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

                                                FILED
                                                                August 19, 2009
                               No. 08-41206
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

GARY LANE BRADFORD,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                         USDC No. 4:07-CR-195-ALL


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
      Gary Lane Bradford pleaded guilty to possession of a machine gun and
possession of an unregistered firearm, in violation of 18 U.S.C. § 922(o)(1) and
26 U.S.C. § 5861(d). As part of his plea agreement, Bradford waived the right
to appeal his conviction and sentence except in limited circumstances that
included the district court’s denial of his motion to suppress. He now appeals




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-41206

from the district court’s denial of his motion to suppress evidence obtained
pursuant to a search warrant.
      Bradford’s wife, Rebecca Bradford, reported to Plano, Texas police officers
that her husband pointed a 9-millimeter pistol at her head and fired. No bullet
was in the chamber. After learning of this alleged assault, the officers conducted
an investigation and prepared an affidavit for presentation to a judge in
connection with obtaining a search warrant. The affidavit stated: “There is at
said suspected place and premises personal property concealed and kept and
subject to seizure under the laws of Texas and described as follows: (1.) 9mm
Pistol.” Later in the affidavit it stated: “Rebecca stated that her husband owns
many weapons and keeps them inside the residence and his vehicles.” A Texas
district judge signed a search warrant “to enter the suspected place and
premises described in said Affidavit [the Bradford residence] and to search there
for the personal property described in said Affidavit and to seize same and bring
it before me.”
      Upon entering the Bradford residence to execute the warrant, officers
quickly found a 9-millimeter Beretta pistol in the nightstand. They nonetheless
continued searching the home for another 9-millimeter pistol. At the motion to
suppress hearing, one officer explained that the continued search was based
upon Rebecca’s statement that Bradford had multiple weapons and the officers’
concern that they may not have located the correct 9-millimeter pistol alleged to
have been used in the assault.1 Ultimately, the officers found a machine gun
(altered to make it fully automatic) and silencer that formed the bases for the
instant prosecution.




      1
        They ultimately found another firearm, of a different make and type but
similar in appearance to the 9-millimeter pistol, which Rebecca determined was
the actual one used in the alleged assault. That firearm is not the subject of this
prosecution.

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                                  No. 08-41206

      Bradford argues that the officers exceeded the scope of the warrant when
they continued searching after they found a 9-millimeter pistol. Bradford’s
argument lacks merit. The affidavit in support of the search warrant was based
on Rebecca’s sworn statement that Bradford had pointed a 9-millimeter pistol
at her and pulled the trigger upon her arrival at their residence. Rebecca’s
sworn statement also provided that Bradford kept many other firearms and
ammunition at their residence. Her statement to the officers indicated that her
husband had two 9-millimeter pistols. The affidavit proffered to the district
judge contained much more than conclusory statements and was factually
specific. It was not lacking in indicia of probable cause.   See United States v.
Cherna, 184 F.3d 403, 408 (5th Cir. 1999). Thus, the officers conducting the
search relied on the warrant in objectively reasonable good faith. See United
States v. Satterwhite, 980 F.2d 317, 320-21 (5th Cir. 1992).
      This case is different from those cited by Bradford in support of his appeal.
For example, in Creamer, the search warrant described only two television sets
and gave their specific serial numbers. Creamer v. Porter, 754 F.2d 1311, 1314
(5th Cir. 1985). Nonetheless, after they found the specific televisions, officers
continued searching in places such as desk drawers where a television of the
type described could not possibly be found. Id. at 1316. It was under these
circumstances that we found the search improper. Id. at 1318.
      Similarly in United States v. Loe, 248 F.3d 449, 460 (5th Cir. 2001), which
Bradford contends requires us to reverse the district court, we noted that officers
cannot objectively rely in good faith when they exercise a warrant in violation
of the Fourth Amendment.        However, that argument begs the question of
whether these officers violated the Fourth Amendment. Loe makes clear that
items of “incriminatory character,” as these clearly were, may be seized even if
not described in the warrant. Id.
      We conclude that this search was not the generalized rummaging
condemned in Creamer. We hold that the search in question and concomitant

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seizure, under these specific circumstances, do not violate the Fourth
Amendment. Accordingly, the district court did not err in denying Bradford’s
motion to suppress. See Cherna, 184 F.3d at 407.
     Bradford’s conviction is AFFIRMED.




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