     Case: 13-11062      Document: 00512695286         Page: 1    Date Filed: 07/11/2014




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

                                    No. 13-11062                                  FILED
                                  Summary Calendar                            July 11, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GEORGE PICKENS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CR-356-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       George Pickens pleaded guilty conditionally to possession with intent to
distribute methamphetamine in violation of 21 U.S.C. § 841. He now appeals
the district court’s denial of his motion to suppress evidence. Finding no error,
we affirm.
       On appeal, Pickens argues that the district court erred in applying the
good faith exception to the exclusionary rule to deny his motion to suppress.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-11062

Pickens contends that the exception should not have applied because the
affidavit upon which the warrant to search his residence was based is so
lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable. Pickens also argues that the good faith exception is
inapplicable because the affidavit was “bare bones.”
      We review the district court’s factual findings for clear error, and its legal
conclusions de novo. United States v. Cherna, 184 F.3d 403, 406 (5th Cir.
1999). We employ a two-step analysis when reviewing the denial of a motion
to suppress evidence discovered pursuant to a search warrant. Id. at 407. We
look first to whether the good faith exception to the exclusionary rule applies,
and if not, we then determine whether the issuing magistrate had a substantial
basis for finding probable cause. Id. The good faith exception does not apply
if the issuing judge was misled by information in an affidavit that the affiant
knew was false or would have known was false except for his reckless disregard
of the truth, or if the underlying affidavit is “bare bones,” i.e., so lacking in
indicia of probable cause as to render official belief in its existence entirely
unreasonable.    United States v. Mays, 466 F.3d 335, 343 (5th Cir. 2006)
(internal quotation marks omitted).
      We are satisfied that the good faith exception applies. Although the
affidavit lacked direct evidence that Pickens was involved in criminal activity,
it provided sufficient facts and circumstances from which an issuing
magistrate could draw commonsense inferences to find probable cause. See
United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992); United States
v. May, 819 F.2d 531, 535 (5th Cir. 1987). More particularly, the affidavit
contained specific information that someone had posted to Facebook the
photograph of an undercover Mesquite narcotics officer. The affidavit revealed
that upon interviewing the person who posted the photograph, that person



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                                  No. 13-11062

stated that she posted the photograph because the undercover narcotics officer
had testified against a friend approximately two months earlier. The person
also revealed to investigators that she had seen a flyer with the same
photograph weeks earlier. The person refused to name the friend. The affiant
explained that investigators identified Pickens as the friend after learning that
the undercover officer had in fact testified against Pickens approximately two
months earlier. A computer records search also showed that Pickens and the
person had been in the same vehicle during a hit-and-run incident. Given that
the person who posted the photograph to Facebook had seen a flyer with the
same photograph, it was not unreasonable to believe that more photographs
identifying the undercover officer existed.
        Although we have held that “facts must exist in the affidavit which
establish a nexus between the house to be searched and the evidence sought,”
this nexus may be established through direct observation or normal inferences.
United States v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982). Such is the case
here.     In the subject affidavit, the affiant stated that he believed that
investigators would find further evidence related to the Texas offense of
retaliation at Pickens’s residence, based on his training and experience that
such evidence is typically found in the home. The affiant’s knowledge of where
items related to retaliation might be located, combined with the knowledge
that there were other flyers with the undercover officer’s photograph, logically
supports an inference that the items sought would be found at the residence.
See id.
        On these facts, we find no error in the determination that the affidavit
was sufficient to support a good faith conclusion by an objectively reasonable
officer that the affidavit was adequate to establish probable cause.          See
Satterwhite, 980 F.2d at 320. In addition, the affidavit contained sufficient



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                                No. 13-11062

indicia of reliability warranting reliance by a reasonable officer; it was not
“bare bones.” See id. Because the good faith exception is applicable, we need
not consider whether the magistrate judge had a substantial basis for
concluding that probable cause existed. See Cherna, 184 F.3d at 407.
      In light of the foregoing, the judgment of the district court is
AFFIRMED.




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