     Case: 14-51197   Document: 00513251903        Page: 1   Date Filed: 10/29/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-51197                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                          October 29, 2015
                                                                    Lyle W. Cayce
            Plaintiff - Appellant                                        Clerk

v.

BYRON KEITH MOORE,

            Defendant - Appellee



                Appeal from the United States District Court
                     for the Western District of Texas


Before JONES, SMITH, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      The district court granted Byron Moore’s motion to suppress evidence
found in a search of his residence. The Government appeals. We REVERSE
and REMAND.


                FACTS AND PROCEDURAL BACKGROUND
      In April 2014, Temple, Texas police officers executed a search warrant
at Byron Moore’s residence. In support of the warrant, police submitted the
two-page affidavit of David Hess, a Temple police investigator with experience
in narcotics crimes. The affidavit listed an address, described the residence at
that address, and said the residence was “controlled by” Moore and another
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individual. 1   The warrant application sought authorization to search all
vehicles and outbuildings located on or around the property. It identified the
evidence to be seized as synthetic cannabinoids, also known as the controlled
substance “K-2.”       Hess’s affidavit identified both Moore and the other
individual as suspected parties, detailed some of Moore’s criminal history, and
noted that there were security cameras on Moore’s property. Moore has twice
been convicted of state aggravated assault with a deadly weapon and, at the
time of the search, was on parole for one of those offenses. Moore also had a
federal conviction for distribution of crack cocaine.
      The affidavit described three inspections Hess conducted in late March
and April 2014 of trash discarded in a receptacle in a public alley behind the
residence, the latest being conducted 72 hours before the magistrate judge
approved the warrant application. The motion to suppress challenged the
sufficiency of these inspections as support for probable cause for the warrant.
These inspections revealed:
      • March 26: mail addressed to Moore’s residence and several K-2
          “roaches,” i.e., butts of a cannabis cigarette, in a “sealed” trash bag;
      • April 7: a box addressed to one of the suspected parties, a K-2 spice
          package, and a K-2 roach in a “sealed” trash bag; and
      • April 23: mail addressed to Moore or the other suspect and three K-2
          roaches contained in a “sealed” trash bag, and a K-2 package.
      Police subsequently tested the roaches, all of which were positive for K-
2. The affidavit did not include the specific addressee of the mail enclosed in
the trash bags, and contained no other information connecting Moore to
possession of K-2 or any other current criminal activity at his residence.


      1 The other individual listed in the warrant is “Robbie Nett Moore.” The warrant does
not specify who this individual is or explain her connection to Moore, nor do the parties
address that question in their briefs.
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                                 No. 14-51197
      Executing the search warrant, police found $5,000 in cash in a bed post,
K-2 in plain view in the residence, and a .40 caliber handgun and rounds of
ammunition in a dresser drawer in Moore’s bedroom. Police found another
firearm in Moore’s son’s bedroom.
      A federal grand jury indicted Moore on a charge of possession of a firearm
by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Moore
pled not guilty and filed a motion to suppress the evidence found during the
search of his residence. After briefing on the issue, the district court granted
Moore’s motion without a hearing. The Government timely appealed.


                                 DISCUSSION
      Factual findings in a ruling on a motion to suppress are reviewed for
clear error.   United States v. Cherna, 184 F.3d 403, 406 (5th Cir. 1999).
Questions of law, such as whether a search warrant was validly issued on
probable cause, are subject to a de novo standard of review. Id. at 406–07. The
evidence is viewed in the light most favorable to the prevailing party, here,
Moore. United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005).
      A two-step process is generally used to analyze a district court’s decision
to grant or deny a motion to suppress based upon the sufficiency of a warrant.
See Cherna, 184 F.3d at 407. First, we decide whether the good faith exception
to the exclusionary rule, articulated in United States v. Leon, 468 U.S. 897
(1984), is applicable. Cherna, 184 F.3d at 407. The good faith exception
provides that if reliance on a defective warrant is “objectively reasonable,” the
Fourth Amendment does not require suppression of evidence obtained
pursuant to that warrant. Leon, 468 U.S. at 922.
      Our analysis usually ends if the good faith exception applies.         See
Cherna, 184 F.3d at 407. If good faith does not apply, we proceed to the second
step and examine whether the affidavit established probable cause that the
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evidence to be seized would be found in the place to be searched, justifying
issuance of the warrant. United States v. Aguirre, 664 F.3d 606, 613–14 (5th
Cir. 2011). Probable cause may be established through “direct observation” or
“normal inferences as to where the articles sought would be located.” United
States v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982). Nothing requires us to
stop at a determination of good faith, however, where answering the probable
cause question is important to furthering Fourth Amendment jurisprudence.
Leon, 468 U.S. at 925.
      Here, in refusing to apply the good faith exception, the district court said
investigator Hess’s affidavit was so “bare bones” that it “lack[ed] . . . indicia of
probable cause as to render official belief in its existence entirely
unreasonable.” 2 Bare-bones affidavits are characterized by “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).
      Specifically, the district court held that the K-2 and the mail addressed
to Moore’s residence found together in a trash bag were insufficient to show a
nexus between the place to be searched and the evidence to be seized. The
nexus was broken because the “large trash receptacle [was] accessible to
numerous households [and was] situated along a . . . public alleyway.” Without
an “exclusive link” between the K-2, the trash receptacle, and Moore, the
district court held it was unreasonable to rely on the affidavit and, therefore,
the search warrant was not supported by probable cause.
      In oral argument, the Government conceded that investigator Hess’s
affidavit was not as clear or thorough as it might have been. For example, the



      2 This is one of four situations where the good faith exception will not apply. See
Cherna, 184 F.3d at 407–08. It is the only one at issue in this appeal.
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affidavit includes no details about the investigation that caused the trash
inspections; the name of the addressee of the mail found in the trash bags with
the K-2 is not shown; and importantly, the way the trash bag was “sealed” is
unstated. The Government disputed, however, that the affidavit can be fairly
characterized as “bare bones.” A finding at least of good faith, the Government
argued, is appropriate because of the “tight temporal nexus” between the last
trash inspection and issuance of the affidavit, and the connection the totality
of the information within the affidavit establishes between the evidence to be
seized (K-2) and the place to be searched.
      We find support for the Government’s argument in a case in which a
district court upheld the lawfulness of a search of a defendant’s residence based
on the applicability of the good faith exception. United States v. Sibley, 448
F.3d 754, 755–56 (5th Cir. 2006). In Sibley, in the affidavit supporting the
search warrant, an investigator for the district attorney attested that a drug
enforcement agent witnessed an occupant of the defendant’s apartment taking
garbage bags to his apartment complex’s community dumpster. Id. at 758.
The investigator and agent inspected the bags in the dumpster and found
marijuana. Id. The investigator further attested that the apartment manager
previously reported to police that the complex’s maintenance worker found
marijuana in trash dumped by occupants of the defendant’s apartment, and
that the defendant recently had security cameras installed on his property. Id.
Taking all this information together, we found that “the affidavit connects [the
defendant] to the apartment, . . . [occupants of the apartment] to possession of
marihuana[,] and the apartment and its occupants to prior drug activity.” Id.
We ruled that the good faith exception applied, and declined to determine
whether probable cause existed. Id. at 758–59. Though there are distinctions,
we conclude that Sibley compels application of the good faith exception here.


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       As noted above, generally a finding of good faith ends our analysis. We
believe it is important, though, to explain why we also disagree with the
district court’s holding that these facts do not support probable cause.
       As in Sibley, the trash receptacle in the present case was not on Moore’s
property and was accessible to a number of individuals besides Moore. See id.
Unlike Sibley, however, Hess conducted several inspections, not just one, of the
trash receptacle in a one-month period. 3 The last inspection occurred 72 hours
before issuance of the warrant.             Temporal proximity between when the
information in an affidavit is obtained and the issuance of the warrant is
relevant indicia of probable cause. United States v. Craig, 861 F.2d 818, 821
(5th Cir. 1988). All of these inspections revealed the same evidence: K-2 and
mail addressed to Moore’s residence together in a trash bag. Further, the
affidavit included details about security cameras at the apartment and Moore’s
previous drug convictions. Those facts corroborated the belief that Moore was
engaged in criminal activity at his residence, and are relevant in determining
the existence of probable cause. See Sibley, 448 F.3d at 758 (security cameras);
Satterwhite, 980 F.2d at 322 (criminal history).
       The district court was particularly concerned about the size and public
accessibility of the trash receptacle, calling it an “exercise of speculation” to
guess “as to whom each individual item [in the receptacle] may belong.” Those



       3 The affidavit here, unlike the one in Sibley, did not specify whether Hess observed
Moore or the other suspected party place the trash bags into the receptacle. Direct
observation, however, is not required. Freeman, 685 F.2d at 949 (“[Probable cause] may be
established . . . through normal inferences as to where the articles sought would be located.”).
In Sibley, the investigator and agent did not observe the defendants at the residence to be
searched but rather connected them to the residence through other information. Sibley, 448
F.3d at 758–59. Hess’s affidavit similarly utilized other information to connect Moore to the
residence (the mail addressed to the suspected parties at the residence), Moore to possession
of K-2 (the mail within the same trash bag as K-2), and Moore and his residence to prior drug
activity (Moore’s criminal history and the security cameras). This, irrespective of direct
observation, is sufficient to establish probable cause. See id.
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would be valid concerns if the K-2 and mail were found loose in the trash
receptacle, but the items were found together in the trash bags. The meaning
of the term “sealed” in the affidavit is unclear. Regardless, affidavits are to be
interpreted in “a commonsense” manner. United States v. Ventresca, 380 U.S.
102, 109 (1965). It is reasonable to infer that the affidavit meant that the bags
were tightly closed in some way, whether by being tied or otherwise, and then
were placed into the receptacle. The bags were later recovered and found
inside were drugs and mail addressed to Moore’s residence. Considering that
information in an affidavit must only provide “a fair probability that
contraband or evidence of a crime will be found in a particular place,” questions
about the meaning of “sealed” do not undermine the warrant. See Aguirre, 664
F.3d at 610 (citations and quotation marks omitted).
      The district court also held that the affidavit was flawed by failing to
establish an “exclusive link” between the K-2, the trash receptacle, and Moore.
No such “exclusive link” is required. See id. Investigator Hess, on three
separate occasions, found mail addressed to Moore’s residence and K-2 in the
same closed trash bag in a receptacle located near Moore’s home. “Mail is one
of those items that people normally receive and keep at their . . . residence.”
United States v. Maestas, 546 F.2d 1177, 1180 (5th Cir. 1977). It follows that
there was a “fair probability” that police would find K-2, the identified evidence
to be seized, in Moore’s residence, the identified place to be searched. See
Aguirre, 664 F.3d at 610.       The magistrate had a substantial basis for
determining probable cause existed, and the search warrant was valid.
      We REVERSE the grant of the motion to suppress and REMAND.




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