                    REVISED FEBRUARY 2, 2012

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

                                                                  FILED
                                 No. 10-11150                   February 1, 2012

                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                             Clerk

                                           Plaintiff–Appellee
v.

RONDRICK LAMAR GRAY,

                                           Defendant–Appellant



                Appeals from the United States District Court
                     for the Northern District of Texas


Before BENAVIDES, PRADO, and GRAVES, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      “The overriding function of the Fourth Amendment is to protect personal
privacy and dignity against unwarranted intrusion by the State.” Schmerber v.
California, 384 U.S. 757, 767 (1966).     This case forces us to balance this
fundamental interest in a person’s bodily integrity and dignity against the
significant need of law enforcement officers to unearth evidence of crime.
Specifically, the Appellant Rondrick Gray was forced to undergo a proctoscopic
examination under sedation pursuant to a warrant obtained on the police’s belief
that he was concealing crack cocaine in his rectum. Weighing the competing
interests, we find that the search was unreasonable but that the evidence should
                                 No. 10-11150

not be suppressed because the police acted in good-faith reliance on a valid
search warrant. Accordingly, we AFFIRM.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      On April 23, 2010, a confidential informant told San Angelo Police
Department (“SAPD”) Detective Hank Hethcock that Rondrick Gray was in
possession of and selling crack cocaine. Based on the information about Gray’s
vehicle, SAPD Officers Garza and Elrod stopped Gray’s vehicle and arrested him
on outstanding warrants. At the time of the stop (around 3 p.m.), Gray was
driving with a passenger, Selah Simmons, who was taken into custody as well.
Simmons told SAPD Sergeant Dornhecker that as the police were approaching
Gray’s vehicle during the traffic stop, Gray threw a plastic bag containing what
she believed to be crack cocaine at her and asked her to conceal it, which
Simmons refused to do. SAPD officers conducted a search of Gray’s vehicle for
the drugs but found nothing. Garza conducted a search of Gray, which also did
not turn up any drugs. A K-9 unit arrived, and a drug dog alerted on the center
console area of Gray’s vehicle, but no drugs were found.
      Gray was taken to the jail, where upon his arrival a strip search was
conducted. Garza, who witnessed the strip search of Gray, described Gray as
“not fully cooperative.” Gray was placed into the general population of the jail,
during which time he was not observed. While Gray was being searched and
booked at the jail, SAPD officers did an extensive, two-hour search of Gray’s
vehicle, which also turned up nothing.
      Gray was eventually taken out of the general population and strip-
searched a second time with Garza and Elrod watching. As a part of his strip
search, he was instructed to squat, pull his buttocks apart, and cough, in order
to dislodge anything that may be concealed in the anus. Gray was described as
“being evasive,” because he would only “slightly bend at the knees and give a
faint cough.” In addition to the two strip searches, SAPD did a second search of


                                         2
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the scene where they stopped Gray, and jail personnel conducted strip searches
of all inmates who were in Gray’s holding cell with him. None of these searches
turned up any drugs or other contraband.
      At this point, Hethcock presented Gray with some options of how to
proceed: Gray could undergo a third strip search, he could be placed in a cell
with a waterless toilet, or he could consent to a rectal x-ray examination. Gray
did not consent to any of these options. Based on all of these events and his
education, training, and experience, Hethcock believed that the “only place”
Gray could be concealing the crack cocaine that the police suspected him of
possessing was in his rectum. Hethcock informed Gray that the police would
seek a search warrant to try to uncover the drugs. By 10:15 p.m., Gray posted
a bond on his traffic warrants and was released. SAPD, however, detained Gray
for thirty minutes while waiting to secure the search warrant. At about 10:45
p.m., over seven hours after Gray’s initial arrest, a state judge signed the search
warrant, and Gray was taken to the hospital for the search.
      The state judge found probable cause for a search based on Hethcock’s
affidavit. The judge ordered Gray to be presented to a “qualified medical
technician to examine [Gray] for the concealment of controlled substances and
to remove said controlled substances from his body in accordance with
recognized accepted medical procedure as described in [Hethcock’s] affidavit.”
Hethcock’s affidavit, while it did state that the police suspected Gray of
concealing crack cocaine in his “anal cavity,” did not describe the medical
procedure to be performed at all. The only limitation on the procedure was the
same as in the warrant itself—“in accordance with recognized medical
procedures.”
      At the hospital, the first procedure performed was an x-ray using a
portable x-ray machine. Gray was, according to Hethcock, uncooperative with
the x-ray technician and as a result, the technician was unable to “get a good


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picture with the portable x-ray.” The next procedure attempted was another x-
ray but this time using a stationary machine. At first, Gray was asked to do a
standing x-ray, but Gray “refused to stay where he was told.” The medical staff
then tried to x-ray Gray while he was lying down, but Gray would not lie still.
Eventually, the x-ray technician obtained a useable picture. From his review,
he noticed something that he thought could either be a gas pocket or a foreign
object but could not decide which. Hethcock took the x-ray to Dr. Roland
Heidenhofer, a staff physician at the hospital, who also could not discern
whether the anomaly was a gas pocket or a foreign object. Heidenhofer then
went to Gray’s room and informed Gray that he was going to perform a digital
rectal examination on him. Though Hethcock described Gray as “evasive and
uncooperative” during the digital exam, Heidenhofer was able to perform the
digital exam to some extent. From that examination, however, he was unable
to determine if there was an object in Gray’s rectum.
      After failing to determine anything from either the x-rays or the digital
exam, Heidenhofer consulted with Dr. Emmette Flynn, the hospital’s Trauma
Medical Director. Flynn believed that the best next step was to perform a
proctoscopic examination of Gray’s rectum.      In such an examination, the
proctoscope, essentially an illuminated tube, is inserted across the anal canal
and into the rectum. The rectum is then filled with air, or insufflated, so that
the interior can be examined. When the rectum is insufflated, the walls are
distended, which permits a more thorough evaluation of the wall of the rectum
and objects within the rectal vault. Flynn stated that he did not ask for Gray’s
consent for the proctoscopic exam and that at the time he made the decision, he
had not reviewed the search warrant or Gray’s medical history.     For Gray’s
proctoscopic exam, two sedatives (Versed and Etomidate) were administered to
Gray intravenously. Though the doctors later testified at the suppression
hearing that the risks associated with the sedatives were low, Gray was placed


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on a number of monitors to measure Gray’s cardiovascular status during the
examination. The sedatives carry with them a risk of respiratory depression or
arrest. Proctoscopy also has associated risks, including pain and potential anal
bleeding or perforation. Flynn admitted that proctoscopic exams are usually not
conducted on uncooperative patients. At the time that the doctors decided to
perform the proctoscopic exam, there were other less intrusive means available
to try to recover the suspected drugs, including a cathartic or an enema—neither
of which would have involved sedation.
      During the proctoscopy, Flynn was unable to completely visualize the
rectal vault due to a “substantial amount of fecal debris.” He did, however,
intermittently see and feel something different from the other contents of the
rectum.   Flynn removed the scope and performed a second digital rectal
examination, during which Flynn removed a plastic bag from Gray’s rectal
cavity. Flynn placed the plastic bag into a biohazard bag provided by the
emergency department, and handed the bag to an SAPD officer. Subsequent
testing revealed the contents of the bag recovered from Gray’s rectum to be 9.62
grams of cocaine base.
      The Government indicted Gray for possession of crack cocaine with intent
to distribute. Gray moved to suppress the crack cocaine recovered during the
proctoscopic examination. After a suppression hearing, the district court found
the exclusionary rule inapplicable because the police had relied in good faith on
a valid search warrant in recovering the crack cocaine and that, regardless, the
crack cocaine would have been inevitably discovered. Overall, the district court
found that “the search and seizure of Gray’s person was reasonable considering
the manner and means and justification for the search and seizure.”
      The Government proceeded to trial, which focused on Gray’s intent to
distribute. During the course of the trial, the Government introduced four
photographs showing Gray posing with a gun. The district court admitted the


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photographs over Gray’s objections on authentication, prior bad acts, prejudicial
effect, and Confrontation Clause grounds. At the close of evidence, Gray moved
unsuccessfully for a judgment of acquittal. The jury convicted Gray of possession
of five grams or more of crack cocaine with intent to distribute. The district
court sentenced Gray to the statutory mandatory minimum under the pre-Fair
Sentencing Act regime—ten years imprisonment and eight years of supervised
release.    Gray timely appealed (1) whether the district court should have
suppressed the crack cocaine recovered from Gray’s rectum because the search
was unreasonable and (2) whether the district court erred in admitting the four
photographs of Gray posing with a gun.1
                                      II. DISCUSSION
A.     Seizure of the Crack Cocaine
       “When the district court denies a motion to suppress, we review factual
findings for clear error and conclusions of law de novo.” United States v. Payne,
341 F.3d 393, 399 (5th Cir. 2003) (citation omitted). “Evidence is considered in
the light most favorable to the prevailing party. The ultimate conclusion about
the constitutionality of the law enforcement conduct is reviewed de novo.”
United States v. Roberts, 612 F.3d 306, 309 (5th Cir. 2010) (internal quotation
marks and citations omitted). This “ultimate conclusion,” which is reviewed de
novo, includes “the sufficiency of the warrant or the reasonableness of an officer’s
reliance on a warrant” for purposes of the good faith exception. United States v.
Allen, 625 F.3d 830, 834 (5th Cir. 2010).


       1
          Gray also appealed his sentence and argued that the Fair Sentencing Act of 2010 (“FSA”)
should apply retroactively where, as here, the defendant committed the illegal conduct prior to the
enactment of the FSA but was not sentenced until after the FSA went into effect. This argument is
foreclosed by our recent holding in United States v. Tickles, 661 F.3d 212 (5th Cir. 2011). Gray’s
counsel conceded this point at oral argument.             Oral Argument at 0:19, available at
http://www.ca5.uscourts.gov/OralArgRecordings/10/10-11150_12-7-2011.wma. In Tickles, we surveyed
the existing case law on the retroactivity of the FSA and concluded that “the penalties prescribed by
the FSA do not apply to federal criminal sentencing for illegal conduct that preceded the FSA’s
enactment.” Tickles, 661 F.3d at 215.

                                                 6
                                  No. 10-11150

      1.    Purposes of the Exclusionary Rule and the Good Faith
            Exception
      In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court stated
that the exclusionary rule is “a judicially created remedy,” id. at 906, designed
to deter police misconduct, id. at 918. Therefore, where a police officer “acting
with objective good faith has obtained a search warrant from a judge or
magistrate and acted within its scope,” id. at 920, “the marginal or nonexistent
benefits produced by suppressing evidence obtained in objectively reasonable
reliance on a subsequently invalidated search warrant cannot justify the
substantial costs of exclusion.” Id. at 922. We have held that “[t]he good faith
exception applies unless one of the four exceptions to it is present.” United
States v. Foy, 28 F.3d 464, 473 (5th Cir. 1994).

      Those exceptions are: “(1) If the issuing magistrate/judge was misled
      by information in an affidavit that the affiant knew was false or
      would have known except for reckless disregard of the truth; (2)
      where the issuing magistrate/judge wholly abandoned his or her
      judicial role; (3) where the warrant is based on an affidavit so
      lacking in indicia of probable cause as to render official belief in its
      existence entirely unreasonable; and (4) where the warrant is so
      facially deficient in failing to particularize the place to be searched
      or the things to be seized that the executing officers cannot
      reasonably presume it to be valid.”

Id. at 473 n.20 (quoting United States v. Webster, 960 F.2d 1301, 1307 n.4 (5th
Cir. 1992). In deciding on the applicability of the good faith exception, the
“evidence should be suppressed ‘only if it can be said that the law enforcement
officer had knowledge, or may properly be charged with knowledge, that the
search was unconstitutional under the Fourth Amendment.’” Allen, 625 F.3d at
836 (quoting Herring v. United States, 555 U.S. 135, 143 (2009)). That is to say,
the good faith exception applies unless “a reasonably well trained officer would




                                         7
                                  No. 10-11150

have known that the search was illegal despite the magistrate’s authorization.”
Id. at 835 (quotation marks omitted).
      2.    Good-Faith-First Two-Step
      To effectuate the purposes of the exclusionary rule and the good faith
exception in cases where we are asked to review the constitutionality of a seizure
conducted pursuant to a search warrant, we employ a two-step inquiry. Allen,
625 F.3d at 835 (citing United States v. Cherna, 184 F.3d 403, 407 (5th Cir.
1999)). First, we determine the applicability of the good faith exception to the
exclusionary rule. Id. (citing Leon, 468 U.S. at 920–21 (1984)). If the good faith
exception applies, we affirm the district court’s denial of the motion to suppress.
Id. If we find the good faith exception inapplicable, we “determine[] whether the
magistrate issuing the warrant had a ‘substantial basis for believing there was
probable cause for the search.’” Id. (quoting United States v. Davis, 226 F.3d 346,
351 (5th Cir. 2000)).
      This case is different from Allen and the cases it cites because Gray’s
substantive challenge is not one claiming a lack of probable cause. Gray argues
that the proctoscopy violated his right to “‘personal privacy and dignity,’” as
delineated in Winston v. Lee, 470 U.S. 753, 760 (1985) (quoting Schmerber, 384
U.S. at 767 (1966)). There, the Supreme Court dealt with an appeal of a
permanent injunction issued by the district court enjoining the enforcement of
a state court search warrant that authorized surgery under general anesthesia
to retrieve a bullet that lodged in a suspect’s chest during a robbery. Id. at
756–57. The Court affirmed the injunction because it found the ordering of the
surgery to be unreasonable under the Fourth Amendment. Id. at 766. In so
doing, it stated that “[t]he reasonableness of surgical intrusions beneath the skin
depends on a case-by-case approach, in which the individual’s interests in
privacy and security are weighed against society’s interests in conducting the
procedure.” Id. at 760. The Court then elaborated a multi-factor balancing test,

                                        8
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based on Schmerber, that guides the analysis of the reasonableness of a medical
procedure to obtain evidence. It noted that the “threshold requirements for . . .
surgical search and seizure” were probable cause and the issuance of a warrant.
Id. at 760–61. “Beyond these standards,” a court reviewing the issuance of a
warrant for medical searches should consider the “magnitude of the intrusion,”
defined as the “extent to which the procedure may threaten the safety or health
of the individual” and the “extent of the intrusion upon the individual’s dignitary
interests in personal privacy and bodily integrity.” Id. at 761 (emphasis added).
The countervailing consideration is “the community’s interest in fairly and
accurately determining guilt or innocence.” Id. at 762. Additionally, the Court
thought it noteworthy that the suspect was afforded “a full measure of
procedural protections,” id. at 763; in fact, the state court held two evidentiary
hearings before actually issuing the warrant, id. at 756–57.
       Gray’s challenge is distinct from the normal probable cause challenge
because a probable cause determination considers only the police’s evidence and
not any additional countervailing liberty interest of the defendant.                          The
Government argues that this good-faith-first two-step ought to be employed
regardless of the substantive challenge. To be sure, the good-faith-first two-step
is grounded in the “[p]rinciples of judicial restraint.” United States v. Craig, 861
F.2d 818, 820 (5th Cir. 1988). But unwavering adherence to good-faith-first is
not mandated by our precedent.2 Quite the opposite, we depart from good-faith-


       2
         The current framework is essentially a reverse of the familiar Saucier approach to
qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (prescribing that courts
should first consider the constitutional-violation prong before turning to the objective-
reasonableness prong when deciding questions of qualified immunity), overruled in part by
Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that it was no longer mandatory for
courts to decide the constitutional-violation prong first); see also Groh v. Ramirez, 540 U.S. 551,
565 n.8 (2004) (describing the inquiry for good faith under the Fourth Amendment as the same
as the objective-reasonableness prong under qualified immunity). The good-faith-first two-step
goes one step further than Pearson does and mandates never reaching the constitutional
violation until deciding that the officers were not objectively reasonable. Compare Allen, 625

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first when discussion by this court of the underlying substantive challenge will
give “substantial guidance to lower courts and law enforcement officials.” Id. at
821. Because, in our view, this is a case where “resolution” of the substantive
challenge “is necessary to guide future action by law enforcement officers and
magistrates,” Illinois v. Gates, 462 U.S. 213, 265 41983) (White, J., concurring
in the judgment), we find “compelling reasons” to justify departure from our
normal good-faith-first approach. Craig, 861 F.2d at 821; see also United States
v. Husband, 312 F.3d 247, 256 (7th Cir. 2002) (declining to reach the question
of the good faith exception’s applicability to warrants authorizing medical
procedure searches).
              a.      Reasonableness of the Search
       Applying the Winston factors to the present case, the magnitude/danger
of the proctoscopy appears to be slight. Though the testimony reveals that there
was some risk of respiratory depression or arrest associated with the sedatives
administered and risk of anal bleeding or perforation associated with the use of
the proctoscope, these risks were low in the hospital setting where the
proctoscopy occurred. The risks here are obviously greater than the blood draw
found permissible in Schmerber, 384 U.S. at 771 (allowing a blood draw to
determine the blood alcohol level of a drunk driver), but they do not seem to rise
to the level of the risks associated with the surgery found unreasonable in
Winston, 470 U.S. 763–65.
       On the extent of the intrusion factor, Gray argues that “[s]hy of full-on
exploratory surgery [like in Winston], it is hard to imagine a more demeaning
and intrusive invasion of Gray’s interests” in personal privacy and bodily


F.3d at 835, with Pearson, 555 U.S. at 236 (“Although we now hold that the Saucier protocol
should not be regarded as mandatory in all cases, we continue to recognize that it is often
beneficial.”). Unwavering adherence to good-faith-first will stagnate constitutional law in this
area by completely shielding from review the magistrate’s initial determination of whether to
issue a medical procedures warrant. Cf. Saucier, 533 U.S. at 201.

                                              10
                                  No. 10-11150

integrity. Br. of Defendant–Appellant at 29. This is an understatement: the
proctoscopy here was a greater affront to Gray’s dignitary interest than full-on
exploratory surgery. Though sedated, Gray was conscious throughout the entire
procedure. Moreover, the procedure targeted an area of the body that is highly
personal and private. In our society, the thought of medical technicians, under
the direction of police officers, involuntarily sedating and anally probing a
conscious person is jarring. Such a procedure is degrading to the person being
probed—both from his perspective and society’s. This type of search resembles
the physical vaginal cavity search that the First Circuit encountered in
Rodriques v. Furtado, 950 F.2d 805 (1st Cir. 1991). There, the First Circuit said,

      [t]he invasion here was extreme, constituting a drastic and total
      intrusion of the personal privacy and security values shielded by the
      fourth amendment [sic] from unreasonable searches. Searches of
      this nature instinctively give us cause for concern as they implicate
      and threaten the highest degree of dignity that we are entrusted to
      protect.

Id. at 811. In taking both of the individual interests into account, the magnitude
of the intrusion from the proctoscopy was minimal, but the extent of intrusion
from the proctoscopy was great.
      Society’s interest here, like in Winston, is “of great importance.” Winston,
470 U.S. at 762. The interest is even greater than in Winston, where there was
other evidence of guilt, id., because the crack cocaine that Hethcock believed
Gray was concealing in his anal cavity was the only direct evidence of Gray’s
possession.   Unlike in Schmerber or Winston, however, there were other
available avenues for obtaining this evidence, such as a cathartic or an enema.
Such alternatives militate against society’s great interest “in conducting the
procedure” used in this case—proctoscopy. Id. at 760 (emphasis added).
      When balancing these interests and comparing them to our benchmarks
of the permissible Schmerber blood draw and the impermissible Winston

                                       11
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surgery, the medical danger here is slightly greater than in the former but
nowhere near the danger of the latter. As to the dignitary interest, this is one
of the greatest dignitary intrusions that could flow from a medical
procedure—involuntary sedation for an anal probe where the person remains
conscious. The last consideration is society’s interests, which are not as great as
in Schmerber but greater than in Winston. On balance, we find the proctoscopic
search unreasonable due to the exceeding affront to Gray’s dignitary interest
and society’s diminished interest in that specific procedure in light of other less
invasive means.
              b.      Good Faith
       As stated above, the good faith exception applies unless one of the four
exceptions to it applies. Foy, 28 F.3d at 473. In this case, none of the exceptions
to the good faith exception applies. The magistrate was neither misled nor
abandoned his judicial role. The warrant was not so devoid of probable cause
nor so lacking in particularity to say that “a reasonably well trained officer
would have known that the search was illegal.” Allen, 625 F.3d at 835. Where,
as here, the magistrate issues a warrant that is more particularized than a
search of the suspect’s “person,” see United States v. Nelson, 36 F.3d 758, 760–61
(8th Cir. 1994),3 the warrant will not likely have any of the deficiencies identified
by this court as a basis for not applying the good faith exception. That is to say
a warrant, like the one at issue, that authorizes a medical procedure search of
a specific area of the body but does not prescribe any off-limits procedures will
be subject to good faith unless the police misled the magistrate, the magistrate


       3
          In Nelson, the Eighth Circuit found that the warrant failed the particularity
requirement of the Warrant Clause because a “search warrant for appellant’s ‘person’ was not
sufficient to authorize a body cavity search.” 36 F.3d at 760. It also found that the good faith
exception was inapplicable because “even if we agree that the officers could have reasonably
believed that the warrant included authorization for a body cavity search, there is no
objectively reasonable basis for the officers’ mistaken belief that the authorization contained
in the warrant extended to the endoscopy.” Id. at 761 (internal quotation marks omitted).

                                              12
                                  No. 10-11150

abandoned her judicial role, or the warrant so clearly lacked probable cause.
None of those situations exists in this case. This fact is of great concern to us
because it seems that even if the magistrate were to authorize a medical
procedure search that would violate the Fourth Amendment, like the general
surgery found impermissible in Winston, there is no remedy for such a violation;
the police officer’s reliance on that warrant would be objectively reasonable. See
Leon, 468 U.S. at 916; see also United States v. Husband, 226 F.3d 626, 636 (7th
Cir. 2000) (Easterbrook, J., dissenting). Therefore, although we hold that the
seizure is permissible under the good faith exception, we urge warrant-issuing
magistrates to cabin the search warrant more than the “recognized medical
procedure” language in this warrant. Additionally, we encourage magistrates,
where feasible, to hold a hearing like in Winston to allow for more careful
consideration of the competing interests at stake in each one of these medical
procedure search cases. As the Court noted in Winston,

      [t]he Fourth Amendment is a vital safeguard of the right of the
      citizen to be free from unreasonable governmental intrusions into
      any area in which he has a reasonable expectation of privacy.
      [W]hen the State seeks to intrude upon an area in which our society
      recognizes a significantly heightened privacy interest, a more
      substantial justification is required to make the search “reasonable.”

470 U.S. at 767.
B.    Admission of the Photographs
      Evidentiary rulings by the district court are reviewed for abuse of
discretion, subject to harmless error review. United States v. Jackson, 636 F.3d
687, 692 (5th Cir. 2011). “A trial court abuses its discretion when its ruling is
based on an erroneous view of the law or a clearly erroneous assessment of the
evidence.”   Id. (internal quotation marks omitted).       Gray challenges the
admission of four photographs that depict him posing with a gun. He contends



                                       13
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that these photographs were erroneously admitted because they were (1) not
properly authenticated and (2) unfairly prejudicial.
      1.    Authentication
      Federal Rule of Evidence 901(a) provides that “authentication or
identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent
claims.” This standard is not a “burdensome one,” Jackson, 636 F.3d at 693, as
we do not “require conclusive proof of authenticity before allowing the admission
of disputed evidence.” United States v. Watkins, 591 F.3d 780, 787 (5th Cir.
2009). The Government used SAPD Detective Rodney Black to authenticate the
photographs.    He testified that the photographs were downloaded from
Simmons’s cell phone, which she authorized him to do, and that the pictures
“appeared to be Mr. Gray holding a handgun or revolver.” While usually a
witness with personal knowledge would need to testify that the photographs
accurately depict the scene at the time of their taking, see Kenneth S. Broun, 1
McCormick on Evidence § 52 (6th ed. 2006), here, the Government was not
seeking to prove anything relating to the time that the pictures were taken, but
rather that these were pictures of Gray holding a gun. Therefore, Black did not
need to testify that the photographs were a true and accurate depiction of
anything more than Gray holding a gun.          Black had sufficient personal
knowledge to testify that the photographs depicted Gray holing a gun. See
United States v. Jimenez Lopez, 873 F.2d 769, 772 (5th Cir. 1989) (“Rule 901
does not limit the type of evidence allowed to authenticate a document.”).
      2.    Prejudice
      Gray also argues that it was error for the trial court to admit the
photographs of him posing with a gun because of the minimal probative value
of the photographs and the significant danger of unfair prejudice.           The
Government argues that the photographs showing Gray with a gun is probative

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                                       No. 10-11150

of Gray’s intent to distribute the crack cocaine recovered from his person because
“firearms are tools of the [drug] trade.” See United States v. Martinez, 808 F.2d
1050, 1056–57 (5th Cir. 1987) (internal quotation marks omitted). Martinez, like
the other cases the Government cites to, held that guns recovered from the same
location where drugs were found is probative of intent.4 These cases do not
support the conclusion that the fact that Gray held a gun (perhaps legally) in a
photograph was probative of Gray’s intent to distribute the crack cocaine found
in him. There was no probative value to the photographs, and therefore, the
district court abused its discretion through its admission of the evidence. See
United States v. Palmer, 37 F.3d 1080, 1085 (5th Cir. 1994) (where evidence has
no probative value, admission is clear error).
       A finding that the district court abused its discretion in admitting the non-
probative photographs does not, however, end our inquiry. We must consider
whether their admission was harmless error. Jackson, 636 F.3d at 692. Absent
the photographs, the evidence relating to Gray’s intent is the amount of the
cocaine (street value of just over one thousand dollars) and the way the crack
cocaine was divided (some in dealer sizes and other smaller pieces in user sizes).
There is “substantial evidence” supporting Gray's conviction, such that the
outcome of the case would not be affected by the error. See United States v.
Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008). Therefore, there is no
reversible error based on the admission of the four photographs.


                                  III. CONCLUSION


       4
         See United States v. Townsend, 1999 WL 427597, at *9 (unpublished) (introduction
of forty-one guns found at defendant’s home where the police also found crack cocaine not
unduly prejudicial); United States v. Gonzales, 9 F.3d 103, at *2 (1993) (per curiam)
(introduction of a gun found in the defendant’s car, which the police had seen the defendant
run from carrying drugs, was not unduly prejudicial); Martinez, 808 F.3d at 1057 (introduction
of guns found in defendant’s car when he was arrested on drug-related charges was not unduly
prejudicial).

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                                No. 10-11150

     For the foregoing reasons, we AFFIRM the district court’s admission of the
crack cocaine and the four photographs of Gray posing with a gun.
     AFFIRMED.




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