Opinion
6:18-cr-00330-ADA
06-04-2024
UNITED STATES OF AMERICA v. ANTONIO MAURICE GARDNER
TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDG
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE E
JEFFREY C. MANSKE UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(c) and Rules 1(h) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court is Defendant's Motion to Suppress (ECF No. 119). The United States filed a Response (ECF No. 130), and the Court heard oral arguments. For the reasons below, the undersigned RECOMMENDS that Defendant's Motion to Suppress be DENIED.
I. BACKGROUND
On October 30, 2018, Detective James Hickman prepared a narcotics search warrant affidavit for the defendant's residence. Def.'s Mot. to Suppress at 1. He presented the affidavit to Justice of the Peace David Barfield who issued the search warrant. Id. On October 31, 2018, the police executed the search warrant and found methamphetamine, Xanax, ecstasy pills, marijuana, drug paraphernalia, and a firearm at the defendant's residence. Id. at 2. On November 13, 2018, the defendant was indicted by a grand jury for possession with intent to distribute methamphetamine, a Scheduled II controlled substance under 21 U.S.C. 841(a)(1) and 841(b)(1)(C). Id.
The defendant pleaded guilty to the offense and was sentenced to 240 months of imprisonment. Gov.'s Resp. at 2. The case was appealed then remanded to the district court. Id. The defendant withdrew his guilty plea and filed this Motion to Suppress. Id.
In sum, the Motion to Suppress now before the Court seeks to suppress all evidence stemming from the search because the search warrant affidavit was bare bones and lacked any indicia of probable cause. The government responded, arguing the good-faith exception applies and that the affidavit establishes probable cause. At the suppression hearing, the Court heard testimony from Detective James Hickman of the Temple Police Department who prepared the warrant affidavit at issue. On May 24, 2024, the government submitted the Declaration of James Hickman offering additional testimony. On May 30, 2024, the defendant objected to the Declaration. Given that the Declaration was not subject to cross examination, the Court did not consider Hickman's Declaration in forming its Report and Recommendation.
II. THE SEARCH WARRANT
Detective Hickman's affidavit recites his experience and qualifications, then moves on to describe his basis for probable cause. The critical portion of the affidavit reads as follows:
On 10-30-18 and before the making of this affidavit, your affiant received information from a credible and reliable informant, who's (sic) identity must remain confidential for reasons of his/her own personal safety and well being, that methamphetamine is being kept and possessed at the above described place. Said informant has seen said suspected party in control and possession of said controlled substance in said suspected location within the past (72) hours of this affidavit, 10-30-18.
Said informant is well familiar with and has identified methamphetamine in front of affiant on previous occasions. Your affiant has received information, concerning narcotic activity, from said informant on other occasions and on those occasions informant has been proven to be true and correct.Def's Mot. to Suppress at Ex. A-1.
III. SUPPRESSION AND GOOD FAITH
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” U.S. Const. amend. IV. The exclusionary rule, which permits criminal defendants to seek exclusion (suppression) of evidence obtained through “illegal search and seizure,” provides one vehicle through which citizens may “effectuate [this] Fourth Amendment right.” United States v. Calandra, 414 U.S. 338, 347 (1974) (noting that this rule “applies as well to the fruits of the illegally seized evidence”). For decades, the Supreme Court has characterized exclusion through suppression as an “extreme sanction” that courts should apply only sparingly. United States v. Leon, 468 U.S. 897, 926 (1984); see also Herring v. United States, 555 U.S. 135, 141 (2009) (warning that application of the exclusionary rule exacts “substantial social costs”); Hudson v. Michigan, 547 U.S. 586, 591 (2006) (“Suppression of evidence, however, has always been our last resort, not our first impulse.”).
A court must engage in a two-part inquiry in deciding whether to suppress evidence: it generally must ask first whether the good-faith exception applies (and, in turn, whether any of the exceptions to that rule applies) and then ask whether probable cause supports the warrant in question. Leon, 468 U.S. at 924-25; see also United States v. Allen, 625 F.3d 830, 835 (5th Cir. 2010); United States v. Tovar, 719 F.3d 376, 385 n.8 (5th Cir. 2013). Courts generally consider whether probable cause supports the warrant only in the absence of good faith. See United States v. Stalnaker, 571 F.3d 428, 436 (5th Cir. 2009); United States v. Craig, 861 F.2d 818, 820 (5th Cir. 1988) (“Principles of judicial restraint and precedent dictate that, in most cases, we should not reach the probable cause issue if . . . the good-faith exception of Leon will resolve the matter.”). “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.” United States v. Payne, 341 F.3d 393, 399 (5th Cir. 2003) (citing Leon, 468 U.S. at 921-25). Normally, the issuance of a warrant by a magistrate is sufficient to establish an officer's good faith. United States v. Pena-Rodriquez, 110 F.3d 1120, 1130 (5th Cir. 1997). The government cannot establish good faith, however, if one of the following four circumstances is present:
(1) When the issuing magistrate was misled by information in an affidavit that the affiant knew or reasonably should have known was false;
(2) When the issuing magistrate wholly abandoned his judicial role;
(3) When the warrant affidavit is so lacking in indicia of probable cause as to render official belief in its existence unreasonable; and
(4) When the warrant is so facially deficient in failing to particularize the place to be searched or the things to be seized that executing officers cannot reasonably presume it to be valid.United States v. Beverly, 943 F.3d 225, 232-33 (5th Cir. 2019) (citing United States v. Woerner, 709 F.3d 527, 533-34 (5th Cir. 2013)). The defendant alleges that the third and fourth circumstances apply to this case.
In considering whether the good-faith exception applies, the Court does not attempt to determine an officer's subjective belief regarding the validity of the warrant. Leon, 468 U.S. at 922 n.23. Where a warrant is supported by more than a bare-bones affidavit, an officer may rely in good faith on the warrant's validity. Leon, 468 U.S. at 924. “A defendant normally bears the burden of proving by a preponderance of the evidence that the challenged search or seizure was unconstitutional.” United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005); see also United States v. Iraheta, 764 F.3d 455, 461 (5th Cir. 2014). A defendant also bears the burden of showing that the good-faith exception to the exclusionary rule does not apply. United States v. Jarman, 847 F.3d 259, 264 (5th Cir. 2017).
The Court first addresses the good-faith exception. See United States v. Gentry, 941 F.3d 767, 779 (5th Cir. 2019) (a court should only reach the probable-cause inquiry if this inquiry “presents a novel question of law, resolution of which is necessary to guide future action by law enforcement officers and magistrates”). The defendant contends that the affidavit at issue seeks to establish probable cause by the affiant's conclusory statements and is so facially deficient—so bare bones—that the good-faith exception cannot apply.
A bare bones affidavit is an affidavit that contains “wholly conclusory statements, lacking the facts and circumstances from which a magistrate can independently determine probable cause.” United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992)); see also United States v. Pope, 467 F.3d 912, 920 (5th Cir. 2006) (“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.”) (alterations omitted). “Whether an affidavit is bare bones is determined under the totality of the circumstances[.]” United States v. Godfrey, 805 Fed.Appx. 318, 318-19 (5th Cir. 2020) (citing United States v. Fisher, 22 F.3d 574, 578 (5th Cir. 1994)). “The issuing judge must be allowed to draw reasonable inferences from the affidavit, and the ultimate determination of the affidavit's adequacy is entitled to great deference on review.” Hall, 2014 WL 12646032, at *3 (citing United States v. May, 819 F.2d 531, 535 (5th Cir. 1987)). “[O]n close calls second guessing the issuing judge is not a basis for excluding evidence.” United States v. Morton, 46 F.4th 331, 336 (5th Cir. 2022).
The analysis of a bare bones affidavit “focus[es] on whether the affidavit as a whole was bare bones.” Id. 339 (citing United States v. Cherna, 184 F.3d 403, 406 (5th Cir. 1999)). Morton provides six examples of bare bones affidavits. Id. at 337. Affidavits containing more relevant factual information than those examples are not wholly conclusory. One example affidavit states only that the affiant “received reliable information from a credible person and [believed that drugs were] being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.” Id. at 337 (citing Aguilar v. Tex., 378 U.S. 108, 109 (1964)). The affidavit presented to the Court in this case states, “said informant has seen said suspected party in control and possession of said controlled substance in said suspected location within the past (72) hours of this affidavit,” which is more relevant factual information than the affidavit in Aguilar. Def.'s Mot. to Suppress at Ex. A-1. The Fifth Circuit also cites Barrington as an example of an affidavit that is wholly conclusory. The Barrington affidavit only states that an officer “received information from a confidential informant” who was known to him and who had “provided information in the past that ha[d] led to arrest and convictions.” Morton, 46 F.4th at 337 (citing United States v. Barrington, 806 F.2d 529, 531 (5th Cir. 1986)). The affidavit before this Court contains more corroborated information than the affidavit in Barrington as analyzed using the indicia of probable cause factors from Fields below.
United States v. Fields identifies several “indicia of probable cause” that the Court should consider in identifying bare bones affidavits: 1) whether the informant's statements are against his or her own penal interests, 2) whether the information has been corroborated by independent investigation or contemporary observations of police, 3) the degree of detail of the information provided by the informant, and 4) whether the informant's reliability is corroborated by something other than unsupported conclusions of the affiant. United States v. Fields, 182 F.Supp.2d 575, 578-79 (citations omitted) (E.D. Tex. 2002). Defendant argues that Detective Hickman's affidavit fails each of the Fields factors.
This warrant affidavit is similar to the one offered in Smoot. See United States v. Redarious Richard Smoot, 6:22-CR-007, p. 2 (W.D. TX 1/2023); ECF No. 67. The relevant section of the Smoot warrant affidavit states:
Your affiant knows the informant has provided information in the past which has proven reliable and credible. The informant has demonstrated to your affiant that they know what illegal narcotics/controlled substances looks like, how it is sold, how it is used, how it is packaged, and understands the various quantities and weights of illegal narcotics as it is trafficked on the street. The informant has provided your affiant with information documented in this affidavit which your affiant verified through independent investigation.Id. at Ex. 2.
Applying the first Fields factor to the Smoot affidavit, the affidavit is devoid of any indication that the informant's statement was against his penal interest or that officers warned him of the consequences of misleading police in the investigation. The same is true in this case. Defendant's Motion to Suppress at Ex. A-1 (ECF No. 119); see also supra at 2. This factor indicates that the affidavit is bare bones.
Second, Detective Hickman's affidavit offers only generalized corroboration of the informant's assertions through independent police investigation or observation. Id. The warrant affidavit asserts, “[y]our affiant has received information, concerning narcotic activity, from said informant on other occasions and on those occasions informant has been proven to be true and correct.” Id. The offered corroboration is substantially similar to the conclusory language used in Smoot. In Smoot, the affidavit states, “[t]he informant has provided your affiant with information documented in this affidavit which your affiant verified through independent investigation.” Smoot, 6:22-CR-007 at Ex. 2. Neither affidavit offers specific details of this informant's actual past performance. This factor weighs against good faith.
Third, the degree of factual detail provided in the affidavit is better than that which was offered in Smoot. In Smoot, the affidavit stated, “[t]he informant has demonstrated to your affiant that they know what illegal narcotics/controlled substances looks like, how it is sold, how it is used, how it is packaged, and understands the various quantities and weights of illegal narcotics as it is trafficked on the street.” Id. As to the informant's specific knowledge of the scene and drugs involved, this affidavit first offers that the informant reported that “methamphetamine is being kept and possessed at the above described place.” Def.'s Mot. to Suppress at Ex. A-1. Unlike the Smoot affidavit, this affidavit additionally offers that the informant had “seen said suspected party in control and possession of said controlled substance in said suspected location.” Id. This addition explicitly ties the residence to the defendant and, more importantly, specific illegal activity at the address.
This Court reviewed another similar affidavit in United States v. Jimel Harris, 6:20-CR-122-ADA, ECF No. 38 at 3. The Harris affidavit mentioned that the informant reported having seen “several crack rocks” of cocaine in the defendant's room at a motel, and that she had identified the defendant from photographs. Id. Case-specific, easily included details like this help meet the requisite minimum of specificity in a warrant affidavit. United States v. Cisneros, 112 F.3d 1272, 1278-79 (5th Cir. 1997). Detective Hickman's addition of case-specific details in the instant affidavit similarly favors a finding of good faith.
Fourth, Hickman offers little corroboration of the informant's reliability. The affidavit states:
Said informant is well familiar with and has identified methamphetamine in front of affiant on previous occasions. Your affiant has received information, concerning narcotic activity, from said informant on other occasions and on those occasions informant has been proven to be true and correct.
Def.'s Mot. to Suppress at Ex. A-1. The offered corroboration of the informant's reliability is boilerplate and similar to that included in the Smoot affidavit. The Smoot affidavit states, “[y]our affiant knows the informant has provided information in the past which has proven reliable and credible.” Smoot, 6:22-CR-007 at Ex. 2. While similar to Smoot, Hickman further noted that the confidential informant had correctly identified methamphetamine in front of affiant on previous occasions as opposed to Smoot's more conclusory assertion of informant credibility. Moreover, this affidavit is better than that offered in Barrington, 806 F.2d at 531. In the Barrington affidavit, the officer stated only that he “received information from a confidential informant” who is “known to [the officer] and has provided information in the past that has led to arrest and convictions.” Officer Hickman's boilerplate corroboration of the informant's reliability offers weak support for a finding of good faith, but it is demonstrably better than the Barrington affidavit.
Considering the totality of the circumstances by applying the factors in Fields to the Morton standard, the Court finds that this affidavit is sufficient to warrant the good-faith exception. Godfrey, 805 Fed.Appx. at 318-19; Fields, 182 F.Supp.2d at 578-79; Morton, 46 F.4th at 339.
IV. RECOMMENDATION
The Court recommends the DENIAL of Defendant's Motion to Suppress (ECF No. 119). The parties may wish to file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985).