United States v. Hernandez , 156 F. App'x 624 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 16, 2005
Charles R. Fulbruge III
Clerk
No. 05-50229
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ISRAEL T HERNANDEZ
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:04-CR-129-ALL
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Before KING, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
After his motion to suppress evidence seized during a search
of his residence was denied, Israel T. Hernandez entered a
conditional guilty plea to count 1 of an indictment charging him
with possession with intent to distribute 50 grams or more of
cocaine base. Hernandez was sentenced to a 172-month term of
imprisonment and to a five-year period of supervised release.
Hernandez gave timely notice of his appeal.
*
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this opinion should not be published and is not precedent except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.
No. 05-50229
-2-
The district court held that the officers executing the
warrant reasonably believed that the warrant authorized them to
enter Hernandez’s residence without knocking and announcing their
presence. See United States v. Cantu, 230 F.3d 148, 151–52 (5th
Cir. 2000) (discussing knock-and-announce rule). Hernandez
contends that the officers could not reasonably rely on the
warrant because it did not expressly authorize a no-knock entry.
We review the district court’s fact findings for clear error
and its legal conclusions de novo. See id. at 150. A two-step
process is followed in “reviewing a district court’s denial of a
motion to suppress when a search warrant is involved.” United
States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999). If the
good-faith exception to the exclusionary rule announced in United
States v. Leon, 468 U.S. 897 (1984), applies at the first step,
however, the analysis is at an end and the district court’s
ruling should be affirmed. Cherna, 184 F.3d at 407.
Under the good-faith exception, “the Fourth Amendment does
not require the suppression of evidence obtained as a result of
objectively reasonable reliance on a warrant, even if the warrant
is subsequently invalidated.” Id. In this case, the search
warrant affidavit recited that Hernandez had a “past history of
assaultive behavior, including aggravated assault, resisting
arrest, and obstructing police.” The affiant requested a “no-
knock clause . . . to ensure safety of the officers executing the
search warrant.” The warrant stated that the search warrant
No. 05-50229
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affidavit “on the reverse side hereof” had been presented to the
judicial officer and stated that “said affidavit is here now made
part hereof for all purposes.” The warrant stated also that the
judicial officer found that the affiants had “probable cause for
the belief they express therein and establish existence of proper
grounds for issuance of this warrant.”
Insufficient particularity in a search warrant may be cured
by incorporation by reference of the search warrant affidavit
submitted in support of the warrant if the affidavit is
physically attached to the warrant. See United States v.
Beaumont, 972 F.2d 553, 560–61 & n.11 (5th Cir. 1992). In this
case, the affidavit made part of the warrant stated with
sufficient particularity the reasons for requesting authorization
to enter the residence without knocking and announcing. The
officers’ reliance on the warrant was not unreasonable. The
judgment is
AFFIRMED.