FILED
                                                   United States Court of Appeals
                      UNITED STATES COURT OF APPEALS       Tenth Circuit

                                    TENTH CIRCUIT                          January 31, 2014

                                                                         Elisabeth A. Shumaker
UNITED STATES OF AMERICA,                                                    Clerk of Court
              Plaintiff-Appellee,
                                                              No. 13-3119
v.                                                            (D. Kansas)
DONALD L. TISDALE,                                 (D.C. No. 6:11-CR-10253-EFM-1)

            Defendant-Appellant.


                              ORDER AND JUDGMENT*


Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.



     In April 2011, a confidential informant told Detective J.R. Bartel about a man

“keeping and selling” crack cocaine at a house in Wichita, Kansas. The informant agreed

to corroborate his story by doing a controlled buy at the house.

     Before doing so, however, the police first made sure the informant didn’t have any

drugs or money on his person or in his car. Detective Bartel then gave the informant some

money for the controlled buy and followed him in a separate car to the house. Once they

got there, the informant walked up to the front door and went inside.

     He came out a short time later, walked back to his car without contacting anyone, and

drove to a predetermined rendezvous point to meet with the police. Shortly after arriving,

* The case is submitted on the briefs because the parties waived oral argument. See Fed.
R. App. P. 34(f); 10th Cir. R. 34.1(G). This order and judgment is not binding precedent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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
the informant handed an officer a white, chunky substance––crack cocaine. The

informant said he had bought it from a man inside the house and had paid using the

money from Detective Bartel. He also said the man had told him to come back to the

house if he needed more.

   About three days later, Detective Bartel included this information in a search-warrant

application for the house. In his affidavit, and relying on his nine years in law

enforcement, he attested that drug dealers—like the man at the house—typically keep

drug-related evidence in the home (e.g., other illicit drugs, packaging materials, scales,

money, and firearms). Based on the affidavit, a state-court judge issued a search warrant

for the house, concluding that probable cause existed to believe crack cocaine and other

drug-related evidence would be found there.

   Three days later, the police executed the warrant. First, they knocked on the door, but

no one answered. Then they rammed the door open and saw Donald Tisdale inside, so

they removed him and arrested him. The ensuing search uncovered (among other things)

cocaine, cocaine base, marijuana, and two firearms.

   Based on that evidence, a grand jury returned a five-count indictment against Tisdale.

The indictment charged him with possessing with intent to distribute cocaine, cocaine

base, and marijuana (counts 1–3), being a felon in possession of a firearm (count 4), and

possessing a firearm in furtherance of a drug trafficking crime (count 5).

   A few months later, Tisdale filed a motion asking the district court to suppress the

evidence recovered during the search. He argued that the warrant was stale because the

information in Detective Bartel’s affidavit did not provide probable cause to believe the

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items sought were currently in his home when the police searched it. After holding an

evidentiary hearing, the district court denied Tisdale’s motion, reasoning that probable

cause existed when the police executed the warrant because the information in the

affidavit suggested ongoing criminal activity.

   Tisdale pleaded guilty to the two cocaine charges and the felon-in-possession charge.

But his plea agreement reserved the right to appeal the district court’s ruling on his

suppression motion. The district court sentenced Tisdale to 78 months in prison on each

count, the sentences to run concurrently, and entered its final judgment. Tisdale filed a

notice of appeal, challenging the order denying his suppression motion.

   On appeal, Tisdale renews his Fourth Amendment staleness argument, contending that

by the time the police searched his home the information in Detective Bartel’s affidavit

no longer provided probable cause to do so. We disagree.

   Information in a search-warrant affidavit is not stale if it suggests the items sought are

currently located in the place officers seek to search. United States v. Harris, 

, 1192 (10th Cir. 2013). “[T]he Fourth Amendment faults police only when they seek

to conduct a search based on information that no longer suggests that the items sought

will be found in the place to be searched.” 

marks omitted).

   Here, the information in Detective Bartel’s affidavit suggested a fair probability that

the items sought would still be in Tisdale’s home when the police conducted the search.

To start, during the controlled buy, the man inside Tisdale’s house told the confidential

informant to come back to the house if he needed more crack cocaine. That suggests

ongoing criminal activity, and we have held that, “when the affidavit recites facts

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indicating ongoing, continuous criminal activity, the passage of time becomes less

critical” to the probable-cause question. United States v. Garcia, 

, 1195

(10th Cir. 2013) (internal quotation marks omitted). That the informant told Detective

Bartel about a man keeping and selling cocaine at Tisdale’s house also suggests ongoing

criminal activity. And the controlled buy corroborated the informant’s story, supporting

the credibility of the informant’s statements. See United States v. Artez, 

,

1111 (10th Cir. 2004) (holding that a tip from a confidential informant that drugs are

being distributed at a particular location “may be corroborated through the arrangement

of a controlled purchase at the suspect location”).

   Indeed, the very fact that a controlled buy took place at Tisdale’s home suggests that

more would drugs be found there. See 

(“The two controlled purchases that

occurred in this case supported . . . suspicion that methamphetamine would be found at

Defendant’s residence.”). Further, Detective Bartel, invoking his law-enforcement

experience, attested to his belief that drugs and drug-related evidence would be found in

Tisdale’s home, which also suggests such evidence would be there. See 

; United States v. Mathis, 

, 1205 (10th Cir. 2004) (noting that a law-

enforcement agent’s opinion, based on his professional expertise, that evidence of illegal

activity will be found in the place to be searched is entitled to consideration in the

probable-cause analysis). Finally, common sense suggests that a person who sells drugs

from his house will “generally keep a ready stash in [the] house,” and the stash usually

won’t disappear a week after a controlled buy. 

(rejecting Fourth



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Amendment staleness challenge where about 12 days had passed between when probable

cause arose and when the search occurred).

   In sum, under these circumstances, the information in Detective Bartel’s affidavit

suggested a fair probability that the items sought were currently in Tisdale’s home when

the police executed the search. Consequently, the district court correctly denied Tisdale’s

suppression motion. We affirm the district court’s judgment.



                                         ENTERED FOR THE COURT


                                         Gregory A. Phillips
                                         Circuit Judge




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