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 This order and judgment is not binding precedent,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.” 

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.” 

concluded that Officer Osterdyk “relied in good faith on the warrant once it was

signed by the judge.” 

      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,

, 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.” 

de novo whether the corrected affidavit (after excising any false statements and

considering any material omissions) supports a finding of probable cause. 

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, 

, 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, 

, 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.” 

(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,

, 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, 

, 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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