United States v. Pope

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED NOVEMBER 6, 2006
October 17, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 04-51008
UNITED STATES OF AMERICA,
Plaintiff - Appellee
versus
CHERYL LEA POPE,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before JOLLY, WIENER and DENNIS, Circuit Judges.
WIENER, Circuit Judge:
The panel majority has sua sponte reconsidered arguments made
by the dissenting opinion and has concluded that they are well
taken. As a result, we now withdraw our original panel majority
opinion and the dissenting opinion,1 replacing them with the
following unanimous opinion, which affirms the Order of the
district court denying suppression as well as its judgment of
conviction by guilty plea and the sentence imposed.
Defendant-Appellant Cheryl Lea Pope entered a conditional plea
of guilty to a charge of conspiracy to manufacture methamphetamine,
reserving her right to appeal the district court’s denial of her
1
United States v. Pope, 452 F.3d 338 (5th Cir. 2006).
motion to suppress evidence obtained during a two-stage evidentiary
search of her residence. In the first stage, officers executed a
search warrant issued for the purpose of uncovering evidence of a
prescription-drug operation. At the outset of that stage, officers
observed evidence of a methamphetamine laboratory in plain view.
That evidence formed the basis of a second warrant issued to search
for evidence of a meth lab, the second stage of the search.
At the suppression hearing, the district court ruled that the
initial stage was unconstitutional because it was grounded in a
warrant issued on the basis of stale evidence. The court
nevertheless admitted the evidence from that unconstitutional
search in reliance on the good faith exception to the exclusionary
rule. Under that ruling, evidence from both stages of the search
of Pope’s residence was admitted.
The parties do not contest the district court’s determination
that, because of the staleness problem, the first stage
prescription-drug warrant was unsupported by probable cause.
Instead, Pope disputes the district court’s application of the good
faith exception to the exclusionary rule to the facts of this case.
Specifically, Pope contends that the first stage of the search does
not qualify under the good faith exception to the exclusionary rule
because (1) the officer who conducted the initial search of her
residence submitted a “recklessly false” affidavit to the state
district judge who authorized the search warrant, and (2) the
affidavit supporting the first search warrant was “so lacking in
2
indicia of probable cause as to render an officer’s belief in it
unreasonable.” We now hold that (1) because Pope did not make her
falsity argument in the district court —— either in her motion to
suppress or at the pre-trial hearing on that motion —— she has
waived that contention for purposes of this appeal, and we are
barred from considering it; and (2) the district court did not err
in concluding that the original affidavit was sufficiently detailed
to justify an officer’s reasonable belief that it indicated
probable cause to search Pope’s residence. We thus affirm Pope’s
conviction and sentence.
I. FACTS AND PROCEEDINGS
A. The Search
On June 25, 2003, Officer Michael Baird bought six
prescription pills from Pope as part of an undercover investigation
into her alleged drug activity. During the ensuing 78 days,
officers continued to investigate Pope and members of her family on
suspicion of illicit drug trafficking. On or about September 9th,
2003, Baird received a tip indicating that Pope was cooking
methamphetamine. Baird knew that he did not yet have probable
cause to obtain a warrant to search Pope’s residence for evidence
of a meth lab but believed that he did have probable cause to
justify a warrant based on the prescription drug violation.
Following receipt of the meth-lab tip, he drafted a search warrant
affidavit relating solely to the prescription-drug issue. In his
3
affidavit, Baird chose not to disclose his suspicion that Pope was
operating a meth lab, but instead avowed that he was applying for
“an evidentiary search warrant . . . . The purpose is to obtain
evidence of a crime that has already been committed,” i.e.,
evidence of the previous prescription-drug buy. A state district
judge issued a search warrant and authorized Baird to execute it.
Baird and other officers went to Pope’s home to execute the search
and observed evidence of meth production in plain view. Baird
immediately left the premises to obtain a second warrant, this one
to search for additional evidence of the meth lab.
B. Suppression Proceedings
Pope filed a motion to suppress all evidence recovered from
her home. In her motion, Pope argued that the first search warrant
was invalid because (1) the facts related in Baird’s affidavit were
stale, depriving Baird of probable cause to search Pope’s residence
for anything, (2) Baird’s affidavit was essentially conclusional in
nature, i.e., a “bare bones” affidavit, and (3) the items listed in
the warrant to be seized related exclusively to trafficking in
illegal narcotics or money laundering, but Baird’s affidavit
mentioned only the single, ten-dollar prescription drug transaction
that occurred 78 days earlier. Pope also contended that the
infirmities in the first warrant effectively invalidated the
second, the “fruit of the poisonous tree” argument. Finally, Pope
insisted that, under the particular facts of this case, the
4
government could not rely on the “good faith” exception to the
exclusionary rule.
The district court held that (1) Baird’s affidavit was not
conclusional, and (2) the items to be searched for did relate to
the activity detailed in the affidavit, but (3) the warrant lacked
probable cause because the information regarding the prescription-
drug sale was stale. The court nevertheless denied Pope’s motion
to suppress, applying the “good faith” exception to Baird’s initial
search. In reaching this conclusion, the district court rejected
Pope’s argument that the “good faith” exception should not apply in
this case, because the search warrant was based on an affidavit “so
lacking in indicia of probable cause as to render an officer’s
belief in it unreasonable.”2
II. ANALYSIS
A. Standard of Review
When a district court grants or denies a motion to exclude
evidence, we review that court’s factual findings for clear error.3
We review its conclusions of law de novo.4
B. Analysis
2
United States v. Leon, 468 U.S. 897, 918 (1984)(discussing
instances in which an officer’s claim of “good faith” reliance on
a warrant’s validity cannot be credited).
3
United States v. Reyes-Ruiz, 868 F.2d 698, 701 (5th Cir.
1989).
4
United States v. Alvarez, 127 F.3d 372, 373 (5th Cir.
1997).
5
1. Law
The exclusionary rule requires courts to suppress evidence
seized on the basis of a warrant that is unsupported by probable
cause.5 The purpose of the exclusionary rule is to deter unlawful
police conduct. As the Supreme Court has repeatedly observed:
The deterrent purpose of the exclusionary rule
necessarily assumes that the police have engaged in
willful, or at the very least negligent, conduct which
has deprived the defendant of some right. By refusing to
admit evidence gained as a result of such conduct, the
courts hope to instill in those particular investigating
officers, or in their future counterparts, a greater
degree of care toward the rights of the accused.6
The exclusionary rule is not without limits, however. As the Court
cautioned, “[w]here the official action was pursued in complete
good faith, however, the deterrence rationale loses much of its
force.”7 Therefore, if the officers obtained the evidence “in
objectively reasonable good-faith reliance upon a search warrant,”
the evidence is admissible “even though the affidavit on which the
warrant was based was insufficient to establish probable cause.”8
The “good faith inquiry is confined to the objectively
ascertainable question whether a reasonably well-trained officer
would have known that the search was illegal despite the
5
Mapp v. Ohio, 367 U.S. 343 (1961).
6
Leon, 468 U.S. at 919 (quoting United States v. Peltier,
422 U.S. 531, 539 (1975)).
7
Id. (quoting Peltier, 422 U.S. at 539).
8
United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir.
1992).
6
magistrate’s authorization.”9 In conducting the good faith
inquiry, the court may examine “all of the circumstances”
surrounding the issuance of the warrant.10 “[S]uppression of
evidence obtained pursuant to a warrant should be ordered only on
a case-by-case basis and only in those unusual cases in which
exclusion will further the purposes of the exclusionary rule.”11
2. Merits
a. Pope’s Arguments on Appeal
As noted, the district court held that “the good faith
exception applies to the... search warrant,” i.e., a reasonably
well-trained officer would not have known that the information
provided in Baird’s affidavit was stale, given the state district
judge’s authorization. In its conclusions of law, the district
court noted the exceptional circumstances in which the good faith
exception does not apply, including,
i. when the magistrate or state judge issues
a warrant in reliance on a deliberately
false affidavit;
ii. when the magistrate or state judge
abandons his or her judicial role and
fails to perform in a neutral and
detached fashion;
iii. when the warrant is based on an affidavit
so lacking in indicia of probable cause
as to render an officer’s belief in it
unreasonable; and
9
Leon, 468 U.S. at 922 n.23.
10
Id.; accord United States v. Payne, 341 F.3d 393, 400
(5th Cir. 2003).
11
Leon, 468 U.S. at 918.
7
iv. when the warrant is so facially deficient
that it fails to particularize the place
to be searched or the items to be
seized.12
On appeal, Pope contends that both the first and third of these
exceptions to the good faith exception should apply in this case.
She argues that Baird’s affidavit was “recklessly false” because
(1) he failed to disclose to the state district judge that the
“real purpose” for seeking the warrant was to find evidence of a
meth lab, and (2) no well-trained officer reasonably would believe
that probable cause existed —— based on a ten-dollar prescription-
drug purchase —— to seize any of the items listed in the search
warrant. She also argues that the affidavit on which the first
search warrant was based was “bare bones,” i.e., “so lacking in
indicia of probable cause as to render an officer’s belief in it
unreasonable.”
b. Pope’s Theories in the District Court
Crucially, however, Pope advanced only the “bare bones
affidavit” contention in the district court. She stated in her
motion to suppress that “the Leon Court established four exceptions
to this [exclusionary] rule, one of which, the ‘bare bones
affidavit’ exception, is relevant here.”13 Nowhere in her motion
did Pope even suggest that Baird lied in his affidavit by
12
Id. at 914.
13
Emphasis added.
8
concealing or deliberately omitting from the state district judge
the “real purpose” for wanting to search Pope’s residence. She
certainly never argued the point to the district court sufficiently
to place it before that court for it to consider and decide.
At the suppression hearing, Pope’s counsel did question Baird
about his decision not to tell the state district judge about
Baird’s suspicions that Pope was cooking meth when he asked for the
search warrant. Baird responded that he did not mention his
suspicions because he did not believe that they rose to the level
of probable cause, and because he wanted his affidavit to “stand on
its own.” Pope’s counsel also asked Baird why the officers
accompanying him to Pope’s residence wore protective gear. Baird
answered that the officers wore protective gear as a precaution,
based on the possibility that they might encounter a meth lab.
Baird remained steadfast, however, that “the intent of the search
warrant was to find mere evidence of a previous [prescription-drug]
buy.”
Exactly what Pope’s counsel hoped to achieve through this line
of questions is not clear, and we are loath to speculate about that
now. At the conclusion of Baird’s testimony, though, the district
court asked Pope’s counsel to reiterate and clarify Pope’s legal
position. It presumably did so to ensure that its ruling would
address all issues that she sought to raise, including any that she
may have raised during the suppression hearing that were not
included in her written motion. In response, Pope’s counsel
9
identified only those arguments made in her motion to suppress,
viz., that (1) the affidavit was based on stale information, (2)
the affidavit was “bare bones,” and (3) the good faith exception
cannot apply because Baird’s affidavit was totally lacking in
indicia of probable cause. Although these claims challenge the
sufficiency of Baird’s affidavit to support either the state
district judge’s determination that probable cause existed or
Baird’s good faith in relying on that determination, none
challenges its truthfulness. Prior to appeal, Pope simply did not
assert that Baird lied in his affidavit about the “real purpose” of
his proposed search.
c. The District Court’s Decision
This omission is confirmed in the district court’s conclusions
of law regarding the Leon good faith exception. In addressing
whether any of the “exceptions to the exception” would preclude
Baird’s good faith reliance on the facially valid search warrant,
the district court spoke to each exception in turn:
Therefore, although the affidavit must be
considered stale, as discussed supra, the good
faith exception applies. Here, the
information the state district judge relied on
was not false in that the Officer admitted
that the sale took place in June. There is no
evidence, and the Defendant does not argue
that the state district judge abandoned his
role as neutral when deciding if a search
warrant should issue in this case. The
Officer testified that because he wanted the
affidavit to stand on its own, he never
mentioned to the state district judge that
there was also a reasonable suspicion that
10
Defendant Pope was involved in meth
production. Because the affidavit recounts
the illegal sale in detail, the affidavit
cannot fail as a bare bones affidavit and
finally, the place to be searched and the
items to be seized are explicit. Not only had
the Officer been to the home, but business or
bank records are precisely the sorts of items
which people tend to keep in their home for a
long period of time.14
As the district court saw it, the only question related to the
affidavit’s truthfulness was whether Baird had told the truth about
when the prescription pill transaction took place. The court
addressed Baird’s failure to mention his meth-related suspicions
only to reinforce its conclusion that the neutrality and detachment
of the state district judge had not been affected by Baird’s
unrevealed motive. Similarly, the court mentioned the items to be
seized only to determine whether, given Baird’s statements, they
were “explicit” enough to preclude a finding that the warrant was
“facially deficient”; not to determine whether Baird’s affidavit
stating his belief that such items would be found at Pope’s
residence was “recklessly false.”
d. Pope’s “Falsity” Argument Was Waived
Put simply, the district court decided the motion to suppress
based on the issues presented to it. We may review the propriety
of that decision, then, only within that framework. We may not
test it on grounds or theories never presented to that court in the
first place. If Pope believed that Baird’s “real purpose” for
14
Emphasis added.
11
pursuing the prescription-drug search was to look for evidence of
a meth lab, and the statement of purpose in his affidavit was,
therefore, “deliberately or recklessly false,” she should have made
that point in her motion to suppress or at the suppression hearing.
Only the district court had a real opportunity to assess the weight
of the evidence —— particularly Baird’s credibility —— on this
point.
We have held that a “a defendant who fails to make a timely
suppression motion cannot raise that claim for the first time on
appeal.”15 We have also held that failure to raise specific issues
or arguments in pre-trial suppression proceedings operates as a
waiver of those issues or arguments for appeal.16 The reasons for
such a rule are obvious, beginning, of course, with Fed. R. Crim.
P. 12(b)(3)(C), which requires that a motion to suppress evidence
be raised before trial. In Chavez-Valencia, we observed that
“[i]f, at trial, the government assumes that a defendant will not
15
United States v. Chavez-Valencia, 116 F.3d 127, 130 (5th
Cir. 1997)(finding its conclusion “supported by the language,
history, and structure of [Federal Rules of Civil Procedure]
12(b)(3) and 12(f), by Fifth Circuit precedent, by the case law
of our sister circuits, and by sound policy considerations”).
16
See United States v. Harrelson, 705 F.2d 733, 738 (5th
Cir. 1983) (“[f]ailure to move pre-trial for suppression, or to
assert a particular ground in the suppression motion, operates as
a waiver”) (emphasis added and citations omitted); see also
United States v. Carreon-Palacio, 267 F.3d 381, 389 (5th Cir.
2001)(suppression argument not preserved for appeal when not
raised during suppression hearing below); United States v.
Medina, 887 F.2d 528, 533 (5th Cir. 1989) (“in order to preserve
an issue for appeal, the grounds for an objection must be stated
specifically”).
12
seek to suppress certain evidence, the government may justifiably
conclude that it need not introduce the quality or quantity of
evidence needed otherwise to prevail.”17 Furthermore, “if a
suppression motion is made before trial, the government may appeal
an adverse ruling . . . . [But] if the court considers suppression
motions after jeopardy attaches, the government loses this right.”18
Also, “little deterrence of unacceptable police conduct is lost by
refusing to review suppression claims not raised in the district
court.”19
Even though Chavez-Valencia involved a defendant’s failure to
move to suppress evidence, these rationales apply with equal force
when a defendant who has filed a motion to suppress makes a new or
different suppression argument for the first time on appeal. In
this case, the government was never put on notice that Pope would
argue that Baird’s undisclosed suspicions of meth production
rendered his affidavit “recklessly false.” It had no reason,
therefore, to reinforce Baird’s unchallenged statement that his
purpose was to find evidence related to the previous prescription-
drug transaction. The brief cross-examination of Baird on this
point, although perhaps raising the specter of some strategic
subterfuge on his part, fell far short of providing the government
17
Chavez-Valencia, 116 F.3d at 132.
18
Id.
19
Id.
13
notice that Pope was challenging the truthfulness of Baird’s
affidavit. It would be patently prejudicial to the government for
us to make an effectively unreviewable factual finding on this
point now, especially without the benefit of witnessing Baird’s
live testimony.
Even more importantly, the district court was never notified
that it was to decide whether, by omission or commission, Baird
lied to the state district judge about the “real purpose” for
seeking authority to search Pope’s residence. For us to consider
this argument now would run counter to axiomatic principles of
appellate review, and we decline to do so.20 The government did
note, in its response to Pope’s motion to suppress, that “[t]here
was no evidence of deliberate recklessness... in the affidavit.”
This assertion was not a direct response to any argument by Pope,
however, but only a matter-of-fact assessment made while briefly
acknowledging the inapplicability of each of the four exceptions to
the good faith exception to the exclusionary rule —— even those
20
Even were we to regard Pope’s argument as merely
forfeited and subject the district court’s decision to plain
error review, we would find no such error. Under the plain error
standard, the “appellant must show clear or obvious error that
affects his substantial rights; if he does, this court has
discretion to correct a forfeited error. . . .” United States v.
Gordon, 346 F.3d 135, 137 (5th Cir. 2003). Here, the district
court’s failure to find that Baird’s affidavit in support of the
first search warrant was “recklessly false” was not clearly or
obviously erroneous. Baird’s testimony at the suppression
hearing provided ample basis for the court to credit the
truthfulness of his stated purpose for seeking the initial search
warrant.
14
that Pope did not assert should apply. Similarly, the district
court concluded that “the information the state district judge
relied on was not false in that the Officer admitted that the sale
took place in June.” This conclusion, however, only addresses the
potential falsity of the allegation in the context of Pope’s
successful staleness claim; i.e, whether Baird lied in his
affidavit about the date of the prescription-drug buy. This
conclusion has no bearing on the claim, which Pope now urges for
the first time, that Baird lied (by reckless omission) about the
“real purpose” for his search of Pope’s residence. As noted,
Pope’s failure to raise this issue in the district court bars our
consideration whether Baird’s decision not to reveal his suspicions
about Pope’s meth production to the state district judge rendered
the affidavit “recklessly false.”
e. “Bare Bones” Affidavit
We review de novo the district court’s rejection of Pope’s
properly preserved claim that Baird’s reliance on the first search
warrant was unreasonable because his affidavit supporting that
warrant was “so lacking in indicia of probable cause as to render
officer’s belief in its existence unreasonable.” We agree with the
district court that Baird’s affidavit, limited as it was to facts
concerning the previous prescription-drug transaction, was not a
“bare bones” affidavit. “Bare bones” affidavits typically “contain
wholly conclusory statements, which lack the facts and
15
circumstances from which a magistrate can independently determine
probable cause.”21 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 on the premises.22 That is not the case here. Baird’s
affidavit was based on his direct participation in the illegal drug
transaction with Pope and his continuing investigation of such
activity. As the district court noted, the affidavit “outlined in
detail the illegal sale that [Pope] undertook with [Baird].” We
hold, therefore, that Baird’s reliance on the first search warrant,
issued on the basis of his affidavit, was not unreasonable, and
that the district court correctly applied the good faith exception
to the exclusionary rule in denying Pope’s motion to suppress the
evidence recovered from her residence.
III. CONCLUSION
As Pope made her “falsity” argument for the first time on
appeal, she waived it. We are therefore barred from addressing it.
The district court did not err in concluding that Baird’s affidavit
was not “bare bones,” or that his reliance on the warrant issued on
21
United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir.
1992).
22
See United States v. Brown, 941 F.2d 1300, 1303 n.1 (5th
Cir. 1991) (quoting Nathanson v. United States, 290 U.S. 41, 54
(1933) and Aguilar v. Texas, 378 U.S. 108, 114-15 (1964)).
.
16
the basis of that affidavit was reasonable, and thus in good faith.
Accordingly, Pope’s conviction and sentence are
AFFIRMED.
17