United States v. Bobby Rosa ( 2018 )

Case: 17-40194 Document: 00514467774 Page: 1 Date Filed: 05/10/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40194 FILED
Summary Calendar May 10, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
BOBBY JOE ROSA, also known as Psycho, also known as B. J.,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:16-CR-719-1
Before BARKSDALE, OWEN, and WILLETT, Circuit Judges.
PER CURIAM: *
Bobby Joe Rosa entered a conditional guilty plea to one count of illegal
possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), reserving the right to appeal the district court’s denial of his motion
to suppress evidence discovered during execution of a search warrant at his
residence. Rosa claims the court erred in denying his suppression motion
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-40194
because: the affidavit supporting the warrant lacked probable cause; and the
good-faith exception did not apply.
“When reviewing a denial of a motion to suppress evidence, this [c]ourt
reviews factual findings for clear error and the ultimate constitutionality of
law enforcement action de novo.” United States v. Robinson, 741 F.3d 588, 594
(5th Cir. 2014). “The district court’s determination of the reasonableness of a
law enforcement officer’s reliance upon a warrant issued by a magistrate—for
purposes of determining the applicability of the good-faith exception to the
exclusionary rule—is also reviewed de novo.” United States v. Cherna, 184
F.3d 403, 406–07 (5th Cir. 1999).
The evidence is viewed “in the light most favorable to the prevailing
party”, in this case, the Government. A district court’s denial of a suppression
motion should be upheld “if there is any reasonable view of the evidence to
support it”. United States v. Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en
banc) (internal quotation and citation omitted). Moreover, our review is
particularly deferential where, as here, “denial of a suppression motion is
based on live . . . testimony . . . because the judge had the opportunity to observe
the demeanor of the witnesses”. United States v. Gibbs, 421 F.3d 352, 357 (5th
Cir. 2005) (internal quotation omitted).
“[E]vidence obtained pursuant to a warrant should be [suppressed] only
. . . in those unusual cases in which exclusion will further the purposes of the
exclusionary rule”. Id. (quoting United States v. Leon, 468 U.S. 897, 918
(1984)). Our court engages in a two-step inquiry in reviewing the denial of
defendant’s motion to suppress when a search warrant is involved. Cherna,
184 F.3d at 407.
“First, we determine whether the good-faith exception to the
exclusionary rule announced in [Leon], applies.” Cherna, 184 F.3d at 407. If
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so, no further analysis is conducted and the denial of the motion to suppress is
affirmed. Id.
Second, if that exception does not apply, we evaluate whether “the
magistrate had a substantial basis for . . . concluding that probable cause
existed”. Id. (quoting United States v. Pena-Rodriguez, 110 F.3d 1120, 1129
(5th Cir. 1997)).
The good-faith exception provides that “evidence obtained by officers in
objectively reasonable good-faith reliance upon a search warrant is admissible,
even [if] the affidavit on which the warrant was based was insufficient to
establish probable cause”. United States v. Satterwhite, 980 F.2d 317, 320 (5th
Cir. 1992). The exception does not apply if, inter alia: (1) the magistrate “was
misled by information in an affidavit that the affiant knew” or, but for a
reckless disregard for the truth should have known, was false; or (2) the
affidavit is “so lacking in indicia of probable cause as to render belief in its
existence entirely unreasonable”. Cherna, 184 F.3d at 407–08 (quoting Leon,
469 U.S. at 923). In that regard, our court considers “all of the circumstances
surrounding the issuance of the warrant” when making the good-faith inquiry.
United States v. Pope, 467 F.3d 912, 916 (5th Cir. 2006) (internal quotation
marks omitted).
For the first of his two bases for challenging application of the good-faith
exception, Rosa contends the affiant falsified, or showed reckless disregard for
the truth of, information in the affidavit. For such a claim, defendant has the
burden of establishing, by a preponderance of the evidence, that the affiant’s
statement was an intentional falsehood or displayed a reckless disregard for
the truth. United States v. Cavazos, 288 F.3d 706, 710 (5th Cir. 2002).
As an initial matter, Rosa did not raise this point in district court;
therefore, it is waived. E.g., United States v. Cates, 952 F.2d 149, 152 (5th Cir.
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1992) (“We will not consider for the first time on appeal an argument not
presented to the district court.”). In addition, the issue is arguably not
adequately briefed on appeal. In any event, he has not met his burden because
he failed to identify the supposedly false statements in the affidavit or
introduce evidence showing the affiant either intentionally falsified the
affidavit or recklessly disregarded the truth. E.g., Cavazos, 288 F.3d at 710.
For his other basis for claiming the good-faith exception does not apply,
Rosa asserts the affidavit was so lacking in probable cause as to render belief
in its existence entirely unreasonable, in essence suggesting the affidavit was
“bare bones” because it relied on uncorroborated information from unnamed
sources whose credibility was not established. Satterwhite, 980 F.2d at 321.
As noted, the totality of the circumstances are considered in deciding whether
an affidavit is “bare bones”. See, e.g., United States v. Fisher, 22 F.3d 574, 578–
79 (5th Cir. 1994).
The affidavit was not “bare bones” because it described the investigation
preceding the warrant application and cited various sources for the
information contained in it. See id.; Satterwhite, 980 F.2d at 321. The affidavit
demonstrated the veracity of the informant’s statements, the basis of the
informant’s knowledge, and the affiant’s independent investigation of the tips.
See Satterwhite, 980 F.2d at 321; United States v. Shugart, 117 F.3d 838, 843–
44 (5th Cir. 1997).
Our court has held officers’ reliance on search warrants supported by
similar affidavits objectively reasonable. E.g., United States v. Laury, 985 F.2d
1293, 1312–13 (5th Cir. 1993); United States v. Almaguer, 589 F. App’x 285,
287 (5th Cir. 2015). In the light of the totality of the circumstances, reliance
on the warrant and supporting affidavit at issue here was no less reasonable.
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(Because the good-faith exception applies, we need not address probable cause
vel non. E.g., Cherna, 184 F.3d at 407.)
AFFIRMED.
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