United States v. Sauls ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 28, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
____________________
No. 05-51011
Summary Calendar
____________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
KENNETH M SAULS
Defendant-Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
No. 1:04-CR-118-1
_________________________________________________________________
Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Kenneth M. Sauls appeals his guilty-plea conviction of
possession of cocaine base, in violation of 21 U.S.C. § 844(a),
for which he received a sixty-month prison sentence and a three-
year term of supervised release.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
Sauls challenges the district court’s denial of his motion
to suppress evidence seized from a residence in Austin, Texas,
where he apparently lived with Shantillia Spruill, following a
search conducted on April 9, 2004, pursuant to a warrant issued
on April 7, 2004. The government consented to a conditional
guilty plea that would permit Sauls to appeal the suppression
issue, but after a substitution of appointed counsel for Sauls,
Sauls entered into a written plea agreement in which he waived
the right to appeal his conviction and sentence, except for an
upward departure from the applicable range under the Sentencing
Guidelines. The parties do not address whether the waiver
provision might have superseded the government’s prior written
consent to a conditional plea. In any event, the government does
not explicitly seek to enforce the waiver-of-appeal provision,
and therefore we review the merits of Sauls’s Fourth Amendment
arguments. See United States v. Story, 439 F.3d 226, 230-31 (5th
Cir. 2006) (stating that in the absence of a government
objection, a potential appeal waiver provision “is not binding
because the government has waived the issue”).
In reviewing the denial of a suppression motion, we review
the “district court’s factual findings for clear error, and its
legal conclusions, including its ultimate conclusion as to the
constitutionality of the law enforcement action, de novo.”
United States v. Phillips, 382 F.3d 489, 494 (5th Cir. 2004)
(citations and internal quotation marks omitted). Sauls contends
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that the search warrant was based on a “bare bones” affidavit
that lacked sufficient support and detail to survive even the
“good faith” exception of United States v. Leon, 468 U.S. 897
(1984). In the affidavit, an Austin police detective reported
that a confidential informant (“CI”) told him that Sauls lived at
5304 Towser Court and that Sauls often sold cocaine base out of a
“small white four-door car with front-end damage,” selling mostly
in the “downtown area.” The parties do not dispute that this
information, standing alone, was insufficient to establish
probable cause, as the affidavit contained no information
corroborating the CI’s veracity, reliability, or the basis of his
knowledge. See United States v. Fisher, 22 F.3d 574, 578 (5th
Cir. 1994) (stating that “in determining the sufficiency of an
affidavit we examine the totality of circumstances, including the
veracity, reliability, and basis of knowledge of a confidential
informant”).
A probable-cause determination, however, must be based on
the “totality of the circumstances” rather than on isolation of
“each factor of suspicion.” United States v. Saucedo-Munoz, 307
F.3d 344, 351 (5th Cir. 2002) (citing United States v. Arvizu,
534 U.S. 266 (2002)). Here, the CI’s information was
supplemented by the following information supplied by the
affiant’s own investigation: The utilities at 5304 Towser Court
were registered to Spruill, as was a driver’s license with the
same address. Surveillance at the address showed that a “white
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Plymouth four-door” was parked in the driveway, a car that was
registered to Spruill. Sauls had been arrested while driving the
same car in January 2004. Moreover, Sauls had an “extensive
history” of narcotics arrests, the most recent being for
possession of crack cocaine in 1999. Finally, on April 6, 2004,
the affiant had searched the garbage placed by the street for
collection at 5304 Towser Court. The garbage contained eight
plastic baggies, five of which tested positive for cocaine
residue. Also found in the trash was a December 2003 letter to
Sauls and a letter to Spruill post-marked March 25, 2004.
This information, in its totality, supported a good faith
conclusion by an objectively reasonable officer that the
affidavit on which the warrant was based was adequate to
establish probable cause. See United States v. Shugart, 117 F.3d
838, 843-44 (5th Cir. 1997) (holding that certain “technical
errors” in “applications for search warrants do not undermine”
the objectively reasonable good faith reliance of law
enforcement); Leon, 468 U.S. at 919-20. Sauls’s arrest three
months earlier in the same car that was registered to a resident
at 5304 Towser Court was sufficient to connect him to that
residence, and Sauls’s prior arrests on narcotics violations and
the evidence discovered in the curbside garbage were sufficient
to support a reasonable belief that contraband would be found
inside the residence. Whether or not the garbage inspection was
sufficient by itself to support a probable-cause finding,
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see United States v. Briscoe, 317 F.3d 906, 907-08 (8th Cir.
2003) (holding that such evidence, standing alone, establishes
probable cause), it was sufficient in combination with the
additional information submitted. See Fisher, 22 F.3d at 578.
For the reasons given above, the judgment of conviction is
AFFIRMED.
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