United States v. Tillman , 84 F. App'x 464 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 8, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40893
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ERIC TILLMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
(1:01-CR-231-1)
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant James Eric Tillman appeals the district
court’s denial of his motion to suppress evidence that resulted in
his conviction for possession with the intent to distribute
methamphetamine. Tillman entered a guilty plea to the offense
conditioned on his right to appeal the district court’s denial of
the suppression motion. He argues that the district court failed
to apply the correct legal standard regarding misstatements made in
the search warrant. Citing Franks v. Delaware, 438 U.S. 154, 155-
*
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this opinion should not be published and is not precedent except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.
56 (1978), Tillman argues that, although the court determined that
the misstatements were not intentional, it erred by failing to
determine whether the statements were made with reckless disregard
for the truth.
When we consider the denial of a motion to suppress, we review
factual findings for clear error and the sufficiency of a warrant
de novo. United States v. Cherna, 184 F.3d 403, 406 (5th Cir.
1999). The first step in reviewing the denial of a motion to
suppress is determining whether the good-faith exception to the
exclusionary rule applies. Id. at 407. If it does, we never reach
the question of probable cause. Id.
The good-faith exception to the exclusionary rule does not
apply if a search warrant affidavit contains a false statement that
was made intentionally or with reckless disregard for its truth.
United States v. Cavazos, 288 F.3d 706, 709-10 (5th Cir.)(citing
Franks, 438 U.S. at 155-56), cert. denied, 537 U.S. 910 (2002). If
an allegation of intentional falsity or reckless disregard for the
truth is established by the defendant by a preponderance of the
evidence, we excise the offending language from the affidavit and
then determine whether the remaining portion would have established
the necessary probable cause. Id. at 710. The defendant bears the
burden of showing, by a preponderance of the evidence, that a
misstatement was made with more than mere negligence. United
2
States v. Runyan, 290 F.3d 223, 234 n.6 (5th Cir.), cert. denied,
537 U.S. 888 (2002).
Here, the explanation for the misstatement that Officer Hinton
offered was entirely plausible. Thus, the good-faith exception
applies and the warrant did not violate the Fourth Amendment. See
Cavazos, 288 F.3d at 710. Moreover, when the misstatements are
excised from the affidavit, the remaining portions of the affidavit
provides probable cause for the search.
Tillman also challenges the pre-warrant protective sweep of
the apartment, arguing that there were no exigent circumstances.
The district court found the presence of exigent circumstances
justifying the protective sweep. Even if we were to assume
arguendo that no exigent circumstances were present, the evidence
obtained from the search was admissible under the independent
source doctrine. Runyan, 290 F.3d at 235. We therefore do not
address the question whether exigent circumstances justified the
warrantless entry. See United States v. Register, 931 F.2d 308,
311 (5th Cir. 1991).
AFFIRMED.
3