     Case: 10-20299 Document: 00511389449 Page: 1 Date Filed: 02/22/2011




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

                                                 FILED
                                                                          February 22, 2011
                                     No. 10-20299
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ARISTILLE JOSEPH HARRIS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:08-CR-428-1


Before GARWOOD, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Aristille Joseph Harris appeals his bench trial conviction for possession of
cocaine with intent to distribute, discharging a firearm during a drug trafficking
crime, and possession of a firearm by a convicted felon. Harris argues that the
district court erred by denying his motion to suppress evidence obtained during
a search of his apartment. He maintains that the search warrant was invalid
because it contained the wrong apartment number. He asserts that the good-
faith exception to the warrant requirement does not apply because the search

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-20299

warrant affidavit executed by Officer Carlos Alcocer contained material false
statements that were made with reckless disregard for the truth, because Officer
Alcocer made material omissions in the affidavit regarding how he learned the
apartment number, and because without the false statements in the search
warrant affidavit there was not a sufficient description of the place to be
searched. Harris maintains that the precedent relied upon by the Government
and the district court is factually distinguishable from the present case. He
contends that Officer Alcocer’s leading the SWAT team that executed the search
warrant to the correct apartment did not validate the warrant because Officer
Alcocer had no authority to act as a magistrate and amend the warrant.
      Harris acknowledges that, even assuming that the warrant was invalid
and the good-faith exception did not apply, the officers had probable cause to
enter the apartment and detain him after he began firing at the officers.
Nevertheless, he maintains that the officers then had authority only to perform
a protective sweep, and they exceeded that authority by searching the apartment
for drugs and drug paraphernalia in areas where an armed man could not have
been hidden.     The Government asserts that we should not consider this
argument because Harris did not raise it in the district court.
      This court employs a two-step process for reviewing a district court’s
denial of a motion to suppress where a search warrant is involved. United States
v. Froman, 355 F.3d 882, 888 (5th Cir. 2004). We must first decide whether the
good-faith exception to the exclusionary rule applies. Id. If the good-faith
exception applies, our inquiry ends, and the district court’s judgment must be
affirmed. Id. However, if the exception does not apply, we must determine
whether there was a substantial basis for the magistrate judge to find probable
cause. Id. We review findings of fact made by a district court on a motion to
suppress for clear error and the district court’s legal conclusions de novo, viewing
the evidence in the light most favorable to the prevailing party. See United
States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). The good-faith exception

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                                 No. 10-20299

to the exclusionary rule will not apply if the affidavit in support of the search
warrant contains intentionally false material statements or false material
statements made with reckless disregard for the truth, and the affidavit would
not have sufficiently established probable cause absent such false statements.
United States v. Cavazos, 288 F.3d 706, 709-10 (5th Cir. 2002).
      The search warrant affidavit contained an inaccurate statement that the
confidential informant (CI) was seen leaving Harris’s apartment after a
controlled buy when the CI actually was seen only coming down the staircase
from Harris’s apartment after the controlled buy. The search warrant affidavit
also inaccurately related that the CI told Officer Alcocer that Harris and his
brother were distributing crack cocaine at 8801 Monticello Drive, Apartment
163, when the CI had stated only that Harris and his brother were distributing
crack cocaine from Harris’s apartment, and Officer Alcocer obtained the
apartment number from another officer’s reading of a map of the apartment
complex. These minor inaccuracies did not materially distort actual facts and
were insufficient to show reckless disregard for the truth. See United States v.
Arce, 633 F.2d 689, 695 (5th Cir. 1980).
      Other than those minor inaccuracies, all of the statements in the search
warrant affidavit that Harris challenges contained the same incorrect statement:
that Harris’s apartment was Apartment 163 when it was actually Apartment
165. The overwhelming evidence presented at the suppression hearing showed
that the officers could not read the apartment number on Harris’s apartment for
safety reasons and that Officer Alcocer honestly believed at the time he executed
the affidavit that Harris’s apartment was Apartment 163 based upon another
officer’s reading of a map of the apartment complex. As the evidence showed
that Officer Alcocer’s inclusion of the incorrect apartment number was a
negligent mistake based upon the other officer’s misreading of the apartment
complex map, Officer Alcocer’s inclusion of the incorrect apartment number in
the search warrant affidavit was not made in reckless disregard of the truth and

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                                 No. 10-20299

did not make the good-faith exception inapplicable. See Franks v. Delaware, 438
U.S. 154, 171 (1978).
      Harris maintains that Officer Alcocer’s omission of the facts concerning
how he obtained the apartment number and the uncertainty regarding the
apartment number required the exclusion of the evidence obtained during the
search of his apartment. His argument, however, is without merit because
“[t]here is no requirement that an affidavit detail the manner in which the
affiant gathered information.” United States v. Brown, 941 F.2d 1300, 1304 (5th
Cir. 1991).
      While the search warrant incorrectly identified Harris’s apartment as
Apartment 163, the CI showed the apartment to Officer Alcocer, and Officer
Alcocer directed the SWAT team that executed the search warrant to the correct
apartment. As the same officer both executed the search warrant affidavit and
directed the SWAT team to the apartment, “‘there was no possibility the wrong
premises would be searched.’” United States v. Gordon, 901 F.2d 48, 50 (5th Cir.
1990), cert. denied, 111 S.Ct. 510 (1990) (quoting United States v. Burke, 784
F.2d 1090, 1093 (11th Cir. 1986)). Given the circumstances, the good-faith
exception applied, and the district court did not err by denying the motion to
suppress. See id.; United States v. Smith, 988 F.2d 1210 (table), No. 92-5605,
1993 WL 82144 at *1 (5th Cir. 1993) (unpublished) (“Unpublished opinions
issued before January 1, 1996, are precedent.” 5 TH C IR. R. 47.5.3). We do not
reach Harris’s argument that the officers who searched his apartment exceeded
the scope of the authority they had to search the apartment based solely upon
Harris’s shooting at the officers. See Froman, 355 F.3d at 888.
      AFFIRMED.




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