     Case: 11-60334     Document: 00511905987         Page: 1     Date Filed: 06/29/2012




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

                                                                            FILED
                                                                           June 29, 2012

                                       No. 11-60334                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

KERMIT OMAR ROGERS,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:09-CR-139-1


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
        This is a direct appeal from a felony conviction for possession with intent
to distribute in excess of fifty grams of crack cocaine in violation of 21 U.S.C.
§ 841(a), (b)(1)(a). Appellant challenges the denial of his motion for suppression
of the evidence, arguing that the district court erred in denying an evidentiary
hearing on the motion. Because the district court erred in failing to hold an
evidentiary hearing on the motion to suppress, we VACATE and REMAND for
further proceedings.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                     No. 11-60334

       I.     BACKGROUND
       On June 17, 2009, law enforcement officers executed a search warrant at
Appellant Kermit Rogers’s home in Lee County, Mississippi.                  The officers
discovered: (1) 5.89 grams of crack cocaine in a recliner in Rogers’s house; and
(2) 189.73 grams of crack cocaine and a firearm in Rogers’s truck. Rogers was
then charged with possession with intent to distribute in excess of fifty grams
of a substance containing cocaine base. Rogers filed a motion to suppress the
evidence that was discovered in his truck.1 The warrant had allowed a search
of the following: “320 CR 401, Shannon, Lee County, Mississippi, together with
all approaches and appurtenances thereto. Also, all vehicles and out buildings
on the property.” In his motion to suppress, Rogers argued that his truck was
not parked “on the property” set forth in the warrant; instead, his truck was
parked on an adjacent property that has an address the same as his address,
except there is an “A” after “320.”
       Prior to the district court ruling on the motion to suppress, Rogers entered
a conditional plea of guilty. The plea agreement provided that “[p]ursuant to
Rule 11(a)(2), of the Federal Rules of Criminal Procedure, the defendant, Kermit
Omar Rogers, reserves the right to appeal the adverse determination of his
motions to suppress.” Subsequently, the district court denied the motion to
suppress without holding an evidentiary hearing. The district court accepted the
guilty plea and sentenced Rogers to 120 months of imprisonment. Rogers now
appeals.
       II.    EVIDENTIARY HEARING
       Rogers contends that the district court erred in denying the motion to
suppress without an evidentiary hearing because the critical facts are in



       1
          Rogers had also filed a motion to suppress certain statements that he had made to
authorities, but the denial of that motion is not before us on appeal.

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                                       No. 11-60334

dispute.2 “Evidentiary hearings are not granted as a matter of course, but are
held only when the defendant alleges sufficient facts which, if proven, would
justify relief.” United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983). The
court must determine whether the allegations set forth in the defendant’s
motion, including any accompanying affidavits, are “sufficiently definite, specific,
detailed, and nonconjectural, to enable the court to conclude that a substantial
claim is presented.” Id. (internal quotation marks and citations omitted). If so,
a hearing is required. Id.; United States v. Smith, 546 F.2d 1275, 1279-80 (5th
Cir. 1977); United States v. Poe, 462 F.2d 195, 197 (5th Cir. 1972). We review a
district court’s decision not to conduct an evidentiary hearing for abuse of
discretion. Harrelson, 705 F.2d at 737. If the district court erred in failing to
conduct an evidentiary hearing, the error is subject to the harmless error
standard. United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003).
       The district court recognized that the parties disputed whether the truck
was parked on the property as specified in the search warrant. The court ruled
that even assuming the officers mistakenly searched Rogers’s truck, the search
was conducted in good faith. The court further stated that “at the time officers
searched defendant’s vehicle, they had already uncovered crack cocaine in his
residence, which seemingly gave them probable cause to search his vehicle, even
without a search warrant.” Finally, the court ruled that “officers were entitled


       2
          As set forth previously, in his plea agreement, Rogers reserved the right to appeal
the adverse determination of his motion to suppress. See FED. R. CRIM. P. 11(a)(2). In his
motion to suppress, Rogers set forth a list of evidence—including photographs, deeds, public
records, and utility bills—demonstrating that two separate properties had been searched
pursuant to the warrant; however, only one address was listed in the search warrant. Rogers
represented to the court that he “would show” that the officers illegally seized evidence on the
property that was separate from the address of the property identified in the search warrant.
He concluded by asking the court to hear and grant his motion to suppress. Under these
circumstances, we are persuaded that the issue regarding the failure to conduct an evidentiary
hearing is sufficiently preserved for appellate review. Cf. United States v. Nikonova, 480 F.3d
371, 375 & n.5 (5th Cir. 2007) (ruling that by preserving the issue on the merits, the defendant
had preserved the right to the implied remedy).

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                                 No. 11-60334

to assume that defendant’s own vehicle parked in close proximity to his house
was parked on his property.”
      In support of his motion to suppress, Rogers submitted photographic
evidence showing that the two adjacent properties had their different street
addresses posted in plain sight. Rogers also submitted a copy of his signed
statement (witnessed by two police officers) that his truck was parked on the
adjacent property not listed in the warrant. Rogers has made “sufficiently
definite” allegations to demonstrate that he has a substantial claim that the
truck was not parked on the property as set forth in the warrant. Harrelson, 705
F.2d at 737.
      The Supreme Court has held that police officers do not necessarily violate
the Fourth Amendment when they mistakenly execute a search warrant at the
wrong address. Maryland v. Garrison, 480 U.S. 79, 88 (1987). In that case,
officers had a warrant to search the third floor premises. The officers did not
know that the third floor had two apartments until after they began their
search. Ultimately, after recognizing that the officers made an honest mistake,
the Supreme Court concluded that the “officers’ conduct was consistent with a
reasonable effort to ascertain and identify the place intended to be searched
within the meaning of the Fourth Amendment.” Id. at 88-89.
      Similarly, in United States v. Carrillo-Morales, the police had a warrant
to search the defendant’s address, which the warrant listed as “1414 West
Avenue.”   27 F.3d 1054, 1064 (5th Cir. 1994). The 1414 address was actually
a body shop. The defendant’s home address was 1418 West Avenue. This Court
explained that the “two buildings on the premises were similar in appearance
and separated by an awning; the name Crown and Paint Body Shop was on both
buildings.” 27 F.3d 1054, 1064 (5th Cir. 1994). Thus, this Court held that the
officers had acted reasonably and in good faith “in assuming that the warrant
for 1414 West Avenue covered both buildings.” Id.

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                                 No. 11-60334

      Thus, the next question in the instant case is whether the officers made
a reasonable effort to ascertain and identify whether the truck was on the
property identified in the warrant. In its response to the suppression motion,
the government asserted that the truck “was found parked in the back of the
residence located at 320 CR 401.” However, the government did not submit any
evidence in response to the motion to suppress. Further, although the district
court stated that the officers found the drugs in the house prior to finding the
drugs in the truck, we are not aware of any evidence to support such a finding.
The government’s unsupported statements in its pleadings were insufficient to
determine that the officers made a reasonable effort to identify whether the
truck was on the property listed in the warrant. In other words, there are
insufficient facts in the record to determine whether an exception to the
exclusionary rule—such as good faith—is appropriate.        The district court
therefore abused its discretion in denying the motion to suppress without
conducting an evidentiary hearing. Because the record is inadequate to allow
this Court to determine whether the error was harmless, the district court’s
judgment is vacated and remanded for an evidentiary hearing on the motion to
suppress.
      III.   CONCLUSION
      The district court’s judgment is VACATED and REMANDED for
proceedings consistent with this opinion.




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