     Case: 11-50914       Document: 00512077328         Page: 1     Date Filed: 12/07/2012




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

                                                                            FILED
                                                                         December 7, 2012
                                     No. 11-50914
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GENE DALE GUERRERO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:07-CR-549-1


Before SMITH, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Gene Dale Guerrero, convicted following a conditional guilty plea of
possession with intent to distribute methamphetamine, challenges the district
court’s denial of his motion to suppress evidence, arguing that (1) the search
warrant was so facially deficient that the officers executing the search could not
presume the warrant to be valid for purposes of invoking the good faith
exception to the exclusionary rule, (2) the district court erred in denying the



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50914

motion to suppress evidence because the search warrant violated Texas law, and
(3) the affidavit supporting the search warrant was a “bare bones” affidavit.
      In reviewing a district court’s denial of a motion to suppress, this court
considers questions of law de novo and will reverse factual findings only if they
are clearly erroneous. United States v. Raney, 633 F.3d 385, 389 (5th Cir. 2011).
This court views the evidence in the light most favorable to the prevailing party
and may affirm the denial of the motion on any basis established by the
evidence. Id.; United States v. Aguirre, 664 F.3d 606, 610 (5th Cir. 2011), cert.
denied, 132 S. Ct. 1949 (2012).
      We engage in a two-step inquiry when reviewing a district court’s denial
of a motion to suppress. United States v. Cherna, 184 F.3d 403, 407 (5th Cir.
1999). First, we determine whether the good faith exception to the exclusionary
rule announced in United States v. Leon, 468 U.S. 897 (1984), applies. Id. If so,
no further analysis is conducted and the district court’s denial of the motion to
suppress will be affirmed. Id. If the good faith exception does not apply, we
proceed to the second step, “ensur[ing] that the magistrate had a substantial
basis for . . . concluding that probable cause existed.” Id. (internal quotation
marks and citation omitted).
      The good faith exception provides “that evidence obtained by law
enforcement officials acting in objectively reasonable good-faith reliance upon a
search warrant is admissible” even if the affidavit on which the warrant was
grounded was insufficient to establish probable cause. United States v. Shugart,
117 F.3d 838, 843 (5th Cir. 1997) (internal quotation marks and citation
omitted). An officer’s reliance on a warrant is not objectively reasonable and,
therefore, he is not entitled to invoke the good faith exception, if (1) the judge
who issued the warrant acted after being “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”; (2) the judge who issued the warrant “wholly
abandoned his judicial role” and failed to act neutrally, such that “no reasonably

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                                  No. 11-50914

well trained officer should rely on the warrant”; (3) the affidavit upon which the
warrant is founded is “so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable” and is thus a “bare bones” affidavit;
or (4) the warrant authorizing the officer’s actions is so “facially deficient” that
the executing officers cannot reasonably presume it to be valid. United States
v. Mays, 466 F.3d 335, 343 (5th Cir. 2006) (internal quotation marks and citation
omitted).
      To the extent that Guerrero argues that the warrant was facially deficient
due to the 2006 date error, the district court found that the warrant, prepared
by Officer Phillips, contained a typographical error, reciting, erroneously, that
the warrant was issued on August 27, 2006, at 6:25 p.m., rather than on August
27, 2007. The district court determined that the good faith exception to the
exclusionary rule applied because Phillips acted in good faith, his reliance on the
validity of the search was objectively reasonable, and Phillips’s efforts to correct
the error in the search warrant were objectively reasonable. As the district court
observed, this court has applied the good faith exception to officers executing
warrants that were technically in violation of the law because the magistrate
failed to sign or date the warrant in signing the application for the warrant. See
United States v. Kelley, 140 F.3d 596, 601-04 (5th Cir. 1998). Here, Officer
Phillips’s affidavit provided specific information indicating that the informant
was reliable and credible and was based on the informant’s personal knowledge
from which the magistrate judge could determine that probable cause existed.
See Cherna, 184 F.3d at 407-08; Satterwhite, 980 F.2d at 320-21; see also United
States v. Wylie, 919 F.2d 969, 974 (5th Cir. 1990).
      Guerrero argues that Kelley does not control because Officer Phillips made
the error in the warrant, not the issuing magistrate, and Phillips did not
reasonably rely on a valid warrant. “To trigger the exclusionary rule, police
conduct must be sufficiently deliberate that exclusion can meaningfully deter it,
and sufficiently culpable that such deterrence is worth the price paid by the

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                                  No. 11-50914

justice system.” Herrington v. United States, 555 U.S. 135, 144 (2009). The
record reflects that Phillips was “merely negligent” in referencing the year 2006
rather than 2007 in the warrant, and the record does not support a finding of
“deliberate, reckless or grossly negligent conduct.” United States v. Allen, 625
F.3d 830, 840 (5th Cir. 2010), cert. denied, 132 S. Ct. 1632 (2012). The date error
in the search warrant, resulting from an initial error by Phillips and subsequent
oversight by both Phillips and the magistrate judge, does not undermine the
district court’s determination that the officers executing the warrant acted in
good faith. See Shugart, 117 F.3d at 844. Nor has Guerrero identified any other
error in the warrant that rendered the warrant facially deficient for purposes of
the officers’ good faith in executing the warrant. See Mays, 466 F.3d at 343.
      To the extent that Guerrero argues that the search warrant violated Texas
law, “[w]hether the Fourth Amendment has been violated is determined solely
by looking to federal law on the subject.” United States v. Walker, 960 F.2d 409,
415 (5th Cir. 1992).
      Guerrero argues, for the first time on appeal, that the affidavit supporting
the warrant was a “bare bones” affidavit. In this circuit, a defendant’s failure
to “raise specific issues or arguments in pre-trial suppression proceedings
operates as a waiver of those issues or arguments for appeal.” United States v.
Pope, 467 F.3d 912, 918-19 (5th Cir. 2006). However, this court has “often
proceeded to evaluate the issues under a plain error standard for good measure.”
United States v. Scroggins, 599 F.3d 433, 448 (5th Cir. 2010). Guerrero has not
demonstrated error, plain or otherwise, with respect to his argument that the
affidavit was a “bare bones” affidavit. See Pope, 467 F.3d at 920; Puckett v.
United States, 556 U.S. 129, 135 (2009).
      AFFIRMED.




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