                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS           January 27, 2005

                       FOR THE FIFTH CIRCUIT                Charles R. Fulbruge III
                          ________________                          Clerk

                             No. 04-30737
                           Summary Calendar
                           ________________

UNITED STATES OF AMERICA

          Plaintiff - Appellee

     v.

CEDRIC L JACOBS

          Defendant - Appellant
_________________________________________________________________

           Appeal from the United States District Court
          for the Western District of Louisiana, Monroe
                      No. 3:03-CR-30023-1-RGJ
_________________________________________________________________

Before KING, Chief Judge, and JOLLY and CLEMENT, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Cedric L. Jacobs brought a motion to

suppress evidence obtained from three separate searches.         The

district court denied the motion, holding that each of the

searches was constitutionally valid.     Jacobs later entered a

conditional guilty plea to the charges against him.     He now

appeals the district court’s determination regarding the

admissibility of the evidence against him.     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that this opinion should not be published and is not precedent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.

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                           I.   BACKGROUND

     On May 27, 2003, Rick Swigart, a detective in the San

Bernardino County, California Sheriff’s Department was conducting

routine drug interdiction at a Federal Express shipping center in

Rialto, California.    Swigart noticed a package that looked

suspicious.   The following characteristics drew Swigart’s

attention: (1) the package was heavily taped with clear packaging

tape; (2) the package was shipped priority overnight from Sandra

Peterson in Cutten, California to Miss Peterson in Monroe,

Louisiana; (3) the sender paid cash to ship the parcel; (4) no

telephone numbers were listed for either the sender or the

recipient; (5) the package had a strong odor of dryer sheets and

of a chemical solvent consistent with the scent of the narcotic

phencyclidine (PCP).    Based on these characteristics, Swigart

brought his drug-sniffing dog, Taz, into the facility.    He placed

the suspicious package among several other packages to see if the

suspicious package would draw Taz’s attention.    When Taz detects

narcotics, he is trained to give a “hard alert,” which involves

sitting down in front of the package containing narcotics.     When

Taz came upon the suspicious package, he gave a “passive alert.”

Taz walked by the box, paused, looked at the package, looked at

Swigart, and looked at the package again.

     Based on Taz’s reaction, Swigart seized the package and

sought a search warrant from a California state court so that he



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could open the box.    In his affidavit in support of the request,

Swigart explained why the characteristics he initially noticed

were indicative of a narcotics shipment.    He also stated that

“Taz gave a positive ‘alert’ on this parcel indicating the parcel

had been saturated with the scent of illegal narcotics.”     Based

on the affidavit, the court issued a search warrant.    Pursuant to

the search warrant, Swigart opened the package and found that it

contained PCP.   California law enforcement officials then

repackaged the box with packing materials and a small portion of

the PCP, retaining most of it as evidence.    They also contacted

the police department in Monroe, Louisiana and requested that

they conduct a controlled delivery of the package.    The Monroe

Police Department agreed, and the package was sent to Louisiana.

     On May 30, 2003, the Monroe Police Department delivered the

package.   They placed the residence to which the package was

addressed under surveillance and had an undercover officer

dressed as a Federal Express employee deliver the package.

Before delivering the package, Detective Mark Johnson of the

Monroe Police Department prepared an affidavit in support of a

search warrant of the address listed on the package.    As the

delivery was taking place, Johnson was waiting with a Louisiana

state court judge.    As soon as the delivery occurred, an agent

conducting surveillance contacted Johnson.    At that point, the

judge signed the search warrant.    Johnson immediately called the



                                - 3 -
officers at the scene and informed them that a warrant had been

signed and that they could begin searching the residence.    The

officers proceeded to execute the warrant.   Immediately after

Johnson informed the officers that the warrant had been signed,

he drove to the residence to deliver the actual warrant.    It took

Johnson approximately ten minutes to arrive on the scene with the

search warrant.   As a result of the search, police found large

quantities of several drugs as well as several firearms.    Based

on this evidence, the police arrested Defendant-Appellant Cedric

L. Jacobs and Rayetta Goodin on state drug charges.    Jacobs and

Goodin were later released on bond.

     On July 23, 2003, Jacobs and Goodin were indicted by a

federal grand jury for various federal narcotics offenses.     The

next day, a federal magistrate judge issued arrest warrants for

Jacobs and Goodin.   The arrest warrants were served by Drug

Enforcement Administration (DEA) agents on September 3, 2003, at

the same residence that was searched on May 30, 2003.   As the

agents were arresting Jacobs and Goodin, they noticed some

marijuana sitting in plain view near the front door.    After the

officers conducted a protective sweep of the residence, DEA

Special Agent Vic Zordan then asked Jacobs for consent to conduct

a full search of the residence.   Jacobs told Zordan that the

house belonged to Goodin and that Zordan would have to ask her.

When Zordan asked Goodin for consent to search the house she



                               - 4 -
asked him if he had a search warrant.    Zordan told her that he

did not but that based on the evidence found in plain view, he

could quickly obtain a warrant to search the rest of the

residence.   Goodin consented to a search, saying “Yeah, I guess

if you want to.”    Upon searching the rest of the residence, the

agents found additional evidence of narcotics trafficking and

distribution.

     At trial, Jacobs moved to suppress all of the evidence

derived from the search of: (1) the package on May 28, 2003;

(2) the residence on May 30, 2003; and (3) the residence on

September 3, 2003.    On December 15, 2003, a federal magistrate

judge issued a report and recommendation denying Jacobs’s motion.

On February 20, 2004, the district court adopted the magistrate’s

report.   On March 15, 2004, Jacobs entered a conditional guilty

plea to the charges of: (1) conspiracy to distribute and to

possess with intent to distribute marijuana and cocaine base in

violation of 21 U.S.C. §§ 841(a)(1) and 846; and (2) possession

of a firearm in relation to drug trafficking in violation of 18

U.S.C. § 924(c)(1) and (2).    Jacobs reserved the right to appeal

the denial of his motion to suppress the evidence seized in the

three searches.    All remaining charges in the indictment were

dismissed.

     Jacobs now appeals the district court’s denial of his

suppression motion.    First, Jacobs argues that the warrant to



                                - 5 -
search the package seized at the Federal Express facility was

defective because Swigart misled the court regarding Taz’s

response to the package.     Second, he argues that the first search

of the residence was invalid because the search commenced before

the warrant arrived.   Finally, Jacobs alleges that the second

search was invalid because Goodin did not freely consent to the

search.

                       II.   STANDARD OF REVIEW

     In reviewing the denial of a motion to suppress, we employ a

two-tiered standard of review, examining the district court’s

factual findings for clear error and its ultimate conclusion as

to the constitutionality of the law enforcement action de novo.

United States v. Keith, 375 F.3d 346, 348 (5th Cir. 2004).     In

reviewing the district court, “we must view the evidence

presented at the hearing on the motion to suppress in the light

most favorable to the prevailing party -- in this case, the

government.”   United States v. Nichols, 142 F.3d 857, 866 (5th

Cir. 1998); see also United States v. Gutierrez-Orozco, 191 F.3d

578, 581 (5th Cir. 1999) (“We view all of the evidence introduced

at the suppression hearing in the light most favorable to the

prevailing party, in this case the government.”)




                             III.    ANALYSIS



                                    - 6 -
A.   The May 28, 2003 Search

     Under the good-faith exception to the exclusionary rule,

evidence obtained through the execution of a search warrant that

was not supported by probable cause will nevertheless not be

suppressed so long as the agent executing the warrant relied in

good faith on the warrant and acted within the scope of that

warrant.   United States v. Loe, 248 F.3d 449, 460 (5th Cir.

2001).   There are, however, four exceptions to the good-faith

exception.    United States v. Webster, 960 F.2d 1301, 1307 (5th

Cir. 1992) (per curiam).    In the exception relevant to this case,

the evidence must be suppressed if the judge issuing the warrant

“was misled by information in an affidavit that the affiant knew

was false or would have known except for reckless disregard of

the truth.”   See id. at 1307 n.4.

     “The party attacking the warrant bears the burden of

establishing by a preponderance of the evidence that the

misrepresentation was made intentionally or with reckless

disregard for the truth.”    United States v. Alvarez, 127 F.3d

372, 373 (5th Cir. 1997).   If the challenger meets this burden,

we must remove the offensive language from the affidavit and/or

add any deleted information to determine if the affidavit,

properly constituted, would have established probable cause to

issue the warrant.    Id. at 374.

     The district court found that the search of the package did



                                - 7 -
not violate the Fourth Amendment.   The court first found that

Swigart’s testimony established Taz’s reliability as a drug-

sniffing dog.   Second, the district court found that Swigart’s

affidavit was not misleading, since Taz’s reaction to the package

was sufficient to make Swigart certain that the package contained

narcotics.   Further, the court found no evidence that Swigart was

acting in bad faith.   Finally, the district court found that even

if the affidavit had explicitly noted that Taz did not give his

trained response, Taz’s passive response coupled with the other

characteristics of the package created probable cause.

     On appeal, Jacobs argues that the district court erred in

finding that Swigart did not act in bad faith or intentionally

mislead the court.   Jacobs further argues that without evidence

of Taz’s response to the package, the remaining statements in

Swigart’s affidavit were insufficient to create a reasonable

suspicion that there were narcotics inside the package.    Jacobs

notes that because each of the factors taken alone had a

plausible explanation, there was no probable cause.

     Jacobs’s arguments do not establish that the district court

was clearly erroneous in determining that Swigart acted in bad

faith or that the remainder of the affidavit failed to establish

probable cause.   Jacobs has the burden of establishing by a

preponderance of the evidence that Swigart acted in bad faith.

Alvarez, 127 F.3d at 373.   He has simply pointed to no evidence



                               - 8 -
to meet that burden.    Instead, Jacobs draws our attention to a

case from the Eighth Circuit.    United States v. Jacobs, 986 F.2d

1231 (8th Cir. 1993).    In Jacobs, based on a tip, the police

intercepted a Federal Express package they believed contained

narcotics.   The package was presented to a drug-sniffing dog.

Although the dog expressed interest in the package, it did not

alert as it was trained to.    The affidavit in support of the

search warrant noted that the dog expressed interest but did not

note that the dog did not alert in the manner it was trained to.

Based on this response, the dog handler could not state with any

certainty whether or not the package contained narcotics.    The

police then brought in a second dog, which expressed no interest

in the package whatsoever.    The result of this second test was

also withheld from the judge, who proceeded to issue a search

warrant.   Based on these events, the Eighth Circuit suppressed

the evidence obtained from the search.    Jacobs argues that Jacobs

mirrors the facts before us and thus mandates that we suppress

the evidence against him

     For several reasons, Jacobs does not undermine our

conclusion that the evidence should not be suppressed.

Preliminarily, we note that as a case from a sister circuit,

Jacobs is not binding on this court.    But more importantly,

Jacobs is distinguishable from our case.    In the instant case,

Swigart testified that based on his experience working with Taz,



                                - 9 -
he had no doubt that Taz’s passive alert indicated that the

package contained narcotics.    On the other hand, in Jacobs, the

officers’ decision to bring in a second dog and their failure to

notify the court of the results of the second test indicates both

that they had doubts about the first dog’s alert and that they

made a conscious decision to withhold those doubts from the

court.    These actions give a clear indication of bad faith.

Swigart’s actions in the instant case exhibit no such bad faith.

     Even if we assume, arguendo, that Swigart’s affidavit was

made in bad faith or with reckless disregard for the truth, the

remaining information, coupled with a more complete description

of Taz’s alert, provided probable cause for the warrant.

“Probable cause does not require proof beyond a reasonable doubt,

but only a showing of the probability of criminal activity.”

United States v. Daniel, 982 F.2d 146, 151 (5th Cir. 1993) (per

curiam).    It is true, as Jacobs notes, that any one of the

characteristics of the package taken on its own would not create

a high enough probability of criminal activity to justify a

search.    For example, the mere fact that no phone numbers were

listed on the shipping materials could reflect forgetfulness just

as much as it could reflect drug trafficking.    However, looking

at each characteristic of the package in isolation is irrelevant

because probable cause is evaluated under a totality of the

circumstances test.    United States v. Dickey, 102 F.3d 157, 162



                               - 10 -
(5th Cir. 1996).    The package drew Swigart’s attention based on

the combination of several factors.      Based on his police

experience, even before Taz identified the package, he was

reasonably certain that the package contained narcotics.       This,

coupled with Taz’s clear expression of interest in the package,

made it highly probable that there was criminal activity afoot

and that probable cause existed.

B.   The May 30, 2003 Search

     We have previously held that a violation of the rule

governing the execution and service of a search warrant is

“essentially ministerial in nature and a motion to suppress

should be granted only when the defendant demonstrates legal

prejudice or that non-compliance with the rule was intentional or

in bad faith.”     United States v. Marx, 635 F.2d 436, 441 (5th

Cir. Unit B Jan. 1981).    To show prejudice “a defendant must show

that because of the violation . . . he was subjected to a search

that might not have occurred or would not have been so abrasive

had the rule been followed.”     Id.   Further, the Supreme Court has

stated that “neither the Fourth Amendment nor Rule 41 of the

Federal Rules of Criminal Procedure requires the executing

officer to serve the warrant on the owner before commencing the

search.”   Groh v. Ramirez, 540 U.S. 551, 562 n.5 (2004).

     The district court determined “that the short delay in the

warrant’s delivery to the defendants was well within reason.”       On



                                - 11 -
appeal, Jacobs argues that the ten minute delay was not

reasonable since there were no exigent circumstances that

required an immediate search.    Jacobs also argues that because

the warrant was not present for the first ten minutes of the

search, the officers on the scene had no guidance as to the scope

of the search permitted under the warrant.

       Jacobs’s arguments are of no moment.   First, there were

exigent circumstances present.    The package that was delivered to

the residence contained only a small fraction of the original

amount of PCP.    As soon as they opened the package, the

recipients would be alerted to the fact that the package had been

tampered with.    The recipients would thus be on notice that the

police would quite likely be arriving soon.     This notice would

have dramatically increased the likelihood that the officers

would be met with violence when they did arrive.     As for Jacobs’s

argument that the delay allowed the officers to freely search the

residence for ten minutes, Jacobs must affirmatively demonstrate

that the officers on the scene conducted the search in a way they

would not have had the warrant been present.     Marx, 635 F.2d at

441.    Jacobs has offered no such demonstration.   Since the

warrant was prepared ahead of time for the judge’s signature, it

is possible that the officers on the scene were told what the

scope of the warrant would be.    If this were the case, Jacobs’s

argument would be factually incorrect.    As he is the party



                                - 12 -
challenging the search, he bears the burden of refuting such

possibilities.   He has made no effort to do so.   Accordingly, the

district court had no reason to suppress the evidence obtained

from the May 30 search.

C.   The September 3, 2003 Search

     Voluntary consent to a search is an exception to the general

prohibition on warrantless searches.    United States v. Jenkins,

46 F.3d 447, 454 (5th Cir. 1995).   We consider six factors in

determining the voluntariness of consent.   These factors are:

     (1) the voluntariness of the defendant’s custodial
     status; (2) the presence of coercive police procedures;
     (3) the extent and level of the defendant's cooperation
     with the police; (4) the defendant’s awareness of his
     right to refuse to consent; (5) the defendant’s education
     and intelligence; and (6) the defendant’s belief that no
     incriminating evidence will be found.


United States v. Tompkins, 130 F.3d 117, 121 (5th Cir. 1997).    No

single factor is dispositive, and the voluntariness of consent

must be determined from the totality of the circumstances.     Id.

We review the factual determination of whether there was consent

under the clearly erroneous standard.    Id. at 120

     The district court found that Goodin’s consent was

voluntary.   In reaching this conclusion, the court cited several

factors, chief among them being Goodin’s inquiry as to whether

Zordan had a search warrant.   The district court found that this

inquiry demonstrated that Goodin was aware that she had the right

to refuse consent to the search.    Jacobs argues that the district


                               - 13 -
court’s ruling was clearly erroneous since the circumstances

reflect that Goodin was coerced into granting consent.    Jacobs

argues that the fact that Goodin was already in custody, coupled

with the fact that the officers had already conducted a

protective sweep of the residence, created an atmosphere that was

not conducive to voluntary consent.

     We find Jacobs’s argument unconvincing.   We cannot conclude

that the district court’s finding was clearly erroneous based on

a vague argument about the general atmosphere.   In truth, the

atmosphere in which the consent was given was really no different

than any other arrest scene.   Looking at the concrete evidence,

there is nothing to suggest that the officers used any coercive

tactics, force, intimidation, promises, or other forms of

coercion to obtain Goodin’s consent.    Accordingly, we find that

the district court did not err in denying Jacobs’s motion to

suppress the evidence seized from the September 3, 2003 search.

                         IV.   CONCLUSION

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.




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