United States v. Ramirez , 247 F. App'x 515 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
F I L E D
No. 06-51311
Summary Calendar September 11, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RALPH RAMIREZ
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas, San Antonio
No. 5:05-CR-247
Before KING, DAVIS, and CLEMENT, Circuit Judges..
PER CURIAM:*
Defendant-appellant Ralph Ramirez appeals his conviction, pursuant to
a conditional guilty plea, on one count of possession with intent to distribute
methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). We affirm.
On April 8, 2005, Detective Johnny Gomez of the San Antonio, Texas,
Police Department received a tip from a confidential informant who was in
custody and facing criminal charges that Ramirez was in possession of
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 06-51311
methamphetamine at his residence. Detective Gomez prepared an affidavit,
averring that the informant “had observed RALPH RAMIREZ in possession of
METHAMPHETAMINE within the past FORTY-EIGHT HOURS at 223 W.
SILVER SANDS #6 in San Antonio, Bexar County, Texas.” The affidavit also
stated that Detective Gomez had confirmed through a computer search that the
address on Ramirez’s drivers license matched the address given by the
informant. Additionally, the affidavit set forth certain facts to support the
informant’s credibility: (1) based on Detective Gomez’s conversations with the
informant and his own knowledge of and experience with methamphetamine, the
informant was familiar with methamphetamine (including how it looks and
smells and how it is packaged, sold, and used); (2) a separate confidential
informant had informed Detective Gomez that the primary informant was a
seller of methamphetamine; (3) although the informant was facing criminal
charges and provided the information with the expectation that his or her
cooperation could, if proven valid, result in leniency, no officer had promised the
informant anything in exchange for the information; (4) Detective Gomez had
explained to the informant that it would jeopardize his or her opportunity for
leniency if law enforcement were to discover that he or she had provided
information in a bad-faith attempt to obtain leniency; and (5) Detective Gomez
had explained to the informant that giving a false report to a police officer
violated section 37.08 of the Texas Penal Code, and he described the possible
penalties for such a violation.
Based on the affidavit, a city magistrate issued a search warrant for
Ramirez’s apartment. The next day, San Antonio Police Department officers,
including Detective Gomez, performed a search of Ramirez’s residence and
seized, inter alia, 55.7 grams of methamphetamine.
The grand jury indicted Ramirez on one count of possession with intent to
distribute five grams or more of methamphetamine in violation of 21 U.S.C. §
2No. 06-51311
841(a)(1) and (b)(1)(B). Ramirez filed a motion to suppress the evidence seized
during the search of his apartment, but the district court denied the motion.
Pursuant to a plea agreement, Ramirez conditionally pleaded guilty, preserving
his right to appeal the denial of his suppression motion.
On appeal, Ramirez contends that the district court should have granted
his motion to suppress because there was not probable cause to support the
warrant and because the affidavit used to secure the warrant was a “bare bones”
affidavit, thereby making it objectively unreasonable for an officer executing the
warrant to rely on it.
When reviewing a ruling on a motion to suppress, we review questions of
law de novo and factual findings for clear error. United States v. Jones, 234 F.3d
234, 239 (5th Cir. 2000). We review de novo the reasonableness of an officer’s
reliance upon a warrant issued by a magistrate. United States v. Satterwhite,
980 F.2d 317, 321 (5th Cir. 1992). We view the evidence in the light most
favorable to the party that prevailed in the district court. Jones, 234 F.3d at
239.
Where the challenged search was conducted pursuant to a warrant, we
must determine “(1) whether the good-faith exception to the exclusionary rule
applies; and (2) whether probable cause supported the warrant.” United States
v. Marmolejo, 86 F.3d 404, 417 (5th Cir. 1996). If the good-faith exception
announced in United States v. Leon, 468 U.S. 897 (1984), applies, then “we need
not reach the question of probable cause for the warrant unless it presents a
‘novel question of law,’ resolution of which is ‘necessary to guide future action by
law enforcement officers and magistrates.’” United States v. Payne, 341 F.3d
393, 399 (5th Cir. 2003) (citing United States v. Pena-Rodriguez, 110 F.3d 1120,
1129-30 (5th Cir. 1997)). As this case does not present a novel question of
Fourth Amendment law, we will bypass the probable-cause determination and
proceed to the application of the Leon good-faith exception.
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No. 06-51311
“In considering whether the good-faith exception applies, we do not
attempt an ‘expedition into the minds of police officers’ to determine their
subjective belief regarding the validity of the warrant.” Id. (quoting Leon, 468
U.S. at 922 n.23 (internal quotation marks omitted)). “Rather, our inquiry is
‘confined to the objectively ascertainable question whether a reasonably well
trained officer would have known that the search was illegal despite the
magistrate’s authorization.’” Id. (quoting Leon, 468 U.S. at 922 n.3). “Whether
the exception applies will ordinarily depend on an examination of the affidavit
by the reviewing court, but all of the circumstances surrounding issuance of the
warrant may be considered.” Id. (internal citations, brackets, and quotation
marks omitted) (quoting United States v. Gant, 759 F.2d 484, 487-88 (5th Cir.
1985); Leon, 468 U.S. at 922 n.23).
“Under the good-faith exception, evidence obtained during the execution
of a warrant later determined to be deficient is admissible nonetheless, so long
as the executing officers’ reliance on the warrant was objectively reasonable and
in good faith.” Id. (citing Leon, 468 U.S. at 921-25). One of the circumstances
where an officer’s reliance on a warrant is not objectively reasonable is where
the affidavit used to secure the warrant is “bare bones,” i.e., “the warrant is
based on an affidavit so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable.” Id. at 399-400 (quoting United
States v. Webster, 960 F.2d 1301, 1307 n.4 (5th Cir. 1992)). “‘Bare bones’
affidavits typically ‘contain wholly conclusory statements, which lack the facts
and circumstances from which a magistrate can independently determine
probable cause.’” United States v. Pope, 467 F.3d 912, 920 (5th Cir. 2006)
(quoting Satterwhite, 980 F.2d at 321); see also Marmolejo, 86 F.3d at 417.
“Generally, examples of ‘bare bones’ affidavits include those that merely state
that the affiant ‘has cause to suspect and does believe’ or ‘has received reliable
information from a credible person and does believe’ that contraband is located
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No. 06-51311
on the premises.” Id. (brackets omitted) (quoting United States v. Brown, 941
F.2d 1300, 1303 n.1 (5th Cir. 1991)).
Ramirez first argues that the affidavit was deficient because the
information within it was stale, as at the time it was completed it had been up
to forty-eight hours since the informant had observed Ramirez in possession of
methamphetamine. It is true that the passage of time may affect the probable
cause inquiry. See United States v. Freeman, 685 F.2d 942, 951 (5th Cir. 1982)
(“Although probable cause may exist at one point to believe that evidence will be
found in a given place, the passage of time may (without additional newer facts
confirming the location of the evidence sought) render the original information
insufficient to establish probable cause at the later time.”). But in granting the
search warrant, the magistrate implicitly determined that the information in the
affidavit was sufficiently recent to support probable cause. We are not
persuaded that the passage of up to forty-eight hours in this case rendered the
information in the affidavit so stale that the officers’ reliance on the magistrate’s
probable-cause determination was objectively unreasonable.
Ramirez’s remaining contentions relate to the confidential informant’s
credibility and reliability, or alleged lack thereof. He argues (1) that although
Detective Gomez explained to the informant the possible penalties for making
a false statement to a police officer, this did not enhance the informant’s
credibility because the informant was not notified that he faced a “real risk” of
prosecution; (2) the informant’s personal motivation for assisting the police cast
doubt on the veracity of his tip; (3) the affidavit did not establish the credibility
and reliability of the second informant, who had informed Detective Gomez that
the primary informant was a seller of methamphetamine; and (4) the officers did
not sufficiently corroborate the primary informant’s tip.
We conclude, however, that there was sufficient evidence in the affidavit
to objectively justify the officers’ reliance on the magistrate’s independent
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No. 06-51311
probable-cause determination. The information set forth in the affidavit about
Ramirez’s possession of methamphetamine did not come from an anonymous tip;
it was information that a known individual had provided. The affidavit
recounted activities that the informant had witnessed himself or herself. The
informant appeared to be knowledgeable about methamphetamine; indeed,
Detective Gomez had information that the informant sold methamphetamine.
The informant had been warned of the possible danger he or she might face if
law enforcement discovered that the information was untrue. And Detective
Gomez verified that the address given by the informant was Ramirez’s.
Regardless of whether all of this together actually amounts to probable cause to
believe that Ramirez possessed methamphetamine at his home, it is beyond the
realm of mere conclusory statements and is sufficient for a magistrate to make
a probable-cause determination. Cf. Pope, 467 F.3d at 920 (“‘Bare bones’
affidavits typically ‘contain wholly conclusory statements, which lack the facts
and circumstances from which a magistrate can independently determine
probable cause.’”). The affidavit was therefore not bare bones, and the officers’
reliance on the magistrate’s probable-cause determination was not objectively
unreasonable. Consequently, the good-faith exception to the exclusionary rule
applies, and the district court’s denial of the motion to suppress was not
erroneous.
AFFIRMED.
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