U.S. v. Satterwhite ( 1992 )


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  •                     UNITED STATES COURT OF APPEALS
                                 FIFTH CIRCUIT
    
                                 ______________
    
                                   No. 92-8002
                                 ______________
    
    
                      UNITED STATES OF AMERICA,
    
                                               Plaintiff-Appellee,
    
                                     VERSUS
    
                      BRADFORD SATTERWHITE, III,
    
                                               Defendant-Appellant.
    
            __________________________________________________
    
               Appeal from the United States District Court
                     for the Western District of Texas
            __________________________________________________
                            (December 17, 1992)
    
    Before GOLDBERG, SMITH, and EMILIO M. GARZA, Circuit Judges.
    
    EMILIO M. GARZA, Circuit Judge:
    
          Defendant, Bradford Satterwhite, III, entered a conditional
    
    plea of guilty to the charges of conspiracy to possess with intent
    
    to   distribute    cocaine   base,   and     possession   with    intent   to
    
    distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
    
    846 (1988).   Satterwhite raises two issues on appeal.            First, he
    
    argues that the federal prosecution of his case violated his due
    
    process rights.     Second, Satterwhite contends that the district
    
    court erred in denying his motions to suppress evidence.            Finding
    
    no reversible error, we affirm.
                                         I
    
         A confidential informant ("the CI") told DEA agent Gray
    
    Hildreth that he had received information from an acquaintance that
    
    cocaine   was    being   stored   and     manufactured   at   Satterwhite's
    
    apartment.      The acquaintance, Jimmie Cooks, had asked the CI to
    
    drive him to Satterwhite's apartment so that Cooks could purchase
    
    crack cocaine.     The CI saw Cooks enter the apartment.        When Cooks
    
    returned from the apartment, he showed the CI some crack cocaine.
    
    Cooks also told the CI that he saw a large quantity of crack
    
    cocaine in the apartment, and that Satterwhite was a financier of
    
    a cocaine distribution ring, which was using the apartment to store
    
    and manufacture cocaine.     In addition, Cooks informed the CI that
    
    he had recently purchased at least three kilograms of cocaine, and
    
    delivered it to Satterwhite's apartment.
    
    
    
    
                                        -2-
    Agent Hildreth conveyed this information in an affidavit1 to
    
    1
         The affidavit reads, in relevant part:
    
    Your affiant states that the facts which establish
    probable cause necessary for the issuance of a search
    warrant for the described premises are as follows:
    
         1.   The undersigned Affiant, Andrew Gray Hildreth,
    having been placed under oath, deposes and states as
    follows: Affiant has worked as a Special Agent for the
    U.S. Drug Enforcement Administration since August 21,
    1986. Prior to that date Affiant worked as an officer
    for the Mobile, Alabama Police Department for ten years.
    Affiant has extensive experience in the investigation of
    narcotics smuggling, sales, and other violations of Title
    21 of the U.S. Code.
    
         2.   In early August 1990, your affiant along with
    Austin Police Officers J.W. Thompson and Gary Duty
    debriefed a cooperation individual in regards to the
    narcotic trafficking from apartment #108 of the Forest
    Creek Village apartments located at 1401 St. Edwards
    Drive, Austin, Travis County, Texas. This cooperating
    individual was arrested in July of 1990 by the Repeat
    Offender Program of the Austin Police Department for
    possession for cocaine and is currently on bond for that
    charge.    This cooperating individual has provided
    officers of the Repeat Offender Program true and accurate
    information, on at least two occasions since the CI's
    arrest. This information has been corroborated as being
    true and correct and has subsequently led to the arrest
    of individuals and the seizure of controlled substances
    by the Austin Police Department on at least one occasion.
    Further, this cooperating individual has provided the
    names, addresses and other personal information of other
    suspected narcotic traffickers corroborated by officers
    to be true and correct.        In consideration of the
    aforementioned facts, it is the opinion of the your
    affiant and the opinion of officers in the Repeat
    Offender Program that this cooperation individual is
    credible and reliable.
    
         3.   The cooperating individual stated that on
    Friday, August 3, 1990, he received information from an
    acquaintance, Jimmie Cooks that apartment #108 of the
    Forest Creek Village Apartments located at 1401 St.
    Edwards Drive, Austin, Travis County, Texas is being used
    to store and manufacture crack cocaine. Cooks requested
    the cooperating individual to drive him to the above
    described apartment for the purpose of obtaining crack
    
                              -3-
    cocaine. The cooperating individual stated that he drove
    Jimmie Cooks to the above named apartment and observed
    Jimmie Cooks enter the apartment. Upon returning from
    inside the apartment, Cooks showed the cooperating
    individual a distributable amount of crack cocaine.
    Cooks further told the cooperating individual that he .
    . . had traveled to Galveston, Texas in the recent period
    of time and brought back at least three kilograms of
    cocaine and delivered the cocaine to the above described
    apartment. Cooks also told the cooperating individual
    that while inside the above described apartment he . . .
    had observed a large quantity of crack cocaine and
    identified the apartment as being a place used to
    manufacture   and   distribute   crack   cocaine.     The
    cooperating individual states that he was told by Jimmie
    Cooks that the above described apartment is maintained
    and operated by a crack cocaine distribution organization
    that includes B.J. Satterwhite, a financier in the
    organization.
    
         4.   Texas Department of Public Safety Criminal
    History records indicate that Bradford Satterwhite III,
    Black male born 12/26/44, aka B.J. Satterwhite, has 6
    previous arrests and at least 4 convictions, including 2
    convictions for possession of dangerous drugs and is
    currently on State of Texas parole for dangerous drugs
    until January 1994.
    
         . . . .
    
         8. A check with the City of Austin Electric Utility
    Customer records indicate that the account at apartment
    #108 is subscribed to by Joseph Walker with Texas DL
    number 07750414 listed on the record.
    
         . . . .
    
         10. A check of the Austin Police Department
    computerized offense report records show that on 1/17/88,
    in offense report # 88-0012864, a burglary of a non-
    residence (game arcade), Joseph Walker reported his
    employer as Game World, 3101 E. 12th Street. Walker told
    the reporting officer that he believes the motive for the
    burglary was to obtain drugs. The report state that the
    business is managed by B.J. Satterwhite. Offense report
    #90-0310340, dated 1/31/90, reflects that Joseph Walker
    is employed by J.B. Motors located at 4700 Loyola. The
    cooperating individual advised your affiant that J.B.
    Motors is owned by Jimmie Cooks. City of Austin Electric
    Customer Utility records reflect that the account at 4700
    
                              -4-
    a   magistrate,    who   subsequently    issued   a    warrant   to    search
    
    Satterwhite's     apartment.    Upon     executing    the   warrant,   agent
    
    Hildreth and officers of the Austin Police Department discovered
    
    large quantities of crack cocaine, cash, and tally sheets in the
    
    apartment.   The officers subsequently arrested Satterwhite, and
    
    referred his case for federal prosecution. Satterwhite was charged
    
    with conspiracy to possess with intent to distribute cocaine base
    
    and possession with intent to distribute cocaine base, in violation
    
    of 21 U.S.C. §§ 841(a)(1), 846 (1988).
    
          The district court denied two motions to suppress evidence
    
    obtained from the search of the apartment.            The court found that
    
    the affidavit supporting the search warrant contained adequate
    
    probable cause and that the warrant was clearly valid on its face.
    
    Pursuant to a conditional guilty plea, the district court sentenced
    
    Satterwhite to 210 months in prison, a five-year term of supervised
    
    release, and a mandatory special assessment of $100.00.
    
          Satterwhite appeals, contending that:           (1) the absence of a
    
    policy governing the referral of his case for federal prosecution
    
    violated his due process rights; and (2) the district court erred
    
    in denying his motions to suppress evidence, because the affidavit
    
    supporting the search warrant was based on unreliable hearsay.
    
    
    
                                       II
    
    
    
          Loyola #120 is in the name of Joseph Walker with Texas DL
          number 07750414 shown on the record.
    
    Record on Appeal, vol. 1, at 152-53.
    
                                       -5-
                                                  A
    
           Satterwhite first argues that the decision to refer his case
    
    for federal prosecution violated his due process rights because it
    
    adversely         affected    his     sentence2      and    was    made    without    any
    
    reviewable guidelines.              We disagree.
    
           We recently decided this issue in United States v. Carter, 
    953 F.2d 1449
     (5th Cir.), cert. denied, ___ U.S. ___, 
    112 S. Ct. 2980
    ,
    
    
    119 L. Ed. 2d 598
     (1992).             In Carter, the defendant argued that the
    
    decision to refer his case for federal prosecution violated his due
    
    process rights "because it exposed him to substantially more severe
    
    sentences        and   was    made    without       any    objective      or   reviewable
    
    guidelines or standards."              Id. at 1462.          We concluded that "the
    
    ultimate         decision    of    whether    or     not    to    charge   a   defendant
    
    presumably rests with the federal prosecutor . . . [who] has
    
    complete discretion in deciding whether or not to prosecute or what
    
    charge to file."        Id.       "[Because] a defendant may be prosecuted and
    
    convicted under a federal statute even after having been convicted
    
    in a state prosecution based on the same conduct," id., we held
    
    that       the     defendant's       claim        lacked    merit.         Accordingly,
    
    Satterwhite's argument also lacks merit.3
    
    
       2
              In federal court, Satterwhite was sentenced to 210 months
    with no time off for good behavior. See Record on Appeal, vol. 1,
    at 182. He claims that had his case been referred to state court,
    he probably would have received the same sentence, but with the
    opportunity to reduce his time through good behavior. See Brief
    for Satterwhite at 4.
           3
              Satterwhite conceded at oral argument that Carter makes
    his first point of error moot.
    
    
                                                 -6-
                                               B
    
             Satterwhite argues next that the district court erred in
    
    refusing     to     suppress      evidence      obtained    from     searching    his
    
    apartment.        We engage in a two-step review of a district court's
    
    denial of a motion to suppress evidence obtained pursuant to a
    
    warrant: (1) whether the good-faith exception4 to the exclusionary
    
    rule applies; and (2) whether probable cause supported the warrant.
    
    See United States v. Webster, 
    960 F.2d 1301
    , 1307 (5th Cir.), cert.
    
    denied, ___ U.S. ___, ___ S. Ct. ___, 61 U.S.L.W.. 3285 (1992).
    
             However, we need not reach the probable cause issue if the
    
    good-faith exception applies, and the case does not involve a
    
    "novel question of law whose resolution is necessary to guide
    
    future     action    by     law   enforcement      officers    and    magistrates."
    
    Illinois v. Gates, 
    462 U.S. 213
    , 264, 
    103 S. Ct. 2317
    , 2346, 76 L.
    
    Ed. 2d      527    (1983)    (White,   J.,      concurring);   United    States    v.
    
    Maggitt, 
    778 F.2d 1029
    , 1033 (5th Cir. 1985) (quoting Gates), cert.
    
    denied, 
    476 U.S. 1184
    , 
    106 S. Ct. 2920
    , 
    91 L. Ed. 2d
    . 548 (1986);
    
    see United States v. Craig, 
    861 F.2d 818
    , 820 (5th Cir. 1988)
    
    ("Principles of judicial restraint and precedent dictate that, in
    
    most cases, we should not reach the probable cause issue if . . .
    
    the good-faith exception of Leon will resolve the matter.").                     This
    
    case does not raise a novel question of law under the Fourth
    
    Amendment.        The only question is whether, on the particular facts
    
    of   this    case,     the    affidavit        supporting   the    search   warrant
    
    
         4
              See United States v. Leon, 
    468 U.S. 897
    , 
    104 S. Ct. 3405
    ,
    
    82 L. Ed. 2d 677
     (1984).
    
                                              -7-
    established probable cause to search the apartment.    We therefore
    
    turn to the good-faith issue first.
    
         In Leon, the Supreme Court held that evidence obtained by
    
    officers in objectively reasonable good-faith reliance upon a
    
    search warrant is admissible, even though the affidavit on which
    
    the warrant was based was insufficient to establish probable cause.
    
    See Leon, 468 U.S. at 922-23, 104 S. Ct. at 3420; Craig, 861 F.2d
    
    at 821.   This rule does not apply where the warrant is based on an
    
    affidavit "`so lacking in indicia of probable cause as to render
    
    official belief in its existence entirely unreasonable.'"     Leon,
    
    468 U.S. at 923, 104 S. Ct. at 3421 (quoting Brown v. Illinois, 
    422 U.S. 590
    , 610-11, 
    95 S. Ct. 2254
    , 2265-66, 
    45 L. Ed. 2d 416
     (1975)
    
    (Powell, J., concurring in part)); see Craig, 861 F.2d at 821
    
    (referring to this type of affidavit as a "bare bones" affidavit).
    
    Satterwhite argues that the affidavit supporting the search warrant
    
    for his apartment was a "bare bones" affidavit, which made agent
    
    Hildreth's reliance on the warrant unreasonable.
    
         We review de novo the reasonableness of an officer's reliance
    
    upon a warrant issued by a magistrate.     U.S. v. Wylie, 
    919 F.2d 969
    , 974 (5th Cir. 1990).   When a warrant is supported by more than
    
    a "bare bones" affidavit, officers may rely in good faith on the
    
    warrant's validity.   United States v. Pigrum, 
    922 F.2d 249
    , 252
    
    (5th Cir.), cert. denied, ___ U.S. ___, 
    111 S. Ct. 2064
    , 
    114 L. Ed. 2d
     468 (1991); United States v. Settegast, 
    755 F.2d 1117
    , 1122 n.6
    
    (5th Cir. 1985). "Bare bones" affidavits contain wholly conclusory
    
    statements, which lack the facts and circumstances from which a
    
    
                                     -8-
    magistrate can independently determine probable cause.     See United
    
    States v. Brown, 
    941 F.2d 1300
    , 1303 n.1 (5th Cir.) (per curiam)
    
    (giving as an example, an affidavit that states the affiant "`has
    
    cause to suspect and does believe'" that contraband is located on
    
    the premises (quoting Nathanson v. United States, 
    290 U.S. 41
    , 
    54 S. Ct. 11
    , 
    78 L. Ed. 159
     (1933))), cert. denied, ___ U.S. ___, 
    112 S. Ct. 648
    , 
    116 L. Ed. 2d 665
     (1991).
    
         We conclude that the CI's personal observations and Cooks's
    
    statements to the CI provided the magistrate with more than a "bare
    
    bones" affidavit.   Agent Hildreth's affidavit contains facts which
    
    the CI personally observed.     As stated in the affidavit, the CI
    
    accompanied Cooks to the apartment for the purpose of buying
    
    cocaine. See Record on Appeal, vol. 1, at 152.      Once there, the CI
    
    saw Cooks enter the apartment and return carrying cocaine. See id.
    
    This information provided the magistrate with facts, and not mere
    
    conclusions, from which he could determine probable cause.5
    
         Satterwhite    maintains   that   the   CI's   observations   are
    
    unreliable hearsay, because neither agent Hildreth nor the CI had
    
    
        5
              Satterwhite contends that Cooks may have had the cocaine
    on his person before he entered the apartment, and that therefore
    the CI's observations cannot establish probable cause for a search
    warrant. We disagree. Determining probable cause does not require
    certainty, but only a probability that contraband or evidence is
    located in a certain place. See Gates, 462 U.S. at 230-31, 103 S.
    Ct. at 2328; see also United States v. Fluker, 
    543 F.2d 709
    , 714
    (9th Cir. 1976) (finding probable cause on similar facts,
    notwithstanding argument that an informant who was not searched
    before entering defendant's apartment could have had the drugs on
    his person when he entered the apartment).             Furthermore,
    Satterwhite does not offer, and we cannot find, any explanation for
    why Cooks might have wanted to deceive the CI.
    
    
                                     -9-
    personal knowledge that Satterwhite's apartment contained drugs.
    
    Satterwhite therefore argues that the government is attempting to
    
    put flesh on an otherwise "bare bones" affidavit by the use of
    
    unreliable hearsay.
    
         An affidavit may rely on hearsay))information not within the
    
    personal   knowledge    of   the    affiant,    such    as   an   informant's
    
    report))as long as the affidavit presents a "`substantial basis for
    
    crediting the hearsay.'"         Gates, 462 U.S. at 242, 103 S. Ct. at
    
    2334 (quoting Jones v. United States, 
    362 U.S. 257
    , 269, 
    80 S. Ct. 725
    , 735, 
    4 L. Ed. 2d 697
     (1960)).         In assessing the credibility of
    
    an informant's report, we examine the informant's veracity and
    
    basis of knowledge.      See id. at 230-33, 103 S. Ct. at 2328-29
    
    (these two factors are relevant considerations under the "totality
    
    of the circumstances" test for valuing an informant's report).
    
         The affidavit supporting the search warrant for Satterwhite's
    
    apartment adequately demonstrated the CI's veracity.              The affiant
    
    asserted that the CI had in the past given true and accurate
    
    information leading to arrests and the seizure of controlled
    
    substances.      The   affiant     further   asserted    that     the   CI   had
    
    accurately provided the names and addresses of other suspected
    
    narcotic traffickers.    These assertions sufficiently establish the
    
    CI's veracity.    See United States v. McKnight, 
    953 F.2d 898
    , 905
    
    (5th Cir.), cert. denied, ___ U.S. ___, 
    112 S. Ct. 2975
    , 
    119 L. Ed. 2d
     594 (1992) (assertion that informant had in the past given true
    
    and reliable information sufficiently establishes veracity).
    
    
    
    
                                        -10-
          The affidavit also sufficiently demonstrated the CI's basis of
    
    knowledge.        The affiant stated that the CI saw Cooks enter and
    
    leave Satterwhite's apartment, whereupon Cooks showed the CI some
    
    cocaine. That the CI personally observed these events demonstrates
    
    that he obtained his information in a reliable way.                       See Spinelli
    
    v. United States, 
    393 U.S. 410
    , 425, 
    89 S. Ct. 584
    , 593, 
    21 L. Ed. 2d
     637 (1969) (White, J., concurring) ("[If an informant's] report
    
    . . . purports to be first-hand observation, remaining doubt
    
    centers    on     the    honesty     of   the    informant,      and    that    worry    is
    
    dissipated        by    the    officer's        previous     experience        with     the
    
    informant.").
    
          Moreover,         the   affidavit       contains     information     within       the
    
    personal knowledge of agent Hildreth which tends to corroborate the
    
    CI's story.       See Gates, 462 U.S. at 242, 103 S. Ct. at 2334 ("An
    
    officer `may rely upon information received through an informant,
    
    rather     than    upon       his    direct     observations,      so    long     as    the
    
    informant's statement is reasonably corroborated by other matters
    
    within the officer's knowledge.'" (quoting Jones, 362 U.S. at 269,
    
    80 S. Ct. at 735)). Agent Hildreth discovered that Satterwhite had
    
    six previous arrests and at least four convictions, including two
    
    convictions for possession of dangerous drugs.                    The affidavit also
    
    states that Satterwhite was on probation at the time for his
    
    involvement with dangerous drugs.                 See Jones, 362 U.S. at 271, 80
    
    S.   Ct.   at     736    (that      defendant     was    known   user    of     narcotics
    
    corroborated informant's report); United States v. Farese, 
    612 F.2d 1376
    , 1379 (5th Cir.) (that defendant had an extensive criminal
    
    
                                               -11-
    record corroborated informant's report), cert. denied, 
    447 U.S. 925
    , 
    100 S. Ct. 3019
    , 
    65 L. Ed. 2d 1118
     (1980).
    
         Agent Hildreth also discovered that the account for the
    
    apartment's utility bill belonged to Joseph Walker.               See Record on
    
    Appeal, vol. 1, at 153.        Police records indicated that Walker had
    
    worked at a game arcade managed by Satterwhite, and had also worked
    
    for J.B. Motors, supposedly owned by Cooks.              Id.   These facts also
    
    tend to corroborate the CI's story by establishing a connection
    
    between Cooks, Walker, and Satterwhite.               Because the affidavit
    
    established      a    substantial    basis      for     crediting        the    CI's
    
    observations, the government does not add to an otherwise "bare
    
    bones" affidavit with unreliable hearsay.
    
         Cooks's statements to the CI further support the sufficiency
    
    of agent Hildreth's affidavit.           Cooks stated that:     (1) he had seen
    
    large amounts of cocaine in the apartment; (2) he had purchased
    
    cocaine,   and     delivered   it   to    defendant's     apartment;      and   (3)
    
    Satterwhite was a financier of a drug distribution ring, which was
    
    operating the apartment to manufacture and store crack cocaine.
    
    See Record on Appeal, vol. 1, at 152.          Because this information was
    
    not within the personal knowledge of the affiant, these statements
    
    constitute hearsay (Cooks's statements) within hearsay (the CI's
    
    report). Satterwhite argues that Cooks's statements are unreliable
    
    double hearsay, and should not be used to support the affidavit.
    
         Where    an     informant's    report    is   not    based     on    personal
    
    knowledge, but rather on the information of a second individual, we
    
    must determine whether a substantial basis exists for crediting the
    
    
                                         -12-
    second individual's information.           See Spinelli, 393 U.S. at 410,
    
    425, 89 S. Ct. at 593 (White, J., concurring) ("If the affidavit
    
    rests on . . . an informant's report . . . the informant must
    
    declare either (1) that he has himself seen or perceived the fact
    
    or facts asserted; or (2) that his information is hearsay, but
    
    there is good reason for believing it))perhaps one of the usual
    
    grounds for crediting hearsay information."); United States v.
    
    Smith, 
    462 F.2d 456
    , 458 (8th Cir. 1972) (upon receiving affidavit
    
    which   contains    hearsay       upon    hearsay,     magistrate      need    not
    
    categorically reject double hearsay information, but is called upon
    
    to determine whether information gained in reliable way).
    
         The CI corroborated Cooks's statements by observing cocaine on
    
    his person after he returned from Satterwhite's apartment.                      See
    
    Record on Appeal, vol. 1, at 152.            Agent Hildreth's independent
    
    corroboration of the CI's story also tends to corroborate Cooks's
    
    statements.      See   id.   at    153.     "It   is    enough    .    .   .   that
    
    `[c]orroboration through other sources of information reduced the
    
    chances of a reckless or prevaricating tale,' thus providing a
    
    `substantial basis for crediting the hearsay.'"                  See Gates, 462
    
    U.S. at 244-45, 103 S. Ct. at 2335 (alteration in original)
    
    (quoting Jones, 362 U.S. at 269, 271, 80 S. Ct. at 735, 736).
    
         Cooks's statements are also reliable because he admitted that
    
    he had previously delivered cocaine to the apartment.                 This was an
    
    admission against penal interest because it implicated Cooks as a
    
    co-conspirator     with   Satterwhite.       "Admissions     of    crime,      like
    
    admissions against proprietary interests, carry their own indicia
    
    
                                         -13-
    of   credibility))sufficient   at    least   to   support   a   finding   of
    
    probable cause to search."     United States v. Harris, 
    403 U.S. 573
    ,
    
    583, 
    91 S. Ct. 2075
    , 2082, 
    29 L. Ed. 2d 723
     (1971); see Spinelli,
    
    393 U.S. at 425, 89 S. Ct. at 593 (White, J., concurring) ("[I]f .
    
    . . the informer's hearsay comes from one of the actors in the
    
    crime in the nature of an admission against interest, the affidavit
    
    giving this information should be held sufficient."); United States
    
    v. Angulo-Lopez, 
    791 F.2d 1394
    , 1397 (9th Cir. 1986) ("When the
    
    circumstances suggest veracity, such as an admission against penal
    
    interest, a statement made to an informant can be considered
    
    reliable."). Thus, the affidavit presented a substantial basis for
    
    crediting both the CI's information as to what he personally
    
    observed, and Cooks's statements to the CI.           Accordingly, agent
    
    Hildreth provided the magistrate with more than a "bare bones"
    
    affidavit, and the good-faith exception applies.
    
    
    
                                        III
    
          For the foregoing reasons, we AFFIRM.
    
    
    
    
                                        -14-