The Tenth Circuit Court of Appeals issued its opinion in United States v. Long on Monday, December 22, 2014.
A Tulsa, Oklahoma police officer obtained a warrant to search an apartment after a reliable confidential informant provided information about a black male selling cocaine. Deanta Marquis Long answered when the police arrived to execute the warrant, holding a jar containing a white substance. He attempted to shut the door, but police forced their way in. They found him on the kitchen floor, with broken glass and white powder strewn about. There was a gun on the floor and another gun on the counter, and three other men were there also. Police found three baggies of white powder, a digital scale with white powder on it, baking soda, and a CD with the word “Cokeland” showing defendant pouring something from a liquor bottle into a measuring cup with scantily clad woman in the background. The apartment did not look lived in, and police subsequently obtained a second warrant to search defendant’s house.
Defendant was convicted by a jury of being a felon in possession of firearms and ammunition, attempting to manufacture cocaine base, possessing cocaine with the intent to manufacture cocaine base, and possession of firearms in furtherance of drug-trafficking crimes. He appealed, arguing (1) the affidavit failed to establish probable cause; (2) he was entitled to a hearing under Franks v. Delaware, 438 U.S. 154 (1978), challenging the affiant’s veracity; (3) the district court erred in denying his motion to compel discovery of the informant; and (4) the CD should not have been admitted because it was unfairly prejudicial. The Tenth Circuit examined each contention in turn.
Defendant complained that the affidavit did not sufficiently identify him, since it only described a “black male.” But because the warrant was issued to search a place, rather than to connect a person to a place, there was no need to specify the people who might be found at the place. Defendant next contended that the informant’s assertions were not corroborated by police investigation. In this case, however, the informant was one who had provided reliable information to the police multiple times in the past and who had been providing information for over 15 years. Courts have consistently provided that probable cause can be established solely on information from a reliable informant.
The Tenth Circuit next addressed defendant’s request for a Franks hearing. The defendant attacked the veracity and existence of the informant, but under Franks, only the veracity of the affiant was at issue. Because this informant had provided reliable information in the past, it was reasonable for the affiant to believe that the informant was again providing reliable information. Defendant asserted several reasons why the informant’s information was unreliable, seeking discovery of the informant. The Tenth Circuit noted that the trial court had examined the informant in camera and found that he existed, had knowledge of defendant and the drug activity, and provided the information to the officers. Defendant could not establish any special reason why disclosure of the informant’s identity was necessary under these circumstances. The informant could not have offered any information regarding defendant’s guilt in the case, and disclosure was unwarranted.
Turning to the admission of the CD, the Tenth Circuit found no error. The CD cover depicted defendant pouring liquid into a measuring cup, which a police officer testified is related to the manufacture of cocaine base, and the CD was found next to a digital scale, three baggies of white powder, and baking soda. Defendant asserted admission would allow the jury to reach an unfair conclusion regarding defendant’s guilt, but the Tenth Circuit disagreed, finding that the CD had his picture on it and was found next to the cocaine, inviting an inference that the cocaine was his. The chain of inference was not that defendant was acting in conformity with his bad character, but rather that the cocaine belonged to him. The CD’s probative value was not substantially outweighed by the danger of unfair prejudice.
The Tenth Circuit affirmed the judgment of the district court.