United States v. Ewing

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 2, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-5179
(D.C. No. 4:16-CR-00091-GKF-1)
WALTER BROWN EWING, (N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
Walter Brown Ewing pleaded guilty to one count of possession of
methamphetamine with intent to distribute but reserved the right to appeal the district
court’s denial of his motion to suppress. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
I. Background
After receiving a tip from an informant who wished to remain anonymous that
Mr. Ewing was selling methamphetamine out of his home, Officer Keith Osterdyk
*
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. This order and judgment is not binding precedent,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.
opened an investigation. He began by researching Mr. Ewing’s criminal history. He
looked at an Oklahoma Department of Corrections report that showed Mr. Ewing had
been convicted of multiple drug-related offenses. However, one of those offenses
actually belonged to someone else, and the report indicated that the person was still
incarcerated. The remaining drug-related offenses shared a single case number.
Officer Osterdyk conducted surveillance of Mr. Ewing’s home on three
occasions and observed numerous vehicles pulling into the driveway. The occupants
were admitted to the home and typically stayed for fifteen minutes to an hour. Based
on his training and experience, Officer Osterdyk believed this type of activity
indicated that drug-dealing was occurring.
Officer Osterdyk and another officer conducted a “trash pull” by collecting six
trash bags that were near the curb for pickup.1 A search of the bags yielded plastic
baggies and glass smoking devices with a white residue that a field test indicated was
methamphetamine. Officer Osterdyk also found handwritten notes of names and
money amounts, which he believed were “drug notations.” Aplt. App., Vol. I at 23.
Based on his investigation, Officer Osterdyk applied for a search warrant. The
supporting affidavit incorrectly stated that Mr. Ewing had been convicted of four
drug-related offenses. The affidavit also described the information Officer Osterdyk
received from the informant, his observations from the surveillance, and the items
1
Mr. Ewing testified at the suppression hearing that he did not place his trash
cans near the curb, but the district court did not find his testimony credible.
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discovered in the trash, including the drug notations. A judge issued the warrant, and
police executed a search of the home, seizing about 36 grams of methamphetamine.
After he was indicted, Mr. Ewing moved to suppress the seized evidence. He
argued that the affidavit contained misrepresentations and material omissions and
therefore failed to establish probable cause for issuing the warrant. Specifically, he
argued that he had only one drug-related conviction, which was over ten years old at
the time of the affidavit. He also argued that his trash was in his driveway, not at the
curbside, and therefore the evidence from the trash could not be considered. And he
argued that the affidavit contained no information from which to conclude that the
informant was reliable.
The district court held a hearing on the motion, at which the officers and
Mr. Ewing testified. Regarding Mr. Ewing’s prior convictions, the court concluded
that even though one of the convictions on Mr. Ewing’s record belonged to another
person, “the fact remains that [Mr. Ewing] had, in fact, been convicted of a drug
offense.” Id., Vol. II at 70. The court credited the officers’ testimony about the
location of the trash cans at the time of the “trash pull,” and it denied the motion,
concluding that Officer Osterdyk “did not intentionally misrepresent the material
facts which constituted his application for the search warrant.” Id. It further
concluded that Officer Osterdyk “relied in good faith on the warrant once it was
signed by the judge.” Id. at 71.
On appeal, Mr. Ewing argues that the search was not supported by probable
cause because of the affidavit’s false statements and material omissions. He also
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argues that the good-faith exception does not apply because the warrant’s flaws stem
from recurring and systemic police negligence.
II. Law
Evidence seized pursuant to a search warrant must be suppressed if “the affiant
knowingly or recklessly included false statements in or omitted material information
from an affidavit in support of a search warrant and . . . the corrected affidavit does
not support a finding of probable cause.” United States v. Garcia-Zambrano,
530 F.3d 1249, 1254 (10th Cir. 2008). “[W]e review for clear error the district
court’s findings regarding the truth or falsity of statements in the affidavit and
regarding the intentional or reckless character of such falsehoods.” Id. We review
de novo whether the corrected affidavit (after excising any false statements and
considering any material omissions) supports a finding of probable cause. Id.
III. Analysis
A. False Statements
The affidavit falsely states that Mr. Ewing had been convicted of and
imprisoned for four drug-related offenses. Nonetheless, we conclude the district
court’s determination that Officer Osterdyk did not intentionally misrepresent
Mr. Ewing’s criminal history is not clearly erroneous. Although Mr. Ewing appears
to have only one such conviction, the false statement is immaterial because even after
excising it from the affidavit, the affidavit provided probable cause to issue the
warrant. In light of the other evidence cited in the affidavit, including the items
found in the trash, whether Mr. Ewing had one or four prior drug-related convictions
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is an insubstantial detail. It is not clear why the case erroneously appeared on
Mr. Ewing’s criminal history report, but nothing suggests that Officer Osterdyk was
responsible for the error, and “honest errors by the affiant are not grounds for
suppression.” United States v. Sanchez, 725 F.3d 1243, 1247 (10th Cir. 2013).
Mr. Ewing argues that the affidavit contains another false statement
concerning the placement of his trash cans when the officers collected the trash.
However, he has not shown that the court’s factual finding that the cans were at the
curb is clearly erroneous. Both officers testified at the suppression hearing that the
cans were at the curb. Officer Osterdyk stated, “As a matter of fact, there was
another day that I attempted a trash-pull and saw it up by the fence and chose to wait
until it was by the curb as the law allows.” Aplt. App., Vol. II at 44. The court
found the officers’ testimony more credible than Mr. Ewing’s on this issue. “We will
not reweigh the evidence presented to the district court, second guess the district
court’s credibility assessments, or question reasonable inferences the district court
drew from the evidence.” United States v. Campbell, 603 F.3d 1218, 1228 (10th Cir.
2010) (internal quotation marks omitted).
Mr. Ewing also argues that Officer Osterdyk’s statements about the traffic at
Mr. Ewing’s home were false, but we discern no clear error by the district court in
crediting those statements. Though the other officer testified he did not observe the
traffic or draw any conclusions from the surveillance, “[w]here there are two
permissible views of the evidence, the factfinder’s choice between them cannot be
clearly erroneous.” Id. at 1229 (internal quotation marks omitted).
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Mr. Ewing also argues that Officer Osterdyk falsely stated in the affidavit that
the handwritten notes from the trash were “drug notations.” Aplt. App., Vol. I at 23.
However, next to the other evidence seized from Mr. Ewing’s trash—baggies and
glass smoking devices with a white residue that tested presumptively positive for
methamphetamine—this statement is insubstantial. Further, even if the notes were
related to Mr. Ewing’s legitimate business as he contends, he has made no showing
that Officer Osterdyk’s assessment of the notes was deliberately or recklessly
misleading.
B. Material Omissions
Mr. Ewing argues that material facts were not included in the affidavit which
would have altered the issuing judge’s determination of probable cause. He argues
that Officer Osterdyk should have reported that Mr. Ewing operated two legitimate
businesses out of his home and that four other people lived there. These facts, he
contends, would explain any higher-than-expected levels of traffic. But even if there
could have been an innocent explanation for the traffic, “innocent conduct will
inevitably support some showings of probable cause.” United States v. Biglow,
562 F.3d 1272, 1281 (10th Cir. 2009). Mr. Ewing has not shown that consideration
of the businesses and other residents would have made a difference with respect to
the determination of probable cause.
Mr. Ewing also argues that the omission of the informant’s identity was
material and should have been disclosed. He contends that his wife may have been
the informant and that she had a motivation to falsify information because they were
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“embroiled in a bitter break up of their marriage.” Opening Br. at 21. But “[w]hen
there is sufficient independent corroboration of an informant’s information, there is
no need to establish the veracity of the informant.” United States v. Tuter, 240 F.3d
1292, 1297 (10th Cir. 2001). As stated in the affidavit, the informant’s tip was
independently corroborated by Officer Osterdyk’s investigation; therefore, the
informant’s identity was immaterial.
We conclude the district court correctly determined that the affidavit provided
probable cause to issue the search warrant. As a result, we need not reach
Mr. Ewing’s arguments with respect to the good-faith exception to the warrant
requirement.
IV. Conclusion
The judgment is affirmed.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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