     Case: 11-60575     Document: 00511939873         Page: 1     Date Filed: 07/31/2012




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

                                                                            FILED
                                                                            July 31, 2012
                                     No. 11-60575
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CHRISTOPHER MCMILLEN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:10-CR-40-2


Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
        Christopher McMillen was convicted of possession of child pornography
and aiding and abetting. He was sentenced to 120 months of imprisonment and
to 15 years of supervised release. He appeals the district court’s denial of his
motions to suppress evidence and incriminatory statements.
        As to his motion to suppress evidence, McMillen contends that the search
warrant did not sufficiently describe the place to be searched. Since two homes
were located on the property subject to the search warrant, McMillen contends

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-60575    Document: 00511939873      Page: 2   Date Filed: 07/31/2012

                                  No. 11-60575

that the mere description of the address in the warrant “was overbroad and left
absolute discretion to the officers in executing the warrant.”
      This court reviews a district court’s factual findings on a motion to
suppress for clear error and its legal conclusions on Fourth Amendment issues
de novo. United States v. Zavala, 541 F.3d 562, 573-74 (5th Cir. 2008) (internal
citation omitted). When a search has been conducted in accordance with a
warrant, this court uses a two-part test to review the district court’s denial of a
motion to suppress. United States v. Froman, 355 F.3d 882, 888 (5th Cir. 2004).
The first step involves examining whether the good faith exception to the
exclusionary rule applies. Id. (citing United States v. Leon, 468 U.S. 897, 919-20
(1984)). If the good faith exception applies, no further analysis is necessary
unless the case involves “a ‘novel question of law’ resolution of which is
‘necessary to guide future action by law enforcement officers and magistrates.’”
United States v. Payne, 341 F.3d 393, 399 (5th Cir. 2003). If the good faith
exception does not apply, then this court proceeds to the second step of the
analysis and considers whether there was probable cause to support the issuance
of the warrant. Froman, 355 F.3d at 888. This court reviews de novo whether
the exception applies. Payne, 341 F.3d at 399.
      Contrary to McMillen’s assertions, testimony at the suppression hearing
indicates that the officers did make diligent efforts to determine who resided at
the property prior to executing the search warrant. Officer Joseph Danny
Giroux testified that he drove by the property prior to executing the warrant, but
that no residence was visible from the road. Officer Giroux stated that both
houses are located a quarter mile off the main road. The only thing visible to the
officers from the road was a mailbox bearing the address “552 Highway 178.”
Officer Giroux further testified that he did view aerial maps prior to executing
the warrant. However, these maps only showed a trailer situated on the
property.



                                        2
   Case: 11-60575   Document: 00511939873      Page: 3   Date Filed: 07/31/2012

                                  No. 11-60575

      The suppression hearing further indicates that the officers made diligent
efforts to determine which residence was the likely target once it was discovered
that there were two residences on the property. After interviewing the resident
of the brick house and determining that he was not likely the perpetrator, the
officers inspected the internet cables and determined that the trailer was the
source of the internet connectivity. Further, utilizing a cell phone, officers
determined that a wireless internet signal was emanating from the trailer.
Officers then contacted the electric company and discovered that the trailer had
the same address as listed in the search warrant: “552 Highway 178.” Finally,
officers sought legal advice from the Assistant United States Attorney who
informed the officers that the search warrant was good for both residences.
Based on these factors, “[t]here was no deliberate, reckless or grossly negligent
conduct by law enforcement officers” to warrant application of the exclusionary
rule. See United States v. Allen, 625 F.3d 830, 840 (5th Cir. 2010), cert. denied,
132 S. Ct. 1632 (2012). As the district court determined, the officers acted in
good faith in executing the search warrant. See id.
      Moreover, the district court found credible the officers’ testimony that
McMillen’s wife consented to the search before they entered the trailer. This
determination by the district court is entitled to deference. See United States v.
Gibbs, 421 F.3d 352, 357 (5th Cir. 2005). Accordingly, the district court did not
err in denying McMillen’s motion to suppress evidence. See Zavala, 541 F.3d at
573-74.
      As to his motion to suppress statements, McMillen argues that he made
an “unambiguous and unequivocal” invocation of his right to counsel at the
beginning of the interrogation. Because his invocation was ignored by Officer
Giroux, McMillen contends that his statements should have been suppressed.




                                        3
   Case: 11-60575       Document: 00511939873        Page: 4   Date Filed: 07/31/2012

                                      No. 11-60575

      At the suppression hearing, Officer Giroux testified that he immediately
Mirandized1 McMillen and that McMillen executed a waiver of rights form.
Officer Giroux further testified that, although McMillen indicated that he had
spoken to his attorney, he stated that he was willing to answer questions
verbally. The district court accepted Officer Giroux’s testimony instead of
McMillen’s testimony that he immediately invoked his right to counsel at the
beginning of the interrogation. The district court relied on the waiver of rights
form that McMillen admitted to signing at 9:10 a.m., which was at the beginning
of the interrogation. It was not until the end of the interrogation, at 10:26 a.m.,
that McMillen invoked his right to counsel. McMillen has failed to show that the
district court clearly erred in finding the statements made between 9:10 a.m.
and 10:26 a.m. to be admissible. See United States v. Cardenas, 410 F.3d 287,
292 (5th Cir. 2005).         Accordingly, the judgment of the district court is
AFFIRMED.




      1
          Miranda v. Arizona, 384 U.S. 436 (1966).

                                             4
