United States v. Rodriguez , 344 F. App'x 93 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 9, 2009
No. 08-41269
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FELIPE RODRIGUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:08-CR-428-ALL
Before DeMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
Felipe Rodriguez pleaded guilty to possession with the intent to distribute
five grams or more of cocaine base, while reserving the right to appeal the
district court’s denial of his motion to suppress the evidence obtained following
a search conducted pursuant to a search warrant.
On appeal, Rodriguez argues that the district court erred in denying the
motion to suppress evidence because the affidavit was “bare bones.” Rodriguez
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-41269
contends that it is unclear from the affidavit when the confidential informant
(CI) saw the cocaine in the apartment, why the CI would recognize cocaine if he
saw it, or what the substance looked like “so that the magistrate could judge for
himself.” Rodriguez also challenges the affidavit’s failure to explain the reason
for the CI’s presence in the apartment, the CI’s failure to provide a detailed
identification of Rodriguez, and the officers’ failure to corroborate independently
the information in the affidavit.
In reviewing a district court’s denial of a motion to suppress, this court
first determines whether the evidence at issue was obtained by law enforcement
officials acting in “objectively reasonable good-faith reliance upon a search
warrant.” United States v. Shugart, 117 F.3d 838, 843 (5th Cir. 1997) (citation
omitted). We review “the district court’s factual findings . . . for clear error, and
its legal conclusions . . . de novo.” United States v. Jacquinot, 258 F.3d 423, 427
(5th Cir. 2001). As relevant here, an officer’s reliance on the warrant is not
objectively reasonable and, therefore, not entitled to the good-faith exception to
the exclusionary rule if the underlying affidavit is “bare bones” (“so lacking in
indicia of probable cause as to render official belief in its existence entirely
unreasonable”) or the warrant is so “facially deficient” in failing to particularize
the place to be searched or the things to be seized that the executing officers
cannot reasonably presume it to be valid. See United States v. Mays, 466 F.3d
335, 343 (5th Cir. 2006) (citation omitted), cert. denied, 549 U.S. 1234 (2007).
In the instant case, Rodriguez’s challenge to the time frame of the CI’s
information offers no more than a possible contrary interpretation of the
phrasing of the affidavit, insufficient to show clear error in the district court’s
finding as to the meaning of the affidavit. See United States v. Outlaw, 319 F.3d
701, 703-04 (5th Cir. 2003). Rodriguez’s argument that the information provided
by the CI was too vague to support the search similarly fails. The CI indicated
that he had been in the specific apartment for which the search warrant was
sought, that he had seen a usable amount of a specific narcotic in the apartment,
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No. 08-41269
and that the apartment was controlled by an individual whom he described as
follows: “a medium complexion Hispanic male by the name of Felipe (AKA Kitty)
approximately 25 to 30 years old and weighs approximately 200 lbs,
approximately 5’8” tall and b[a]l[d].” Under the totality of the circumstances,
the information provided by the CI was credible and sufficiently specific for the
officer’s reliance on it as a basis for the warrant. See United States v.
Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992). This information and the
warrant were sufficiently specific to render the warrant facially valid. See Mack
v. City of Abilene, 461 F.3d 547, 551 (5th Cir. 2006) (holding warrant facially
valid where affiant set out facts indicating the veracity and reliability of the CI,
as well as a specific statement of the knowledge obtained from the CI). As to the
CI’s credibility, the officer’s statement that he knew the CI had “provided
information to be truthful, reliable, and trustworthy” indicated that the officer
was familiar with the CI and the CI’s prior information, and that he knew the
CI’s information had been correct in the past. This is sufficient to establish the
CI’s credibility. See United States v. McKnight, 953 F.2d 898, 905 (5th Cir.
1992).
Rodriguez has failed to show that the warrant was “bare bones” or facially
invalid and, therefore, that the district court erred in concluding that the good
faith exception to the exclusionary rule applied and in denying Rodriguez’s
motion to suppress. See Shugart, 117 F.3d at 843-44. The decision of the district
court is AFFIRMED.
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