                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                                                               April 20, 2006
                 UNITED STATES COURT OF APPEALS
                          FIFTH CIRCUIT                  Charles R. Fulbruge III
                                                                 Clerk

                          No. 04-31061


                    UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                             versus

                       JEFFERY P. OLINDE,

                                                Defendant-Appellant.


          Appeal from the United States District Court
              for the Middle District of Louisiana
                        (3:03-CR-143-ALL)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Challenging his judgment of conviction by contesting the

denial of his suppression motion for evidence seized at his house,

pursuant to a search warrant, Jeffery P. Olinde claims:        (1) the

warrant lacked probable cause; and (2) the search exceeded the

warrant’s scope because it began three hours before the specified

start-time and included a non-listed building.     AFFIRMED.




     *
      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this opinion should not be published and is not precedent except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.
                                     I.

     On 27 June 2003, agents with the Bureau of Alcohol, Tobacco,

Firearms and Explosives (ATF) and state law enforcement executed a

search warrant for Olinde’s property.         Shortly after 6:00 a.m.,

agents entered his driveway and saw him standing in the doorway of

a shed located approximately ten feet behind his house.        Olinde was

ordered to exit the shed; instead, he moved further into it and

appeared to throw something to the ground.      As an agent approached

the shed’s entrance, Olinde continued toward the back, where he was

apprehended.     In   plain   view   inside   the   shed,   agents   found

methamphetamine and a loaded pistol.

     Shortly after Olinde was apprehended, his wife drove up to the

house.   After she complied with an agent’s request to exit her

vehicle, agents discovered a pistol in it.      A subsequent search of

Olinde’s house revealed, inter alia, ammunition for both pistols,

as well as small plastic bags typically used for drug distribution.

     Among other charges, Olinde was indicted for being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and

for possession of a firearm in furtherance of a drug-trafficking

crime, in violation of 18 U.S.C. § 924(c)(1)(A).            In moving to

suppress the seized evidence, Olinde claimed the warrant was not

supported by probable cause and the agents exceeded its scope by

searching:   (1) the shed; and (2) before the specified start-time.

After an evidentiary hearing, the district court denied the motion,


                                     2
holding: (1) the warrant was supported by probable cause; (2)

because the search occurred during daylight hours, it complied with

the warrant; and (3) the shed was located within the curtilage of

the home and, therefore, fell within the warrant’s scope.            United

States   v.    Olinde,   No.   03-143-A   (M.D.   La.    18   Nov.   2003)

(unpublished).    Subsequently, Olinde was convicted.

                                   II.

     Olinde raises the same claims on appeal.           In that regard, a

search warrant’s scope is a question of law.            United States v.

Russell, 960 F.2d 421, 422 (5th Cir.), cert. denied, 506 U.S. 953

(1992). Such questions are reviewed de novo; findings of fact, for

clear error.     E.g., United States v. Gibbs, 421 F.3d 352, 356-57

(5th Cir. 2005).         The evidence is viewed in the light most

favorable to the prevailing party.        Id. at 357.     Where, as here,

the district court held an evidentiary hearing and relied upon live

testimony in denying the motion, “the clearly erroneous standard is

particularly strong because the judge had the opportunity to

observe the demeanor of the witnesses”. United States v. Santiago,

410 F.3d 193, 197 (5th Cir. 2005), cert. denied, __ S. Ct. __, 2006

WL 685153 (U.S. 20 Mar. 2006) (No. 05-5902).

                                   A.

      Olinde claims the warrant lacked probable cause because its

supporting affidavit relied upon statements made by Michael Bowman

and Travis Burton, his wife’s brother and father, respectively.

                                    3
Olinde claims both are admitted methamphetamine users who owed him

money and, therefore, had an interest in his being incarcerated.

Additionally,    he   maintains   their   statements     lack    credibility

because they conflict. According to Olinde, both Burton and Bowman

claim to have seen him in possession of a firearm when he lent it

to Burton, but they provide different dates for the event.

     When   deciding   whether    a   search   warrant   is     supported   by

probable cause, an alternative test is used.         See Gibbs, 421 F.3d

at 355. First, we determine whether the good-faith exception

applies — if it does, the inquiry ends.         See id.       If it does not

apply, we determine whether the warrant was supported by probable

cause.   See id.; United State v. Laury, 985 F.2d 1293, 1311 (5th

Cir. 1993).    The exception applies unless

            the issuing-judge was misled by information in
            an affidavit that the affiant knew was false
            or would have known was false except for his
            reckless disregard of the truth; the issuing-
            judge wholly abandoned his judicial role in
            such a manner that no reasonably well trained
            officer should rely on the warrant; the
            warrant was based on an affidavit so lacking
            in indicia of probable cause as to render
            official belief in its existence entirely
            unreasonable; or the warrant was facially
            invalid.

Gibbs, 421 F.3d at 355 (quoting United States v. Leon, 468 U.S.

897, 923 (1984) (internal quotation marks omitted)).

     The ATF Agent’s supporting affidavit recited statements from

four individuals who knew of Olinde’s involvement with firearms and

illegal drugs.    First, the ATF Agent noted that Michael and David

                                      4
Brown, Olinde’s wife’s      brothers, had informed officials they had

personal knowledge of Olinde’s possession of illegal drugs and

weapons.     David Brown informed officers that Olinde kept two

firearms in his home and was selling crystal methamphetamine.

Michael    Brown    admitted   purchasing     methamphetamine    from,   and

consuming    it    with,   Olinde   on    several   occasions.     He    also

corroborated David Brown’s statement about the firearms, stating he

had observed two in Olinde’s home. Olinde had explained to Michael

Brown:     he had his wife purchase one of the firearms; and he had

let Travis Burton borrow one of them.           (To the extent David or

Michael Brown admitted engaging in illegal activity with Olinde,

these statements were made against penal interest, boosting their

credibility.       See United States v. Satterwhite, 980 F.2d 317, 323

(5th Cir. 1992).)

     Second, the ATF Agent also based the affidavit on statements

made by Travis Burton, who corroborated those by Michael Brown,

admitting Olinde had loaned him (Travis Burton) a firearm.           Third,

the Agent used statements made by Olinde’s wife, taped by her

sister, that she (Olinde’s wife) had two firearms in the house,

which Olinde could not keep there because of his prior convictions.

     These statements corroborate Olinde’s having possession of

illegal firearms and drugs.          Therefore, it cannot be said the

Agent’s “affidavit [was] so lacking in indicia of probable cause as

to render official belief in its existence entirely unreasonable”.


                                      5
Gibbs, 421 F.3d at 355; see also Satterwhite, 980 F.2d at 322.    The

good-faith exception applies.

                                  B.

       Olinde claims the search exceeded the warrant’s scope in two

respects:    when it began; and the shed’s being included.         As

stated, the scope is a question of law, reviewed de novo.    Russell,

960 F.2d at 422.        In each instance, the good-faith exception

controls.

                                  1.

       Because the search began shortly after 6:00 a.m., Olinde

maintains it was not “in the day time - 9:00 A.M. to 10:00 P.M.”,

as specified on the warrant.       He concedes it also allowed the

search “at anytime in the day or night [where] reasonable cause has

been    established”,    but   claims:   the   two   provisions   are

contradictory; and the requisite reasonable cause had not been

established for a search outside the specified 9:00 a.m. to 10:00

p.m. period.     Thus, according to Olinde, the day-time clause,

including the 9:00 a.m. start-time, controls.

       The search occurred “in the daytime” as defined in Federal

Rule of Criminal Procedure 41, which authorizes execution of a

warrant “during the daytime, unless the judge for good cause

expressly authorizes execution at another time”.      FED. R. CRIM. P.

41(e)(2)(B) (emphasis added). The Rule defines daytime as “between

6:00 a.m. and 10:00 p.m. according to local time”.    FED. R. CRIM. P.


                                  6
41(a)(2)(B).      It is undisputed that the search began no earlier

than 6:00 a.m.     Additionally, the issuing magistrate judge did not

give a reason for limiting the search’s start-time to 9:00 a.m.

     In any event, no evidence suggests the officers executing the

warrant acted in bad faith; their actions comported with “in the

daytime”, as defined by Rule 41.             As stated, the good-faith

exception applies.      “[E]vidence is not to be suppressed ... where

it is discovered by officers in the course of actions that are

taken in good faith and in the reasonable, though mistaken, belief

that they are authorized”.     United States v. Majors, 328 F.3d 791,

795 (5th Cir. 2003) (emphasis added) (quoting United States v. De

Leon-Reyna, 930 F.2d 396, 400 (5th Cir. 1991) (en banc)).

                                     2.

     Concerning the shed’s being searched, Olinde notes neither the

warrant,    nor   the   supporting    affidavit,   mentioned   it.   The

Government contends searching the shed was a valid search of the

premises specified in the warrant.

     The warrant authorized the search of “[t]he premises of

Jeffery and [Mrs.] Olinde[,] 9398 Kurt Kundler Road[,] Gonzales,

Louisiana”.       (Emphasis added.)       An attachment to the warrant

provided:

            The Premises
            The residence of Jeffery Olinde and [his wife]
            is located at 9398 Kurt Kundler Road,
            Gonzales, Louisiana 70737. The residence is
            described as mobile home (trailer), white in
            color with green shutters and a tan roof.

                                      7
Olinde’s shed was only approximately ten feet from, and attached by

an extension cord to, the house.

       “[P]ractical accuracy rather than the technical precision

governs      in   determining       whether       a    search       warrant       adequately

describes the premises to be searched”. United States v. Williams,

687 F.2d 290, 292 (9th Cir. 1982).                Thus, the physical description

would “not limit the scope of the search to those specific areas,

but instead       [made]    the    premises       to    be       searched    more       readily

identifiable”.       United States v. Griffin, 827 F.2d 1108, 1115 (7th

Cir. 1987), cert. denied, 485 U.S. 909 (1988).                            If “the warrant

state[s] the       physical       address    of       the   premises        and   [gives]     a

description of the residence[,] ... [t]he detached ... shed ...

[is]   the    type   of    building[]       [that      is]       ordinarily       a    part   of

residential property”.        United States v. Earls, 42 F.3d 1321, 1327

(10th Cir. 1994), cert. denied, 514 U.S. 1085 (1995).

       In any event, the good-faith exception controls.                               The Agent

who both requested and executed the warrant sought authority in his

affidavit to search the “property present on the premises” located

at   Olinde’s     address.        As   a    result,         it    would   not     have     been

unreasonable for the Agent to believe the warrant encompassed all

property at the address, including the shed.                        (Because the good-




                                            8
faith exception applies, whether the shed is within the house’s

curtilage, as well as the effect if it is, are pretermitted.)

                              III.

     For the foregoing reasons, the judgment is

                                                      AFFIRMED.




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