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

                                                                            FILED
                                                                         January 14, 2008

                                     No. 06-10613                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

BILLY GEORGE SEWARD

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:04-CR-023


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Billy George Seward (“Seward”) challenges factual findings underlying the
district court’s denial of his motion to suppress evidence procured pursuant to
a search warrant. Seward also appeals the district court’s denial of his motion
to suppress statements he made before he was Mirandized. For the reasons
below, we AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 06-10613

                                       I.
      On June 25, 2004, Officer Bobby Dilbeck, a veteran narcotics
investigator, and other law enforcement officials executed a search warrant at
Stanley Britt’s residence and found methamphetamine. Officer Dilbeck
contends that he received a tip that morning concerning Britt from a
confidential informant to whom he was introduced by another narcotics
investigator, Officer Karl King. The informant helped Officer King seize
large amounts of methamphetamine in at least three prior cases. According
to Officer Dilbeck, Britt was arrested and booked into the Wichita County Jail
at approximately 12:00 p.m..
      Following Britt’s arrest, Officer Dilbeck asserts, the informant tipped
him on another methamphetamine dealer named “Mike” and claimed to have
seen methamphetamine at Mike’s house within the last 24 hours. The
informant described Mike as a white male, close to 40 years old, and around
5'10" and 190 pounds. The informant showed Officer Dilbeck the house,
which was on Highway 281 and had the numbers “8985" on the front gate.
      At around 2 p.m., Officer Dilbeck presented his affidavit to a magistrate
judge, seeking a search warrant to search the 8985 residence. In his
affidavit, Officer Dilbeck noted that the informant, who was familiar with
methamphetamine and was reliable in the past, had seen methamphetamine
at the house in the last 24 hours. The magistrate judge issued the warrant at
2:12 p.m. but inadvertently omitted the time of issuance on the warrant.
      On his way back to the house, Officer Dilbeck contacted another officer,
Officer John Spragins, informing him that the magistrate judge had signed
the search warrant so that he could prepare for a search. Before Officer
Dilbert arrived, Officer Spragins entered the house, finding Seward, who
matched the description of “Mike,” and his wife inside. Officer Spragins
claims that he had Seward handcuffed for officer safety. According to Officer


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Spragins, he then told Seward that he had a search warrant and asked for his
help to avoid having to “go through everything in the house.” Officer
Spragins contends Seward was “very cooperative” and that he did not
threaten or point a gun at Seward. After proclaiming his wife’s innocence,
Seward took Officer Spragins to the bedroom and surrendered drugs he had
hidden under the bed.
      Officer Dilbert arrived at approximately 2:45 p.m., read Seward his
Miranda rights, and arrested him. Seward subsequently waived his Miranda
rights and again acknowledged that the methamphetamine belonged to him.
Another officer asked Seward if he had other drugs in the house. While
Seward said he did not, officers later discovered other drugs along with
various firearms.
      After Seward’s arrest, he moved to suppress evidence and statements
procured at the residence. Seward contended that suppression was necessary
because: (1) the search warrant contained an incorrect address and did not
include his name as well as a time of issuance; (2) the affidavit falsely
asserted that the informant was in Seward’s house in the 24 hours before the
search; and (3) Seward gave incriminating statements while in custody but
before he was Mirandized.
      At the suppression hearing, Officers Dilbeck and Spragins testified to
the above facts. Officer Dilbeck also explained that he discovered only after
the search that the address of Sewards’ residence had changed from “8985
U.S. Highway 281" to “1101 U.S. Highway 281.” Moreover, Officer Dilbeck
testified that drug dealers commonly use aliases instead of their real names.
      Seward called three witnesses–Britt, his wife, and himself–all of whom
had a dramatically different account of events. Britt testified that Officer
Dilbeck did not leave his house until 2:00 pm. Seward’s wife claimed that the
search began at 2:15 p.m., and that the police filled out the search warrant


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only after the search. Finally, Seward asserted that the search began at 2:00
p.m., the police pointed a gun at him throughout, and that the police never
Mirandized him.1
       Following the hearing, the district court issued its findings of facts and
conclusions of law. Finding the officers’ testimonies more credible, the court
concluded that Seward had failed to demonstrate a violation of his Fourth or
Fifth Amendment rights, and that suppression was unnecessary.
       After the district court denied his motion to suppress, Seward entered
into a plea agreement in which he “reserve[d] the right to appeal the Court’s
denial of his motion to suppress evidence as it relates only to the Fourth
Amendment and to his post-Miranda statement [sic] to the police.” Seward
then filed this appeal.
                                             II.
       Where the district court has denied a motion to suppress, we review its
findings of facts for clear error and its conclusions of law de novo. United
States v. Shabazz, 993 F.2d 431, 434 (5th Cir. 1993). “A finding is clearly
erroneous if the court is left with the definite and firm conviction that a
mistake has been committed.” United States v. Hernandez, 279 F.3d 302, 306
(5th Cir. 2002) (internal quotation marks and citation omitted). “Where a
district court’s denial of a suppression motion is based on live oral testimony,
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).
                                             III.




       1
        While testifying at the suppression hearing, Seward claimed that Officer Dilbeck never
Mirandized him. But in his brief, Seward seemingly acknowledged that Officer Dilbeck read
him his Miranda rights after his arrest. (Appellant’s Br. 32-33.)

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      We review a denial of a motion to suppress in two steps. First, we must
determine if the good-faith exception to the exclusionary rule established in
United States v. Leon, 468 U.S. 897 (1984), applies. United States v. Payne,
341 F.3d 393, 399 (5th Cir. 2003). “Under the good-faith exception, evidence
obtained during the execution of a warrant later determined to be deficient is
admissible nonetheless, so long as the executing officers’ reliance was
objectively reasonable and in good faith.” Id. If the good-faith exception
applies, then we do not consider the question of probable cause unless the
question is novel and an answer is necessary to help guide magistrate judges
and law enforcement officers. Id.
      Police who conduct a search pursuant to a warrant issued by a
magistrate presumptively act in good faith. United States v. Craig, 861 F.2d
818, 821 (5th Cir. 1988) (“Issuance of warrant by a magistrate normally
suffices to establish good faith on the part of law enforcement officers who
conduct a search pursuant to the warrant.”). But the good faith exception is
nonetheless inapplicable under any of the following four sets of
circumstances: “(1) If the issuing magistrate/judge was misled by information
in an affidavit that the affiant knew was false or would have known except for
reckless disregard of the truth; (2) where the issuing magistrate/judge wholly
abandoned his or her judicial role; (3) where the warrant is based on an
affidavit so lacking in indicia of probable cause as to render official belief in
its existence entirely unreasonable; and (4) where the warrant is so facially
deficient in failing to particularize the place to be searched or the things to be
seized that the executing officers cannot reasonably presume it to be valid.”
United States v. Webster, 960 F.2d 1301, 1307 n.4 (5th Cir. 1992) (per
curium).
      In this case, the police presumptively conducted its search of Seward’s
residence in good faith because they had a warrant issued by a magistrate.


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Seward, however, claims that the good-faith exception is inapplicable because
Officer Dilberck lied in his affidavit about receiving tips from an informant,
thereby making this case an example of the first set of circumstances outlined
above. Seward points to purported errors on the warrant–the incorrect
address, the affidavit’s reference to “Mike,” and the magistrate’s failure to
note the time of issuance–and inexplicably argues that “a reasonable
deduction” is that Officer Dilbeck invented the informant. Seward also urges
us to consider the testimonies of his witnesses at the suppression hearing,
which dramatically contradict both Officer Dilbeck and Officer Spragins’s
version of events. In sum, Seward does not dispute that the good faith
exception applies if events occurred as the officers testified, but Seward
simply contends that events occurred differently.
      We find that Seward’s arguments lack merit. We reject simply as
illogical the contention that the warrant’s purported errors somehow indicate
that Officer Dilbeck fabricated the informant. Moreover, we conclude that the
district court did not clearly err when it made findings of fact in accordance
with the officers’ version of events. Having heard both the testimonies of
Seward’s witnesses and the officers, the district court ultimately found the
officers more credible and resolved the many factual discrepancies in the
government’s favor. While Seward vehemently contends that the district
court was wrong, he offers no evidence as to why the district court’s findings
were clearly erroneous. Therefore, we accept the district court’s findings of
fact. Because Officer Dilbeck, the affiant, did not knowingly mislead the
magistrate judge, we find that the good faith exception applies here. In a
case involving only factual issues, this finding is dispositive, and we express
no view on whether the warrant was supported by probable cause. See Craig,
861 F.2d at 820-21 (finding that courts need not reach the issue of probable



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cause if the good faith exception applies and the case involves only issues that
are “primarily factual in nature”).
                                          IV.
      Finally, Seward appeals the district court’s denial of his motion to
suppress statements he made to the police before he was arrested. We do not
address this issue, however, because Seward waived his right to appeal this
portion of the district court’s order. Under his plea agreement, “Seward
reserve[d] the right to appeal the Court’s denial of his motion to suppress
evidence as it relates only to the Fourth Amendment and to his post-Miranda
statement [sic] to the police.” In its order, the district court found that the
police Mirandized Seward after they arrested him.2 Therefore, the “post-
Miranda” statements referred to in the plea agreement are statements he
made after his arrest, and we find that Seward waived his right to challenge
on appeal the admissibility of statements he made before his arrest.
                                          V.
      For the reasons above, we AFFIRM.




      2
       Seward also seemingly acknowledged in his brief that Officer Dilbeck read him his
Miranda rights after his arrest. (Appellant’s Br. 32-33.)

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