(1968). We address each of these arguments in turn.
Butler County Judge Jaworsky is undisputably authorized to issue search
7
warrants for persons or property within Butler County, and federal Magistrate
Judge Humphreys is authorized, under Fed. R. Crim. P. 41(a), to issue, upon
request of a government attorney, search warrants for persons or property within
the entire District of Kansas.
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Green’s Ross argument fails here for different reasons than in the context
of the warranted searches of the house. Although the officers who stopped
Green’s van on the evening of December 10-11, 1997, did not have an arrest
warrant or a warrant to search Green’s person or vehicle, the record indicates that
WPD officers stopped and searched Green’s car within the city limits of Wichita .
When the officers stopped Green, they were within their jurisdiction. The fact
that some of the uncontested probable cause for this stop was obtained by officers
acting outside their jurisdiction, in violation of state law, is not necessarily a
matter of constitutional significance. Le, -- F. 3d --, --, 1999 WL 176192, at *4.
In the context of warrantless arrests, the Fourth Amendment requires only that the
arresting officers have probable cause to believe that the person to be arrested has
committed a crime, see United States v. Vazquez-Pulido , 155 F.3d 1213, 1216
(10th Cir.), cert. denied , 119 S. Ct. 437 (1998); United States v. Gama-Bastidas ,
142 F.3d 1233, 1240 (10th Cir. 1998), and that the arresting officers make the
arrest within their jurisdiction or under exigent circumstances, Ross v. Neff , 905
F.2d at 1353-54 & n.6. Both of these requirements were satisfied here. Because
the warrantless arrest of Green was lawful, the arresting officers were entitled to
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search the passenger compartment of Green’s car incident to his arrest. See
United States v. Lacey , 86 F.3d 956, 971 (10th Cir. 1996). 8
Finally, we agree with the government that the standards set forth in Terry
are inapplicable to this case, because the officers had probable cause to stop and
arrest Green. The officers did not need to wait until Green committed a traffic
violation to stop his vehicle, and the fact that they overcautiously did so need not
obfuscate the analysis. This was simply not a Terry stop. The search of Green’s
van was lawful.
II. Discovery Issues
Green also takes issue with the manner in which the government turned
over information relating to Linda McReynolds, the confidential informant. He
asserts that the government failed to timely disclose the identity of the informant,
in violation of Roviaro v. United States , 353 U.S. 53 (1957), and that the
government refused to turn over unidentified impeachment information relating to
the informant, in violation of Brady v. Maryland , 373 U.S. 83 (1963), Giglio v.
United States , 405 U.S. 150 (1972), and the district court’s discovery order. In
Because officers had probable cause to believe that Green’s van contained
8
contraband, the search of Green’s van was also lawful under the automobile
exception to the warrant requirement. See United States v. Chatman, 994 F.2d
1510, 1514 (10th Cir. 1993).
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addressing these arguments, we apply an abuse of discretion standard to Green’s
Roviaro claim, see United States v. Sinclair , 109 F.3d 1527, 1538 (10th Cir.
1997), and a de novo standard to Green’s Brady and Giglio claim, see United
States v. Gonzalez-Montoya , 161 F.3d 643, 649 (10th Cir. 1998), cert. denied ,
119 S. Ct. 1284 (1999).
A. Disclosure of the Informant’s Identity
On March 23, 1998, Green moved to join his co-defendant’s motion for
disclosure. The district court granted this motion on May 1, 1998, because the
government had not filed any written response opposing the motion. The
government did not immediately disclose the informant’s identity, however,
because it filed a motion for reconsideration which, apparently, was still pending
on the eve of trial. Once it was clear that the district court was not going to grant
its motion for reconsideration, the government soon disclosed the informant’s
identity. Thus, Green’s case differs from most other cases in which this issue
arises, because in this case the district court granted Green’s motion for
disclosure, and the government actually disclosed the informant’s identity.
Compare Sinclair , 109 F.3d at 1538; United States v. Leahy , 47 F.3d 396, 398
(10th Cir. 1995).
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Green argues, however, that the government did not respond timely to his
request for disclosure. This argument ignores the fact that the government had
filed a motion for reconsideration of the district court’s order, and that motion
was still pending until trial. Green does not argue that this motion was filed with
dilatory intent. Green contends, rather, that because he was unaware of the
informant’s identity until trial, his “Sixth Amendment right to confront and cross-
examine the key witness against him was never provided at either the motion to
suppress hearing or trial.” Appellant’s Br. at 28. This argument fails for multiple
reasons.
First, with respect to the suppression hearing, Green overlooks the fact that
he did not move for disclosure of the informant’s identity until March 23, 1998,
after the suppression hearing was largely completed. Indeed, Officer Bannister,
the suppression hearing witness whose testimony dealt most thoroughly with the
informant, had already testified on March 9, 1998. Green’s argument that his
rights were violated because the informant did not testify at the suppression
hearing rings hollow here, given the fact that Green did not move for disclosure
until two weeks after the hearing had begun, and after Bannister had testified.
In connection with this argument, Green contends that had he known the
informant’s identity and certain impeachment information about her, he could
have “raised [a] veracity attack under Franks v. Delaware , 438 U.S. 154 (1978)[,]
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necessary to suppress the evidence seized.” Appellant’s Br. at 36. Green
misinterprets Franks . That case allows a defendant to challenge the veracity of
statements made by a search warrant affiant , not the veracity of statements made
by a confidential informant to the affiant. See United States v. Ross , 920 F.2d
1530, 1534 (10th Cir. 1990) (stating that “the ‘deliberate falsity or reckless
disregard whose impeachment is permitted . . . is only that of the affiant, not of
any nongovernmental informant’” (quoting Franks , 438 U.S. at 171)). Green does
not offer any evidence that Officer Bannister made any deliberately false
statements in either of the search warrant affidavits. 9
In any event, the informant’s presence at the suppression hearing could not
have assisted Green. Even assuming, arguendo, that Green’s allegations with
regard to the informant’s veracity are true, such evidence has no bearing on
whether the magistrate had probable cause to issue the warrant, so long as,
considering the totality of the circumstances set forth in the affidavit, “there is a
fair probability that contraband or evidence of a crime will be found in a
particular place.” Illinois v. Gates , 462 U.S. 213, 238 (1983). Indeed, the
Green does contend that Officer Bannister testified falsely at the
9
suppression hearing with regard to the presence of WPD’s Bruce Watts at the
November search of Green’s residence. See Appellant’s Br. at 10. However, this
information was not included in the search warrant affidavits, and Green nowhere
argues that any of Bannister’s statements in either of the affidavits was knowingly
false.
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Supreme Court has stated that “the magistrate is concerned, not with whether the
informant lied, but with whether the affiant is truthful in his recitation of what he
was told.” McCray v. Illinois , 386 U.S. 300, 307 (1967) (citation omitted). As
noted above, Green has presented no evidence, either on appeal or before the
district court, that the information contained in the search warrant affidavits was
known to the affiant to be false. In such cases, the proper forum for the
introduction of evidence that the informant was untruthful is trial, not a
suppression hearing.
Second, Green’s argument that his rights were violated because the
informant did not testify at trial is similarly flawed. The informant did not testify
at trial because Green did not call her to testify, despite the fact that she was
under subpoena. By the time the prosecution rested, Green was fully aware of the
informant’s identity, and had even had the opportunity to interview her outside of
court. Presumably, Green’s decision not to call the informant to the stand was a
tactical decision made by Green and his counsel. Neither the government nor the
district court precluded Green from questioning the informant at trial.
Nevertheless, Green argues that he was prejudiced at trial by the admission
of allegedly improper “hearsay” testimony of Officer Bannister. Green, however,
did not object to the introduction of these statements. Green’s explanation for his
failure to object is that the government had stated that it would call McReynolds
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to the stand, and Green assumed that he would have a chance to cross-examine
McReynolds with respect to the statements made by Bannister. Even if we
assume that these statements were in fact inadmissible hearsay, a proposition that
is by no means obvious, we would review their admission for plain error, because
Green failed to object. See United States v. Pacheco , 154 F.3d 1236, 1240 (10th
Cir. 1998), cert. denied , 119 S. Ct. 886 (1999). There was no plain error here.
“Plain error is that which is obvious, or which seriously affects the fairness or
integrity of the trial.” Id. In light of the fact that Green had McReynolds under
subpoena, yet elected not to call her to question her regarding the statements
made by Officer Bannister, we cannot conclude that the integrity or fairness of the
trial was affected by the admission of Bannister’s statements.
B. Disclosure of Impeachment Information
Finally, Green contends that the government failed to comply with the
district court’s discovery order and with Brady and Giglio by refusing to turn over
unidentified information that allegedly could have been used to impeach
McReynolds. Green, however, does not identify any particular exculpatory
evidence that the government failed to disclose. Thus, Brady is not directly
implicated by Green’s argument. And, because both the discovery order and
Giglio apply only to impeachment information relating to a government witness,
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see Giglio , 405 U.S. at 153-55; Appellant’s App. Tab B, at 3-4, they are
inapplicable because the government did not ever call McReynolds as a witness.
Thus, Green’s arguments must fail.
CONCLUSION
Accordingly, for the reasons discussed herein, we AFFIRM Green’s
convictions.
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