To determine whether a defendant had a reasonable expectation of privacy in a place or thing, the factors to be weighed include: (1) whether the defendant has a possessory interest in the thing seized or the place searched; (2) whether he has the right to exclude others from that place; (3) whether he has exhibited a subjective expectation that it would remain free from governmental invasion; (4) whether he took normal precautions to maintain his privacy; and (5) whether he was legitimately on the premises. See Gomez, 276 F.3d at 697-98 (citing United States v. Haydel, 649 F.2d 1152, 1155 (5th Cir. 1981), cert. den., 455 U.S. 1022 (1982)); see also United States v. Setser, 568 F.3d 482, 490-91 (5th Cir. 2009), cert. den., 558 U.S. 963 (2009); United States v. Torres, 346 Fed.Appx. 983, 988 (5th Cir. 2009), cert, den., 559 U.S. 1022 (2010). No one circumstance has a decisive, or “talismanic,” significance.
Following a jury trial with his co-defendants (Jaime and Blanca Torres), Roberto Torres was convicted of conspiracy to possess with intent to distribute more than 1000 kilograms of marijuana, in violation of 21 U.S.C. § 846; conspiracy to import more than 1000 kilograms of marijuana, in violation of 21 U.S.C. §§ 952, 960, and 963; and conspiracy to launder money, in violation of 18 U.S.C. § 1956(a)(1) and (h). See United States v. Torres, No. 2:06-cr-76-AM (06) (W.D. Tex. 2008), aff'd, 346 F. App'x 983 (5th Cir. 2009) (per curiam), cert. denied, 559 U.S. 1022 (2010). Through the Section 2241 petition, liberally construed, it appears that Torres brings a constitutional vagueness challenge to 21 U.S.C. § 841, a challenge to the amount of marijuana to which he was held accountable for sentencing purposes, and a challenge under the Fourth Amendment.
"To determine whether 'stale' information in an affidavit makes a search fall outside the good faith exception, [the Fifth Circuit] has said that the proper inquiry is whether the staleness caused the warrant to be 'so deficient that no reasonable officer could have believed that it established probable cause.'" United States v. Torres, 346 F. App'x 983, 990 (5th Cir. 2009) (quoting United States v. Craig, 861 F.2d 818, 821 (5th Cir. 1988)). "Staleness is to be determined on the facts of each case."
None of these arguments is sufficient to come under the first Leon exception because none establishes the necessary state of mind. The first exception requires "requisite mens rea," United States v. Torres, 2009 WL 3199651, at *5 (5th Cir. Oct. 6, 2009) (per curiam) (emphasis in original), namely, that the affiant "intended to or believed he was likely misleading the court as to the basis for or strength of his belief." Id.