United States v. Jacobs , 125 F. App'x 518 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 27, 2005
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
________________ Clerk
No. 04-30737
Summary Calendar
________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
CEDRIC L JACOBS
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana, Monroe
No. 3:03-CR-30023-1-RGJ
_________________________________________________________________
Before KING, Chief Judge, and JOLLY and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Cedric L. Jacobs brought a motion to
suppress evidence obtained from three separate searches. The
district court denied the motion, holding that each of the
searches was constitutionally valid. Jacobs later entered a
conditional guilty plea to the charges against him. He now
appeals the district court’s determination regarding the
admissibility of the evidence against him. We AFFIRM.
*
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that this opinion should not be published and is not precedent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.
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I. BACKGROUND
On May 27, 2003, Rick Swigart, a detective in the San
Bernardino County, California Sheriff’s Department was conducting
routine drug interdiction at a Federal Express shipping center in
Rialto, California. Swigart noticed a package that looked
suspicious. The following characteristics drew Swigart’s
attention: (1) the package was heavily taped with clear packaging
tape; (2) the package was shipped priority overnight from Sandra
Peterson in Cutten, California to Miss Peterson in Monroe,
Louisiana; (3) the sender paid cash to ship the parcel; (4) no
telephone numbers were listed for either the sender or the
recipient; (5) the package had a strong odor of dryer sheets and
of a chemical solvent consistent with the scent of the narcotic
phencyclidine (PCP). Based on these characteristics, Swigart
brought his drug-sniffing dog, Taz, into the facility. He placed
the suspicious package among several other packages to see if the
suspicious package would draw Taz’s attention. When Taz detects
narcotics, he is trained to give a “hard alert,” which involves
sitting down in front of the package containing narcotics. When
Taz came upon the suspicious package, he gave a “passive alert.”
Taz walked by the box, paused, looked at the package, looked at
Swigart, and looked at the package again.
Based on Taz’s reaction, Swigart seized the package and
sought a search warrant from a California state court so that he
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could open the box. In his affidavit in support of the request,
Swigart explained why the characteristics he initially noticed
were indicative of a narcotics shipment. He also stated that
“Taz gave a positive ‘alert’ on this parcel indicating the parcel
had been saturated with the scent of illegal narcotics.” Based
on the affidavit, the court issued a search warrant. Pursuant to
the search warrant, Swigart opened the package and found that it
contained PCP. California law enforcement officials then
repackaged the box with packing materials and a small portion of
the PCP, retaining most of it as evidence. They also contacted
the police department in Monroe, Louisiana and requested that
they conduct a controlled delivery of the package. The Monroe
Police Department agreed, and the package was sent to Louisiana.
On May 30, 2003, the Monroe Police Department delivered the
package. They placed the residence to which the package was
addressed under surveillance and had an undercover officer
dressed as a Federal Express employee deliver the package.
Before delivering the package, Detective Mark Johnson of the
Monroe Police Department prepared an affidavit in support of a
search warrant of the address listed on the package. As the
delivery was taking place, Johnson was waiting with a Louisiana
state court judge. As soon as the delivery occurred, an agent
conducting surveillance contacted Johnson. At that point, the
judge signed the search warrant. Johnson immediately called the
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officers at the scene and informed them that a warrant had been
signed and that they could begin searching the residence. The
officers proceeded to execute the warrant. Immediately after
Johnson informed the officers that the warrant had been signed,
he drove to the residence to deliver the actual warrant. It took
Johnson approximately ten minutes to arrive on the scene with the
search warrant. As a result of the search, police found large
quantities of several drugs as well as several firearms. Based
on this evidence, the police arrested Defendant-Appellant Cedric
L. Jacobs and Rayetta Goodin on state drug charges. Jacobs and
Goodin were later released on bond.
On July 23, 2003, Jacobs and Goodin were indicted by a
federal grand jury for various federal narcotics offenses. The
next day, a federal magistrate judge issued arrest warrants for
Jacobs and Goodin. The arrest warrants were served by Drug
Enforcement Administration (DEA) agents on September 3, 2003, at
the same residence that was searched on May 30, 2003. As the
agents were arresting Jacobs and Goodin, they noticed some
marijuana sitting in plain view near the front door. After the
officers conducted a protective sweep of the residence, DEA
Special Agent Vic Zordan then asked Jacobs for consent to conduct
a full search of the residence. Jacobs told Zordan that the
house belonged to Goodin and that Zordan would have to ask her.
When Zordan asked Goodin for consent to search the house she
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asked him if he had a search warrant. Zordan told her that he
did not but that based on the evidence found in plain view, he
could quickly obtain a warrant to search the rest of the
residence. Goodin consented to a search, saying “Yeah, I guess
if you want to.” Upon searching the rest of the residence, the
agents found additional evidence of narcotics trafficking and
distribution.
At trial, Jacobs moved to suppress all of the evidence
derived from the search of: (1) the package on May 28, 2003;
(2) the residence on May 30, 2003; and (3) the residence on
September 3, 2003. On December 15, 2003, a federal magistrate
judge issued a report and recommendation denying Jacobs’s motion.
On February 20, 2004, the district court adopted the magistrate’s
report. On March 15, 2004, Jacobs entered a conditional guilty
plea to the charges of: (1) conspiracy to distribute and to
possess with intent to distribute marijuana and cocaine base in
violation of 21 U.S.C. §§ 841(a)(1) and 846; and (2) possession
of a firearm in relation to drug trafficking in violation of 18
U.S.C. § 924(c)(1) and (2). Jacobs reserved the right to appeal
the denial of his motion to suppress the evidence seized in the
three searches. All remaining charges in the indictment were
dismissed.
Jacobs now appeals the district court’s denial of his
suppression motion. First, Jacobs argues that the warrant to
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search the package seized at the Federal Express facility was
defective because Swigart misled the court regarding Taz’s
response to the package. Second, he argues that the first search
of the residence was invalid because the search commenced before
the warrant arrived. Finally, Jacobs alleges that the second
search was invalid because Goodin did not freely consent to the
search.
II. STANDARD OF REVIEW
In reviewing the denial of a motion to suppress, we employ a
two-tiered standard of review, examining the district court’s
factual findings for clear error and its ultimate conclusion as
to the constitutionality of the law enforcement action de novo.
United States v. Keith, 375 F.3d 346, 348 (5th Cir. 2004). In
reviewing the district court, “we must view the evidence
presented at the hearing on the motion to suppress in the light
most favorable to the prevailing party -- in this case, the
government.” United States v. Nichols, 142 F.3d 857, 866 (5th
Cir. 1998); see also United States v. Gutierrez-Orozco, 191 F.3d
578, 581 (5th Cir. 1999) (“We view all of the evidence introduced
at the suppression hearing in the light most favorable to the
prevailing party, in this case the government.”)
III. ANALYSIS
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A. The May 28, 2003 Search
Under the good-faith exception to the exclusionary rule,
evidence obtained through the execution of a search warrant that
was not supported by probable cause will nevertheless not be
suppressed so long as the agent executing the warrant relied in
good faith on the warrant and acted within the scope of that
warrant. United States v. Loe, 248 F.3d 449, 460 (5th Cir.
2001). There are, however, four exceptions to the good-faith
exception. United States v. Webster, 960 F.2d 1301, 1307 (5th
Cir. 1992) (per curiam). In the exception relevant to this case,
the evidence must be suppressed if the judge issuing the warrant
“was misled by information in an affidavit that the affiant knew
was false or would have known except for reckless disregard of
the truth.” See id. at 1307 n.4.
“The party attacking the warrant bears the burden of
establishing by a preponderance of the evidence that the
misrepresentation was made intentionally or with reckless
disregard for the truth.” United States v. Alvarez, 127 F.3d
372, 373 (5th Cir. 1997). If the challenger meets this burden,
we must remove the offensive language from the affidavit and/or
add any deleted information to determine if the affidavit,
properly constituted, would have established probable cause to
issue the warrant. Id. at 374.
The district court found that the search of the package did
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not violate the Fourth Amendment. The court first found that
Swigart’s testimony established Taz’s reliability as a drug-
sniffing dog. Second, the district court found that Swigart’s
affidavit was not misleading, since Taz’s reaction to the package
was sufficient to make Swigart certain that the package contained
narcotics. Further, the court found no evidence that Swigart was
acting in bad faith. Finally, the district court found that even
if the affidavit had explicitly noted that Taz did not give his
trained response, Taz’s passive response coupled with the other
characteristics of the package created probable cause.
On appeal, Jacobs argues that the district court erred in
finding that Swigart did not act in bad faith or intentionally
mislead the court. Jacobs further argues that without evidence
of Taz’s response to the package, the remaining statements in
Swigart’s affidavit were insufficient to create a reasonable
suspicion that there were narcotics inside the package. Jacobs
notes that because each of the factors taken alone had a
plausible explanation, there was no probable cause.
Jacobs’s arguments do not establish that the district court
was clearly erroneous in determining that Swigart acted in bad
faith or that the remainder of the affidavit failed to establish
probable cause. Jacobs has the burden of establishing by a
preponderance of the evidence that Swigart acted in bad faith.
Alvarez, 127 F.3d at 373. He has simply pointed to no evidence
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to meet that burden. Instead, Jacobs draws our attention to a
case from the Eighth Circuit. United States v. Jacobs, 986 F.2d
1231 (8th Cir. 1993). In Jacobs, based on a tip, the police
intercepted a Federal Express package they believed contained
narcotics. The package was presented to a drug-sniffing dog.
Although the dog expressed interest in the package, it did not
alert as it was trained to. The affidavit in support of the
search warrant noted that the dog expressed interest but did not
note that the dog did not alert in the manner it was trained to.
Based on this response, the dog handler could not state with any
certainty whether or not the package contained narcotics. The
police then brought in a second dog, which expressed no interest
in the package whatsoever. The result of this second test was
also withheld from the judge, who proceeded to issue a search
warrant. Based on these events, the Eighth Circuit suppressed
the evidence obtained from the search. Jacobs argues that Jacobs
mirrors the facts before us and thus mandates that we suppress
the evidence against him
For several reasons, Jacobs does not undermine our
conclusion that the evidence should not be suppressed.
Preliminarily, we note that as a case from a sister circuit,
Jacobs is not binding on this court. But more importantly,
Jacobs is distinguishable from our case. In the instant case,
Swigart testified that based on his experience working with Taz,
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he had no doubt that Taz’s passive alert indicated that the
package contained narcotics. On the other hand, in Jacobs, the
officers’ decision to bring in a second dog and their failure to
notify the court of the results of the second test indicates both
that they had doubts about the first dog’s alert and that they
made a conscious decision to withhold those doubts from the
court. These actions give a clear indication of bad faith.
Swigart’s actions in the instant case exhibit no such bad faith.
Even if we assume, arguendo, that Swigart’s affidavit was
made in bad faith or with reckless disregard for the truth, the
remaining information, coupled with a more complete description
of Taz’s alert, provided probable cause for the warrant.
“Probable cause does not require proof beyond a reasonable doubt,
but only a showing of the probability of criminal activity.”
United States v. Daniel, 982 F.2d 146, 151 (5th Cir. 1993) (per
curiam). It is true, as Jacobs notes, that any one of the
characteristics of the package taken on its own would not create
a high enough probability of criminal activity to justify a
search. For example, the mere fact that no phone numbers were
listed on the shipping materials could reflect forgetfulness just
as much as it could reflect drug trafficking. However, looking
at each characteristic of the package in isolation is irrelevant
because probable cause is evaluated under a totality of the
circumstances test. United States v. Dickey, 102 F.3d 157, 162
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(5th Cir. 1996). The package drew Swigart’s attention based on
the combination of several factors. Based on his police
experience, even before Taz identified the package, he was
reasonably certain that the package contained narcotics. This,
coupled with Taz’s clear expression of interest in the package,
made it highly probable that there was criminal activity afoot
and that probable cause existed.
B. The May 30, 2003 Search
We have previously held that a violation of the rule
governing the execution and service of a search warrant is
“essentially ministerial in nature and a motion to suppress
should be granted only when the defendant demonstrates legal
prejudice or that non-compliance with the rule was intentional or
in bad faith.” United States v. Marx, 635 F.2d 436, 441 (5th
Cir. Unit B Jan. 1981). To show prejudice “a defendant must show
that because of the violation . . . he was subjected to a search
that might not have occurred or would not have been so abrasive
had the rule been followed.” Id. Further, the Supreme Court has
stated that “neither the Fourth Amendment nor Rule 41 of the
Federal Rules of Criminal Procedure requires the executing
officer to serve the warrant on the owner before commencing the
search.” Groh v. Ramirez, 540 U.S. 551, 562 n.5 (2004).
The district court determined “that the short delay in the
warrant’s delivery to the defendants was well within reason.” On
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appeal, Jacobs argues that the ten minute delay was not
reasonable since there were no exigent circumstances that
required an immediate search. Jacobs also argues that because
the warrant was not present for the first ten minutes of the
search, the officers on the scene had no guidance as to the scope
of the search permitted under the warrant.
Jacobs’s arguments are of no moment. First, there were
exigent circumstances present. The package that was delivered to
the residence contained only a small fraction of the original
amount of PCP. As soon as they opened the package, the
recipients would be alerted to the fact that the package had been
tampered with. The recipients would thus be on notice that the
police would quite likely be arriving soon. This notice would
have dramatically increased the likelihood that the officers
would be met with violence when they did arrive. As for Jacobs’s
argument that the delay allowed the officers to freely search the
residence for ten minutes, Jacobs must affirmatively demonstrate
that the officers on the scene conducted the search in a way they
would not have had the warrant been present. Marx, 635 F.2d at
441. Jacobs has offered no such demonstration. Since the
warrant was prepared ahead of time for the judge’s signature, it
is possible that the officers on the scene were told what the
scope of the warrant would be. If this were the case, Jacobs’s
argument would be factually incorrect. As he is the party
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challenging the search, he bears the burden of refuting such
possibilities. He has made no effort to do so. Accordingly, the
district court had no reason to suppress the evidence obtained
from the May 30 search.
C. The September 3, 2003 Search
Voluntary consent to a search is an exception to the general
prohibition on warrantless searches. United States v. Jenkins,
46 F.3d 447, 454 (5th Cir. 1995). We consider six factors in
determining the voluntariness of consent. These factors are:
(1) the voluntariness of the defendant’s custodial
status; (2) the presence of coercive police procedures;
(3) the extent and level of the defendant's cooperation
with the police; (4) the defendant’s awareness of his
right to refuse to consent; (5) the defendant’s education
and intelligence; and (6) the defendant’s belief that no
incriminating evidence will be found.
United States v. Tompkins, 130 F.3d 117, 121 (5th Cir. 1997). No
single factor is dispositive, and the voluntariness of consent
must be determined from the totality of the circumstances. Id.
We review the factual determination of whether there was consent
under the clearly erroneous standard. Id. at 120
The district court found that Goodin’s consent was
voluntary. In reaching this conclusion, the court cited several
factors, chief among them being Goodin’s inquiry as to whether
Zordan had a search warrant. The district court found that this
inquiry demonstrated that Goodin was aware that she had the right
to refuse consent to the search. Jacobs argues that the district
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court’s ruling was clearly erroneous since the circumstances
reflect that Goodin was coerced into granting consent. Jacobs
argues that the fact that Goodin was already in custody, coupled
with the fact that the officers had already conducted a
protective sweep of the residence, created an atmosphere that was
not conducive to voluntary consent.
We find Jacobs’s argument unconvincing. We cannot conclude
that the district court’s finding was clearly erroneous based on
a vague argument about the general atmosphere. In truth, the
atmosphere in which the consent was given was really no different
than any other arrest scene. Looking at the concrete evidence,
there is nothing to suggest that the officers used any coercive
tactics, force, intimidation, promises, or other forms of
coercion to obtain Goodin’s consent. Accordingly, we find that
the district court did not err in denying Jacobs’s motion to
suppress the evidence seized from the September 3, 2003 search.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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