F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS February 14, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
U N ITED STA TES O F A M ER ICA, No. 06-4036
Plaintiff-Appellant, (D. Utah)
v. (D.C. No. 2:05-CR -95 TS)
PAUL LIAPIS,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, A LA RC ÓN, ** and H ENRY, Circuit Judges.
Paul Liapis has appealed from the judgment entered following his
conditional plea of guilty to each count in the superseding indictment. He
reserved the right to appeal the denial of his motion to suppress the evidence and
his motion to dismiss two counts of the superseding indictment.
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007). ** The Honorable Arthur L. Alarcón, Senior Circuit Judge, United States Court of Appeals, Ninth Circuit, sitting by designation. M r. Liapis contends that his home was searched pursuant to a warrant that
lacked probable cause. He also asserts that the District Court erred in denying his
motion to dismiss two counts of the superseding indictment that charged him with
a violation of 18 U.S.C. § 922(g)(9) because the crime of battery under Utah law
does not require the prosecution to prove as an element of the offense that the
defendant was a current or former spouse, parent, guardian of the victim or shared
a child with the victim. W e affirm because we conclude that the search warrant
was supported by probable cause and proof of a domestic relationship is only a
required element of 18 U.S.C. § 922(g)(9), and not of the underlying state law
conviction.
I
A
On January 11, 2005, Detective Lance Swanson of the W est Jordan City
Police Department presented an affidavit for a search warrant to Judge Pat Brian
of the Utah Third District Court. On the same day, Judge Brian issued the
warrant based on the facts set forth in D etective Swanson’s affidavit. It
authorized the search of M r. Liapis’s residence and the surrounding grounds for
methamphetamine, drug paraphernalia, and items relating to the distribution of
methamphetamine.
The search warrant was executed on January 13, 2005. Officers seized
actual methamphetamine, cocaine and various firearms. Officers also seized
-2- marijuana and additional firearms belonging to M r. Liapis during a subsequent
search of a storage shed, authorized under a separate search warrant.
B
On June 1, 2005, a federal grand jury issued a seven count superseding
indictment charging M r. Liapis with: (1) possession of five grams or more of
methamphetamine w ith intent to distribute in violation of 21 U.S.C. § 841(a)(1);
(2) knowing possession of a mixture or substance containing cocaine with intent
to distribute in violation of 21 U.S.C. § 841(a)(1); (3) knowing possession of a
firearm after having being convicted of a misdemeanor crime of domestic
violence in violation of 18 U.S.C. § 922(g)(9); (4) knowing possession of
firearms in furtherance of a drug-trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A); (5) knowing possession of a mixture or substance containing
marijuana in violation of 21 U.S.C. § 841(a)(1); (6) knowing possession of a
firearm after having being convicted of a misdemeanor crime of domestic
violence in violation of 18 U.S.C. § 922(g)(9); and (7) knowing possession of a
firearm that had the manufacturer’s serial number removed, obliterated, or altered
in violation of 18 U.S.C. § 922(k).
C
On July 14, 2005, M r. Liapis moved to suppress the evidence seized from
his residence on January 13, 2005. He contended that the search warrant was not
supported by probable cause.
-3- Detective Swanson alleged the following facts in his affidavit. He had
been a police officer for over seven years. He was assigned to the Detective
Division as a narcotics detective. He received specialized training and experience
in investigating narcotics offenses.
Detective Swanson was contacted by a confidential informant (“CI”) who
reported that there was an ongoing drug distribution operation being conducted by
M r. Liapis at his home. The CI informed Detective Swanson that M r. Liapis had
counter-surveillance cameras around his house, and it was guarded by his
operatives. The CI also stated that M r. Liapis was in possession of a large caliber
firearm that he kept under a pillow in his bedroom.
Detective Swanson alleged that the CI was reliable because he or she
disclosed “complete information about him or herself, including name, date of
birth, social security [number], and all [other] pertinent information.” Detective
Sw anson also concluded that the CI was reliable because, during a prior search of
M r. Liapis’s home, M r. Liapis has been found sitting on a loaded firearm.
In order to corroborate the CI’s information, Detective Swanson arranged
for a controlled buy from M r. Liapis’s home approximately seven days before
seeking the search warrant. He used the CI and an unwitting informant (“UI”) in
the controlled buy. Detective Swanson met with the CI beforehand and checked
his or her person and vehicle for any contraband or U.S. currency. He found
none. Detective Swanson gave the CI a predetermined amount of U.S. currency
-4- to use in the controlled buy. Officers followed the CI to the residence of the UI.
The CI picked up the UI and drove to M r. Liapis’s residence while under the
officers’ surveillance. The U I exited the C I’s vehicle and entered M r. Liapis’s
residence. The UI was inside the residence for less than 10 minutes and then
returned to the CI’s vehicle.
After dropping off the UI, the CI handed a plastic baggie containing a white
crystalline substance to Detective Swanson. Detective Swanson again searched
the CI and his or her vehicle for any other contraband or currency. He found
none. The CI told Detective Swanson that he or she gave the money to the UI and
drove the UI to M r. Liapis’s residence. The UI then entered the residence and
returned with the contraband. The UI gave the contraband to the CI in exchange
for the money. The white crystalline substance tested positive as
After the controlled buy, Detective Swanson conducted several
surveillances of M r. Liapis’s residence. He observed what appeared to be short-
term vehicle and pedestrian traffic going into the residence. Detective Swanson
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS February 14, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
U N ITED STA TES O F A M ER ICA, No. 06-4036
Plaintiff-Appellant, (D. Utah)
v. (D.C. No. 2:05-CR -95 TS)
PAUL LIAPIS,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, A LA RC ÓN, ** and H ENRY, Circuit Judges.
Paul Liapis has appealed from the judgment entered following his
conditional plea of guilty to each count in the superseding indictment. He
reserved the right to appeal the denial of his motion to suppress the evidence and
his motion to dismiss two counts of the superseding indictment.
* 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 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007). ** The Honorable Arthur L. Alarcón, Senior Circuit Judge, United States Court of Appeals, Ninth Circuit, sitting by designation. M r. Liapis contends that his home was searched pursuant to a warrant that
lacked probable cause. He also asserts that the District Court erred in denying his
motion to dismiss two counts of the superseding indictment that charged him with
a violation of 18 U.S.C. § 922(g)(9) because the crime of battery under Utah law
does not require the prosecution to prove as an element of the offense that the
defendant was a current or former spouse, parent, guardian of the victim or shared
a child with the victim. W e affirm because we conclude that the search warrant
was supported by probable cause and proof of a domestic relationship is only a
required element of 18 U.S.C. § 922(g)(9), and not of the underlying state law
conviction.
I
A
On January 11, 2005, Detective Lance Swanson of the W est Jordan City
Police Department presented an affidavit for a search warrant to Judge Pat Brian
of the Utah Third District Court. On the same day, Judge Brian issued the
warrant based on the facts set forth in D etective Swanson’s affidavit. It
authorized the search of M r. Liapis’s residence and the surrounding grounds for
methamphetamine, drug paraphernalia, and items relating to the distribution of
methamphetamine.
The search warrant was executed on January 13, 2005. Officers seized
actual methamphetamine, cocaine and various firearms. Officers also seized
-2- marijuana and additional firearms belonging to M r. Liapis during a subsequent
search of a storage shed, authorized under a separate search warrant.
B
On June 1, 2005, a federal grand jury issued a seven count superseding
indictment charging M r. Liapis with: (1) possession of five grams or more of
methamphetamine w ith intent to distribute in violation of 21 U.S.C. § 841(a)(1);
(2) knowing possession of a mixture or substance containing cocaine with intent
to distribute in violation of 21 U.S.C. § 841(a)(1); (3) knowing possession of a
firearm after having being convicted of a misdemeanor crime of domestic
violence in violation of 18 U.S.C. § 922(g)(9); (4) knowing possession of
firearms in furtherance of a drug-trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A); (5) knowing possession of a mixture or substance containing
marijuana in violation of 21 U.S.C. § 841(a)(1); (6) knowing possession of a
firearm after having being convicted of a misdemeanor crime of domestic
violence in violation of 18 U.S.C. § 922(g)(9); and (7) knowing possession of a
firearm that had the manufacturer’s serial number removed, obliterated, or altered
in violation of 18 U.S.C. § 922(k).
C
On July 14, 2005, M r. Liapis moved to suppress the evidence seized from
his residence on January 13, 2005. He contended that the search warrant was not
supported by probable cause.
-3- Detective Swanson alleged the following facts in his affidavit. He had
been a police officer for over seven years. He was assigned to the Detective
Division as a narcotics detective. He received specialized training and experience
in investigating narcotics offenses.
Detective Swanson was contacted by a confidential informant (“CI”) who
reported that there was an ongoing drug distribution operation being conducted by
M r. Liapis at his home. The CI informed Detective Swanson that M r. Liapis had
counter-surveillance cameras around his house, and it was guarded by his
operatives. The CI also stated that M r. Liapis was in possession of a large caliber
firearm that he kept under a pillow in his bedroom.
Detective Swanson alleged that the CI was reliable because he or she
disclosed “complete information about him or herself, including name, date of
birth, social security [number], and all [other] pertinent information.” Detective
Sw anson also concluded that the CI was reliable because, during a prior search of
M r. Liapis’s home, M r. Liapis has been found sitting on a loaded firearm.
In order to corroborate the CI’s information, Detective Swanson arranged
for a controlled buy from M r. Liapis’s home approximately seven days before
seeking the search warrant. He used the CI and an unwitting informant (“UI”) in
the controlled buy. Detective Swanson met with the CI beforehand and checked
his or her person and vehicle for any contraband or U.S. currency. He found
none. Detective Swanson gave the CI a predetermined amount of U.S. currency
-4- to use in the controlled buy. Officers followed the CI to the residence of the UI.
The CI picked up the UI and drove to M r. Liapis’s residence while under the
officers’ surveillance. The U I exited the C I’s vehicle and entered M r. Liapis’s
residence. The UI was inside the residence for less than 10 minutes and then
returned to the CI’s vehicle.
After dropping off the UI, the CI handed a plastic baggie containing a white
crystalline substance to Detective Swanson. Detective Swanson again searched
the CI and his or her vehicle for any other contraband or currency. He found
none. The CI told Detective Swanson that he or she gave the money to the UI and
drove the UI to M r. Liapis’s residence. The UI then entered the residence and
returned with the contraband. The UI gave the contraband to the CI in exchange
for the money. The white crystalline substance tested positive as
After the controlled buy, Detective Swanson conducted several
surveillances of M r. Liapis’s residence. He observed what appeared to be short-
term vehicle and pedestrian traffic going into the residence. Detective Swanson
alleged that, based on his training and experience in narcotics distribution cases,
he knew that persons involved in the sale of narcotics from their residences tend
to have this type of traffic. D etective Swanson also received citizen complaints
about the short stay traffic and drug activity at M r. Liapis’s address. A criminal
background check disclosed that M r. Liapis had been arrested eleven times for
-5- domestic assault, possession of a firearm, and drug related offenses. Based on the
facts alleged in Detective Swanson’s affidavit, Judge Ted Stewart of the United
States District Court of Utah found that the search warrant was supported by
probable cause.
D
On November 14, 2005, M r. Liapis moved to dismiss Counts III and VI of
the superseding indictment on the ground that the misdemeanor conviction of
battery alleged in the indictment was insufficient to establish a violation of §
922(g)(9) because it was only a violation of a city ordinance and not federal or
state law, and it did not require the prosecution to prove that a domestic
relationship existed between the defendant and the victim. The D istrict Court
denied M r. Liapis’s motion to dismiss Counts III and VI.
On November 16, 2005, M r. Liapis entered a conditional guilty plea to all
seven counts, reserving his right to appeal the District Court’s denial of his
motion to suppress and his motion to dismiss. M r. Liapis has timely appealed the
final judgment in this matter.
II
On appeal, M r. Liapis contends that the District Court erred in denying his
motion to suppress because “[t]he [a]ffidavit in this case was insufficient to
support a finding of probable cause.” (Appellant’s Opening Br. at 6.) This Court
-6- “review[s] de novo the district court’s determination of probable cause and
review[s] its findings of historical fact for clear error.” United States v. Artez,
389 F.3d 1106, 1111 (10th Cir. 2004). “A magistrate’s determination of probable
cause should be paid great deference by reviewing courts.” Illinois v. Gates, 462
U.S. 213, 236 (1983) (internal quotation marks omitted). Accordingly, “the duty
of a review ing court is simply to ensure that the magistrate had a substantial basis
for . . . concluding that probable cause existed.” Id. at 238-39 (internal quotation
marks omitted).
The Supreme Court has instructed that “[t]he task of the issuing magistrate
is simply to make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him . . . there is a fair probability
that contraband or evidence of a crime will be found in a particular place.”
Gates, 462 U.S. at 238. “If the affidavits submitted by police officers are
subjected to the type of scrutiny some courts have deemed appropriate, police
might well resort to warrantless searches, with the hope of relying on consent or
some other exception to the W arrant Clause that might develop at the time of the
search.” Id. at 236.
Recently, this Court has upheld the issuance of a search warrant under a
similar set of circumstances. In Artez, an officer was contacted by a confidential
informant (“CI”) who claimed to have information regarding an alleged
methamphetamine dealer. Artez, 389 F.3d at 1109. The officer drafted an
-7- affidavit and requested a warrant to search Artez’s residence after corroborating
the CI’s information by 1) verifying Artez’s residence; 2) determining that Artez
had a criminal record; 3) obtaining similar information from an anonymous
informant; 4) executing two controlled purchases of methamphetamine utilizing
the CI and an unwitting informant as an intermediary; and 5) conducting a brief
surveillance of the Artez residence, where he observed several people arriving
and staying for short periods of time. Id. at 1109-10. This Court concluded that
“the affidavit was sufficient to give the magistrate a ‘substantial basis’ for
determining the existence of probable cause to search [Artez’s] residence.” Id. at
1115 (quoting United States v. Tuter, 240 F.3d 1292, 1295 (10th Cir. 2001)).
Detective Swanson’s affidavit substantially parallels the one upheld by this
Court in Artez. The CI’s information to Detective Swanson was corroborated by,
inter alia, the controlled buy and the surveillance of M r. Liapis’s residence that
revealed persons arriving for short periods of time. In addition, Detective
Sw anson alleged in his affidavit that he received complaints from citizens
regarding potential drug activities at M r. Liapis’s residence. M r. Liapis’s
criminal history also supports the District Court’s conclusion. See Artez, 389
F.3d at 1114 (“[C]riminal history, combined with other factors, can support a
finding of reasonable suspicion or probable cause”).
In determining the existence of probable cause, the Supreme Court has
cautioned against viewing individual pieces of evidence “in isolation, rather than
-8- as [] factor[s] in the totality of the circumstances.” M aryland v. Pringle, 540 U.S.
366, 372 n.2 (2003). This Court has concluded that “courts may not engage in a
‘divide-and-conquer’ analysis of facts to determine w hether probable cause
existed.” United States v. Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004) (citing
United States v. Arvizu, 534 U.S. 266, 274 (2002)).
M r. Liapis attacks Detective Swanson’s affidavit’s sufficiency by isolating
specific pieces of evidence without considering the totality of the circumstances.
For example, he argues that the one controlled purchase executed by Detective
Sw anson was insufficient as the officer in Artez executed two controlled
purchases. Appellant’s Opening Brief at 25. He also argues that Detective
Swanson did not provide a detailed enough description of the surveillance of M r.
Liapis’s home, such as describing exactly the number of people living there and
the exact vantage point of the Detective. Id. at 18-20, 24-25. M r. Liapis further
faults Detective Swanson’s allegations on the ground that he failed to provide
enough detail in describing his prior search of M r. Liapis’s home. Id. at 14-17,
25-26. W hether any of these pieces of evidence would be sufficient in themselves
to support probable cause, the District Court did not err in determining that
probable cause was established by the totality of the circumstances set forth in
Detective Swanson’s affidavit.
-9- B
M r. Liapis further contends that the District Court erroneously denied his
motion to dismiss Counts III and VI of the superseding indictment because his
prior misdemeanor battery conviction under Salt Lake City, Utah, M unicipal
Ordinance § 11.08.020 is not a predicate “misdemeanor crime of domestic
violence” under 18 U.S.C. § 922(g)(9). He argues that to support a conviction
under § 922(g)(9) the underlying misdemeanor crime must have had as an element
that a domestic relationship existed between the defendant and the victim.
This contention is foreclosed by this Court’s decision in United States v.
Heckenliable, 446 F.3d 1048 (10th Cir. 2006). This Court held in Heckenliable
that “a ‘misdemeanor crime of domestic violence’ requires the domestic
relationship element to be charged and proven as an element of a § 922(g)(9)
violation, not as an element of the underlying misdemeanor.” Id. at 1051 n.8.
The D istrict Court did not err in denying M r. Liapis’s motion to dismiss
Counts III and VI of the superseding indictment.
A FFIR ME D.
Entered for the court
Arthur L. Alarcón Senior Circuit Judge
-10-