                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                          F I L E D
                                                  In the                                    July 10, 2007
                       United States Court of Appeals                                 Charles R. Fulbruge III
                                      for the Fifth Circuit                                   Clerk
                                            _______________

                                              m 06-50138
                                            _______________




                                   UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                                 VERSUS

                                           ALEX GALLEGOS,

                                                               Defendant-Appellant.


                                     _________________________

                             Appeal from the United States District Court
                                  for the Western District of Texas
                                          m 5:04-CR-81-1
                               ______________________________



Before SMITH, BENAVIDES, and DENNIS,                   different drug and weapon offenses. Gallegos
  Circuit Judges.                                      appeals his conviction, arguing that the district
                                                       court erred in denying his motion to suppress,
JERRY E. SMITH, Circuit Judge:*                        that the court erred in denying disclosure of a
                                                       confidential informant’s identity, and that the
   A jury found Alex Gallegos guilty of five           evidence is insufficient to support his convic-
                                                       tion. We affirm.

   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-                        I.
termined that this opinion should not be published        Detective David Berrigan of the San Anto-
and is not precedent except under the limited cir-     nio Police Department received information
cumstances set forth in 5TH CIR. R. 47.5.4.            from a confidential informant that a man
named Roland was selling drugs in the front            grams or more of heroin within 1,000 feet of a
yard of a house. Through a computer search,            secondary school in violation of 21 U.S.C. §§
Berrigan determined that the Gallegos family           841(a)(1) and (b)(1)(B) and 860(a); (4) using
lived at the house and that the license plate          and carrying and possessing a firearm during
numbers on the vehicles outside the house              and in relation to and in furtherance of a drug
were registered to members of the Gallegos             trafficking crime in violation of 18 U.S.C.
family. He took no further action to corrobo-          924(c)(1)(A)(i); and (5) using and carrying and
rate the information the informant provided.           possessing a firearm during and in relation and
                                                       in furtherance of a drug trafficking crime in
    Based on this information, Berrigan pre-           violation of 18 U.S.C. § 924(c)(1)(B)(i).
pared an affidavit to support a search warrant.
The affidavit stated the address of the house             Gallegos filed a motion to suppress and re-
and a description of a Hispanic male, known            quested to discover the identity of the confi-
only as Roland, who was approximately 35 to            dential informant. The district court denied
40 years old, 180 to 200 pounds, 5' 8'' to             the motion and the request.
5' 10'', and clean shaven. He had short brown
hair and tattoos on both arms. The affidavit              At trial the government offered the follow-
noted that this man controlled the house and           ing evidence: Officers observed Gallegos con-
had possessed cocaine there in the past 48             ducting a drug transaction. In their search of
hours. Finally, it recounted that a confidential       the property, officers found a plastic bag
informant, who had previously provided accur-          containing heroin and cocaine in the back of
ate information, had provided this information         the property; $14,000 in a tub; $3,000, pack-
to the police.                                         aged in $100 increments and tied in $1,000
                                                       bundles in a safe for which Gallegos had a key;
    A magistrate issued a warrant. As police           $7,000 in a dresser drawer that contained
were driving up to the house to execute it,            some of Gallegos’s personal items; evidence of
they saw two men in the front yard exchanging          a drug ledger; a sandwich bag containing
drugs. The police approached the men, one of           baggies filled with heroin and cocaine; a large
them threw the bag being exchanged into the            bag of cocaine between the rafters and wall of
air, and Gallegos fled. Police caught both             a shed; two bottles of lactose, one of which
men, did a security sweep, and searched the            had Gallegos’s fingerprint on it; a digital scale;
property.                                              and other packaging material. When con-
                                                       fronted with the cocaine, Gallegos looked to
   Gallegos was indicted for and convicted of          the rafters where the police had found it, even
(1) conspiring to distribute and possess co-           though the police had not told him they had
caine within 1,000 feet of a secondary school          found it there. Gallegos said he would take
in violation of 21 U.S.C. §§ 846, 860(a), and          the rap for the cocaine. A map with a legend
841(a)(1) and (b)(1)(B); (2) aiding and abet-          on it and a computer program that analyzes
ting in the possession with intent to distribute       locations showed the house was within 1,000
cocaine within 1,000 feet of a secondary               feet of the school.
school in violation of 21 U.S.C. §§ 860(a) and
841(a)(1) and(b)(1)(B) and 18 U.S.C. § 2;                To prove the firearm offense, the govern-
(3) possessing with intent to distribute 100           ment stated that police found two sawed-off


                                                   2
shotguns, a semiautomatic handgun, a revol-                   462 U.S. 213, 264 (1983) (White, J., concur-
ver, an automatic assault handgun, and a rifle.               ring)). Here, we only need to apply estab-
The weapons were found close to the drugs,                    lished Fourth Amendment principles to this set
one was loaded, two were illegal by them-                     of facts, so we determine whether the good
selves, and all were illegal for Gallegos be-                 faith exception to the exclusionaryrule applies.
cause he is a convicted felon.

                       II.                                        Gallegos posits that the good faith excep-
    Gallegos urges that the court erred in deny-              tion does not apply, because the warrant was
ing his motion to suppress. We review the                     supported by only a bare bones affidavit. We
court’s factual findings in a denial of a motion              disagree. To avoid being a bare bones affida-
to suppress for clear error and its legal conclu-             vit, the affidavit must provide “the magistrate
sions de novo. United States v. Solis, 299                    with facts, and not mere conclusions, from
F.3d 420, 435 (5th Cir. 2002). We review de                   which he could determine probable cause.”
novo whether an officer’s reliance on a war-                  United States v. Satterwhite, 980 F.2d 317,
rant was objectively reasonable and accord-                   321 (5th Cir. 1992).
ingly in good faith. United States v. Satter-
white, 980 F.2d 317, 321 (5th Cir. 1992).                         To assess the value of a confidential infor-
                                                              mant’s report, we consider his veracity, reli-
                       A.                                     ability, and basis of knowledge. Mack v. City
   Gallegos contends that the search warrant                  of Abilene, 461 F.3d 547, 551 (5th Cir. 2006).
was not supported by probable cause.                          Reliability and veracity are established by in-
“‘Principles of judicial restraint and precedent              formation indicating the informant has given
dictate that, in most cases, we should not                    previous reliable information. Mack, 461 F.3d
reach the probable cause issue if a decision on               at 551; Christian v. McKaskle, 731 F.2d 1196,
the admissibility of evidence under the                       1200 (5th Cir. 1984). Direct personal obser-
good-faith exception [to the exclusionary rule]               vation is a sufficient basis of knowledge.
will resolve the matter.’”1 We proceed directly               Mack, 461 F.3d at 551; United States v. Cor-
to the probable cause inquiry only where “the                 dero, 465 F.3d 626, 630 (5th Cir. 2006).
resolution of a ‘novel question of law . . . is
necessary to guide future action by law en-                       Here the informant’s report is valuable be-
forcement officers and magistrates.’” Craig,                  cause the affidavit establishes the informant’s
861 F.2d at 820-21 (quoting Illinois v. Gates,                veracity, reliability, and basis of knowledge.
                                                              The affidavit shows the informant’s veracity
                                                              and reliability by stating that the informant
   1
                                                              “has on previous occasions given affiant in-
      United States v. Flanders, 468 F.3d 269, 270
                                                              formation regarding the trafficking and pos-
(5th Cir. 2006) (quoting United States v. Craig,
861 F.2d 818, 820 (5th Cir. 1988)). The good
                                                              session of a controlled substance which has
faith exception applies if an officer’s “reliance on          proven to be true and correct . . . .” The affi-
the magistrate’s probable-cause determination and             davit also reflects the basis of the knowledge:
on the technical sufficiency of the warrant he issues         The informant saw the unlawful possession of
[is] objectively reasonable”; a court need not sup-           cocaine within forty-eight hours of the affida-
press the fruits of a search if this exception applies.       vit.
United States v. Leon, 468 U.S. 897, 922 (1984).

                                                          3
    The information in this affidavit is similar to       residence and not outside it as the informant
the information in the affidavit in United States         had indicated.
v. McKnight, 953 F.2d 898 (5th Cir. 1992).
There the affidavit said (1) that the informant               We will not uphold an officer’s good faith
had furnished the officer information in the              reliance on a warrant if “the issuing-judge ‘was
past and had proven reliable and true and (2)             misled by information in an affidavit that the
that the informant had seen methamphetamine               affiant knew was false or would have known
at a specific house in the past seventy-two               was false except for his reckless disregard of
hours. Id. at 904-05. We held that “[t]he                 the truth . . . .’” United States v. Gibbs, 421
Constable’s assertion that the confidential               F.3d 352, 358 (5th Cir. 2005) (quoting United
informant was ‘reliable’ and had ‘furnished               States v. Leon, 468 U.S. 897, 923 (1984)).
him with information in the past that has                 “‘In evaluating this argument, we apply the
proved to be reliable and true’ provided the              standard from Franks v. Delaware, 438 U.S.
magistrate with sufficient indicia of the reliabil-       154 (1978), which requires a defendant to
ity and veracity of the informant’s tip.” Id. at          show that ‘(1) allegations in a supporting
905. Also, the informant’s personal observa-              affidavit were deliberate falsehoods or made
tions were a sufficient basis of knowledge. Id.           with a reckless disregard for the truth, and (2)
Because these facts alone made probable cause             the remaining portion of the affidavit is not
“at the very least most likely supplied by this           sufficient to support a finding of probable
affidavit,” the affidavit was not bare bones. Id.         cause.’” United States v. Mays, 466 F.3d 335,
                                                          343 (5th Cir. 2006) (quoting United States v.
                                                          Brown, 298 F.3d 392, 395 (5th Cir. 2002)),
   The instant affidavit is virtually identicalSS         cert. denied, 127 S. Ct. 1313 (2007).
McKnight’s includes more information about
how the drugs were processed at the resi-                    The district court found Berrigan did not
dence, but these facts do not bear on the ve-             mislead the magistrate, and we review this fact
racity or reliability of the informant or the basis       finding for clear error. Gallegos has the bur-
of his knowledge. Just as McKnight’s affidavit            den of “establishing by a preponderance of the
was not a bare bones affidavit, neither is the            evidence that the misrepresentation was made
one in this case. The good faith exception                intentionally or with reckless disregard for the
applies, and the district court correctly denied          truth.” United States v. Alvarez, 127 F.3d
the motion to suppress.                                   372, 373 (5th Cir. 1997); United States v.
                                                          Wake, 948 F.2d 1422, 1428-29 (5th Cir.
                       B.                                 1991).
   Gallegos argues that the government cannot
use the good faith exception, because Berrigan               Two decisions from this court demonstrate
misled the magistrate in two ways. First,                 the sort of evidence that meets this burden to
Berrigan discovered that the Gallegos, not                prove that an officer acted intentionally or with
“Roland,” controlled the residence, but he still          reckless disregard for the truth. See Alvarez,
told the magistrate only about Roland’s con-              127 F.3d at 375; United States v. Namer, 680
trolling the residence, omitting any mention of           F.2d 1088, 1094 (5th Cir. 1982). In conclud-
the Gallegos family. Second, Berrigan told the            ing that an officer recklessly disregarded the
magistrate that drugs were dealt “at” the                 truth in Alvarez, we went through a laundry


                                                      4
list of reasons the officer in that case was            tablish a nexus between the residence and the
reckless:                                               drugs. For an officer’s conduct to qualify un-
                                                        der the good faith exception, “[t]he affidavit
   The lack of exigency, [police officer] Ri-           must establish a nexus between the house to be
   vera’s level of training and experience, his         searched and the evidence sought. United
   failure to consult with an attorney, his fail-       States v. Freeman, 685 F.2d 942, 949 (5th Cir.
   ure to disclose in the affidavit the facts un-       1982). That nexus may be established, how-
   derlying his conclusorystatements, coupled           ever, by direct observation or through normal
   with Rodriguez’s statement that Alvarez              inferences as to where the articles sought
   claimed to have other similar tapes (there           would be located. See id.; United States v.
   was no testimony that the other tapes were           Pace, 955 F.2d 270, 277 (5th Cir. 1992).”
   more explicit), and the fact that Rivera’s           United States v. Broussard, 80 F.3d 1025,
   only justification for proceeding with the           1034 (5th Cir. 1996).
   warrant application was his testimony that
   he believed breasts were genitals, lead us to            When compared to defendants’ assertions
   conclude that Rivera acted in reckless dis-          in our previous cases dealing with the nexus
   regard for the truth.                                requirement, Gallegos’s claim that this affida-
                                                        vit presented an insufficient nexus fails. In one
Alvarez, 127 F.3d at 375. In Namer, a similar           case, an affidavit established a nexus between
list of factors compelled our conclusion that           a residence and drugs because the affidavit
law enforcement recklessly disregarded the              suggested the defendant’s salvage business
truth: Attorneys drafted the affidavit, they had        was not confined to his place of business,
experience with this type of case, no exigency          because it stated that a drug maker had previ-
or haste preceded the affidavit, and the attor-         ously gone to the rear of the residence, and
neys understood the importance of being ac-             because it indicated the defendant’s place of
curate. Namer, 680 F.2d at 1094.                        business and residence were contiguous and
                                                        controlled by the same people. United States
   Gallegos does not present this sort of evi-          v. Anderson, 853 F.2d 313, 316 (5th Cir.
dence of intent or recklessness. He alleges             1988). In Broussard, the affidavit established
that Berrigan’s statements were the product of          a nexus between the defendant and his resi-
intentional or reckless conduct, but other than         dence because it stated that drugs were placed
his argument that the statements were false,            in a car that was later parked in the residence’s
Gallegos offers no proof that Berrigan intend-          driveway and that the defendant picked up a
ed his statements to be false or acted in reck-         bag believed to contain drugs and took the bag
less disregarded for the truth. Even if, ar-            inside his residence. Broussard, 80 F.3d at
guendo, the district court incorrectly held the         1035.
statements were true, Gallegos still cannot pre-
vail, because he did not prove Berrigan pos-               In contrast, cases holding that the nexus to
sessed the required mental state.                       a residence was insufficiently established in-
                                                        volve crimes that occur away from the home.
                      C.                                For instance, in United States v. Freeman, 685
   Gallegos claims the good faith exception is          F.2d 942, 950-51 (5th Cir. 1982), police found
inapplicable because the affidavit failed to es-        evidence of drug smuggling at an airport, but


                                                    5
no suspicious activity had taken place at the            officer could have believed that the affidavit
drug smuggler’s home, so there was not a suf-            established probable cause.2
ficient nexus to search the home.
                                                                              III.
    In the present case, the affidavit stated Rol-          Gallegos claims the district court should
and possessed drugs at the residence. This               have ordered the government to disclose the
statement is evidence of a nexus between the             confidential informant’s identity.
narcotics and the residence, and it even more
directly connects the illicit items to the house            This Court reviews the district court’s
than did the evidence in Anderson and Brous-                grant or denial of disclosure of an infor-
sard. This case is unlike Freeman, because                  mant for abuse of discretion. United States
here the crime and suspicious activity occurred             v. Wilson, 77 F.3d 105, 111 (5th Cir.
at, not away from, the residence. Because the               1996). The district court weighs three fac-
information in this affidavit is like the informa-          tors to determine whether to grant or deny
tion in affidavits that we have held established            disclosure of an informant’s identity:
a nexus, Gallegos’s argument that no nexus                  ‘(1) the level of involvement in the alleged
existed lacks merit.                                        criminal activity, (2) the helpfulness of
                                                            disclosure to any asserted defense, and
                        D.                                  (3) the government’s interest in non-dis-
    Gallegos contends the district court erred              closure.’ Id.
by denying his motion to suppress, because the
warrant was void for staleness. Stale informa-           United States v. Thomas, 348 F.3d 78, 85 (5th
tion in an affidavit cannot support probable             Cir. 2003).
cause. “The proof must be of facts closely re-
lated in time to the issuance of the warrant in             Gallegos makes no arguments about the
order to justify a finding of probable cause at          informant’s level of involvement in the criminal
that time.” United States v. McKeaver, 5 F.3d            activity or the government’s interest in non-
863, 866 (5th Cir. 1993). Even if stale infor-           disclosure. Instead, he relies entirely on the
mation cannot support probable cause, how-               prejudice to his defense. He asserts that the
ever, officers may be able to execute a warrant          confidential informant should have been called
in good faith. “To prevail on his fourth                 to testify that the informant saw “Rol-
amendment claim, [Gallegos] must establish               and”SSnot GallegosSSdealing drugs. This tes-
that the facts alleged in the affidavit were so          timony could have led the jury to doubt wheth-
dated that no reasonable officer could have be-          er Gallegos was dealing drugs at the residence.
lieved that the affidavit established probable
cause . . . .” United States v. Pena-Rodriguez,
110 F.3d 1120, 1130 (5th Cir. 1997).                        2
                                                              See United States v. Leaster, 35 Fed. Appx.
                                                         402, 410-12 (6th Cir. 2002) (noting that it is dif-
    Information that someone possessed drugs             ficult to determine whether 48-hour-old information
forty-eight hours earlier is stale, Gallegos pos-        about drug possession is stale but that because of
its, because drugs are quickly consumed. But,            this uncertainty, officers are entitled to rely on the
this fact does not entail the conclusion that the        warrant under the good faith exception because the
information was so dated that no reasonable              information is not so stale as to render the officer’s
                                                         belief unreasonable).

                                                     6
   “Whether a proper balance renders nondis-            tribute controlled substances in violation of 21
closure erroneous must depend on the particu-           U.S.C. § 841 are 1) knowledge, 2) possession,
lar circumstances of each case, taking into             and 3) intent to distribute the controlled sub-
consideration the crime charged, the possible           stances.” United States v. Delgado, 256 F.3d
defenses, the possible significance of the in-          264, 274 (5th Cir. 2001). To prove aiding and
former’s testimony, and other relevant fac-             abetting, “the government must establish that
tors.” United States v. Cooper, 949 F.2d 737,           the defendant became associated with, partici-
749 (5th Cir. 1991). The factors that Gallegos          pated in, and in some way acted to further the
does not discuss favor the district court’s deci-       possession and distribution of the drugs. To
sion: The informant was not involved in the             aid and abet, a defendant must share in the in-
crime, favoring non-disclosure, Cooper, 949             tent to commit the offense as well as play an
F.2d at 749, and the government has an inter-           active role in its commission.” Id. (internal
est in getting future tips from the informant.          quotations and citations omitted). Finally,
Gallegos has not demonstrated significant pre-          “[t]o prove a drug conspiracy under 21 U.S.C.
judice to his defense; the fact that someone            § 846, the government must prove (1) an
other than he was dealing drugs at the same             agreement between two or more persons to
house does not negate the possibility that he           violate the narcotics laws, (2) the defendant’s
was also doing so there. Whatever prejudice             knowledge of the agreement, and (3) the
he may have suffered is outweighed by the               defendant’s voluntary participation in the
other factors the district court addressed. The         conspiracy.” United States v. Reveles, 190
court did not abuse its discretion.                     F.3d 678, 691 n.1 (5th Cir. 1999).

                       IV.                                 The police found vast quantities of drugs,
    Gallegos argues that the evidence is insuf-         money, and narcotic distribution devices, all
ficient to support the verdict. “We review the          linked to Gallegos, providing evidence that he
sufficiency of the evidence by examining all the        possessed drugs intending to distribute them.
evidence in the light most favorable to the             Conspiracy and aiding and abetting were dem-
verdict. See United States v. Thomas, 120               onstrated by testimony that officers directly
F.3d 564, 569 (5th Cir. 1997). We will affirm           witnessed Gallegos in a drug transaction. Gal-
if the evidence is such that a rational trier of        legos’s suggestion that these facts are equally
fact could have found the requisite elements of         consistent with a conclusion that he merely
the offense beyond a reasonable doubt. Id.”             shared the drugs does not change the result,
United States v. Guerrero, 234 F.3d 259, 261-           given the deferential standard we use to review
62 (5th Cir. 2000).                                     jury findings.

                        A.                                                    B.
    Gallegos avers that the evidence was not               Gallegos maintains the evidence is insuffi-
sufficient for the jury to find that he possessed       cient to establish that he carried a firearm
drugs with intent to distribute, that he aided          during and in relation to a drug trafficking
and abetted possession with the intent to dis-          crime or possessed a firearm in furtherance of
tribute, or that he conspired to possess with in-       a drug trafficking crime as required under 18
tent to distribute narcotics. “The essential            U.S.C. § 924(c). Yet, this case is similar to
elements of possession with the intent to dis-          United States v. Molinar-Apodaca, 889 F.2d


                                                    7
1417, 1424 (5th Cir. 1989), in which we held
that evidence that two guns were near drugs at
a home was sufficient to permit an inference
that the guns were being used for the purpose
of protection in a drug trafficking offense. In
Molinar-Apodaca, two firearms were seized
on a property that also housed drugs. Id. at
1422. We held that the presence “of an Uzi
rifle, a high powered handgun, and several
rounds of ammunition [in the defendant’s
house] at the time when a considerable quan-
tity of marijuana was seized on the premises”
was sufficient “to show that the firearm was
available to provide protection” and thus was
used “in relation to” a drug crime. Id. at 1424.
The evidence in our case is like that in Mol-
inar-Apodaca and is sufficient for a jury to
find that Gallegos violated § 924(c).

   AFFIRMED.




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