United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit May 19, 2005
Charles R. Fulbruge III
No. 04-10618 Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
ANTHONY WAYNE CHAMBERS
Defendant-Appellant
Appeal from the United States District Court
For the Northern District of Texas
(6:03-CR-44-ALL-C)
Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
The defendant, Anthony Wayne Chambers, moved the district
court to suppress evidence based on his contentions that: (1) the
search warrant used to search his house was unsupported by probable
cause and therefore invalid; and, (2) his inculpatory statements
and any tangible evidence derived from those statements were the
“fruit” of an illegal arrest. The district court denied the 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this opinion should not be published and is not precedent except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.
1
to suppress. Chambers pleaded guilty to possession of an
unregistered firearm, which was found during the search, reserving
the right to appeal the district court’s decision on his motion to
suppress. We affirm.
I. Background
On July 31, 2002, Detective Robinson of the San Angelo Police
Department obtained a search warrant for a house located at 1014
North Jackson Street, San Angelo, Texas. Detective Robinson also
obtained a search warrant for a red 1992 Ford pick-up truck bearing
Texas license plate number 7FK-H90. Both the house and the pick-up
truck were owned by Chambers.
The affidavit in support of the search warrant contained the
following allegations of fact:
(1) Anthony Wayne Chambers owned the house located at 1014
North Jackson Street and the red pick-up truck with license
plate number 7FK-H90.
(2) A reliable confidential informant, who had previously
provided truthful information to the affiant officer, told the
officer that, on several occasions, the informant had
accompanied an anonymous third party to Chambers’s house on
North Jackson Street for the express purpose of purchasing
cocaine from a man named “Wayne.”
(3) On each occasion the reliable confidential informant
observed the third party enter Chambers’s house and return
with a substance that the confidential informant recognized as
cocaine.
(4) Based on the affiant officer’s experience in narcotics
investigations, the officer knew that many drug dealers use
“middlemen” to distribute drugs in the manner described by the
confidential informant.
2
(5) In response to the information provided by the reliable
confidential informant, the police began to conduct
surveillance on Chambers’s house.
(6) During that surveillance, the police observed the reliable
confidential informant arrive at Chambers’s house in a vehicle
with a third party on several occasions. On each occasion,
the officers watched as the third party exited the vehicle,
entered Chambers’s house briefly, and returned to the vehicle.
(7) Also during the same surveillance period, the police
observed the red pick-up truck registered to Chambers parked
at the residence. Additionally, the police found pieces of
mail in the trash bin at Chambers’s house that were addressed
to Anthony Wayne Chambers.
Before the search warrants could be executed, Chambers left
his house and drove his red pick-up truck to the parking lot of a
nearby business.2 At the time, two police officers were following
him in order to maintain their surveillance of his activities.
Once the officers were notified that a warrant had issued, the
officers stopped Chambers. The officers placed him in the back of
a patrol car and transported back to his house, ostensibly to
facilitate the search of the house and the vehicle he was driving.
Prior to searching his house, the police officers gave
Chambers his Miranda warnings and asked him to make a statement. He
told officers that:
1)he shared a bedroom in the home with his wife and that
bedroom was the master bedroom;
2) no drugs were in the house other than a 1/4 ounce of
2
Neither party provides the distance between Chambers’s
residence and the parking lot in question. We assume, based on the
parties’ arguments, that the parking lot is located more than a few
blocks from Chambers’s house.
3
marijuana located in a safe in the master bedroom; and,
3) there had been cocaine in the house in the past but that
the cocaine belonged to someone else.
Chambers also informed the officers that he had multiple guns and
knives in the house and “tried to list all of the places where the
weapons were kept.” Interviewed separately, Chambers’s wife told
officers that she and Chambers shared the master bedroom. She also
told officers that there was a gun leaning against the wall in that
bedroom.
No drugs or firearms were found in the search of Chambers’s
truck. But in Chambers’s house, police officers found, inter alia,
a fair amount of a substance believed to be cocaine as well as
cocaine residue located in multiple zip-loc bags, marijuana,
methamphetamine, and a number of firearms. Among the firearms, was
a Norinco 7.62x39 rifle that officers found leaning against the
wall in the master bedroom of Chambers’s house. That rifle had
been modified from a semi-automatic to fully automatic.
Consequently, the rifle was required to be registered in the
National Firearms Registration and Transfer Record under 26 U.S.C.
§ 5861. Because the rifle was not registered, Chambers was charged
in federal district court with possession of an unlicensed firearm.
The State of Texas prosecuted Chambers based on evidence
seized in the same search and he was convicted in state court of
possession of cocaine. The federal district court in this case
sentenced Chambers to 18 months, which was to run concurrently with
4
his state sentence. In accordance with his conditional plea
agreement, Chambers timely appealed the district court’s ruling on
his motion to suppress. While his federal appeal was pending
before this Court, the state convictions were overturned by the
Texas Court of Criminal Appeals based on its conclusion that the
evidence obtained during the search of Chambers’s home should have
been suppressed because the affidavit undergirding the search
warrant did not provide probable cause.
II. Standard of Review
In an appeal from a district court’s denial of a motion to
suppress, this court reviews questions of law, such as the
sufficiency of the search warrant, de novo and the district court’s
factual findings for clear error.3 Even though the Texas Court of
Criminal Appeals concluded that the search warrant in this case was
constitutionally defective thereby requiring a suppression of all
the evidence obtained during the search, this court is still
required to make an independent inquiry into the reasonableness of
the search and seizure conducted in this case.4
III. Analysis and Conclusions
3
See United States v. Portillo-Aguirre, 311 F.3d 647, 651-652
(5th Cir. 2002)(citing United States v. Burbridge, 252 F.2d 775,
777 (5th Cir. 2001)).
4
United States v. Walker, 960 F.2d 409, 416 (5th Cir.
1992)(citing Elkins v. United States, 364 U.S. 206, 224 (1960)).
5
This court engages in a two-part inquiry when considering
whether the exclusionary rule applies to evidence seized under an
allegedly defective search warrant.5 First, the court determines
whether the “good faith” exception to the exclusionary rule
applies.6 If the good faith exception applies, and the case fails
to present a novel question of law necessary to guide future action
by law enforcement officers, the inquiry is at an end and the
district court’s ruling on the admissibility of the evidence will
be affirmed.7 Second, if this court determines that the police
officers could not have relied on the warrant in good faith, or
that the case presents a novel question of law, the court considers
whether the warrant was supported by probable cause.8
In United States v. Leon, the Supreme Court held that the good
faith exception to the exclusionary rule was available when
officers reasonably relied on an otherwise facially valid search
warrant.9 An officer’s reliance upon an otherwise facially valid
search warrant is reasonable when that warrant is supported by more
5
See United States v. Laury, 985 F.2d 1293, 1311 (5th Cir.
1993).
6
Id. (citing United States v. Leon, 468 U.S. 897 (1984)).
7
United States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002).
8
Laury, 985 F.2d at 1311 (citing United States v. Satterwhite,
980 F.2d 317, 320 (5th Cir. 1992)).
9
468 U.S. at 922-923.
6
than a “bare bones” affidavit of probable cause.10 Here, there is
no assertion by Chambers that the warrant in question is otherwise
facially invalid.11 Accordingly, our resolution of the question of
whether the good faith exception applies turns on whether the
warrant in question was supported by more than a bare bones
affidavit of probable cause.
A bare bones affidavit contains “wholly conclusory statements,
which lack the facts and circumstances from which a magistrate can
independently determine probable cause.”12 For example, an
affidavit is bare bones when the affidavit merely alleges that the
police officer “‘has cause to suspect and does believe’” that
contraband is located on the premises of the place to be searched.13
Similarly, an affidavit is “bare bones” when the affidavit alleges
merely that police officers “‘have received reliable information
from a credible person and do believe’ that heroin is stored in a
10
Id. at 926; see also Laury, 985 F.2d at 1311 (citing
Satterwhite, 980 F.2d at 321).
11
A search warrant is otherwise facially invalid when the
warrant fails to identify, with reasonable specificity, the place
to be searched or the thing to be seized. See Leon, 468 U.S. at
923 (“Finally, depending on the circumstances of the particular
case, a warrant may be so facially deficient, i.e., in failing to
particularize the place to be searched or the thing to be seized,
that the executing officers cannot reasonably presume it to be
valid.”)(citation omitted).
12
See Laury, 985 F.2d at 1311 n.23 (citing and quoting
Satterwhite, 980 F.2d at 321).
13
United States v. Brown, 941 F.2d 1300, 1301 n.1 (5th Cir.
1991)(quoting Nathanson v. United States, 290 U.S. 41 (1933)).
7
home.”14 While an affidavit containing the mere description of an
illegal money order scheme may be conclusory and bare bones, if
that affidavit contains other facts corroborating the description
of the illegal scheme, that affidavit is not bare bones.15
Additionally, an affidavit may rely on hearsay, such as an
informant’s report, so long as it presents “‘a substantial basis
for crediting the hearsay.’”16 When as here, the court is assessing
the credibility of an informant’s report, the court examines the
informant’s veracity and basis of knowledge.17 Moreover, though an
affidavit may lack factual assertions showing direct evidence of a
criminal scheme or contraband, the magistrate is permitted to “draw
common sense conclusions” from the facts alleged in making a
probable cause determination.18
In this case, the affidavit sets out more than a mere
14
Brown, 941 F.2d at 1303 n.1 (quoting Aguillar v. Texas, 378
U.S. 108 (1964)).
15
Brown, 941 F.2d at 1303 n.3.
16
Illinois v. Gates, 462 U.S. 213, 241-42 (1983)(quoting Jones
v. United States, 362 U.S. 257, 269 (1960)).
17
See id. at 230-33(stating that these two factors are relevant
considerations under the “totality of the circumstances” test for
valuing an informant’s report).
18
See United States v. Wylie, 919 F.2d 969, 974 (5th Cir.
1990); United States v. Holzman, 871 F.2d 1496, 1510 (9th Cir.
1989) (“Direct evidence linking criminal objects is not required
for the issuance of a search warrant. A magistrate need only
determine that a fair probability exists of finding evidence.”)
(citations omitted).
8
conclusory description of Chambers’s drug trafficking scheme. The
affidavit describes the scheme, including the use of a middleman,
which was known by the officer by virtue of his experience in
narcotics investigations to be a typical distribution method
employed by drug dealers. The affidavit also describes specific
instances of the scheme in action, which the affidavit states was
personally observed by a confidential informant who the police
officer avers “has provided [the officer] with information three
times in the past one month, and on each occasion the information
provided by the [informant] has proven to be true reliable and
correct.” Under Fifth Circuit precedent, this assertion is
sufficient to establish the confidential informant’s veracity.19
Further, the personal observations of the credible confidential
informant provided information upon which the magistrate could have
“judge[d] whether the informant had a sufficient basis of knowledge
of the operations supposedly being conducted at [Chambers’s]
house.”20
Additionally, the affidavit states that the confidential
informant told the affiant police officer that a man named Wayne
was dealing drugs out of a home located at 1014 North Jackson
Street, San Angelo, Texas. While this statement alone would be
19
See United States v. McKnight, 953 F.2d 898, 905 (5th Cir.
1992)(citing United States v. Jackson, 818 F.2d 345, 348 (5th Cir.
1987)).
20
McKnight, 953 F.2d at 905(citing Jackson, 818 F.2d at 349).
9
conclusory and bare bones,21 the affidavit also states that the
informant based this statement on factual circumstances that the
informant personally observed.
Furthermore, the affidavit demonstrates that the police were
able to independently verify that a man named Wayne lived at 1014
North Jackson Street, San Angelo, Texas, which corroborated the
information provided directly to the police from the confidential
informant and the information provided indirectly by the anonymous
third party. The police also subjected that location to
surveillance for nearly a month and observed three of the alleged
drug deals as they occurred, which also tended to corroborate the
information provided by both the confidential informant and the
anonymous third party. That the officers corroborated several
pieces of the information provided by both the anonymous third party
and the confidential informant tends to demonstrate the
information’s reliability.22 Contrary to Chambers’s assertions,23
there is no requirement that all of the information provided by an
21
See United States v. Kolodziej, 712 F.2d 975, 977-78 (5th
Cir. 1983)(finding an affidavit to be bare bones wherein informants
merely stated that a crime occurred and stated where contraband
could be found).
22
See Jackson, 818 F.2d at 348.
23
Chambers takes issue with the fact that no one other than the
anonymous third party actually saw Chambers exchange drugs for the
third party’s cash, and he contends that the anonymous third party
could have had the drugs he showed to the confidential informant
prior to entering Chambers’s home.
10
informant be corroborated by a subsequent police investigation in
order for the informant to be considered credible.24 Therefore,
given all of the facts alleged in the probable cause affidavit and
the corroborated reliability of the information provided by the
confidential informant and the third party, we conclude that this
affidavit is not bare bones and that the police relied on the search
warrant in good faith. Consequently, as this case presents no novel
question of law, we need not consider whether the affidavit
established a substantial basis for the magistrate’s probable cause
determination and we affirm the district court’s admission of the
evidence seized during the search of Chambers’s house.25
In addition to his warrant-based challenge to the admission of
the evidence found during the search of his home, Chambers argues
that he was unlawfully detained in the store parking lot and that
his later statements and all other physical evidence derived
therefrom, including the firearm he was convicted for possessing,
should be suppressed as the fruit of that unlawful detention.
Though the Government and Chambers never expressly state that
Chambers was arrested in the parking lot, our review of the
undisputed facts and Texas law reveals that he was actually arrested
and that the arrest was complete long before the officers “escorted
24
See United States v. Blount, 123 F.3d 831, 836 (5th Cir.
1997)(en banc).
25
Cavazos, 288 F.3d at 709.
11
Chambers back to his residence where he was read his Miranda
warnings.”
Under Texas law, an arrest is complete whenever a person has
been “actually placed under restraint or taken into custody by an
officer.”26 Critical to this determination is a finding that the
defendant is “under restraint” and within an officer’s “custody and
control.”27 In this case, both parties agree that officers stopped
Chambers in the parking lot and placed him in the back of a patrol
car that they had summoned to transport him to his house. Thus,
there is little doubt that Chambers was within the officers’ custody
and control in the parking lot. Accordingly, Chambers was arrested
in that parking lot.
Given that the Government does not contend that the officers
had probable cause or a warrant to arrest Chambers in the parking
lot, there is no doubt that the parking lot arrest was illegal, and
any statements derived as fruit of that arrest should have been
suppressed.28 The fact that the statements followed Chamber’s
receipt of Miranda warnings does not alter the analysis.29
26
See TEX. CODE CRIM. PRO. § 15.22 (2004).
27
See Whiting v. State, 755 S.W.2d 938 (Tex. App. 1988);
Hardinge v. State, 500 S.W.2d 870 (Tex. Crim. App. 1973).
28
See Wong Sun v. United States, 371 U.S. 471, 484-85 (1963).
29
Brown v. Illinois, 422 U.S. 590, 601-02 (1975)(holding that
the administration of Miranda warnings after the occurrence of a
Fourth Amendment illegality and before the defendant’s admission
12
Moreover, facts similar to those that justified reasonable
detentions in Michigan v. Summers30 and United States v. Cavazos31
are not present here. Unlike the defendant in Summers, Chambers was
not in his house. As a consequence, Chambers’s detention in this
case could not have facilitated the search of that house.32
Additionally, Chambers did not engage in counter-surveillance of the
police or pose a threat to the police as was the case in Cavazos.33
While Chambers’s reasonable detention in the parking lot would have
facilitated the search of his pick-up truck in the lot, the
Government has articulated no legitimate reason justifying the
police officers’ decision to: (1) call a marked patrol car; and (2)
transport Chambers in that patrol car for more than a few blocks
back to his house in order to facilitate the officers’ search of
both the truck and the house. Other circuits have held that,
without other extenuating circumstances, a distance of one block or
three blocks is too remote to justify a detention while a search
warrant is being executed,34 thus a distance in excess of a few
does not, alone, purge the taint of a Fourth Amendment violation);
United States v. Miller, 608 F.2d 1089, 1102-03 (5th Cir. 1998).
30
452 U.S. 692 (1981).
31
288 F.3d 706 (5th Cir. 2002).
32
Summers, 452 U.S. at 700-01.
33
288 F.3d at 711-12.
34
See, e.g., United States v. Edwards, 103 F.3d 90, 93-94 (10th
Cir. 1996); United States v. Sherrill, 27 F.3d 344, 346 (8th Cir.
13
blocks is too remote as well.
But even if Chambers’s statements should have been suppressed,
it is unlikely that the firearm, or for that matter, any contraband
found in plain view during the execution of the search warrant,
should also be suppressed. The firearm was discovered leaning
against the wall in the master bedroom of Chambers’s house. As
discussed above, the police had a valid search warrant for the
house. Furthermore, that valid search warrant was obtained before
the illegal parking lot arrest and the warrant application was based
entirely on information unrelated to Chambers’s statements or the
arrest. Thus, despite the fact that the actual search of the house
and seizure of the firearm occurred almost immediately after the
illegal parking lot arrest, the firearm and all other contraband are
not subject to the exclusionary rule because of a combination of the
independent source doctrine and the inevitable discovery doctrine.35
These two doctrines, which are admittedly not argued by either
party, are “two sides of the same coin.36
The independent source doctrine applies when evidence is
“initially discovered during, or as a consequence of, an unlawful
search, but later obtained independently from activities untainted
1994).
35
See United States v. Grosenheider, 200 F.3d 321, 327-28 (5th
Cir. 2000).
36
Id. at 328 n. 8.
14
by the initial illegality.”37 One of this Circuit’s most recent
analyses of the independent source doctrine was its decision in
United States v. Grosenheider.38
In Grosenheider, a computer repair shop discovered child
pornography on a customer’s computer and notified the police.39 A
police officer then conducted an illegal search and seizure of the
computer, later returning it to the repair shop.40 Notified by the
police, a federal officer obtained a warrant based on an affidavit
recounting what the civilian computer shop employee had seen without
informing the judge of information gleaned from the police officer’s
illegal search.41 The judge found probable cause for a search
warrant based on the untainted information.42 The police then
followed the suspect’s wife home from the repair shop, where she had
picked up the computer, and executed the warrant.43 We held that
the information on the computer was admissible based on the search
and seizure pursuant to that warrant under the independent source
37
Id. (quoting Murray v. United States, 487 U.S. 533, 537
(1988)).
38
Id.
39
Id. at 324.
40
Id.
41
Id. at 324-25.
42
Id. at 325.
43
Id.
15
doctrine.44
The inevitable discovery doctrine applies where the government
establishes, by a preponderance of the evidence, “(1) a reasonable
probability that the contested evidence would have been discovered
by lawful means in the absence of the police misconduct and (2)that
the government was actively pursuing a ‘substantial alternate line
of investigation at the time of the constitutional violation.’”45
In fact, this Court held in United States v. Lamas that when
officers have probable cause to search, and have dispatched a fellow
officer to acquire a warrant, evidence found in the place to be
searched will inevitably be discovered.46
In this case, the Government did more than just send an officer
for a warrant prior to conducting the searches of Chambers’s house
and vehicle. Not only did the officers obtain a valid warrant, that
warrant was obtained prior to the illegal parking lot arrest and was
based on evidence independent of Chambers’s post-arrest statements.
Based on these circumstances, we conclude that there is “a
reasonable probability that the contested evidence would have been
discovered by lawful means in the absence of the police
44
Id. at 330.
45
United States v. Lamas, 930 F.2d 1099, 1102 (5th Cir.
1991)(quoting United States v. Cherry, 759 F.2d 1196, 1205-06 (5th
Cir. 1985)).
46
930 F.2d at 1102.
16
misconduct.”47 Additionally, the existence of that warrant clearly
indicates that the Government “was actively pursuing a ‘substantial
alternate line of investigation at the time of the constitutional
violation.’”48 Consequently, the firearm in question, along with
all of the other contraband seized from Chambers’s home, would have
been inevitably discovered by the police.
Of course, had the firearm been discovered in some place where
the police were unlikely to search or that was beyond the scope of
the warrant, Chambers might have a better argument that the
statements he made while illegally arrested tainted the search and
seizure.49 Though the parties never expressly indicate the content
of Chambers’s statements, the record reveals that Chambers did at
least attempt to tell the police where his weapons were kept. But
the firearm in question was discovered in Chambers’s house, propped
against the wall in the master bedroom where he and his wife slept.
Thus, the firearm was unlikely to have been overlooked by the
police, even in the absence of Chambers’s statements. Accordingly,
even if Chambers’s statements may have been properly suppressed, the
firearm, drugs, or other contraband discovered pursuant to the
47
Id.
48
Lamas, 930 F.2d at 1102(quoting Cherry, 759 F.2d at 1205-06).
49
See United States v. Cannon, 981 F.2d 785, 789 (5th Cir.
1993)(discussing whether ephedrine discovered stored in a tire
inner tube on a ranch being searched under a valid warrant was
inadmissible because police would not have found it without the use
of statements obtained in violation of Edwards).
17
search warrant should not be suppressed.
Chambers’s guilty plea is conditional. Under Federal Rule of
Criminal Procedure 11(a)(2), “a defendant who prevails on appeal”
may withdraw his conditional guilty plea. The plain language of the
federal rule and the terms of the plea agreement here make clear
that had Chambers been fully successful on appeal, as opposed to
only partially so, he would be entitled to withdraw his plea. But
here we conclude that the vast majority of the evidence challenged
in Chambers’s motion was properly admitted by the district court.
The parties have failed to cite any authority, much less argue, that
Chambers’s partial success on appeal is sufficient to allow him to
withdraw his conditional guilty plea.
In United States v. Leake,50 the Sixth Circuit observed that
the inquiry before the court in cases where a defendant only
partially prevails on appeal “requires an examination of the degree
of success and the probability that the excluded evidence would have
had a material effect on the defendant’s decision to plead
guilty.”51 In Leake, the Sixth Circuit permitted a partially
prevailing defendant to withdraw his conditional guilty plea based
on its conclusion that the most damning evidence against the
50
95 F.3d 409 (6th Cir. 1996).
51
95 F.3d at 420 n.21.
18
defendant should have been suppressed.52
In contrast, Chambers’s statements, many of which the search
proved inaccurate, clearly are not the most damning evidence against
him in this illegal gun possession case. Because the admissible
evidence readily establishes the fact of possession and we have been
apprised of no argument to the contrary, we conclude that
suppressing rather than admitting the excludable evidence would not
have had a material effect on Chambers’s decision to plead guilty.
Accordingly, the ruling and judgment of the district court is
AFFIRMED.
52
Id. at 420.
19