                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit                  May 19, 2005

                                                        Charles R. Fulbruge III
                           No. 04-10618                         Clerk


                     UNITED STATES OF AMERICA

                                Plaintiff-Appellee,


                                 v.

                      ANTHONY WAYNE CHAMBERS
                               Defendant-Appellant



          Appeal from the United States District Court
               For the Northern District of Texas

                        (6:03-CR-44-ALL-C)




Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

     The defendant, Anthony Wayne Chambers, moved the district

court to suppress evidence based on his contentions that: (1) the

search warrant used to search his house was unsupported by probable

cause and therefore invalid; and, (2) his inculpatory statements

and any tangible evidence derived from those statements were the

“fruit” of an illegal arrest.   The district court denied the motion



     *
      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this opinion should not be published and is not precedent except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
to   suppress.     Chambers   pleaded   guilty   to   possession   of   an

unregistered firearm, which was found during the search, reserving

the right to appeal the district court’s decision on his motion to

suppress.   We affirm.

I.    Background

      On July 31, 2002, Detective Robinson of the San Angelo Police

Department obtained a search warrant for a house located at 1014

North Jackson Street, San Angelo, Texas. Detective Robinson also

obtained a search warrant for a red 1992 Ford pick-up truck bearing

Texas license plate number 7FK-H90. Both the house and the pick-up

truck were owned by Chambers.

      The affidavit in support of the search warrant contained the

following allegations of fact:


      (1) Anthony Wayne Chambers owned the house located at 1014
      North Jackson Street and the red pick-up truck with license
      plate number 7FK-H90.

      (2) A reliable confidential informant, who had previously
      provided truthful information to the affiant officer, told the
      officer that, on several occasions, the informant had
      accompanied an anonymous third party to Chambers’s house on
      North Jackson Street for the express purpose of purchasing
      cocaine from a man named “Wayne.”

      (3) On each occasion the reliable confidential informant
      observed the third party enter Chambers’s house and return
      with a substance that the confidential informant recognized as
      cocaine.

      (4) Based on the affiant officer’s experience in narcotics
      investigations, the officer knew that many drug dealers use
      “middlemen” to distribute drugs in the manner described by the
      confidential informant.



                                   2
     (5) In response to the information provided by the reliable
     confidential   informant,  the   police began   to  conduct
     surveillance on Chambers’s house.

     (6) During that surveillance, the police observed the reliable
     confidential informant arrive at Chambers’s house in a vehicle
     with a third party on several occasions. On each occasion,
     the officers watched as the third party exited the vehicle,
     entered Chambers’s house briefly, and returned to the vehicle.

     (7) Also during the same surveillance period, the police
     observed the red pick-up truck registered to Chambers parked
     at the residence. Additionally, the police found pieces of
     mail in the trash bin at Chambers’s house that were addressed
     to Anthony Wayne Chambers.

     Before the search warrants could be executed, Chambers left

his house and drove his red pick-up truck to the parking lot of a

nearby business.2   At the time, two police officers were following

him in order to maintain their surveillance of his activities.

Once the officers were notified that a warrant had issued, the

officers stopped Chambers.     The officers placed him in the back of

a patrol car and transported back to his house, ostensibly to

facilitate the search of the house and the vehicle he was driving.

     Prior   to   searching   his   house,   the   police   officers   gave

Chambers his Miranda warnings and asked him to make a statement. He

told officers that:

     1)he shared a bedroom in the home with his wife and that
     bedroom was the master bedroom;

     2) no drugs were in the house other than a 1/4 ounce of


     2
      Neither party provides the distance between Chambers’s
residence and the parking lot in question. We assume, based on the
parties’ arguments, that the parking lot is located more than a few
blocks from Chambers’s house.

                                     3
       marijuana located in a safe in the master bedroom; and,

       3) there had been cocaine in the house in the past but that
       the cocaine belonged to someone else.

Chambers also informed the officers that he had multiple guns and

knives in the house and “tried to list all of the places where the

weapons were kept.”         Interviewed separately, Chambers’s wife told

officers that she and Chambers shared the master bedroom.              She also

told officers that there was a gun leaning against the wall in that

bedroom.

       No drugs or firearms were found in the search of Chambers’s

truck. But in Chambers’s house, police officers found, inter alia,

a fair amount of a substance believed to be cocaine as well as

cocaine    residue   located       in   multiple   zip-loc   bags,   marijuana,

methamphetamine, and a number of firearms. Among the firearms, was

a Norinco 7.62x39 rifle that officers found leaning against the

wall in the master bedroom of Chambers’s house.                 That rifle had

been    modified     from     a    semi-automatic     to     fully   automatic.

Consequently, the rifle was required to be registered in the

National Firearms Registration and Transfer Record under 26 U.S.C.

§ 5861. Because the rifle was not registered, Chambers was charged

in federal district court with possession of an unlicensed firearm.

       The State of Texas prosecuted Chambers based on evidence

seized in the same search and he was convicted in state court of

possession of cocaine.            The federal district court in this case

sentenced Chambers to 18 months, which was to run concurrently with


                                          4
his state sentence.        In accordance with his conditional plea

agreement, Chambers timely appealed the district court’s ruling on

his motion to suppress.       While his federal appeal was pending

before this Court, the state convictions were overturned by the

Texas Court of Criminal Appeals based on its conclusion that the

evidence obtained during the search of Chambers’s home should have

been suppressed because the affidavit undergirding the search

warrant did not provide probable cause.

II.   Standard of Review

      In an appeal from a district court’s denial of a motion to

suppress,   this   court   reviews   questions   of   law,   such   as   the

sufficiency of the search warrant, de novo and the district court’s

factual findings for clear error.3       Even though the Texas Court of

Criminal Appeals concluded that the search warrant in this case was

constitutionally defective thereby requiring a suppression of all

the evidence obtained during the search, this court is still

required to make an independent inquiry into the reasonableness of

the search and seizure conducted in this case.4



III. Analysis and Conclusions



      3
      See United States v. Portillo-Aguirre, 311 F.3d 647, 651-652
(5th Cir. 2002)(citing United States v. Burbridge, 252 F.2d 775,
777 (5th Cir. 2001)).
      4
      United States v. Walker, 960 F.2d 409, 416 (5th Cir.
1992)(citing Elkins v. United States, 364 U.S. 206, 224 (1960)).

                                     5
     This court engages in a two-part inquiry when considering

whether the exclusionary rule applies to evidence seized under an

allegedly defective search warrant.5            First, the court determines

whether     the   “good    faith”   exception    to   the    exclusionary     rule

applies.6    If the good faith exception applies, and the case fails

to present a novel question of law necessary to guide future action

by law enforcement officers, the inquiry is at an end and the

district court’s ruling on the admissibility of the evidence will

be affirmed.7      Second, if this court determines that the police

officers could not have relied on the warrant in good faith, or

that the case presents a novel question of law, the court considers

whether the warrant was supported by probable cause.8

     In United States v. Leon, the Supreme Court held that the good

faith    exception    to    the   exclusionary    rule      was   available   when

officers reasonably relied on an otherwise facially valid search

warrant.9    An officer’s reliance upon an otherwise facially valid

search warrant is reasonable when that warrant is supported by more




     5
      See United States v. Laury, 985 F.2d 1293, 1311 (5th Cir.
1993).
     6
        Id. (citing United States v. Leon, 468 U.S. 897 (1984)).
     7
        United States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002).
     8
      Laury, 985 F.2d at 1311 (citing United States v. Satterwhite,
980 F.2d 317, 320 (5th Cir. 1992)).
     9
        468 U.S. at 922-923.

                                        6
than a “bare bones” affidavit of probable cause.10           Here, there is

no assertion by Chambers that the warrant in question is otherwise

facially invalid.11   Accordingly, our resolution of the question of

whether the good faith exception applies turns on whether the

warrant in question was supported by more than a bare bones

affidavit of probable cause.

     A bare bones affidavit contains “wholly conclusory statements,

which lack the facts and circumstances from which a magistrate can

independently   determine   probable   cause.”12        For    example,   an

affidavit is bare bones when the affidavit merely alleges that the

police officer “‘has cause to suspect and does believe’” that

contraband is located on the premises of the place to be searched.13

Similarly, an affidavit is “bare bones” when the affidavit alleges

merely that police officers “‘have received reliable information

from a credible person and do believe’ that heroin is stored in a


     10
      Id. at 926; see also Laury,         985    F.2d   at    1311   (citing
Satterwhite, 980 F.2d at 321).
     11
      A search warrant is otherwise facially invalid when the
warrant fails to identify, with reasonable specificity, the place
to be searched or the thing to be seized. See Leon, 468 U.S. at
923 (“Finally, depending on the circumstances of the particular
case, a warrant may be so facially deficient, i.e., in failing to
particularize the place to be searched or the thing to be seized,
that the executing officers cannot reasonably presume it to be
valid.”)(citation omitted).
     12
      See Laury, 985 F.2d at       1311   n.23     (citing     and   quoting
Satterwhite, 980 F.2d at 321).
     13
      United States v. Brown, 941 F.2d 1300, 1301 n.1 (5th Cir.
1991)(quoting Nathanson v. United States, 290 U.S. 41 (1933)).

                                  7
home.”14    While an affidavit containing the mere description of an

illegal money order scheme may be conclusory and bare bones, if

that affidavit contains other facts corroborating the description

of the illegal scheme, that affidavit is not bare bones.15

     Additionally, an affidavit may rely on hearsay, such as an

informant’s report, so long as it presents “‘a substantial basis

for crediting the hearsay.’”16 When as here, the court is assessing

the credibility of an informant’s report, the court examines the

informant’s veracity and basis of knowledge.17 Moreover, though an

affidavit may lack factual assertions showing direct evidence of a

criminal scheme or contraband, the magistrate is permitted to “draw

common sense conclusions” from the facts alleged in making a

probable cause determination.18

     In     this   case,   the   affidavit   sets   out   more   than   a   mere



     14
      Brown, 941 F.2d at 1303 n.1 (quoting Aguillar v. Texas, 378
U.S. 108 (1964)).
     15
          Brown, 941 F.2d at 1303 n.3.
     16
      Illinois v. Gates, 462 U.S. 213, 241-42 (1983)(quoting Jones
v. United States, 362 U.S. 257, 269 (1960)).
     17
      See id. at 230-33(stating that these two factors are relevant
considerations under the “totality of the circumstances” test for
valuing an informant’s report).
     18
      See United States v. Wylie, 919 F.2d 969, 974 (5th Cir.
1990); United States v. Holzman, 871 F.2d 1496, 1510 (9th Cir.
1989) (“Direct evidence linking criminal objects is not required
for the issuance of a search warrant. A magistrate need only
determine that a fair probability exists of finding evidence.”)
(citations omitted).

                                       8
conclusory description of Chambers’s drug trafficking scheme.                        The

affidavit describes the scheme, including the use of a middleman,

which was known by the officer by virtue of his experience in

narcotics      investigations       to    be   a    typical   distribution     method

employed by drug dealers.            The affidavit also describes specific

instances of the scheme in action, which the affidavit states was

personally observed by a confidential informant who the police

officer avers “has provided [the officer] with information three

times in the past one month, and on each occasion the information

provided by the [informant] has proven to be true reliable and

correct.”        Under    Fifth    Circuit     precedent,      this      assertion    is

sufficient to establish the confidential informant’s veracity.19

Further, the personal observations of the credible confidential

informant provided information upon which the magistrate could have

“judge[d] whether the informant had a sufficient basis of knowledge

of   the     operations   supposedly       being      conducted    at    [Chambers’s]

house.”20

      Additionally,       the     affidavit        states   that   the   confidential

informant told the affiant police officer that a man named Wayne

was dealing drugs out of a home located at 1014 North Jackson

Street, San Angelo, Texas.               While this statement alone would be

      19
      See United States v. McKnight, 953 F.2d 898, 905 (5th Cir.
1992)(citing United States v. Jackson, 818 F.2d 345, 348 (5th Cir.
1987)).
      20
           McKnight, 953 F.2d at 905(citing Jackson, 818 F.2d at 349).

                                           9
conclusory and bare bones,21 the affidavit also states that the

informant based this statement on factual circumstances that the

informant personally observed.

      Furthermore, the affidavit demonstrates that the police were

able to independently verify that a man named Wayne lived at 1014

North Jackson Street, San Angelo, Texas, which corroborated the

information provided directly to the police from the confidential

informant and the information provided indirectly by the anonymous

third        party.    The   police   also   subjected    that   location   to

surveillance for nearly a month and observed three of the alleged

drug deals as they occurred, which also tended to corroborate the

information provided by both the confidential informant and the

anonymous third party.          That the officers corroborated several

pieces of the information provided by both the anonymous third party

and     the      confidential   informant    tends   to    demonstrate      the

information’s reliability.22 Contrary to Chambers’s assertions,23

there is no requirement that all of the information provided by an


        21
      See United States v. Kolodziej, 712 F.2d 975, 977-78 (5th
Cir. 1983)(finding an affidavit to be bare bones wherein informants
merely stated that a crime occurred and stated where contraband
could be found).
        22
             See Jackson, 818 F.2d at 348.
        23
      Chambers takes issue with the fact that no one other than the
anonymous third party actually saw Chambers exchange drugs for the
third party’s cash, and he contends that the anonymous third party
could have had the drugs he showed to the confidential informant
prior to entering Chambers’s home.

                                       10
informant be corroborated by a subsequent police investigation in

order for the informant to be considered credible.24                    Therefore,

given all of the facts alleged in the probable cause affidavit and

the corroborated reliability of the information provided by the

confidential informant and the third party, we conclude that this

affidavit is not bare bones and that the police relied on the search

warrant in good faith. Consequently, as this case presents no novel

question      of   law,   we   need   not    consider   whether   the   affidavit

established a substantial basis for the magistrate’s probable cause

determination and we affirm the district court’s admission of the

evidence seized during the search of Chambers’s house.25

      In addition to his warrant-based challenge to the admission of

the evidence found during the search of his home, Chambers argues

that he was unlawfully detained in the store parking lot and that

his   later    statements      and    all   other   physical   evidence   derived

therefrom, including the firearm he was convicted for possessing,

should be suppressed as the fruit of that unlawful detention.

Though the Government and Chambers never expressly state that

Chambers was arrested in the parking lot, our review of the

undisputed facts and Texas law reveals that he was actually arrested

and that the arrest was complete long before the officers “escorted


      24
      See United States v. Blount, 123 F.3d 831, 836 (5th Cir.
1997)(en banc).
      25
           Cavazos, 288 F.3d at 709.

                                            11
Chambers back to his residence where he was read his Miranda

warnings.”

     Under Texas law, an arrest is complete whenever a person has

been “actually placed under restraint or taken into custody by an

officer.”26      Critical to this determination is a finding that the

defendant is “under restraint” and within an officer’s “custody and

control.”27 In this case, both parties agree that officers stopped

Chambers in the parking lot and placed him in the back of a patrol

car that they had summoned to transport him to his house.         Thus,

there is little doubt that Chambers was within the officers’ custody

and control in the parking lot.       Accordingly, Chambers was arrested

in that parking lot.

     Given that the Government does not contend that the officers

had probable cause or a warrant to arrest Chambers in the parking

lot, there is no doubt that the parking lot arrest was illegal, and

any statements derived as fruit of that arrest should have been

suppressed.28       The fact that the statements followed Chamber’s

receipt of Miranda warnings does not alter the analysis.29


      26
           See TEX. CODE CRIM. PRO. § 15.22 (2004).
      27
      See Whiting v. State, 755 S.W.2d 938 (Tex. App. 1988);
Hardinge v. State, 500 S.W.2d 870 (Tex. Crim. App. 1973).
      28
           See Wong Sun v. United States, 371 U.S. 471, 484-85 (1963).
      29
      Brown v. Illinois, 422 U.S. 590, 601-02 (1975)(holding that
the administration of Miranda warnings after the occurrence of a
Fourth Amendment illegality and before the defendant’s admission

                                      12
       Moreover, facts similar to those that justified reasonable

detentions in Michigan v. Summers30 and United States v. Cavazos31

are not present here. Unlike the defendant in Summers, Chambers was

not in his house.       As a consequence, Chambers’s detention in this

case   could     not   have   facilitated    the   search   of   that   house.32

Additionally, Chambers did not engage in counter-surveillance of the

police or pose a threat to the police as was the case in Cavazos.33

While Chambers’s reasonable detention in the parking lot would have

facilitated the search of his pick-up truck in the lot, the

Government has articulated no legitimate reason justifying the

police officers’ decision to: (1) call a marked patrol car; and (2)

transport Chambers in that patrol car for more than a few blocks

back to his house in order to facilitate the officers’ search of

both the truck and the house.              Other circuits have held that,

without other extenuating circumstances, a distance of one block or

three blocks is too remote to justify a detention while a search

warrant is being executed,34 thus a distance in excess of a few


does not, alone, purge the taint of a Fourth Amendment violation);
United States v. Miller, 608 F.2d 1089, 1102-03 (5th Cir. 1998).
       30
            452 U.S. 692 (1981).
       31
            288 F.3d 706 (5th Cir. 2002).
       32
            Summers, 452 U.S. at 700-01.
       33
            288 F.3d at 711-12.
       34
      See, e.g., United States v. Edwards, 103 F.3d 90, 93-94 (10th
Cir. 1996); United States v. Sherrill, 27 F.3d 344, 346 (8th Cir.

                                      13
blocks is too remote as well.

     But even if Chambers’s statements should have been suppressed,

it is unlikely that the firearm, or for that matter, any contraband

found in plain view during the execution of the search warrant,

should also be suppressed.       The firearm was discovered leaning

against the wall in the master bedroom of Chambers’s house.       As

discussed above, the police had a valid search warrant for the

house.     Furthermore, that valid search warrant was obtained before

the illegal parking lot arrest and the warrant application was based

entirely on information unrelated to Chambers’s statements or the

arrest.    Thus, despite the fact that the actual search of the house

and seizure of the firearm occurred almost immediately after the

illegal parking lot arrest, the firearm and all other contraband are

not subject to the exclusionary rule because of a combination of the

independent source doctrine and the inevitable discovery doctrine.35

These two doctrines, which are admittedly not argued by either

party, are “two sides of the same coin.36

     The independent source doctrine applies when evidence is

“initially discovered during, or as a consequence of, an unlawful

search, but later obtained independently from activities untainted


1994).
     35
      See United States v. Grosenheider, 200 F.3d 321, 327-28 (5th
Cir. 2000).
     36
          Id. at 328 n. 8.

                                   14
by the initial illegality.”37      One of this Circuit’s most recent

analyses of the independent source doctrine was its decision in

United States v. Grosenheider.38

     In Grosenheider, a computer repair shop discovered child

pornography on a customer’s computer and notified the police.39    A

police officer then conducted an illegal search and seizure of the

computer, later returning it to the repair shop.40   Notified by the

police, a federal officer obtained a warrant based on an affidavit

recounting what the civilian computer shop employee had seen without

informing the judge of information gleaned from the police officer’s

illegal search.41       The judge found probable cause for a search

warrant based on the untainted information.42        The police then

followed the suspect’s wife home from the repair shop, where she had

picked up the computer, and executed the warrant.43     We held that

the information on the computer was admissible based on the search

and seizure pursuant to that warrant under the independent source



     37
      Id. (quoting Murray v. United States, 487 U.S. 533, 537
(1988)).
     38
          Id.
     39
          Id. at 324.
     40
          Id.
     41
          Id. at 324-25.
     42
          Id. at 325.
     43
          Id.

                                   15
doctrine.44

     The inevitable discovery doctrine applies where the government

establishes, by a preponderance of the evidence, “(1) a reasonable

probability that the contested evidence would have been discovered

by lawful means in the absence of the police misconduct and (2)that

the government was actively pursuing a ‘substantial alternate line

of investigation at the time of the constitutional violation.’”45

In fact, this Court held in United States v. Lamas that when

officers have probable cause to search, and have dispatched a fellow

officer to acquire a warrant, evidence found in the place to be

searched will inevitably be discovered.46

     In this case, the Government did more than just send an officer

for a warrant prior to conducting the searches of Chambers’s house

and vehicle. Not only did the officers obtain a valid warrant, that

warrant was obtained prior to the illegal parking lot arrest and was

based on evidence independent of Chambers’s post-arrest statements.

Based        on   these    circumstances,    we    conclude   that     there   is   “a

reasonable probability that the contested evidence would have been

discovered         by     lawful   means    in    the   absence   of    the    police



        44
             Id. at 330.
        45
      United States v. Lamas, 930 F.2d 1099, 1102 (5th Cir.
1991)(quoting United States v. Cherry, 759 F.2d 1196, 1205-06 (5th
Cir. 1985)).
        46
             930 F.2d at 1102.

                                            16
misconduct.”47 Additionally, the existence of that warrant clearly

indicates that the Government “was actively pursuing a ‘substantial

alternate line of investigation at the time of the constitutional

violation.’”48       Consequently, the firearm in question, along with

all of the other contraband seized from Chambers’s home, would have

been inevitably discovered by the police.

      Of course, had the firearm been discovered in some place where

the police were unlikely to search or that was beyond the scope of

the   warrant,      Chambers   might   have   a   better   argument   that   the

statements he made while illegally arrested tainted the search and

seizure.49       Though the parties never expressly indicate the content

of Chambers’s statements, the record reveals that Chambers did at

least attempt to tell the police where his weapons were kept.                But

the firearm in question was discovered in Chambers’s house, propped

against the wall in the master bedroom where he and his wife slept.

Thus, the firearm was unlikely to have been overlooked by the

police, even in the absence of Chambers’s statements.            Accordingly,

even if Chambers’s statements may have been properly suppressed, the

firearm, drugs, or other contraband discovered pursuant to the

      47
           Id.
      48
           Lamas, 930 F.2d at 1102(quoting Cherry, 759 F.2d at 1205-06).
      49
      See United States v. Cannon, 981 F.2d 785, 789 (5th Cir.
1993)(discussing whether ephedrine discovered stored in a tire
inner tube on a ranch being searched under a valid warrant was
inadmissible because police would not have found it without the use
of statements obtained in violation of Edwards).

                                        17
search warrant should not be suppressed.

      Chambers’s guilty plea is conditional.            Under Federal Rule of

Criminal Procedure 11(a)(2), “a defendant who prevails on appeal”

may withdraw his conditional guilty plea. The plain language of the

federal rule and the terms of the plea agreement here make clear

that had Chambers been fully successful on appeal, as opposed to

only partially so, he would be entitled to withdraw his plea.                 But

here we conclude that the vast majority of the evidence challenged

in Chambers’s motion was properly admitted by the district court.

The parties have failed to cite any authority, much less argue, that

Chambers’s partial success on appeal is sufficient to allow him to

withdraw his conditional guilty plea.

      In United States v. Leake,50 the Sixth Circuit observed that

the inquiry before the court in cases where a defendant only

partially prevails on appeal “requires an examination of the degree

of success and the probability that the excluded evidence would have

had   a    material   effect   on    the     defendant’s   decision    to   plead

guilty.”51     In   Leake,   the    Sixth    Circuit   permitted   a   partially

prevailing defendant to withdraw his conditional guilty plea based

on its conclusion that the most damning evidence against the




      50
           95 F.3d 409 (6th Cir. 1996).
      51
           95 F.3d at 420 n.21.

                                        18
defendant should have been suppressed.52

     In contrast, Chambers’s statements, many of which the search

proved inaccurate, clearly are not the most damning evidence against

him in this illegal gun possession case.           Because the admissible

evidence readily establishes the fact of possession and we have been

apprised     of   no   argument   to   the   contrary,   we   conclude   that

suppressing rather than admitting the excludable evidence would not

have had a material effect on Chambers’s decision to plead guilty.

     Accordingly, the ruling and judgment of the district court is

AFFIRMED.




     52
          Id. at 420.

                                       19
