HARTZ, Circuit Judge.
A jury convicted Defendant Deanta Marquis Long of being a felon in possession of firearms and ammunition, attempting to manufacture 28 grams or more of cocaine base, possessing cocaine with intent to manufacture cocaine base, and possessing firearms in furtherance of drug-trafficking crimes. The primary focus of his appeal is the affidavit for a search warrant that led to discovery of the evidence against him. The affidavit recited that a confidential informant had recently observed cocaine in the apartment to be searched. Defendant contends (1) that the affidavit failed to provide probable cause because it did not identify or adequately describe him and the informant's information was not corroborated by police investigation of the alleged criminal activity; (2) that he was entitled to a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to challenge the veracity of the affiant officer; and (3) that the district court erred in denying his motion to compel discovery of information regarding the informant. Defendant also challenges the admission of a compact disc (CD) found in the apartment that was titled "Cokeland" and had his picture on the cover.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the judgment of the district court. The affidavit provided probable cause because a reliable informant with knowledge of the cocaine trade said that he or she had recently observed cocaine packaged for distribution at the premises to be searched. There was no need to identify the person responsible for the cocaine's presence or to conduct further investigation. A Franks hearing was unnecessary because Defendant offered no evidence, only speculation, to suggest that the affiant officer had recklessly or intentionally asserted false information. And discovery regarding the informant was not required because Defendant failed to show that such discovery could help in his defense. In any event, when the district court interviewed the informant in camera under oath, the informant said nothing to support Defendant's suspicions. Finally, the CD was sufficiently probative that the court did not abuse its discretion in admitting it into evidence despite a speculative possibility that it would create unfair prejudice.
On April 20, 2011, Officer David Brice of the Tulsa Police Department obtained a warrant to search an apartment in Tulsa,
R., Vol. 1 pt. 3 at 418-19 (full capitalization and bolding omitted).
Officer Brice and several other officers executed the warrant. When Brice knocked on the door, Defendant opened it.
Officers found "all together" on the kitchen counter three baggies of white powder, a digital scale with white powder on it, a box of baking soda, and a CD case. Id., Vol. 3 pt. 1 at 149-50. The CD had the title "Cokeland," the artist name "Francis H. Whyte," and Defendant's picture on the cover. Aplt. Br. at 10. The picture showed Defendant pouring liquid from a liquor bottle into a measuring cup, with a scantily clad woman on a limousine in the background. Elsewhere in the kitchen, officers found additional cocaine for a total of about 140 grams, including the weight of packaging. A second gun was in the cabinet above the counter.
The apartment did not look lived in. The refrigerator was empty and the only food in the kitchen was a package of ramen noodles. Upstairs there was no furniture, and downstairs the only furniture was a chair and a TV on a shelf. The closets were empty. In the downstairs bathroom the bathtub lacked a shower curtain, and there were no toiletries around the bathtub. In the upstairs bathroom, officers found a toothbrush and an electric razor with a shaving kit but the cabinets were empty.
On Defendant's person, officers found a wallet with $825, an envelope addressed to Frank Whyte, and $657 in a pocket. Defendant had the name Francis Whyte tattooed on his forearm.
Based on the evidence found in the apartment, officers obtained a warrant to search Defendant's house, where they recovered $3,650 in a cereal box, ammunition, and a small amount of marijuana.
After being indicted in the United States District Court for the Northern District of Oklahoma, Defendant unsuccessfully moved to suppress the evidence from the searches. He attacked the sufficiency on its face of the affidavit for the apartment search, requested a Franks hearing, and sought discovery concerning the confidential informant. The court denied the motions after interviewing the informant under oath in camera. Defendant also unsuccessfully moved to exclude the CD as evidence at trial. He was convicted after a three-day trial.
A search warrant can issue only upon a showing of probable cause. See United States v. Biglow, 562 F.3d 1272, 1275 (10th Cir.2009). The supporting affidavit must provide a "`substantial basis'" to conclude that "`there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Nolan, 199 F.3d 1180, 1182 (10th Cir.1999) (quoting Illinois v. Gates, 462 U.S. 213, 236, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
On its face the affidavit satisfies that standard. A trustworthy person knowledgeable about the cocaine trade said that he or she had recently seen cocaine packaged for distribution at the location to be searched. Defendant's two attacks on the sufficiency of the affidavit are misconceived. First, he complains that the affidavit provides no identification
Second, Defendant complains that the informant's assertions were not corroborated by independent police investigation. To be sure, corroborating circumstances are required. As we said in United States v. Mathis, "`In testing the sufficiency of probable cause for an officer's action even without a warrant, we have held that he may rely upon information received through an informant, rather than upon his direct observation, so long as the informant's statement is reasonably corroborated by other matters within the officer's knowledge.'" 357 F.3d 1200, 1204 (10th Cir.2004) (emphasis added) (quoting Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)). But the corroborating circumstances need not be observations specific to the alleged wrongdoing supporting the warrant. In particular, they may be circumstances showing the trustworthiness of the informant, such as a history of providing accurate (corroborated) information. For example, in Jones one of the grounds "for accepting the informant's story" was that "[t]he informant had previously given accurate information." 362 U.S. at 271, 80 S.Ct. 725.
Any suggestion that more is required is undermined by what the Supreme Court said in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Although both those decisions were overruled in Gates, any affidavit that passed muster under them would also suffice under Gates, which held that a totality-of-the-circumstances approach is more faithful to the Constitution than the rigid, more restrictive tests of Aguilar and Spinelli. See Gates, 462 U.S. at 230-39, 103 S.Ct. 2317; see also United States v. Allen, 211 F.3d 970, 972 (6th Cir.2000) (en banc) ("[T]he Court rejected the rigid tests that had evolved ... in favor of a `totality of the circumstances' approach."); 2 Wayne R. LaFave, Search and Seizure § 3.3(a) (5th ed.2012) ("[C]ourts should continue to place considerable reliance upon the elaboration of these factors in earlier cases decided under the now-discarded Aguilar formula."). We are aware of no case law or other authority that an affidavit adequate
In Aguilar the Court, although holding that the affidavit in that case did not provide probable cause, pronounced that "an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant." 378 U.S. at 114, 84 S.Ct. 1509. For the informant hearsay to suffice, however, the affidavit needed to apprise "the magistrate ... of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, ... was credible or his information reliable." Id. (citation and internal quotation marks omitted). Spinelli made clear that satisfaction of these requirements was sufficient to establish probable cause. Indeed, the Court used the requirements as the standard for satisfying probable cause — that is, corroboration of a tip is sufficient for probable cause if the corroboration makes the tip as trustworthy as it would have been had the Aguilar standard been satisfied. The Court wrote:
Spinelli, 393 U.S. at 415, 89 S.Ct. 584 (emphasis added).
Courts have continued post-Gates to hold that probable cause can be based solely on information from a reliable, credible informant. See United States v. Pulliam, 748 F.3d 967, 970-71 (10th Cir.2014) (probable cause where informant had "reliably led police to contraband in the past" and tip was based on personal knowledge); Allen, 211 F.3d at 972-76 (probable cause can be based on statement by reliable informant with personal knowledge); United States v. Williams, 3 F.3d 69, 72 (3d Cir.1993) ("Even where the information tendered consisted solely of the uncorroborated report of an anonymous informer, probable cause would normally be found to exist where a law enforcement officer was able to say that the informant had provided reliable information in other matters."). Here, the affidavit sufficed because the informant's statement was corroborated by the affiant's assertions of the informant's prior accuracy in reporting on cocaine offenses and the informant's expertise on cocaine trafficking.
We reject Defendant's challenge to the showing of probable cause in the affidavit.
Defendant filed a pretrial motion seeking the name and last known contact information of the informant, "[a]ny documents that relate to or confirm the existence of the [informant]," and "[a]ll information relating to the [informant] contained within the Tulsa Police Department's ALL STAR database, or any similar database." R., Vol. 1 pt. 2 at 250. Acknowledging that the court could first review the information in camera before deciding whether defense counsel would have access, see Pennsylvania v. Ritchie, 480 U.S. 39, 60-61, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), the motion claimed that discovery of these matters would serve two purposes: to provide evidence
Defendant complains that the district court did not comply with the mandate of Franks. In that case the Supreme Court considered whether the Fourth Amendment ever requires "that a defendant be permitted to attack the veracity of a warrant affidavit after the warrant has been issued and executed." Franks, 438 U.S. at 164, 98 S.Ct. 2674. The Court decided:
Id. at 155-56, 98 S.Ct. 2674 (emphasis added). It is not the veracity of the informant that is at issue, but only the veracity of the affiant. See id. at 171, 98 S.Ct. 2674 ("The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant."). "Defendants must point out specifically the portion of the warrant affidavit that is claimed to be false ...," United States v. Cooper, 654 F.3d 1104, 1128 (10th Cir.2011) (internal quotation marks omitted), and support their allegations with reliable witness statements or explain their absence, see id.
This court has not yet decided whether there are ever circumstances in which a defendant making a Franks claim can obtain disclosure of the informant. See United States v. Schauble, 647 F.2d 113, 117 (10th Cir.1981). But we have held that disclosure is not required if the defendant does not make the "substantial preliminary showing" required by Franks. Id. (internal quotation marks omitted). In Schauble the defendant challenged the statement in a search-warrant affidavit that the informant said he had been "at the residence" in the prior 48 hours and had seen what he believed to be marijuana. Id. at 114-15 (internal quotation marks omitted). To show that no informant had observed evidence of drugs in his house at the alleged time, the defendant presented two affidavits stating "that only one visitor came to the house in that time span and that this person came no further than the front porch, from where it is physically impossible to see inside the house because of a partition immediately inside the front door." Id. at 117. As further support for the claim that the affiant had not entered the residence, the defendant pointed out that a virtually identical affidavit by another officer for a different search had said that the informant had been "inside" the residence rather than just "at" it. Id. (internal quotation marks omitted). Nevertheless, we concluded that the defendant had not made the necessary showing because a defendant must show "that [the affiant ] knew of or recklessly disregarded the informant's inability to see what the informant claimed to see, not merely that the informant did not actually see it." Id. (emphasis added).
Defendant did not make an adequate evidentiary showing under Franks.
R., Vol. 1 pt. 2 at 294-96.
What is notably missing from this argument is any evidence that the allegations of the affidavit are false. It consists solely of speculation that if the affidavit were true, the police would have conducted further investigation (such as a controlled buy) and included more information in the affidavit, even though additional investigation and more detail in the affidavit were not necessary for a lawful search.
We reject Defendant's Franks argument and the request for discovery in support of it.
Defendant may also have been contending below that discovery regarding the informant may have been helpful for reasons other than a Franks hearing. Suggesting that the informant could support a claim of mistaken identity, he invoked Roviaro, 353 U.S. at 62, 77 S.Ct. 623, which requires disclosure of an informant in limited circumstances where the defendant's need for information to prepare his defense outweighs the government's need to protect its sources. We review for abuse of discretion a denial of a motion to compel discovery regarding a confidential informant. See United States v. Moralez, 908 F.2d 565, 567 (10th Cir. 1990).
The balance under Roviaro did not favor disclosure in this case. In general, "[d]isclosure of an informant is not required... where the informant is not a participant in or a witness to the crime charged." Moralez, 908 F.2d at 567. And in particular, disclosure is rarely necessary when, as here, the informant's role was only as a tipster who provided probable cause for a search. See id. at 568.
There was no special reason for disclosure here. As the court below stated, "Defendant's only colorable argument ... is that there has been a case of mistaken identity which could reduce or eliminate some or all of the charges against him." R., Vol. 1 pt. 2 at 290. But there is no dispute that Defendant was the person who answered the door at the first location searched and was closely connected to the cocaine powder found there. It is utter speculation — and, worse, irrelevant — that he may not have been the "Black male" mentioned in the affidavit. Because the informant had nothing relevant to say regarding Defendant's guilt of the charged offense, there was no need to question him. Defendant's reliance on United States v. Robinson, 583 F.3d 1265, 1274-76 (10th Cir.2009), in which the informant was "the government's star witness" at trial, id. at 1267, is misplaced.
The district court did not abuse its discretion in denying any further disclosure regarding the informant.
At trial the district court admitted into evidence a CD found in the apartment where Defendant was arrested. It was titled "Cokeland" by "Francis H. Whyte." On the CD cover was a picture of Defendant pouring liquid from a liquor bottle into a measuring cup. An officer testified at trial that, in his experience, the image related to the manufacture of cocaine base. The CD was found in the kitchen on a counter next to three baggies of white powder, a digital scale with white powder on it, and a box of baking soda. Defendant contends that the CD was inadmissible at trial.
We review challenges to the admission of evidence for abuse of discretion, see United States v. Caraway, 534 F.3d 1290, 1300-01 (10th Cir.2008), reversing only if the decision was "outside the bounds of permissible choice in the circumstances." United States v. Shippley, 690 F.3d 1192, 1197 (10th Cir.2012) (internal quotation marks omitted). "[E]vidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Caraway, 534 F.3d at 1301 (internal quotation marks omitted). A "court may[, however,] exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice." Fed.R.Evid. 403. "To be unfairly prejudicial, the evidence must have an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Caraway, 534 F.3d at 1301 (internal quotation marks omitted).
Defendant's arguments against admissibility of the CD have been thin. His pretrial motion in limine simply asserted that the CD was unfairly prejudicial because the title contained the word "coke," a slang term for cocaine, and "would allow the jury to reach an inappropriate conclusion regarding [Defendant's] guilt regarding cocaine-related charges." R., Vol. 1 pt. 4 at 570-71 (internal quotation marks omitted). His opening brief in this court asserted that the CD had no probative value and may have "impressed upon the jury impermissible evidence of bad character." Aplt. Br. at 54. The gist of the argument in his reply brief was that "[t]here was no probative value of showing the jury a photograph of [Defendant], along with that of a scantily-clad young female, pouring a substance into a measuring cup, along with the word `Cokeland'. The photograph on the CD had absolutely no probative value, and the only result of its admission was prejudice to [Defendant]." Reply Br. at 13. And at oral argument in this court
We are not persuaded. There were four men in the kitchen where the cocaine was found. The CD singled Defendant out. Because the CD had his picture on it, it would be reasonable to infer that it belonged to him. And the proximity to the cocaine of something he owned increased the likelihood that the cocaine was his too. Moreover, the cocaine message on the CD cover suggested that its proximity to the cocaine was not just happenstance. The chain of inference was not that Defendant is a man of bad character and therefore must be guilty.
We appreciate Defendant's concern that artistic creations not be misused by the jury to infer that the artist is a criminal. The issue is a recurring one in the courts, with the ruling turning on the specific facts of the case. See, e.g., United States v. Moore, 639 F.3d 443, 447-48 (8th Cir.2011) (recording of defendant rapping was admissible to show defendant's knowledge of drug distribution and motive for engaging in it, although vulgar, inflammatory, and prejudicial language created danger of unfair prejudice; no plain error); United States v. Gamory, 635 F.3d 480, 493-94 (11th Cir.2011) (error to admit rap video produced by defendant's recording studio when defendant did not appear in the video; there was no evidence that he authored the lyrics or adopted its views or values; and the violence, profanity, and misogyny on the video presented a substantial danger of unfair prejudice); United States v. Fraser, 448 F.3d 833, 839-41 (6th Cir.2006) (to rebut defendant's claim that he was duped into participating in counterfeit check scheme, prosecution could offer excerpts from defendant's book describing the scheme); United States v. Hull, 419 F.3d 762, 770 (8th Cir.2005) (after defense counsel's opening statement characterized defendant's music company as producing hip-hop music, prosecution could question him about whether the music was actually gangster rap); United States v. Price, 418 F.3d 771, 783 (7th Cir.2005) (rap lyrics on recording by defendant's group were possibly prejudicial but harmless); United States v. Foster, 939 F.2d 445, 456-57 (7th Cir.1991) (handwritten verses found on defendant were admissible to show his familiarity with drug code words and trafficking, rebutting his claim of naivete and lack of knowledge of the contents of his suitcases); United States v. Brown, 374 Fed.Appx. 927, 937 (11th Cir.2010) (defendant's writings referencing firearms admissible to show knowledge of firearms in back of vehicle); United States v. Stuckey, 253 Fed.Appx. 468, 482-83 (6th Cir.2007) (defendant's rap lyrics about "shooting snitches, wrapping them in blankets, and dumping their bodies in the street" were admissible when he was accused of doing just that); United States v. Orr, No. 92-10681, 1994 WL 384361, at *3 (9th Cir. July 21, 1994) (unpublished table decision) (manuscript of unpublished book admissible against defendant accused of setting arson fires because similarities between arsonist in the book and defendant and between the fires in the book and the charged ones made it relevant on issues of modus operandi and identity); Washington v. Hanson, 46 Wn.App. 656, 731 P.2d 1140, 1144-45 (1987) (defendant's fictional writings were inadmissible character evidence). But the CD had probative value aside from any inference based on character, and, in our view, the district court could reasonably believe that the probative value was not substantially outweighed by the danger of unfair prejudice.
We AFFIRM the judgment of the district court.