     Case: 12-50954      Document: 00512492561         Page: 1    Date Filed: 01/08/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                      No. 12-50954                           January 8, 2014
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff – Appellee,
v.

RAYMOND RODRIGUEZ,

                                                 Defendant – Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:10-CR-794


Before JONES, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Raymond Rodriguez appeals the district court’s denial of his motion to
suppress evidence seized from his residence. We AFFIRM.
                         I. Factual and Procedural History
       Steve Wilkins, a Texas Department of Public Safety (“DPS”) officer,
sought a warrant to search a residence located at 318 Amberdale Oak, San
Antonio, Texas (the “Residence”). In his affidavit in support of the warrant,
Agent Wilkins stated that probable cause existed to suggest that Rodriguez


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-50954
was living at the Residence in possession of cocaine. Agent Wilkins explained
that during an unrelated investigation, a cooperating defendant (“CD”) gave
information to another DPS agent, alleging that Rodriguez was a supplier of
cocaine in the San Antonio area. 1 Based on this information, Agent Wilkins
began to investigate Rodriguez and determined on August 27, 2010, that he
currently resided at the Residence.              Agent Wilkins confirmed this belief
through surveillance of the Residence. He also conducted a utilities check on
the location and performed a registration check on the vehicle parked at the
Residence, which revealed that the utilities and the vehicle were registered to
Rodriguez.
       On August 31, 2010, Agent Wilkins searched a trash can that had been
placed against the curb in front of the residence. Agent Wilkins concluded that
the trash can had been placed there for garbage pickup because the day of his
search was a garbage collection day in the neighborhood and there were other
trash cans along the street presumably placed there in anticipation of trash
pickup. Agent Wilkins searched two trash bags that he retrieved from the
trash can and discovered “several clear plastic sandwich style baggies
containing a white powdery residue.” 2 Agent Wilkins found a cell phone bill
addressed to Rodriguez in the same trash bag as the plastic baggies. One of
the baggies was field tested, and the residue tested positive for cocaine.




       1 The CD also related that he had seen cocaine at Rodriguez’s previous residence and
that he had previously purchased two ounces of cocaine from Rodriguez. However, Agent
Wilkins’s affidavit gave no indication as to when the CD had seen cocaine at Rodriguez’s
previous residence, when the CD purchased the cocaine, when this information was relayed
by the CD to the other DPS agent, or when the other DPS agent relayed this information to
Agent Wilkins. The Government concedes that the information provided by the CD standing
alone is insufficient to constitute probable cause.
       2 The size of the baggies was also consistent with the amount of cocaine the CD stated

that he had previously purchased from Rodriguez.
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                                        No. 12-50954
       The same day he conducted his trash search, Agent Wilkins signed the
affidavit, stating that he believed that the Residence contained a quantity of
cocaine intended for distribution.            A magistrate judge issued the search
warrant, and a search of the Residence took place on that same day. During
the search, the police located over $9000 in cash, a 9 mm Taurus handgun, a
ledger, two cell phones, and 1755.39 grams of cocaine.
       Rodriguez was charged with possession with intent to distribute over 500
grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). He moved
to suppress the evidence seized from the Residence. After the district court
denied his motion, Rodriguez entered a conditional plea of guilty, reserving his
right to appeal the denial of his suppression motion. He filed a motion for
reconsideration concerning his motion to suppress, which the district court
denied. Rodriguez timely appealed.
                                       II. Discussion
       The factual findings underlying the district court’s denial are reviewed
for clear error; the court’s legal conclusions are reviewed de novo. United
States v. Gibbs, 421 F.3d 352, 356–57 (5th Cir. 2005). When the evidence
sought to be suppressed was discovered pursuant to a search warrant, “we
[first] determine whether the good-faith exception to the exclusionary rule
announced in United States v. Leon, 468 U.S. 897 (1984), applies.” 3 Cherna,
184 F.3d at 407.




       3  If the good-faith exception applies, “we end our analysis and affirm the district
court’s decision to deny the motion to suppress” without considering whether the warrant
was supported by probable cause. United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999);
see also United States v. Payne, 341 F.3d 393, 399 (5th Cir. 2003) (“If [the good-faith exception
applies], 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.” (citations and internal quotation marks omitted)).
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      The good-faith exception provides that a motion to suppress should not
be granted if the officer executing the warrant relied upon it in good faith.
Gibbs, 421 F.3d at 357. “Good faith” is determined by examining the objective
reasonableness of the officer’s “reliance on the issuing-judge’s probable-cause
determination and the technical sufficiency of the warrant” in light of the
totality of the circumstances. Id. at 358. While the issuance of the warrant
ordinarily suffices to establish good cause, reliance on a warrant issued upon
a “bare bones affidavit” is not good faith. Id.; United States v. Craig, 861 F.2d
818, 821 (5th Cir. 1988); see also Payne, 341 F.3d at 399–400. A “bare bones”
affidavit is defined as one 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) (“[E]xamples 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 in original) (citation omitted)).
Whether an affidavit is “bare bones” is determined under “the totality of the
circumstances, including the veracity, reliability, and basis of knowledge of a
confidential informant.” 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. United States v. May, 819 F.2d 531, 535
(5th Cir. 1987).
      Rodriguez argues that Agent Wilkins’s affidavit is “bare bones” because
it does not establish a sufficient nexus connecting the drugs (and related
evidence) to the Residence. However, in addition to describing information he
received from the CD, Agent Wilkins detailed the investigation he performed
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                                       No. 12-50954
tying Rodriguez to the Residence, which included performing surveillance of
the location and conducting utilities and vehicle registration checks. Agent
Wilkins also described his search of the trash, which revealed drug
paraphernalia and a bill addressed to Rodriguez leading him to conclude that
there were probably drugs intended for distribution, as well as drug-related
evidence, at the Residence. Based on this information, a reasonably objective
officer could conclude that Agent Wilkins’s investigation established a
sufficient “nexus between the house to be searched and the evidence sought.” 4
See Payne, 341 F.3d at 400.
       Rodriguez also argues that the evidence from the trash search is stale
because Agent Wilkins did not witness Rodriguez place the trash can outside
for collection, and thus it is possible that the trash waited on the curb for
several days. However, the fact that the trash can and the baggies contained
therein may have been on the curb for several days does not preclude a
reasonably objective officer from concluding in good-faith that it was probable
that the items sought (i.e., drugs and “records, receipts, notes, ledgers, and
other papers relating to the . . . distribution of controlled substances”) were
still in the Residence. See Craig, 861 F.2d at 823 (observing that records “can




       4 We have previously applied the good-faith exception under similar circumstances,
observing that a trash search that revealed plastic baggies containing cocaine residue,
combined with evidence of the defendant’s prior arrests on narcotics violations, was
“sufficient to support a reasonable belief that contraband would be found inside the
residence.” See United States v. Sauls, 192 F. App’x 298, 300 (5th Cir. 2006) (unpublished).
Moreover, the Eighth Circuit concluded that a search of the garbage left outside a defendant’s
residence that revealed marijuana seeds and stems was “independently adequate” as stand-
alone evidence to establish probable cause that the defendant’s residence contained drugs
and related evidence. United States v. Briscoe, 317 F.3d 906, 907–08 (8th Cir. 2003)
(declining to apply the good-faith exception because stand-alone evidence of drugs in the
garbage was sufficient to establish probable cause). Because we conclude that the good-faith
exception applies, we need not decide here whether the drug-related evidence discovered in
the trash can outside Rodriguez’s residence standing alone suffices to establish probable
cause.
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reasonably be expected to be kept for long periods of time in the place to be
searched”); United States v. Freeman, 685 F.2d 942, 952 (5th Cir. 1982)
(evidence is not stale if the issuing judge could reasonably conclude that the
evidence sought under the warrant would still be present at the residence).
      In sum, Agent Wilkins’s reliance on the warrant was not objectively
unreasonable. See Craig, 861 F.2d at 823. Because we conclude that the good-
faith exception applies, we do not address Rodriguez’s argument that the
warrant was not supported by probable cause. See Cherna, 184 F.3d at 407.
      AFFIRMED.




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