United States v. Wicks , 115 F. App'x 648 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 10, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60115
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELVIN WICKS,
Defendant-Appellant.
______________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:03-CR-56-P
______________________
Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:*
Melvin Wicks entered a conditional guilty plea to drug
trafficking and firearm crimes. He reserved the right to
challenge the denial of a motion to suppress evidence seized in a
search of his home. Pursuant to the conditional plea, Wicks
appeals his conviction and contends that the search was invalid
because the warrant lacked sufficient particularity regarding the
items to be seized, and was not supported by probable cause.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under limited circumstances set forth in 5TH CIR. R. 47.5.4.
Wicks contends that the defects in the warrant and its supporting
affidavit were so apparent and egregious that the “good faith”
exception to the exclusionary rule does not apply.1 In addition,
Wicks argues that the failure of the officers to serve the
warrant at the time of the search invalidated the search warrant
under Mississippi law and merits reversal and suppression. We
affirm.
Without reaching the question of whether the warrant was
otherwise valid, we decide that the evidence was properly
admitted under the good faith exception.2 The Fourth Amendment
does not require suppression of evidence obtained through a
deficient search warrant if a law officer “acting with objective
good faith has obtained [the] warrant from a judge or magistrate
and acted within its scope.”3 The good faith exception applies
unless: (1) the issuing judge was misled by information in an
affidavit that the affiant knew to be false or would have been
known except for a reckless disregard for the truth; (2) the
issuing judge wholly abandoned his neutral judicial role; (3) the
warrant was based on an affidavit so lacking in indicia of
probable cause as to render faith in it entirely unreasonable; or
(4) the warrant is so facially deficient that the executing
1
See United States v. Leon, 468 U.S. 897, 923 (1984).
2
See United States v. Davis, 226 F.3d 346, 350-51 (5th Cir.
2000).
3
Leon, 468 U.S. at 920 (footnote omitted).
officers cannot reasonable presume it to be valid.4
Wicks asserts that the warrant and the supporting affidavit
fail under each point. These assertions, however, are not
substantiated by the facts of the case. Wicks fails to offer any
evidence to support his contentions that the affiant, Officer
Byrd, misled the issuing magistrate and that the magistrate
abandoned his neutral role. These issues are waived by Wick’s
failure to properly brief them.5 In addition, Wicks’ assertion
that the warrant was facially deficient due to its lack of
particularity as to the items to be seized cannot be sustained in
light of the detailed list of seizable items incorporated by the
warrant and the accompanying affidavit. Taken together, these
documents permitted the executing officers to reasonably know
what items to seize, providing adequate particularity to satisfy
the good faith exception.6 Finally, the affidavit supporting the
warrant provided a sufficient indicia of probable cause,
particularly in light of Officer Byrd’s additional oral testimony
4
Id. at 923; United States v. Foy, 28 F.3d 464, 473 n.20 (5th
Cir. 1994).
5
See American States Ins. Co. v. Bailey, 133 F.3d 363, 372
(5th Cir. 1998) (“Failure to provide any legal or factual analysis
of an issue results in waiver.”).
6
See United States v. Cherna, 184 F.3d 403, 410-13 (5th Cir.
1999) (crediting reliance on warrant that failed to incorporate
affidavit on its face); United States v. Beaumont, 972 F.2d 553,
560-62 (5th Cir. 1992).
before the issuing magistrate.7 Therefore, the good faith
exception applies.
Wicks also contests the district court’s ruling on grounds
that the searching officer’s failure to serve him with the
warrant rendered the search fatally defective under Mississippi
law. This argument must fail, however, because the proper
standard for determining the application of the exclusionary rule
in federal court in a case involving a federal offense is the
Fourth Amendment, not state law.8 The failure to deliver a copy
of a search warrant until the day after a search will not mandate
suppression under the Fourth Amendment absent a showing of
prejudice.9 Wicks has presented no evidence tending to show that
his delayed receipt of the search warrant prejudiced him in any
7
See United States v. Cisneros, 112 F.3d 1272, 1278 (5th Cir.
1997) (officers may in good faith rely on a warrant supported by
more than a “bare bones” affidavit); Roberson v. State, 595 So. 2d
1310, 1317 (Miss. 1992) (affidavit may be supplemented with oral
testimony to produce probable cause); United States v. Hill, 500
F.2d 315, 321 (5th Cir. 1974) (constitution does not mandate that
sworn statement in support of a search warrant be reduced to
writing).
8
See United States v. Walker, 960, F.2d 409, 415 (5th Cir.
1992) (“The question that a federal court must ask when evidence
secured by state officials is to be used as evidence against a
defendant accused of a federal offense is whether the actions of
the state officials in securing the evidence violated the Fourth
Amendment to the United States Constitution.”); United States v.
Eastland, 989 F.2d 760, 766 (5th Cir. 1993) (reasonableness of
search under the Fourth Amendment not dependent upon state law).
9
See United States v. Marx, 635 F.2d 436, 441 (5th Cir. Unit
B Jan. 1981). Mississippi law is similar to federal law in this
respect; therefore, suppression would be inappropriate in this case
even if state law applied. See State v. Williams, 583 So. 2d 620,
624-25 (Miss. 1991).
way.
The judgment of the district court is
AFFIRMED.