     Case: 10-50967     Document: 00511621348         Page: 1     Date Filed: 10/04/2011




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

                                                                            FILED
                                                                          October 4, 2011
                                     No. 10-50967
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DAVID DELACRUZ, also known as David De-La-Cruz,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:05-CR-209-1


Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges
PER CURIAM:*
        David Delacruz appeals his bench trial conviction for possession with
intent to distribute methamphetamine and possession of a firearm in
furtherance of a drug trafficking crime with aiding and abetting. Delacruz
argues that the district court erred by denying his motion to suppress evidence
obtained during a search of his residence. He specifically argues that the good-
faith exception was not applicable to the warrant because the affiant, Sergeant
Donald Repp, omitted certain facts that were critical to a proper finding of

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-50967

probable cause. Delacruz also argues that the warrant lacked probable cause
because the supporting affidavit was “bare bones.”
      Delacruz specifically contends that Sergeant Repp’s affidavit omitted
(1) the fact that alleged marijuana seeds and stems found in the garbage in front
of a residence controlled by Delacruz were not field tested and (2) the fact that
when officers contacted Delacruz to set up a controlled buy, Delacruz’s brother
showed up instead. According to Delacruz, these omissions militated against a
confidential informant’s (CI) claims that he was a drug dealer and also
prevented the magistrate from making an independent determination that there
was probable cause to issue a search warrant.
      Even in the absence of a field test, the totality of the circumstances reveal
that Sergeant Repp had probable cause to suspect that the substance found in
the garbage was marijuana. See United States v. Fisher, 22 F.3d 574, 578 (5th
Cir. 1994). The affidavit included a detailed explanation of Sergeant Repp’s
history, training, and experience investigating drug cases. Also, in the affidavit,
Sergeant Repp asserted that the trash was filled with loose tobacco and empty
cigar wrappers and that he knew from his experience as a narcotics officer that
drug dealers often emptied the tobacco from cigars and replaced the tobacco with
marijuana to make “‘marijuana blunt’” cigars.
      Moreover, during his testimony at the suppression hearing, Sergeant Repp
stated that the marijuana was “readily recognizable,” and that he did not believe
he was required to perform a field test. Delacruz does not refute Sergeant
Repp’s extensive experience investigating drug crimes or Sergeant Repp’s
testimony regarding the field testing requirements, nor does Delacruz cite any
case law mandating officers to field test marijuana. See Waltman v. Payne,
535 F.3d 342, 347-48 (5th Cir. 2008) (concluding that probable cause existed to
believe substance was marijuana, even where field test was negative, based on
officers’ drug training and experience and knowledge that test was unreliable on
fresh marijuana plants).

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                                  No. 10-50967

      Furthermore, testimony at the suppression hearing did not reveal any
specific details about the attempted controlled buy, and nothing in the record
indicates the reason Delacruz’s brother might have appeared at the controlled
buy. The inclusion of any information about the attempted controlled buy would
not have negated a finding of probable cause given that a reliable CI witnessed
Delacruz sell drugs and had also purchased drugs from Delacruz on numerous
occasions and that Sergeant Repp conducted a lengthy surveillance of the
suspected premises and vehicles and discovered cocaine residue and marijuana
seeds and stems in the trash outside of the residence controlled by Delacruz. See
United States v. Allen, 625 F.3d 830, 842 (5th Cir. 2010), petition for cert. filed
(Feb. 2, 2011) (No. 10-999). In addition, Delacruz had an extensive list of drug-
related arrests and encounters with officers, which tends to confirm the CI’s
statement that Delacruz was knowledgeable of and involved in the drug trade.
See, e.g., United States v. Satterwhite, 980 F.2d 317, 321 & n.5 (5th Cir. 1992)
(stating that a determination of probable cause requires only a “probability,” not
“certainty,” that contraband will be located at the suspected premises).
      Delacruz does not provide any evidence to establish that Sergeant Repp’s
omission regarding the testing, or lack thereof, of the marijuana and the
omission regarding the attempted controlled buy were either material or omitted
in reckless disregard for the truth. See United States v. McCarty, 36 F.3d 1349,
1356 (5th Cir. 1994); United States v. Cronan, 937 F.2d 163, 165 (5th Cir. 1991).
Because the affidavit was not misleading and set forth detailed information from
which the magistrate could determine probable cause, the district court did not
err in concluding that the good faith exception to the exclusionary rule applied.
See United States v. Shugart, 117 F.3d 838, 844 (5th Cir. 1997). Accordingly, we
need not consider Delacruz’s argument that the affidavit in support of the
warrant did not present sufficient evidence to establish probable cause. See
United States v. Froman, 355 F.3d 882, 888 (5th Cir. 2004). The judgment of the
district court is AFFIRMED.

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