United States v. Olinde ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
April 20, 2006
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 04-31061
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFERY P. OLINDE,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
(3:03-CR-143-ALL)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Challenging his judgment of conviction by contesting the
denial of his suppression motion for evidence seized at his house,
pursuant to a search warrant, Jeffery P. Olinde claims: (1) the
warrant lacked probable cause; and (2) the search exceeded the
warrant’s scope because it began three hours before the specified
start-time and included a non-listed building. AFFIRMED.
*
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this opinion should not be published and is not precedent except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.
I.
On 27 June 2003, agents with the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) and state law enforcement executed a
search warrant for Olinde’s property. Shortly after 6:00 a.m.,
agents entered his driveway and saw him standing in the doorway of
a shed located approximately ten feet behind his house. Olinde was
ordered to exit the shed; instead, he moved further into it and
appeared to throw something to the ground. As an agent approached
the shed’s entrance, Olinde continued toward the back, where he was
apprehended. In plain view inside the shed, agents found
methamphetamine and a loaded pistol.
Shortly after Olinde was apprehended, his wife drove up to the
house. After she complied with an agent’s request to exit her
vehicle, agents discovered a pistol in it. A subsequent search of
Olinde’s house revealed, inter alia, ammunition for both pistols,
as well as small plastic bags typically used for drug distribution.
Among other charges, Olinde was indicted for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and
for possession of a firearm in furtherance of a drug-trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A). In moving to
suppress the seized evidence, Olinde claimed the warrant was not
supported by probable cause and the agents exceeded its scope by
searching: (1) the shed; and (2) before the specified start-time.
After an evidentiary hearing, the district court denied the motion,
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holding: (1) the warrant was supported by probable cause; (2)
because the search occurred during daylight hours, it complied with
the warrant; and (3) the shed was located within the curtilage of
the home and, therefore, fell within the warrant’s scope. United
States v. Olinde, No. 03-143-A (M.D. La. 18 Nov. 2003)
(unpublished). Subsequently, Olinde was convicted.
II.
Olinde raises the same claims on appeal. In that regard, a
search warrant’s scope is a question of law. United States v.
Russell, 960 F.2d 421, 422 (5th Cir.), cert. denied, 506 U.S. 953
(1992). Such questions are reviewed de novo; findings of fact, for
clear error. E.g., United States v. Gibbs, 421 F.3d 352, 356-57
(5th Cir. 2005). The evidence is viewed in the light most
favorable to the prevailing party. Id. at 357. Where, as here,
the district court held an evidentiary hearing and relied upon live
testimony in denying the motion, “the clearly erroneous standard is
particularly strong because the judge had the opportunity to
observe the demeanor of the witnesses”. United States v. Santiago,
410 F.3d 193, 197 (5th Cir. 2005), cert. denied, __ S. Ct. __, 2006
WL 685153 (U.S. 20 A.K. Marsh. 2006) (No. 05-5902).
A.
Olinde claims the warrant lacked probable cause because its
supporting affidavit relied upon statements made by Michael Bowman
and Travis Burton, his wife’s brother and father, respectively.
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Olinde claims both are admitted methamphetamine users who owed him
money and, therefore, had an interest in his being incarcerated.
Additionally, he maintains their statements lack credibility
because they conflict. According to Olinde, both Burton and Bowman
claim to have seen him in possession of a firearm when he lent it
to Burton, but they provide different dates for the event.
When deciding whether a search warrant is supported by
probable cause, an alternative test is used. See Gibbs, 421 F.3d
at 355. First, we determine whether the good-faith exception
applies — if it does, the inquiry ends. See id. If it does not
apply, we determine whether the warrant was supported by probable
cause. See id.; United State v. Laury, 985 F.2d 1293, 1311 (5th
Cir. 1993). The exception applies unless
the issuing-judge was misled by information in
an affidavit that the affiant knew was false
or would have known was false except for his
reckless disregard of the truth; the issuing-
judge wholly abandoned his judicial role in
such a manner that no reasonably well trained
officer should rely on the warrant; the
warrant was based on an affidavit so lacking
in indicia of probable cause as to render
official belief in its existence entirely
unreasonable; or the warrant was facially
invalid.
Gibbs, 421 F.3d at 355 (quoting United States v. Leon, 468 U.S.
897, 923 (1984) (internal quotation marks omitted)).
The ATF Agent’s supporting affidavit recited statements from
four individuals who knew of Olinde’s involvement with firearms and
illegal drugs. First, the ATF Agent noted that Michael and David
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Brown, Olinde’s wife’s brothers, had informed officials they had
personal knowledge of Olinde’s possession of illegal drugs and
weapons. David Brown informed officers that Olinde kept two
firearms in his home and was selling crystal methamphetamine.
Michael Brown admitted purchasing methamphetamine from, and
consuming it with, Olinde on several occasions. He also
corroborated David Brown’s statement about the firearms, stating he
had observed two in Olinde’s home. Olinde had explained to Michael
Brown: he had his wife purchase one of the firearms; and he had
let Travis Burton borrow one of them. (To the extent David or
Michael Brown admitted engaging in illegal activity with Olinde,
these statements were made against penal interest, boosting their
credibility. See United States v. Satterwhite, 980 F.2d 317, 323
(5th Cir. 1992).)
Second, the ATF Agent also based the affidavit on statements
made by Travis Burton, who corroborated those by Michael Brown,
admitting Olinde had loaned him (Travis Burton) a firearm. Third,
the Agent used statements made by Olinde’s wife, taped by her
sister, that she (Olinde’s wife) had two firearms in the house,
which Olinde could not keep there because of his prior convictions.
These statements corroborate Olinde’s having possession of
illegal firearms and drugs. Therefore, it cannot be said the
Agent’s “affidavit [was] so lacking in indicia of probable cause as
to render official belief in its existence entirely unreasonable”.
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Gibbs, 421 F.3d at 355; see also Satterwhite, 980 F.2d at 322. The
good-faith exception applies.
B.
Olinde claims the search exceeded the warrant’s scope in two
respects: when it began; and the shed’s being included. As
stated, the scope is a question of law, reviewed de novo. Russell,
960 F.2d at 422. In each instance, the good-faith exception
controls.
1.
Because the search began shortly after 6:00 a.m., Olinde
maintains it was not “in the day time - 9:00 A.M. to 10:00 P.M.”,
as specified on the warrant. He concedes it also allowed the
search “at anytime in the day or night [where] reasonable cause has
been established”, but claims: the two provisions are
contradictory; and the requisite reasonable cause had not been
established for a search outside the specified 9:00 a.m. to 10:00
p.m. period. Thus, according to Olinde, the day-time clause,
including the 9:00 a.m. start-time, controls.
The search occurred “in the daytime” as defined in Federal
Rule of Criminal Procedure 41, which authorizes execution of a
warrant “during the daytime, unless the judge for good cause
expressly authorizes execution at another time”. FED. R. CRIM. P.
41(e)(2)(B) (emphasis added). The Rule defines daytime as “between
6:00 a.m. and 10:00 p.m. according to local time”. FED. R. CRIM. P.
6
41(a)(2)(B). It is undisputed that the search began no earlier
than 6:00 a.m. Additionally, the issuing magistrate judge did not
give a reason for limiting the search’s start-time to 9:00 a.m.
In any event, no evidence suggests the officers executing the
warrant acted in bad faith; their actions comported with “in the
daytime”, as defined by Rule 41. As stated, the good-faith
exception applies. “[E]vidence is not to be suppressed ... where
it is discovered by officers in the course of actions that are
taken in good faith and in the reasonable, though mistaken, belief
that they are authorized”. United States v. Majors, 328 F.3d 791,
795 (5th Cir. 2003) (emphasis added) (quoting United States v. De
Leon-Reyna, 930 F.2d 396, 400 (5th Cir. 1991) (en banc)).
2.
Concerning the shed’s being searched, Olinde notes neither the
warrant, nor the supporting affidavit, mentioned it. The
Government contends searching the shed was a valid search of the
premises specified in the warrant.
The warrant authorized the search of “[t]he premises of
Jeffery and [Mrs.] Olinde[,] 9398 Kurt Kundler Road[,] Gonzales,
Louisiana”. (Emphasis added.) An attachment to the warrant
provided:
The Premises
The residence of Jeffery Olinde and [his wife]
is located at 9398 Kurt Kundler Road,
Gonzales, Louisiana 70737. The residence is
described as mobile home (trailer), white in
color with green shutters and a tan roof.
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Olinde’s shed was only approximately ten feet from, and attached by
an extension cord to, the house.
“[P]ractical accuracy rather than the technical precision
governs in determining whether a search warrant adequately
describes the premises to be searched”. United States v. Williams,
687 F.2d 290, 292 (9th Cir. 1982). Thus, the physical description
would “not limit the scope of the search to those specific areas,
but instead [made] the premises to be searched more readily
identifiable”. United States v. Griffin, 827 F.2d 1108, 1115 (7th
Cir. 1987), cert. denied, 485 U.S. 909 (1988). If “the warrant
state[s] the physical address of the premises and [gives] a
description of the residence[,] ... [t]he detached ... shed ...
[is] the type of building[] [that is] ordinarily a part of
residential property”. United States v. Earls, 42 F.3d 1321, 1327
(10th Cir. 1994), cert. denied, 514 U.S. 1085 (1995).
In any event, the good-faith exception controls. The Agent
who both requested and executed the warrant sought authority in his
affidavit to search the “property present on the premises” located
at Olinde’s address. As a result, it would not have been
unreasonable for the Agent to believe the warrant encompassed all
property at the address, including the shed. (Because the good-
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faith exception applies, whether the shed is within the house’s
curtilage, as well as the effect if it is, are pretermitted.)
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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