United States v. Ramiro Lozano , 435 F. App'x 399 ( 2011 )

Case: 10-40720 Document: 00511561824 Page: 1 Date Filed: 08/04/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 4, 2011
No. 10-40720
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RAMIRO LOZANO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:09-CR-825-1
Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Ramiro Lozano appeals his conviction for two counts of persuading a minor
to engage in sexually explicit conduct. Lozano argues that the district court
erred in denying his motion to suppress the evidence obtained pursuant to a
search warrant because the supporting affidavit was insufficient to support
application of the good-faith exception to the exclusionary rule and was
insufficient to establish probable cause. Lozano contends that the affidavit was
bare bones and did not contain sufficient facts and circumstances from which a
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 10-40720 Document: 00511561824 Page: 2 Date Filed: 08/04/2011
No. 10-40720
magistrate could determine probable cause. He also contends that the affiant
provided misleading information.
We review factual findings on a motion to suppress for clear error and
legal determinations de novo. United States v. Chavez, 281 F.3d 479, 483 (5th
Cir. 2002). The good-faith exception to the exclusionary rule provides that if law
enforcement officials act in objectively reasonable good-faith reliance upon a
search warrant the evidence obtained pursuant to the warrant is admissible
even if the affidavit on which the warrant was grounded was insufficient to
establish probable cause. United States v. Shugart, 117 F.3d 838, 843 (5th Cir.
1997). However, the good-faith exception does not apply if the underlying
affidavit is bare bones or the affiant provided misleading information. United
Stats v. Mays, 466 F.3d 335, 343 (5th Cir. 2006). A bare bones affidavit is one
that contains “wholly conclusional statements [ ] which lack the facts and
circumstances from which a magistrate can independently determine probable
cause.” United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992). In
reviewing whether there is sufficient information to support a warrant, we
examine the totality of the circumstances. United States v. Fisher, 22 F.3d 574,
578 (5th Cir. 1994).
The information in the affidavit supporting the challenged warrant
provided facts sufficient for a determination of probable cause. The affiant
detailed the circumstances of Lozano’s arrest and described relevant items in his
possession giving rise to probable cause. Specifically, the affidavit noted that
Lozano was found in possession of school identification cards. He was also in
possession of numerous adult pornographic films, photographs of school-aged
children, and at least one photograph depicting an individual with exposed
genitals.
Additionally, the record does not support a finding that the affiant misled
the magistrate. No statement in the affidavit is deliberately untruthful or made
with a reckless disregard for the truth. See United States v. Alvarez, 127 F.3d
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No. 10-40720
372, 373 (5th Cir. 1997). Moreover, the affiant brought the evidence referenced
in the affidavit to the magistrate for viewing purposes. This conduct does not
evidence an intent to mislead.
Because the affidavit was not misleading and provided detailed
information from which a determination of probable cause could be made, the
district court did not err in concluding that the good-faith exception to the
exclusionary rule applied. See Shugart, 117 F.3d at 844. Therefore, we do not
consider whether the affidavit presented sufficient evidence to establish probable
cause. See United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999). The
judgment of the district court is AFFIRMED.
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