United States v. Tracy Conard

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 10, 2021
• Docket: 21-30023
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 10 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-30023

Plaintiff-Appellee, D.C. No. 9:20-cr-00022-DLC-1 v.

TRACY EUGENE CONARD, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding

Submitted December 7, 2021** Seattle, Washington

Before: McKEOWN, CHRISTEN, and BADE, Circuit Judges.

Tracy Eugene Conard appeals the district court’s denial of his motion to

suppress the fruits of the search of his residence. The parties are familiar with the

facts, so we do not repeat them here. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We review de novo the district court’s denial of the motion to suppress and

underlying factual findings for clear error. United States v. Evans, 786 F.3d 779,

784 (9th Cir. 2015) (citing United States v. Turvin, 517 F.3d 1097, 1099 (9th Cir.

2008)). “[P]robable cause means a fair probability that contraband or evidence is

located in a particular place. Whether there is a fair probability depends upon the

totality of the circumstances, including reasonable inferences, and is a

commonsense, practical question. Neither certainty nor a preponderance of the

evidence is required.” United States v. Kleinman, 880 F.3d 1020, 1036 (9th Cir.

2017) (as amended) (alteration in original) (internal quotation marks omitted). A

magistrate judge’s finding that probable cause exists is afforded “great deference.”

Id. (internal quotation marks omitted).

Considering the totality of circumstances, the search warrant affidavit

established probable cause that evidence or contraband would be found at Conard’s

residence. The affidavit supplied sufficient indicia that the first confidential

informant (“CI 1”) was reliable. To begin, CI 1 was known to law enforcement, so

CI 1 may be held accountable for providing false information in violation of the

law. See Mont. Code Ann. § 45–7–205; see also United States v. Rowland, 464

F.3d 899, 907–08 (9th Cir. 2006). Further, CI 1’s tip that on a certain date Conard

would be in Kalispell purchasing methamphetamine from a dealer near a K-Mart

store was partially corroborated by Conard’s traffic stop that took place that day.

2 See United States v. Angulo-Lopez, 791 F.2d 1394, 1397 (9th Cir. 1986) (“[A]n

informant’s reliability may be demonstrated through independent police

corroboration of the information provided.”).

Additionally, the controlled buy of methamphetamine at Conard’s residence

independently supports probable cause that evidence of drug trafficking would be

found there. See United States v. Jennen, 596 F.3d 594, 600 (9th Cir. 2010),

abrogated on other grounds by Descamps v. United States, 570 U.S. 254 (2013),

and Mathis v. United States, 136 S. Ct. 2243 (2016), as recognized in United States

v. Slade, 873 F.3d 712, 713 (9th Cir. 2017). The information obtained from the

controlled buy was not stale. See, e.g., United States v. Pitts, 6 F.3d 1366, 1369

(9th Cir. 1993) (“With respect to drug trafficking, probable cause may continue for

several weeks, if not months, of the last reported instance of suspect activity.”

(quoting Angulo-Lopez, 791 F.2d at 1399)).

That CI 1’s tip about the nature of the contraband in Conard’s home was not

coextensive with the fruits of the search does not implicate the probable cause

inquiry. “[W]e do not evaluate probable cause in hindsight, based on what a

search does or does not turn up.” Florida v. Harris, 568 U.S. 237, 249

(2013). Likewise, any ambiguity about whether there were two confidential

informants or one is irrelevant because probable cause is evaluated based on the

“totality of the circumstances.” See Kleinman, 880 F.3d at 1036. The second

3 confidential informant did not provide a tip to law enforcement but simply

participated in the controlled buy that was surveilled by law enforcement. Cf.

Illinois v. Gates, 462 U.S. 213, 243–44 (1983).

The district court did not err in denying Conard’s suppression motion.

AFFIRMED.