     Case: 15-31096      Document: 00513827782         Page: 1    Date Filed: 01/09/2017




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

                                      No. 15-31096
                                                                                    Fifth Circuit

                                                                                  FILED
                                                                            January 9, 2017

UNITED STATES OF AMERICA,                                                    Lyle W. Cayce
                                                                                  Clerk
                                                 Plaintiff-Appellee
v.

BILL W. WOMACK,

                                                 Defendant-Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:14-CR-182-1


Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       Bill Womack was charged in a six-count indictment after his estranged
wife’s SUV was damaged by what appeared to be an explosion. Womack filed
a motion to suppress the evidence obtained as a result of a search warrant,
arguing the supporting affidavit contained false information included with
reckless disregard for the truth.         The district court denied the motion to
suppress. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-31096
              FACTUAL AND PROCEDURAL BACKGROUND
      On August 25, 2014, Womack’s estranged wife, Jan, discovered her GMC
Yukon had been damaged in what appeared to be an explosives incident in
Jonesville, Louisiana. The vehicle’s rear window had been entirely destroyed,
and its frame was bent inward and outward. The other windows were intact
but had been spray-painted black, which gave the appearance of smoke
damage. Inside the vehicle, the carcass of a rabbit had been strewn about as
if it had exploded. The rabbit’s remains were primarily concentrated behind
the rear passenger’s seat, but its parts were spread throughout the vehicle.
      The Catahoula Parish Sheriff’s Office did not have anyone trained to
investigate explosions. The sheriff called the Louisiana State Police after
observing the scene. The State Police determined an explosives incident likely
occurred and therefore contacted the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (ATF) around 9:39 a.m. The ATF dispatched four agents — Joe
Mann, Megan Taylor, Ron Meadows, and John Pias — to the scene. Mann,
Taylor, and Meadows directly investigated the scene, while Pias conducted
interviews with potential witnesses and other persons of interest. ATF Agent
T.J. Boddie and Assistant United States Attorney Seth Reeg remained at ATF
headquarters in Shreveport to prepare an affidavit in support of a search
warrant for Womack’s home.
      When the agents arrived around lunchtime, they “were all under the
impression that a car bomb had gone off and somebody had tried to kill
somebody.” As a result, the agents performed a post-blast investigation to
determine if the damage to Jan’s vehicle was, in fact, attributable to an
explosion. During the investigation, the agents noted the damage to the rear
window and to the interior of the car. Broken glass lay inside the vehicle and
on the ground outside. Nonetheless, the rear passenger windows and front
windows were all intact with no damage.        The agents never found any
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explosives or “explosive device components” — i.e., switches, timers, initiators,
or containers — at the scene. Also, the agents contacted Agent Kathy Barton,
who visited the scene with her dog trained in detecting the presence of
explosives. The dog circled the vehicle but did not react to anything that may
indicate the presence of explosive materials inside the vehicle or elsewhere.
The investigation took several hours to complete.
        The agents were unable to determine conclusively what caused the
incident.    Mann theorized there may have been an explosion outside the
vehicle; for example, the perpetrator could have used a potato gun or other
homemade device to propel the rabbit inside the vehicle. A trained dog would
not alert to such a device.
        While the investigation was ongoing, Pias and FBI Agent Randy Deaton
attempted to locate Womack to question him. Pias spoke with Jan’s sister, who
reported Womack had threatened Jan the night before the incident; he stated
that “[Jan] would be blown up if she put her key in the back door.” Also, Deaton
interviewed a “concerned individual” who was familiar with Womack, his
home, and its surroundings. That person reported that he had seen Womack
in possession of hand grenades, pipe bombs, a .50-caliber machine gun, and a
Thompson .45-style machine gun. The witness allegedly saw these items a few
months earlier on Womack’s residential property in an outbuilding known as
the “saddle house.” After receiving this information, Pias drove to Womack’s
home. In the backyard, he saw a structure that fit the description of the saddle
house. He also observed what appeared to be the burned carcass of a small
animal in plain view; the remains apparently contained springs and wires.
Pias did not examine the animal, which was later determined to be a stuffed
toy.
        During the investigation, Boddie (who is a licensed attorney) hurriedly
drafted an affidavit in support of the search warrant so he could present it to
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the magistrate judge at their 4:00 p.m. appointment. In doing so, Boddie relied
on information he received from Pias through telephone conversations and text
messages.   The text messages from Pias to Boddie indicated that “[l]aw
enforcement responded to the residence for what appeared to be an explosion”
and that “[t]he explosion occurred in or around a black GMC Yukon.” The text
messages also set forth the information the “concerned individual” had
provided regarding Womack, his weapons, and his property. Pias also detailed
the threat Womack had made against his wife and the information about what
appeared to be a burned carcass in Womack’s backyard.
      Boddie responded that he was drafting the affidavit but “need[ed] more
[probable cause] based [on] the bomb that exploded.” He asked for evidence of
bomb components, including caps, black powder, or nails. Pias indicated that
Mann, Taylor, and Meadows were still processing the scene and that he and
Deaton intended to interview Womack. Boddie included the information from
Pias in the affidavit, which was that the State Police responded to “what was
later determined to be an explosives incident.”
      This phrase, that the occurrence had been “determined to be an
explosives incident,” is key to Womack’s argument on appeal. Boddie received
no additional information as to the results of the investigation before he
presented the affidavit, and he did not contact other agents to obtain additional
information. At the time Boddie presented the affidavit to the magistrate
judge, the investigation was still ongoing, and the cause of the incident had not
been identified.
      Pias notified Mann that the search warrant had been issued as the post-
blast investigation was “wrapping up.” At that time, the investigation was
“pretty much finished to a degree,” but the agents never made a conclusive
determination as to what caused the damage to Jan’s vehicle. After being
informed that the warrant had been issued, Mann decided to terminate the
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investigation so the agents could travel to Womack’s home and assist in
executing the warrant. Mann did not recall whether he or his colleagues had
spoken with Boddie during the course of their investigation. Nor did he recall
whether Pias ever questioned him about the results of the investigation.
      While executing the warrant, agents found numerous firearms and
explosive devices in Womack’s home and its outbuildings. As a result, Womack
was charged with possession of a machine gun; possession of an unregistered
destructive device; possession of an unregistered silencer; possession of
unregistered firearms; possession of marijuana with intent to distribute; and
possession of firearms in furtherance of a drug trafficking crime. Womack filed
a motion to suppress the evidence obtained as a result of the warrant, arguing
that the affidavit in support of the warrant contained statements that were
included deliberately or with reckless disregard for the truth. Without those
statements, he argued, the affidavit contained insufficient evidence to
establish probable cause.
      The magistrate judge held an evidentiary hearing to address Womack’s
arguments.    After the hearing, the magistrate judge recommended that
Womack’s motion to suppress be denied to the extent that it contested the
validity of the federal search warrant. The district court adopted the report
and denied the motion to suppress. Womack then entered a conditional guilty
plea to possession of an unregistered destructive device and possession of a
firearm in furtherance of a drug-trafficking crime. He reserved the right to
appeal the district court’s denial of his suppression motion. The district court
accepted the guilty plea and sentenced Womack to 117 months imprisonment,
a three-year term of supervised release, and a $50,000 fine. Womack filed a
timely notice of appeal.




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                                  No. 15-31096
                                 DISCUSSION
       On appeal, Womack argues that Boddie acted recklessly by stating in his
affidavit that the incident in question was “later determined to be an explosives
incident” when law enforcement had not made that determination. Without
the false information, he argues, the affidavit does not sufficiently establish
probable cause.
       When considering a district court’s denial of a motion to suppress, we
review questions of law de novo and questions of fact for clear error. United
States v. Allen, 625 F.3d 830, 834 (5th Cir. 2010).          Whether an affiant
deliberately or recklessly included false information in his affidavit is a factual
finding that “cannot be disturbed unless it is clearly erroneous.” United States
v. Looney, 532 F.3d 392, 395 (5th Cir. 2008).        A finding of fact is clearly
erroneous when the court “is left with a definite and firm conviction that a
mistake has been committed.” United States v. Scroggins, 599 F.3d 433, 440
(5th Cir. 2010). Once false information is excised from an affidavit, the court
determines the sufficiency of the affidavit independently of the district court
and is “not limited by the clearly erroneous standard.”            United States v.
Froman, 355 F.3d 882, 889 (5th Cir. 2004) (quotation marks omitted).


 I.    False Information in the Affidavit
       “The Fourth Amendment contains no provision expressly precluding the
use of evidence obtained in violation of its commands . . . .” United States v.
Leon, 468 U.S. 897, 906 (1984). Instead, the exclusionary rule is a judicially
created remedy designed to deter misconduct of government actors by
prohibiting the use of evidence wrongfully obtained.         Id.    The good-faith
exception modifies the exclusionary rule by permitting the consideration of all
evidence, even evidence wrongfully obtained, “when law enforcement officers
have acted in objective good faith or their transgressions have been minor.” Id.
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at 908. Under those circumstances, excluding the evidence obtained would not
serve the objectives of the exclusionary rule. Id. at 920–21.
      Where, as here, a search warrant is involved, this court reviews a district
court’s denial of a motion to suppress in two steps: “(1) whether the good-faith
exception to the exclusionary rule applies; and (2) whether probable cause
supported the warrant.” United States v. Satterwhite, 980 F.2d 317, 320 (5th
Cir. 1992) (footnote omitted). We do not reach the independent question of
probable cause when the good-faith exception applies. Id.
      Under the good-faith exception, which becomes relevant when the
probable cause underlying a search warrant depends on erroneous
information, the evidence obtained in a search is admissible when the officer’s
reliance on the truth of the information was objectively reasonable. United
States v. Sibley, 448 F.3d 754, 757 (5th Cir. 2006) (quotation marks omitted).
The good-faith exception does not apply in four situations, only one of which
need be considered here, namely, if the issuing judge is misled by false
information included in an affidavit deliberately or with reckless disregard for
the truth. United States v. Mays, 466 F.3d 335, 343 (5th Cir. 2006). The court
should consider the circumstances surrounding the issuance of the warrant
when conducting the good-faith inquiry. United States v. Pope, 467 F.3d 912,
916 (5th Cir. 2006). Suppression is only required when “a reasonably well
trained officer would have known that the search was illegal despite the
magistrate’s authorization.” Leon, 468 U.S. at 922 n.23.
      Here, the supporting affidavit contained false information. The scene of
the incident strongly suggested the possibility of an explosion. For example,
the rear window of the vehicle had been completely shattered; the other
windows had been blackened, suggesting smoke damage; and the carcass of a
rabbit had apparently been detonated inside the vehicle. Even so, no law
enforcement officer ever “determined” that an explosive event occurred. The
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investigation did not uncover a bomb or bomb components, which made it
difficult to determine the cause of the vehicle’s damage.        Thus, Boddie’s
statement in the affidavit that law enforcement responded “to what was later
determined to be an explosives incident” was untrue.         Alleging that “the
explosion occurred in or around a black GMC Yukon” was based on the
unproven premise that there had been an explosion.
      Neither party argues that Boddie deliberately misled the magistrate
judge. The question remains, then, whether he acted recklessly by reporting a
conclusion that law enforcement had never reached. Boddie was not at the
scene of the investigation and relied on information Pias provided to him. In
the text messages, Pias reported “the explosion occurred in and around” the
vehicle and that an animal was “splattered inside.” Before the magistrate
judge, Boddie indicated he believed the statements were true at the time he
included them in the affidavit.    If so, that could mean he was under the
impression that the State Police and the sheriff’s office, before contacting
federal authorities, had determined an explosion occurred.
      We note that Boddie was a licensed attorney and perhaps should have
appreciated the importance of his language before presenting the affidavit to
the magistrate judge. See United States v. Namer, 680 F.2d 1088, 1094 (5th
Cir. 1982). He presented the affidavit while the investigation was ongoing and
before the cause of the incident had been identified. While he was drafting the
affidavit, Boddie never checked with the agents at the scene of the crime and
relied solely on Pias’s uncorroborated assessment of the situation.
      We pretermit any holding as to whether the good-faith exception applies;
it is a close question. Instead, we undertake the second step in the review:
whether, even without the false information, there was probable cause
supporting the warrant. See Satterwhite, 980 F.2d at 320.


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                                  No. 15-31096
II.    Probable Cause
       When a defendant shows by a preponderance of the evidence that
information in a supporting affidavit is false, the court will set aside the false
allegations and determine whether “the affidavit’s remaining content is
[sufficient] to establish probable cause.” Franks v. Delaware, 438 U.S. 154,
155–56 (1978). The affidavit’s content must be subjectively truthful to the
extent that it may include hearsay, information from confidential informants,
and “information within the affiant’s own knowledge that sometimes must be
garnered hastily.” Id. at 165. “Reasonable minds frequently may differ on the
question whether a particular affidavit establishes probable cause,” so this
court affords “great deference” to a magistrate judge’s determination. Leon,
468 U.S. at 914.
       For probable cause, we look at the totality of the circumstances to
determine if there was “a substantial basis for concluding that a search would
uncover evidence of wrongdoing . . . .” Illinois v. Gates, 462 U.S. 213, 230–31,
236 (1982) (citation and internal alterations omitted). In Gates, the Court
considered the reliability of testimony from a confidential informant. Id. at
225–30. The police were able to corroborate the informant’s tip by independent
investigation over several days. Id. at 226–27. In its analysis, the Court noted
that common sense must be applied when evaluating probable cause. Id. at
230. Conclusory allegations are not sufficient; instead, the affiant must show
the probability of criminal activity. Id. at 235, 239.
       As in Gates, the standard for probable cause is satisfied here because the
truthful allegations in the affidavit indicate that meaningful criminal activity
had occurred prior to and contemporaneously with this incident. The affidavit
states a GMC Yukon used by Womack’s estranged wife was severely damaged
and had the remains of a “rabbit or some other small animal spread inside the
vehicle.” Other information in the affidavit reinforces the significance of those
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statements. For example, ATF agents found what appeared to be the burned
carcass of a small animal in Womack’s backyard. The agents also saw what
appeared to be springs and wires in the animal’s remains. The affidavit could
accurately have stated that it appeared, but had not yet been determined, that
an explosion had occurred.      The fact the affidavit went further does not
eviscerate the existence of probable cause. Further, the affidavit summarizes
the interview with a “concerned individual,” who detailed Womack’s extensive
collection of grenades, pipe bombs, and machine guns. Interestingly, Womack
had no weapons registered in his name, so his possession of any firearm is a
crime in itself under 26 U.S.C. § 5861.        The informant’s allegations are
sufficient to indicate, based on common sense alone, that some wrongdoing had
occurred. See Gates, 462 U.S. at 236.
      Perhaps the affidavit’s most damning allegation with respect to a finding
of probable cause is Womack’s threat to his estranged wife. Womack’s sister-
in-law told agents that he intended to harm Jan through the use of explosives
were she to return to their marital residence. Out of context, that allegation
alone does not indicate criminal activity with any degree of certainty, but the
allegations must be considered together.
      The magistrate judge was informed of evidence of a damaged vehicle
containing remnants of a small animal; evidence of illegal possession of
firearms and explosive devices; and Womack’s verbal commitment to resort to
such violence if his wife returned home. The subject matter of the threat
conceivably indicates Womack may be responsible for other destructive events
occurring around his estranged wife. As a result, the affidavit — without
reference to the false allegations — is sufficient to support a finding of probable
cause. Any error by the district court in adopting the magistrate judge’s report
was harmless. See Namer, 680 F.2d at 1097–98.
       AFFIRMED.
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