United States v. Kenneth Shaw, Jr. ( 2010 )

Case: 10-40081 Document: 00511248674 Page: 1 Date Filed: 09/29/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 29, 2010
No. 10-40081
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KENNETH WAYNE SHAW, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:08-CR-188-1
Before GARWOOD, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Kenneth Wayne Shaw, Jr., pleaded guilty to being a felon in possession of
a firearm and ammunition. He reserved his right to appeal the denial of his
motion to suppress evidence. His sole contention on appeal is that the
policeman’s affidavit supporting the search warrant was a “bare bones” affidavit
so lacking in any indicia of probable cause that reliance on the warrant was
unreasonable. He argues that the affidavit revealed no basis for the knowledge
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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No. 10-40081
or reliability of two confidential informants (CIs) and that the CIs’ information
did not support a search warrant.
If a search warrant is supported by more than a bare bones affidavit, the
officers executing the warrant may rely in good faith on the warrant, even if it
is subsequently invalidated. United States v. Leon, 468 U.S. 897, 922-23 (1984);
United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992). A bare bones
affidavit is one that contains wholly conclusory statements and is “so lacking in
indicia of probable cause as to render official belief in its existence entirely
unreasonable.” Leon, 468 U.S. at 923; Satterwhite, 980 F.2d at 321 (internal
quotation marks and citation omitted). We apply de novo review to the
sufficiency of the warrant and to the reasonableness of a policeman’s reliance on
the warrant. Satterwhite, 980 F.2d at 321; see United States v. Cherna, 184 F.3d
403, 406-407 (5th Cir. 1999). Unless the defendant’s motion concerns a novel
question of law, it is unnecessary to address the issue of whether there was
probable cause for the search if we determine that the good faith exception to the
exclusionary rule applies. Satterwhite, 980 F.2d at 320.
Whether an affidavit is a bare bones affidavit is determined under the
totality of the circumstances. See United States v. Fisher, 22 F.3d 574, 578 (5th
Cir. 1994). Such a determination examines the veracity, reliability, and basis
of knowledge of a confidential informant. Id. Although we review the sufficiency
of the warrant de novo, a magistrate must be allowed to draw reasonable
inferences from the affidavit, and the ultimate determination of its adequacy is
entitled to great deference on review. United States v. May, 819 F.2d 531, 535
(5th Cir.1987). “Technical requirements of elaborate specificity once exacted
under common law pleadings have no proper place in this area.” Id (internal
quotation marks and citation omitted). Rather, the affidavit must be construed
“in a common sense manner.” United States v. Jackson, 818 F.2d 345, 348 (5th
Cir. 1987) (internal quotation marks and citation omitted). There is no
requirement that all of an informant’s tips be corroborated by police
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investigation in order to be considered credible. See United States v. Blount, 123
F.3d 831, 836 (5th Cir. 1997) (en banc).
The affidavit stated in pertinent part that,
Your Affiant has received information from a Confidential
Informant, referred to as a CI that the CI has personally seen
SHAW in possession of two (2) handguns, described by the CI as
being semi-auto handguns and possibly being .45 caliber, within the
last 72 hours. Your Affiant has also received information from
another CI that there is a locked box in the closet in this one
bedroom apartment that contains an additional handgun. Your
Affiant has also received information from numerous concerned
citizens that SHAW has been seen carrying a handgun on his,
SHAW’S, person. The CI’s have been proven true, correct, and
reliable in past.
This case does not concern a novel question of law, so we turn to the good-
faith exception to the exclusionary rule. We have upheld similar affidavits based
on the personal observations of a previously reliable informant. See United
States v. McKnight, 953 F.2d 898, 904-05 (5th Cir. 1992) (“The Constable’s
assertion that the confidential informant was ‘reliable’ and had ‘furnished him
with information in the past that has proved to be reliable and true’ provided the
magistrate with sufficient indicia of the reliability and veracity of the
informant’s tip.”); Satterwhite, 980 F.2d at 321 (approving of an affidavit that
“provided the magistrate with facts, and not mere conclusions”); Christian v.
McKaskle, 731 F.2d 1196, 1198, 1200 (5th Cir. 1984) (finding that “a factual
basis for the credibility of an informant can be supplied by an ‘explicit claim of
past reliability’”; and finding that an affidavit was adequate where the CI
asserted that he saw drugs at a location within the previous 24 hours). In this
case, it is notable there were two distinct, previously reliable confidential
informants who provided information about the defendant’s possession of
firearms, as well as information from “numerous concerned citizens.”
Additionally, the second confidential informant provided a specific description
of where the handgun could be found in the defendant’s apartment, providing a
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sufficient nexus between the evidence and the place to be searched. Under a
common sense reading of the affidavit, a magistrate could presume that the
second confidential informant must have had some familiarity with the
defendant’s residence in order to describe the firearm’s location with such
specificity. The police officer-affiant, who also participated in the search,
explained at the defendant’s suppression hearing that the defendant’s address
was common knowledge to him based on years of patrolling the area and his
recent investigation of the defendant for drug trafficking.
Under the totality of the circumstances, and affording proper deference to
the magistrate who read the affidavit and issued the warrant, the affidavit set
forth ample facts and circumstances from which the magistrate could reasonably
find probable cause. The good faith exception to the exclusionary rule therefore
applies, and the judgment of the district court is AFFIRMED.
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