     Case: 09-40436         Document: 00511131825      Page: 1    Date Filed: 06/03/2010




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

                                                   FILED
                                                                            June 3, 2010
                                         No. 09-40436
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                  Plaintiff - Appellee

v.

SALWILLEL THOMAS FIELDS,

                  Defendant - Appellant


                       Appeal from the United States District Court
                            for the Eastern District of Texas
                                 USDC No. 5:06-CR-27-1


Before JONES, Chief Judge, and HIGGINBOTHAM and ELROD, Circuit
Judges.
PER CURIAM:*
        Executing a search warrant, police officers raided Salwillel Fields’s home,
finding drugs, cash, and guns.            After securing written consent, the police
searched Fields’s two off-site storage lockers, discovering drugs in one. Fields
pleaded guilty to being a felon in possession of a firearm 1 and to possession with




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
        1
            18 U.S.C. § 922(g)(1).
   Case: 09-40436         Document: 00511131825   Page: 2   Date Filed: 06/03/2010



                                     No. 09-40436

intent to distribute crack cocaine 2 – but reserved his right to appeal the district
court’s denial of his motion to suppress. He urges that the search warrant so
lacked indicia of probable cause as to render reliance upon it unreasonable and
that police officers doctored the consent form allowing them to search the storage
lockers.      Unpersuaded, we conclude that the district court committed no
reversible error.


                                           I.
      Texas Ranger Jay Womack informed Bowie County Sheriff’s Officer
Captain Lance Hall that a drug-selling fugitive – Salwillel Fields – was living
in Wake Village, Texas. Hall learned that the State of Tennessee had issued six
warrants for Fields’s arrest, that he had been indicted for: conspiracy to sell
cocaine; possession with intent to distribute cocaine and marijuana;
manufacturing cocaine; possession of prohibited weapons (including an AK-47);
being a convicted felon in possession of firearms (a Ruger 9mm, a Llama .45, and
a Ruger .357); and money laundering. Hall began surveilling Fields’s home,
where he saw Fields, confirming his identity by photograph and verifying the
address by motor vehicle records.
      Hall sought a search warrant for the premises, signing a seven-page
affidavit averring that Fields is a drug-selling Tennessee fugitive, that based on
his two decades of experience, he is of the opinion that drug offenders typically
keep controlled substances and other evidence of crime in their residences. Hall
mentioned Fields’s recent drug- and gun-related indictments and attached to the




      2
          21 U.S.C. § 841(a)(1).

                                           2
   Case: 09-40436          Document: 00511131825       Page: 3   Date Filed: 06/03/2010



                                          No. 09-40436

affidavit Fields’s criminal history.3 The affidavit noted that Fields lived with his
wife. Tennessee also had recently indicted her for gun and drug offenses. Hall
intended with the search warrant to seize evidence of drug sales – including
papers and currency – as well as the guns and ammunition Fields possessed.
            The search warrant issued, which Ranger Womack and Captain Hall
executed at 6:43 am on February 28, 2005. They kicked down the door and
secured Fields, who had been asleep in the bedroom. They Mirandized him and
told him they had a search warrant. The officers then asked if he wanted to tell
them anything before they began searching the house. Fields responded that he
would cooperate and told the officers he had a shotgun in the bathroom and
drugs in the bedroom and car. The officers searched those locations, finding the
contraband.
       Down at the station, Ranger Womack drew up a consent form to search
Fields’s off-site storage lockers.           Fields signed the release (witnessed by a
Tennessee police officer), and the police searched Fields’s two lockers. In the
second locker they found drugs.
       The Texas police sent Fields back to Tennessee, but, a year later, a federal
grand jury in Texas returned an indictment against him charging: (1) felon in
possession of a firearm;4 (2) possession with intent to distribute cocaine and
crack-cocaine;5 and (3) possession of a firearm while trafficking drugs.6


       3
        During the 1990s, Fields was convicted in Tennessee of selling a controlled substance
and of attempt to sell cocaine.
       4
           18 U.S.C. §§ 921(g)(1) & 924 (e)(1).
       5
           21 U.S.C. § 841(a)(1).
       6
           18 U.S.C. § 924(c)(1).

                                                  3
   Case: 09-40436   Document: 00511131825     Page: 4    Date Filed: 06/03/2010



                                 No. 09-40436

      Fields twice moved to suppress the fruits of the searches. He claimed that
the warrant was insufficient, that it was “bare bones” and full of conclusory
allegations.   Fields testified at the second hearing that the police never
Mirandized him. He admits to signing the consent form, but he said it only had
one of his storage lockers listed. He accuses the police of subsequently adding
the second locker’s number, the locker in which the officers found drugs.
      Captain Hall testified that Ranger Womack immediately Mirandized
Fields, and Fields cooperated, disclosing the locations of drugs and a gun.
Ranger Womack testified that he Mirandized Fields with Hall present, obviating
the need for a Miranda waiver. Womack advised Fields that they had a search
warrant, and asked if Fields wanted to tell them where the contraband was
located. Fields then told the officers where to find the shotgun and drugs in the
home and car. Womack personally prepared the consent form to search the
storage units, specifying two lockers numbered “I-7, K-2.” He read the consent
form to Fields, and Fields read it himself. Fields signed the form with both
lockers listed as locations to be searched. Womack testified that he did not
subsequently alter the consent form.
      The district court, through a magistrate judge’s recommendation, denied
the suppression motions, addressing three issues – whether the officers could
rely in good faith on the warrant, whether Fields consented to the search of his
home and car, and whether Fields consented to the search of his second storage
locker. The court held that the affidavit in support of the warrant was not
conclusory and the police were entitled to rely on the warrant in good faith. On
the consent issues, the court found Fields had “effectively and voluntarily
cooperated with the police and consented to the searches.” The court expounded:


                                       4
   Case: 09-40436         Document: 00511131825        Page: 5     Date Filed: 06/03/2010



                                        No. 09-40436



       Not only is Defendant asking the Court to believe, contrary to the
       consistent testimony of Hall and Womack, that he never consented
       to the search of his home and vehicle, but Defendant also asks the
       Court to believe Womack . . . filled out the storage unit consent form
       with only the I-7 storage unit and then doctored the form by adding
       the K-2 unit. The Court is unwilling to accept Defendant’s
       testimony and instead accepts Hall and Womack’s versions of the
       facts as true.


Fields agreed to plead guilty to two of the charges,7 but reserved his right to
appeal the denial of his suppression motion.


                                               II.
                                               A.
       We begin with the search of Fields’s home and car. The government
suggests that we can affirm because Fields consented to a search by pointing out
the location of his shotgun and drugs. But consent will not do. The district court
found that Fields consented to the search only after the police officers told him
they had a search warrant. The Supreme Court has long held that a search
cannot “be justified as lawful on the basis of consent when that ‘consent’ has
been given only after the official conducting the search has asserted that he
possesses a warrant.”8 Admissibility here rises and falls with the warrant.9
       The pull of the exclusionary rule is not so strong as to suppress evidence


       7
           18 U.S.C. § 922(g)(1) and 21 U.S.C. § 841(a)(1). The government dropped the rest.
       8
           Bumper v. North Carolina, 391 U.S. 543, 548 (1968).
       9
        See id. at 549 (“A search conducted in reliance upon a warrant cannot later be justified
on the basis of consent if it turns out that the warrant was invalid.”).

                                               5
   Case: 09-40436          Document: 00511131825          Page: 6    Date Filed: 06/03/2010



                                          No. 09-40436

obtained when officers act in good-faith reliance on a warrant.10 But this good-
faith exception to the exclusionary rule will not apply in cases where an officer
relies “on a warrant based on an affidavit so lacking in indicia of probable cause
as to render official belief in its existence entirely unreasonable.” 11 Fields urges
that the warrant here lacks the necessary indicia, that it is bare bones.
       “This court reviews conclusions of law regarding the sufficiency of a
warrant de novo. Our review involves a two-step process, whereby we must first
determine whether the good-faith exception to the exclusionary rule applies.
Only if a novel legal question is presented or the good-faith exception does not
apply must we then ensure that the magistrate had a substantial basis for
concluding that probable cause existed.”12 Whether (1) knowledge of where a
drug-dealer resides plus (2) an officer’s experience that such people hide drugs
in their homes can support reliance on a warrant is not a novel question in this
Circuit, so we engage only in the good-faith analysis.13
       “‘Bare bones’ affidavits contain wholly conclusory statements, which lack
the facts and circumstances from which a magistrate can independently
determine probable cause.”14 “Generally, examples of ‘bare bones’ affidavits


       10
            See United States v. Leon, 468 U.S. 897, 922 (1984).
       11
            Id. at 923 (quotation marks omitted).
       12
            United States v. Shugart, 117 F.3d 838, 843 (5th Cir. 1997) (quotation marks omitted).
       13
         See United States v. Craig, 861 F.2d 818, 820–21 (5th Cir. 1988) (“The only instances
in which th[e] maxim [that the court should rely strictly on the good-faith exception] should
not be followed are those in which the resolution of a ‘novel question of law . . . is necessary
to guide future action by law enforcement officers and magistrates.’” (quoting Illinois v. Gates,
462 U.S. 213, 264 (White, J., concurring in the judgment)) (omission in original)).
       14
            United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992).

                                                 6
   Case: 09-40436          Document: 00511131825          Page: 7      Date Filed: 06/03/2010



                                           No. 09-40436

include those that merely state that the affiant ‘has cause to suspect and does
believe’ or ‘has received reliable information from a credible person and does
believe’ that contraband is located on the premises.” 15 “Although certainly not
a thing of beauty,” 16 the affidavit here passes the threshold.
       This court has often found good-faith reliance on a warrant to search a
defendant’s home where the affiant alleged (1) the defendant’s involvement in
drug trafficking and (2) that – based on the affiant’s law enforcement experience
– such criminals keep drug paraphernalia at their homes.17 The affidavit here
recited that Tennessee had recently indicted Fields on various drugs and
weapons charges 18 – reasonably leading Hall to believe probable cause existed
that Fields continues to be a drug dealer 19 – and that, in Hall’s extensive
experience, jurisdiction-fleeing, gun-toting drug dealers keep evidence of crime
in their homes. Hall did not offer first-hand observation of drug crime, but that




       15
            United States v. Pope, 467 F.3d 912, 920 (5th Cir. 2006) (alterations omitted).
       16
            Craig, 861 F.2d at 823.
       17
         See, e.g., United States v. Pofahl, 990 F.2d 1456, 1477 (5th Cir. 1993); United States
v. Kleinebreil, 966 F.2d 945, 949 (5th Cir. 1992); United States v. Webster, 960 F.2d 1301, 1307
(5th Cir. 1992) (“The fact that some of these sales took place at locations other than Webster’s
residence is not determinative. The affidavit alleged that, based on the officer’s experience,
drug dealers and traffickers commonly keep caches of drugs, as well as paraphernalia and
records of drug transactions, in their residences. In other words, the basis for searching
Webster’s residence was his overall drug trafficking and sales activity, not just those sales that
actually took place at his residence.”).
       18
         Fields does not question the validity of these indictments, and “[a]n indictment is a
conclusive finding that there is probable cause to believe that the allegations in the indictment
took place.” United States v. Byrd, 898 F.2d 450, 453 (5th Cir. 1990); see also Gerstein v. Pugh,
420 U.S. 103, 117 n.19 (1975).
       19
            Hall also referred to Fields’s drug-selling convictions.

                                                  7
   Case: 09-40436          Document: 00511131825         Page: 8    Date Filed: 06/03/2010



                                         No. 09-40436

Fields was a fugitive 20 wanted on drug and gun charges created an inference of
ongoing criminal activity sufficient to withstand the bare bones allegation.
       The officers in good faith relied on a warrant to search Fields’s home.21
Because the warrant allowed the police to search the “premises,” the police could
comb-through Fields’s car parked on the property.22 The district court did not
err in allowing fruits of the home and car searches to come in evidence based on
the good-faith exception, emphasizing again that we do not pass on whether
probable cause existed.
                                                B.
       Moving to the search of Fields’s storage lockers, “[a] consensual search is
a[] well-established exception to the Fourth Amendment’s warrant requirement.
Only free and voluntary consent justifies a warrantless search. In reviewing a
finding that consent was voluntarily given, this court employs a clearly
erroneous standard. This standard is particularly strong when the district judge
based his findings on oral testimony at the suppression hearing, as is this case
here.”23



       20
       Fields contends that he was not a fugitive, but it is undisputed that he was in Texas
and wanted on crimes committed in Tennessee.
       21
         “In the ordinary case, an officer cannot be expected to question the magistrate’s
probable-cause determination or his judgment that the form of the warrant is technically
sufficient. Once the warrant issues, there is literally nothing more the policeman can do in
seeking to comply with the law.” United States v. Leon, 468 U.S. 897, 921 (1984) (quotation
marks and alterations omitted).
       22
        United States v. Singer, 970 F.2d 1414, 1418 (5th Cir. 1992) (“This court has
consistently held that a warrant authorizing a search of ‘the premises’ includes vehicles
parked on the premises.”).
       23
            United States v. Mata, 517 F.3d 279, 290 (5th Cir. 2008) (footnotes omitted).

                                                 8
   Case: 09-40436       Document: 00511131825           Page: 9     Date Filed: 06/03/2010



                                        No. 09-40436

       The police did not have a search warrant for Fields’s off-site storage
lockers, so they asked for consent. He obliged, signing a consent waiver after the
police Mirandized him. Fields admits to allowing the police into locker “I-7,” but
not into locker “K-2” – the locker with the drugs. To get around his signed
waiver for both lockers, Fields speculated that a police officer doctored his
written consent by later adding-in locker “K-2.” The police officers deny doing
so. The district court credited the officers’ testimony and not the defendant’s.
The clear error standard does not allow reversal in this credibility battle, and
there is no other evidence to suggest that the police acted nefariously.24
       AFFIRMED.




       24
         “A finding of consent to search may be overturned on appeal only if found to be clearly
erroneous. We will reject the trial court’s finding only if, after giving due regard to the
opportunity of the trial court to judge the credibility of the witnesses, we are left with the
definite and firm conviction that a mistake has been committed. . . . We will not second guess
the district court’s credibility judgment.” United States v. Botello, 991 F.2d 189, 194 (5th Cir.
1993) (citations, quotation marks, and alterations omitted).

                                               9
