United States v. Cutwright , 247 F. App'x 499 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 6, 2007
Charles R. Fulbruge III
No. 06-41271 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEROME DEION CUTWRIGHT,
Defendant-Appellant.
________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
Case No. 9:05-CR-19-1
_________________________________________________________________
Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.
PER CURIAM:*
Jerome Cutwright appeals (1) the district court’s denial
of a motion to suppress evidence discovered during a search of his
residence and used subsequently to convict him at trial on two
counts of possession with intent to distribute cocaine and cocaine
base, see 21 U.S.C. § 841(a)(1); and (2) the district court’s
denial of his request that the government produce a confidential
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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informant. Finding no error of fact or law, we AFFIRM.
On March 21, 2005, Deputy Bob Lowe of the San Augustine
County Sheriff’s Department obtained a warrant to search
Cutwright’s residence, located at Route 5, Box 6420, in San
Augustine, Texas. The warrant was based on information
communicated to Deputy Lowe by a confidential informant who had
previously provided one of Lowe’s colleagues with reliable tips
about narcotics trafficking and other criminal offenses on at least
five occasions. The confidential informant told Lowe that he had
seen a large amount of bagged cocaine at Cutwright’s residence and
that Cutwright had made a sale of cocaine in his presence.**
Lowe and six other state officers traveled to the
residence and knocked and announced their presence but received no
response. After gaining entry, they discovered Cutwright in the
rear bedroom and restrained him without incident. A search of the
house revealed: $3,010 in cash from a box in the bedroom; three
**
The relevant portion of the warrant affidavit reads:
[Confidential Informant] advised affiant that, within the past twenty four [sic] (24)
hours of the presentment of this affidavit to this Court, [Confidential Informant]
had personally been to the residence of JEROME CUTWRIGHT, described herein
as the suspected place and premises located at Rt. 5 Box 6420 in San Augustine
County, Texas, and had personally observed JEROME CUTWRIGHT in
possession of a quantity of cocaine that was possessed for the purpose of sale and
distribution. [Confidential Informant] advised that [Confidential Informant]
observed JEROME CUTWRIGHT in possession of two (2) plastic bags wrapped
with grey tape, weighing approximately two (2) kilos apiece, which contained
cocaine. [Confidential Informant] further stated that while [Confidential Informant]
was at said residence, [Confidential Informant] observed JEROME CUTWRIGHT
conduct a sale and delivery of cocaine.
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plastic baggies containing 645 grams of powder cocaine, paper
toweling impregnated with white residue, two large wafer-shaped
rounds of cocaine base, and $4,725 in cash from the kitchen; 2.31
pounds of marijuana apportioned between three plastic bags hidden
in the clothes dryer; digital scales and an additional $1,245 in
cash.
Before trial, Cutwright moved to suppress evidence seized
during execution of the search warrant. The district court denied
the motion. Cutwright also moved that the government be required
to disclose the identity of the confidential informant. The court
denied the motion as moot because the government had already
provided Cutwright with the informant’s name and address. The
process server hired by Cutwright was unable to locate the
informant.
Cutwright was tried before a jury on April 3, 2006, and
found guilty on both counts of possession with intent to distribute
cocaine and cocaine base. The district court sentenced him to
eighty months’ imprisonment followed by four years’ supervised
release on both counts, to be served concurrently. He appeals the
district court’s denial of both motions.
1. Denial of the Suppression Motion
We review factual findings supporting the denial of a
suppression motion for clear error and legal conclusions de novo.
United States v. Williams, 365 F.3d 399, 403 (5th Cir. 2004)
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(citing Ornelas v. United States, 517 U.S. 690, 694-97, 116 S. Ct.
1657, 1660-63 (1996)). We view the evidence in the light most
favorable to the prevailing party, here, the government. United
States v. Estrada, 459 F.3d 627, 630 (5th Cir. 2006).
When a search warrant is at issue, we use a two-step test
in reviewing the district court’s denial of a suppression motion.
First, we determine whether the good-faith exception to the
exclusionary rule applies. United States v. Mays, 466 F.3d 335,
342 (5th Cir. 2006) (citing United States v. Leon, 468 U.S. 897,
922-23, 104 S. Ct. 3405, 3420 (1984)). If the exception applies,
we inquire no further whether the warrant was supported by probable
cause. Id. Only if Leon’s exception is inapplicable do we proceed
to the second step and ask whether the court had a substantial
basis for the probable-cause determination. United States v.
Hinojosa, 349 F.3d 200, 203 (5th Cir. 2003). Because the instant
warrant is facially valid, that second step is unnecessary.
Cutwright contends that the affidavit used to support the
search warrant was “bare bones” and that accordingly no reasonable
officer could have relied on it in good faith. An affidavit is
bare bones “if it is so deficient in demonstrating probable cause
that it renders an officer’s belief in its existence completely
unreasonable.” United States v. Cisneros, 112 F.3d 1272, 1278 (5th
Cir. 1997). Typically, bare bones affidavits “contain wholly
conclusory statements, which lack the facts and circumstances from
which a magistrate can independently determine probable cause.”
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United States v. Pope, 467 F.3d 912, 920 (5th Cir. 2006) (quoting
United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992);
see also United States v. Barrington 806 F.2d 529, 531 (5th Cir.
1986) (affidavit was devoid of specific details and stated only
that officer “received information from a confidential informant”
known to have provided accurate information in the past).
Deputy Lowe’s affidavit is not bare bones. In it, Deputy
Lowe swore that the informant related particular details of the
contraband at the residence and that the informant had previously
identified cocaine and provided accurate information about the
location of narcotics on at least five separate occasions. Lowe
also knew from personal experience as a San Augustine law-
enforcement officer that Cutwright lived at the address provided.
This court has held on numerous occasions that warrant affidavits
containing sworn testimony substantially similar to Deputy Lowe’s
are not bare bones. See Satterwhite, 980 F.2d at 317-18; United
States v. McKnight, 953 F.2d 898, 904-05 (5th Cir. 1992); Christian
v. McKaskle, 731 F.2d 1196, 1198 (5th Cir. 1984). The warrant
facially provided a good-faith basis upon which the officers could
rely. Denial of the suppression motion was not error.
2. Denial of Motion to Produce Confidential Informant at Trial
Cutwright next argues that the court erred in denying his
motion that the government produce the confidential informant as a
witness at trial. We review denial of the motion for an abuse of
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discretion. United States v. Thomas, 348 F.3d 78, 85 (5th Cir.
2003). No error occurred here.
The presence of the confidential informant at trial was
immaterial because the only pertinent information Cutwright alleges
the informant had was already contained in the warrant affidavit,
which is facially valid. Even if the informant had knowledge of
facts beyond those contained in the warrant affidavit, the
government provided Cutwright with the informant’s name and last
known address. Cutwright then hired a process server who
interviewed several members of the informant’s immediate family but
was unsuccessful in locating the informant. “The Government is not
required to guarantee an informant’s presence at trial.” United
States v. Gonzalez, 582 F.2d 991, 993 (5th Cir. 1978). Since
Cutwright was aware of the informant’s identity, the government
need only have made a reasonable effort to produce the informant.
See Fitzpatrick v. Procunier, 750 F.2d 473, 476 (5th Cir. 1985).
The government’s attempts to contact and locate the informant prior
to trial satisfy this modest burden.
Finding no error in either of the district court’s
rulings, we AFFIRM the conviction.
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