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

                                                 FILED
                                                                         November 16, 2009

                                       No. 08-31039                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

JARMARSAY KION SMITH also known as, Jarmarsay Kean Smith

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC 5:08-CR-000053-01


Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Convicted pursuant to a conditional guilty plea for possession of a firearm
and ammunition by a convicted felon, Jarmarsay Kion Smith appeals the denial
of his suppression motion. Smith challenges both the arrest warrant and the
protective sweep that resulted in the discovery of two firearms. AFFIRMED.
                                              I.
       In July 2005, Smith pled guilty in Bossier City, Louisiana, to driving
without a license. During sentencing, he received notice that failure to pay his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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fine by 24 August 2005 would result in the issuance of a bench warrant. On 14
December 2005, a bench warrant was issued for Smith’s failure to appear or pay
the fine. Smith then paid half his fine, and the warrant was recalled. Included
in Smith’s receipt for paying half of his fine was the due date for paying the
balance. Smith failed, however, to pay that balance by the specified time, and
a second bench warrant was issued.
      Shreveport, Louisiana, police officers executed the second bench warrant
after receiving information of where Smith resided. A maintenance worker at
the apartment where Smith resided directed the police to Smith’s apartment and
knocked on the door for the police. Smith’s brother answered the door; and the
officers took Smith, who was in the living room, and his brother into custody.
The officers then instructed Smith and his brother to sit down on the couches in
the living room and began conducting a protective sweep of the apartment.
      As part of the protective sweep, one of the officers opened the closet in the
living room and found a large mound of clothes inside. Under the clothes, the
officer discovered two loaded assault rifles.
      Smith immediately identified both weapons as belonging to him. He also
then gave the officers consent to search the remainder of the apartment and
informed them that he had two more guns in his bedroom. There, the officers
discovered two pistols.
      Charged with being a convicted felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g)(1), Smith moved to suppress the
evidence and statements obtained from the search of his apartment.              He
contended: the search was invalid because the officers did not possess a valid
search warrant; and the search exceeded a valid search incident to arrest. After


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holding an evidentiary hearing on the motion to suppress, a magistrate judge
prepared a report and recommendation that the warrant was valid and the rifles
were discovered pursuant to a proper protective sweep.
      Smith objected to the report and recommendation, contending: the record
did not establish all the facts stated in the report; the bench warrant was
invalid; and, the protective sweep was unnecessary to protect the officers and
was   therefore   invalid.    The    district   court   adopted   the   report   and
recommendation and, accordingly, denied the suppression motion. Following the
district court’s adoption of the report, Smith entered a conditional guilty plea to
being a convicted felon in possession of a firearm and ammunition, preserving
his right to appeal the denial of his suppression motion.
                                        II.
      In challenging the denial of his suppression motion, Smith maintains: the
warrant the police relied on when making the arrest was invalid; and, even if the
warrant was valid, the search of the closet containing the assault rifles exceeded
the scope of a proper protective sweep.
      “When reviewing the district court’s denial of a suppression motion, we
review conclusions of law de novo and findings of fact for clear error; the
evidence is viewed in the light most favorable to the prevailing party.” United
States v. Gibbs, 421 F.3d 352, 356–57 (5th Cir. 2005). The district court, when
deciding whether to accept a magistrate judge’s recommended ruling for a
suppression motion, makes “a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made”. Id. at 357 (quoting United States v. Raddatz, 447 U.S. 667, 673 (1980)).
The district court, however, may defer to the magistrate judge’s determinations,


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without rehearing testimony, when the record supports the determinations. Id.
(citing United States v. Giacomel, 153 F.3d 257, 258 (5th Cir. 1998)).
                                         A.
      Concerning the bench warrant, in district court, the Government relied,
inter alia, on the good-faith exception discussed infra. Although the district
court did not address the good-faith exception, “any point properly raised in
district court may be relied upon on appeal to sustain the judgment”. Public
Citizen, Inc. v. Bomer, 274 F.3d 212, 217 (5th Cir. 2001).
      Therefore, we begin by determining whether the good-faith exception
applies.   See Gibbs, 421 F.3d at 357.        If it does, our inquiry ends and the
exclusionary rule is inapplicable. Id.    In United States v. Leon, 468 U.S. 897
(1984), the Court held evidence obtained in objectively reasonable good-faith
reliance on a search warrant is admissible, even if probable cause does not
support the warrant. United States v. Laury, 985 F.2d 1293, 1311 (5th Cir.
1993) (citing Leon, 468 U.S. at 922–23). The Court has subsequently applied the
Leon “good-faith” exception to searches that occurred following the execution of
an invalid arrest warrant. Herring v. United States, 129 S. Ct. 695, 704 (2009);
Arizona v. Evans, 514 U.S. 1, 15–16 (1995).
      The exclusionary rule is “a judicially created remedy designed to safeguard
Fourth Amendment rights generally through its deterrent effect, rather than a
personal constitutional right of the party aggrieved”. Leon, 468 U.S. at 906
(quoting United States v. Calandra, 414 U.S. 338, 348 (1974)).              “[T]he
exclusionary rule is neither intended nor able to cure the invasion of the
defendant’s rights which he has already suffered.” Id. (internal quotations
omitted). For the exclusionary rule to apply, the police must have engaged in


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“willful, or at the very least negligent, conduct”. Id. at 919 (quoting United
States v. Peltier, 422 U.S. 531, 539 (1975)). When, however, the officers acted in
good faith, the deterrence rationale loses its force. Id.
      Before arresting Smith, Shreveport police officers searched a computer
database to determine whether a valid arrest warrant existed. The database
showed Smith had an active arrest warrant for failure to pay the fine for driving
without a license. One of the arresting officers also telephoned the police in
Bossier City, where the warrant was issued, and requested a copy of the
database printout to confirm an active warrant existed. At the hearing on the
motion to suppress, one of the officers testified that such printouts are the
standard form for warrants received from other jurisdictions.
      In Herring, the Court ruled that the exclusionary rule did not necessarily
apply where the arresting officers relied on a computer search that showed the
defendant had an outstanding warrant, even though it was later discovered that
the warrant had previously been recalled. Herring, 129 S. Ct. at 698. The
Herring Court stated: “To trigger the exclusionary rule, police conduct must be
sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently
culpable that such deterrence is worth the price paid by the justice system”. Id.
at 702. Here the police officers’ conduct was neither “sufficiently deliberate” nor
“sufficiently culpable” to warrant the exclusion of evidence. (In fact, there is no
evidence that the police conduct was improper.) Accordingly, the good-faith
exception applies. Because the officers acted in good faith in executing the bench
warrant, we need not determine whether the warrant was valid. See Laury, 985
F.2d at 1311.




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                                        B.
      Concerning the protective sweep, officers are empowered to search “closets
and other spaces immediately adjoining the place of arrest from which an attack
could be immediately launched”. Maryland v. Buie, 494 U.S. 325, 334 (1990).
No probable cause or reasonable suspicion is required to conduct such sweeps.
Id.
      The closet where the officers discovered the assault rifles adjoined the
living room in which both Smith and his brother were arrested. The officers
testified that the mound of clothes inside the closet was large enough to conceal
a person. The officers, therefore, did not exceed the scope of the protective sweep
by looking under the mound to determine whether a person was hiding there.
                                       III.
      For the foregoing reasons, the judgment is AFFIRMED.




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