     Case: 19-50754       Document: 00515420158         Page: 1     Date Filed: 05/18/2020




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

                                                                                FILED
                                     No. 19-50754                           May 18, 2020
                                   Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JAMES LUTHER GODFREY, III,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:18-CR-302-1


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       James Luther Godfrey, III, entered a conditional-guilty plea to being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), reserving
his right to challenge the denial, after a hearing, of his motion to suppress
evidence. Godfrey was sentenced below the advisory Sentencing Guidelines
sentencing range to, inter alia, 50-months’ imprisonment. He contends the
district court committed reversible error by denying his suppression motion


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 19-50754     Document: 00515420158       Page: 2   Date Filed: 05/18/2020


                                   No. 19-50754

because the evidence against him was gathered pursuant to a warrant
grounded in a bare-bones affidavit.
      When considering the denial of a suppression motion, “we review the
district court’s factual findings for clear error and its legal conclusions de novo”.
United States v. Bruno, 487 F.3d 304, 305 (5th Cir. 2007) (citations omitted).
Officers executing a search warrant may rely in good faith on a warrant, even
if it is subsequently invalidated. United States v. Leon, 468 U.S. 897, 922–24
(1984).
      This good-faith exception does not apply, however, if, inter alia, the
affidavit supporting the warrant so lacks indicia of probable cause that it is a
bare-bones affidavit. See id. at 923 (citation omitted); United States v. Mays,
466 F.3d 335, 343 (5th Cir. 2006) (citation omitted). A bare-bones affidavit is
one that “contain[s] wholly conclusory statements, which lack 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) (citation
omitted). Whether an affidavit is bare bones is determined under the totality
of the circumstances, see United States v. Fisher, 22 F.3d 574, 578 (5th Cir.
1994) (citation omitted), and using common sense, see United States v. Jackson,
818 F.2d 345, 348 (5th Cir. 1987) (citation omitted).
      The affidavit at issue is not made up of “wholly conclusory statements”,
lacking “facts and circumstances from which [the] magistrate [could]
independently determine probable cause”. See Satterwhite, 980 F.2d at 321
(citation omitted). Examples of such conclusory statements include: “the
affiant ‘has cause to suspect and does believe’ that liquor illegally imported is
located on certain premises”; and “the affiants ‘have received reliable
information from a credible person and do believe’ that heroin is stored in a
home”.    United States v. Brown, 941 F.2d 1300, 1303 n.1 (5th Cir. 1991)



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                                  No. 19-50754

(citations omitted). In contrast, the officer’s affidavit at issue specified that Ed
Tally (a citizen-informant property inspector) saw contraband in a certain
apartment when he entered it as part of his job.
      Further, Godfrey’s contention the affidavit at issue was bare bones
because it made no assertions regarding Tally’s credibility fails under United
States v. Blount, which provides that “absent specific reasons for police to doubt
his or her truthfulness, an ordinary citizen, who provides information to police
at a crime scene or during an ongoing investigation, may be presumed credible
without subsequent corroboration”. 123 F.3d 831, 835 (5th Cir. 1997) (en
banc); see also United States v. Fooladi, 703 F.2d 180, 183 (5th Cir. 1983)
(“When an average citizen tenders information to the police, the police should
be permitted to assume that they are dealing with a credible person in the
absence of special circumstances suggesting that such might not be the case.”
(alteration and citation omitted)).
      Although Godfrey attempts to distinguish Blount on the basis that the
informant in that case gave information in an ongoing investigation, there is
no indication this distinction is material. Instead, Blount held the pertinent
inquiry is whether officials are aware of certain facts undermining the citizen-
informant’s credibility. See Blount, 123 F.3d at 835. Godfrey casts no specific
doubts on Tally’s credibility and, therefore, has not shown it should not be
presumed credible.
      AFFIRMED.




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