United States v. Harris ( 2023 )

Case: 21-50738 Document: 00516640552 Page: 1 Date Filed: 02/09/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 9, 2023
No. 21-50738 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jimel Edward Harris,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:20-CR-122-1
Before Smith, Clement, and Wilson, Circuit Judges.
Per Curiam:*
Jimel Harris entered a conditional guilty plea of possession with intent to
distribute a quantity of 5F-AMB, otherwise known as “synthetic marihuana,”
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Harris appeals the district
court’s decision not to suppress the evidence of a search. Because the district
court did not plainly err, we affirm.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-50738 Document: 00516640552 Page: 2 Date Filed: 02/09/2023
No. 21-50738
I.
Per a state-issued search warrant containing allegations from a confiden-
tial informant that Harris possessed crack cocaine, law enforcement searched a
hotel room where Harris was present. The search yielded 6.9 ounces of syn-
thetic marihuana, cash, cell phones, and a digital scale with cocaine residue.
Harris moved to suppress all evidence seized. He posited that the search
warrant affidavit was “bare bones,” so the good faith exception to the exclusion-
ary rule did not apply, and that the issuing judicial officer lacked a substantial
basis for believing there was probable cause for the search. In his report and
recommendation, the federal magistrate judge denied Harris’s motion, finding
that the good faith exception applied because the warrant was more than bare
bones. The report stated that a confidential informant had contacted the affiant
detective, had previously provided reliable information, was familiar with
cocaine, and had seen cocaine in Harris’s hotel room within the previous forty-
eight hours. 1
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The affidavit stated, in pertinent part,
Within the 48-hour period preceding the preparation of this affidavit, your
Affiant received information from a reliable and confidential informant
. . . . Your affiant knows the informant has provided information in the
past which has proven reliable and credible. The informant has provided
your affiant and other police officers with information in the past which
has lead [sic] to arrests of person(s) for narcotics related offenses including
offenses involving cocaine. The informant has demonstrated to your affi-
ant that they know what cocaine looks like, how it is sold, how it is used,
how it is packaged, and understand the various quantities and weight of
cocaine as it is trafficked on the street. The informant has provided your
affiant with information documented in this affidavit which your affiant
verified through independent investigation.
Within the 48-hour period preceding the preparation of this affidavit, a
Confidential Informant (CI) working for the Killeen Police Department
Organized Crime Unit had observed a quantity of Cocaine, described by
the CI as several crack rocks inside the [hotel room]. The CI said he/she
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No party filed an objection to the magistrate judge’s report, and finding
no clear error, the district court adopted the report and denied the motion to
suppress. Harris entered a conditional guilty plea, reserving his right to chal-
lenge the denial of his motion to suppress. He timely appeals.
II.
When reviewing the denial of a motion to suppress, we review legal
questions de novo and factual findings for clear error. United States v. Gentry,
941 F.3d 767, 779 (5th Cir. 2019). We view the evidence in the light most
favorable to the prevailing party; here, that party is the government. See
United States v. Cantu, 230 F.3d 148, 150 (5th Cir. 2000). We may uphold
the district court’s decision “on any basis established by the record.” United
States v. Charles, 469 F.3d 402, 405 (5th Cir. 2006).
Despite being notified of the consequences of failing to raise timely
objections, Harris concedes he failed to object to the magistrate judge’s
report and recommendation. Thus, our review is for plain error. See Puckett
v. United States, 556 U.S. 129, 135 (2009). To establish plain error, Harris
must show a clear and obvious error that has not been affirmatively waived
and affects his substantial rights. Id. Even if he makes that showing, we use
our discretion to correct the error only if the error “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted).
III.
We look to the totality of the circumstances to determine whether an
affidavit is bare bones. United States v. Fisher, 22 F.3d 574, 578 (5th Cir.
1994). And our judgment is made “in a common sense manner.” United
has also identified Jimel Edward Harris, a black male, date of birth
[**/**/****] by the use of un-named photographs.
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No. 21-50738
States v. Jackson, 818 F.2d 345, 348 (5th Cir. 1987) (internal quotation marks
and citation omitted). “‘Bare bones affidavits typically contain wholly con-
clusory statements, which lack the facts and circumstances from which a
magistrate can independently determine probable cause.’” Gentry, 941 F.3d
at 780 (quoting United States v. Pope, 467 F.3d 912, 920 (5th Cir. 2006)); see
also United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992) (approving
of an affidavit that “provided the magistrate with facts, and not mere conclu-
sions”). Nevertheless, an issuing magistrate can draw reasonable inferences
from the affidavit, and the ultimate determination of the affidavit’s suffici-
ency is entitled to great deference on review. United States v. May, 819 F.2d
531, 535 (5th Cir. 1987).
Through a totality-of-the-circumstances inquiry, the affidavit here
provided more than conclusory statements or boilerplate. The affidavit
averred that the confidential informant had provided reliable and credible
information in previous narcotics investigations and had observed crack
cocaine in the hotel room within the 48-hour period before execution of the
affidavit. See United States v. McKnight, 953 F.2d 898, 904–05 (5th Cir. 1992)
(approving an affidavit as sufficient to support the good faith exception on
similar facts). The affidavit provided specific facts and circumstances that
allowed the issuing judge to make a probable cause determination regarding
the search of the hotel room.
Because affidavits must be construed in a common-sense manner,
with great deference given to the issuing judge’s probable-cause determina-
tion, we cannot reason that the district court erred, plainly or otherwise, in
finding that the affidavit in the instant case was not bare bones. Therefore,
the executing officer’s reliance on the warrant was objectively reasonable and
made in good faith, so the district court was correct to deny Harris’s motion
to suppress the evidence on that ground. See Gentry, 941 F.3d at 780. We
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therefore need not reach the issue of whether the warrant was supported by
probable cause.
AFFIRMED.
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