United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS August 16, 2005
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-30952
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY BRIAN GIBBS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
Before HIGGINBOTHAM, BARKSDALE, and CLEMENT, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Convicted pursuant to a conditional guilty plea for possession
of a firearm by a convicted felon, Timothy Brian Gibbs appeals the
denial of his suppression motion. Following an evidentiary hearing
before a magistrate judge, the district court adopted the
magistrate judge’s recommendation that Gibbs’ Fourth Amendment
right against unreasonable search and seizure was not violated,
because the searching officers relied in good faith on a facially
valid warrant, even though the supporting affidavit, prepared by
one of the officers involved in the search, had been lost prior to
the hearing. AFFIRMED.
I.
In September 2003, the Sheriff’s Department for Caddo Parish,
Louisiana, executed a search warrant for drugs and other
paraphernalia at Gibbs’ residence. The police found marijuana and
two firearms. Gibbs was advised of his Miranda rights; waived
them; and confessed to selling marijuana and owning the firearms.
Charged with being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), Gibbs moved to suppress the
evidence and statements obtained from the search. He maintained:
his statements were involuntary; and the search violated his Fourth
Amendment rights because insufficient facts were alleged in the
underlying affidavit for the warrant to be supported by probable
cause.
According to the suppression-hearing testimony of the affiant
for the supporting affidavit, Agent Bailey with the sheriff’s
department, there were two warrants and three affidavits in
connection with the search. The Agent testified as follows.
The first affidavit he provided to the issuing state judge as
the basis for the search warrant contained evidence of two
supervised drug buys out of Gibbs’ home. Prior to executing the
warrant, however, the Agent realized the street numbers for Gibbs’
address had been transposed on the warrant. As a result, Agent
Bailey did not execute that warrant; he shredded it and the
underlying affidavit.
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The Agent then prepared a new affidavit (second affidavit),
again detailing two drug buys, and submitted it to the same state
judge, who signed a second search warrant. Agent Bailey executed
that second warrant and, during the search, found the two firearms
and marijuana.
Agent Bailey placed the second affidavit “somewhere in
evidence”; subsequently, the affidavit was “lost”. Upon the
Agent’s being notified that the second affidavit was needed as
evidence, he could not find it. Nor could he produce a copy; the
computer on which the information for that affidavit was stored had
“crashed” during a thunderstorm. As a result, and using available
police reports, the Agent “reconstructed” the lost second
affidavit.
This third affidavit (reconstructed affidavit) was not an
exact reproduction of the lost second affidavit, however. It did
not contain a report of both alleged drug buys at Gibbs’ house
because Agent Bailey could not find the police reports detailing
one of those buys, and he did not want to commit perjury by
guessing its date.
The Agent submitted the reconstructed affidavit to the
Government without explanation. Prior to the suppression hearing,
the Government, believing the reconstructed affidavit was a true
copy of the second affidavit, provided a copy of the reconstructed
affidavit to Gibbs, who attached it to his suppression motion.
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Gibbs and the Government agreed to stipulate to the affidavit’s
authenticity.
On the day of the suppression hearing, however, Agent Bailey
informed the Government that the reconstructed affidavit was not a
copy of the second affidavit. Accordingly, the Government could no
longer stipulate to its authenticity and informed Gibbs. On the
other hand, the second, facially valid, executed search warrant,
signed by the state judge and issued pursuant to the lost second
affidavit, was in evidence at the hearing.
The hearing was conducted by a magistrate judge for
recommended disposition by the district judge. See 28 U.S.C. §
636(b)(1)(B) (when designated, magistrate judge may conduct
evidentiary hearing and make recommended disposition). For ruling
on a contested search made pursuant to a warrant, an alternative
test is employed, as more fully discussed infra. First, the court
determines “whether the good-faith exception to the exclusionary
rule applies”; if it does not, it must ascertain “whether the
warrant was supported by probable cause”. United States v. Laury,
985 F.2d 1293, 1311 (5th Cir. 1993). The good-faith exception is
applied unless: the issuing-judge was “misled by information in an
affidavit that the affiant knew was false or would have known was
false except for his reckless disregard of the truth”; the issuing-
judge “wholly abandoned his judicial role” in such a manner that
“no reasonably well trained officer should rely on the warrant”;
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the warrant was “based on an affidavit so lacking in indicia of
probable cause as to render official belief in its existence
entirely unreasonable”; or the warrant was facially invalid.
United States v. Leon, 468 U.S. 897, 923 (1984) (internal quotation
marks omitted). After hearing testimony by Agent Bailey and Gibbs,
the magistrate judge called for supplemental briefing on “the
effect of not knowing what the evidence was that was offered in
support of the warrant, [the second affidavit,] when all we have is
the warrant itself”.
In his supplemental brief, Gibbs reiterated his pre-hearing
assertions: the second affidavit did not provide probable cause
for a warrant; and his statements at the time of his arrest were
involuntary. Concerning the alternative test for ruling on a
contested search made pursuant to a warrant, Gibbs contended:
because, at the suppression hearing, he had shown by a
preponderance of the evidence that Agent Bailey had not acted in
good faith in relying on the warrant, the burden had shifted to the
Government to prove the sufficiency of the lost second affidavit;
and the Government had already failed this burden because, at the
hearing, the magistrate judge had concluded he could not determine
the exact contents of that affidavit.
In its supplemental brief, the Government maintained: Agent
Bailey’s testimony, in conjunction with the state judge’s signing
the warrant, proved the Agent acted in good faith in executing it;
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and, in the alternative, having the second affidavit was not
necessary to prove the warrant was supported by probable cause
because Agent Bailey’s credible testimony was enough to establish
such cause.
In his report and recommendation (report) issued after the
supplemental briefs were received, the magistrate judge stated it
was credible that Agent Bailey participated in two controlled drug
buys from Gibbs’ residence, but the Agent’s testimony about the
handling of the search-warrant paperwork was “so equivocal and
contradictory that the court [could not] rely upon it to determine
whether the search warrant applications contained information about
one or both of the drug buys”. (Emphasis added.) In any event,
pursuant to the first part of the alternative test, the magistrate
judge recommended that the Agent executed the warrant in good faith
because: (1) the absence of an affidavit to support an executed
warrant does not invalidate it when “other evidence [can] be
presented to establish the fact that an affidavit was presented, as
well as its contents”, United States v. Lambert, 887 F.2d 1568,
1571-72 (11th Cir. 1989); (2) the Agent testified credibly that an
application for a search warrant, containing an affidavit
describing at least one undercover drug buy, was presented to the
state judge before he signed the warrant; and (3) there was no
evidence that the Agent was acting in anything other than good
faith reliance on the warrant. Because he recommended the good-
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faith exception applied, the magistrate judge did not reach the
alternative, probable cause issue. See Laury, 985 F.2d at 1311.
(The magistrate judge also recommended that Gibbs’ post-arrest
statements were given voluntarily. Gibbs does not contest this.)
Gibbs filed an objection to the report, contending: because
the second affidavit was missing, there was no valid warrant; and
it was the Government’s burden to prove beyond a reasonable doubt
there was no violation of Gibbs’ Fourth Amendment rights, not
Gibbs’ burden to prove there was one. After reviewing Gibbs’
objections, the district court on 9 September 2004 adopted the
report and denied the motion to suppress.
Gibbs entered a conditional guilty plea that day, reserving
the right to appeal the denial of the suppression motion. He was
sentenced, inter alia, to 30 months’ imprisonment.
II.
When reviewing the district court’s denial of a suppression
motion, we review conclusions of law de novo and findings of fact
for clear error; the evidence is viewed in the light most favorable
to the prevailing party. E.g., United States v. Dortch, 199 F.3d
193, 197 (5th Cir. 1999). On deciding whether to accept a
magistrate judge’s recommended disposition of a suppression motion,
the district court makes “a de novo determination of those portions
of the report or specified proposed findings or recommendations to
which objection is made”. United States v. Raddatz, 447 U.S. 667,
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673 (1980) (emphasis omitted). In doing so, the district court
need not re-hear testimony from the suppression hearing; its
deference to the magistrate’s credibility determinations is
appropriate when they are supported by the record. United States
v. Giacomel, 153 F.3d 257, 258 (5th Cir. 1998).
“One of the most important principles in our judicial system
is the deference given to the finder of fact who hears the live
testimony of witnesses because of his opportunity to judge the
credibility of those witnesses.” Louis v. Blackburn, 630 F.2d
1105, 1109 (5th Cir. 1980). “Where a district court’s denial of a
suppression motion is based on live oral testimony, the clearly
erroneous standard is particularly strong because the judge had the
opportunity to observe the demeanor of the witnesses.” United
States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005) (citations
omitted). Similarly, we defer to the district court’s acceptance
of the magistrate judge’s credibility recommendations, based on his
having heard live testimony.
Again, our review of the denial of the suppression motion is
conducted under an alternative test. Evidence obtained during the
execution of a subsequently invalidated search warrant is not
excluded if the officer executing the warrant relied on it in good
faith. Leon, 468 U.S. at 922. Therefore, we determine first
whether this exception applies; if it does, the inquiry ends.
Laury, 985 F.2d at 1311. If good faith is not found, we next
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determine “whether the warrant was supported by probable cause”.
Id. Accordingly, we first consider the good-faith exception.
In this regard, it bears repeating that the exclusionary rule
is “a judicially created remedy designed to safeguard Fourth
Amendment rights generally through its deterrent effect, rather
than a personal constitutional right of the party aggrieved”.
Leon, 468 U.S. at 906. In other words, whether to apply the
exclusionary rule is a separate inquiry from whether Fourth
Amendment rights were violated. Id. Moreover, “the exclusionary
rule is designed to deter police misconduct rather than to punish
the errors of judges and magistrates”. Id. at 916. In sum, when
an officer executes a warrant in good faith, the deterrent effect
of the exclusionary rule on that officer does not trump the costs
of suppressing reliable physical evidence, even if the search is
subsequently found violative of the Fourth Amendment. Id. at 913.
This is in part because an issuing-judge’s probable cause
determination, based on an underlying affidavit, is afforded “great
deference”. Id. at 914. Of course, such deference is “not
boundless”, id.; but, “where the officer’s conduct is objectively
reasonable, excluding the evidence will not further the ends of the
exclusionary rule in any appreciable way”. Id. at 919-20 (internal
quotation marks omitted). Thus, “when an officer acting with
objective good faith has obtained a search warrant from a judge ...
and acted within its scope”, the “officer cannot be expected to
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question the magistrate’s probable cause determination[;] ...
[p]enalizing the officer for the [issuing-judge’s] error, rather
than his own, cannot logically contribute to the deterrence of
Fourth Amendment violations”. Id. at 920-21.
For the good-faith exception to apply, the executing-officer’s
reliance on the issuing-judge’s probable-cause determination and
the technical sufficiency of the warrant must have been objectively
reasonable. Id. at 922. As discussed earlier, a reviewing court
will defer to a judge’s probable cause determination in signing a
warrant, and therefore uphold an officer’s good faith reliance on
that warrant, unless: (1) the issuing-judge “was misled by
information in an affidavit that the affiant knew was false or
would have known was false except for his reckless disregard of the
truth”; (2) the issuing-judge “wholly abandoned his judicial role”
in such a manner that “no reasonably well trained officer should
rely on the warrant”; (3) the underlying affidavit is “bare bones”
(“so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable”); or (4) the warrant
is “so facially deficient ... that the executing officers cannot
reasonably presume it to be valid”. Id. at 923.
Regarding these four factors, Gibbs does not contend either
that the state judge “wholly abandoned” his judicial role in
issuing the warrant or that it was not facially valid. Instead, he
maintains that, in finding the good-faith exception applicable, the
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district court erred, in the light of the other two disqualifiers:
Agent Bailey was reckless or dishonest in preparing the affidavits;
and there was no competent evidence showing the warrant was based
upon more than a “bare bones” affidavit. Along this line, Gibbs
concedes that a lost supporting affidavit does not invalidate a
warrant if competent evidence exists to prove the affidavit’s
contents. See Lambert, 887 F.2d at 1571.
Gibbs contends that the district court clearly erred in
finding that the Agent’s testimony alone was sufficient to prove
the second affidavit’s contents. Gibbs claims: Agent Bailey’s
incredible testimony cannot stand; there is no other credible
evidence concerning the second affidavit or its contents; and,
without any proof of an underlying affidavit, the warrant is
necessarily invalid. Gibbs further claims the district court erred
in applying the good-faith exception because it is objectively
unreasonable to conclude that, given the totality of the
circumstances surrounding the Agent’s actions regarding the
affidavits, his testimony concerning their contents was credible;
and the Agent may not contend he reasonably relied on the issuing-
judge’s probable cause determination for the warrant when it was
the Agent who prepared, and swore to, the inadequate second
affidavit.
The Government responds that the district court did not err in
applying the good-faith exception. It maintains: the court
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correctly found credible Agent Bailey’s testimony about the
contents of the second affidavit; the warrant was facially valid;
by signing both the original and second warrant, the issuing-judge
indicated the underlying affidavit provided sufficient probable
cause; Agent Bailey relied on this facially valid second warrant in
good faith; and, even if the second affidavit only evidenced one
drug buy, it would not be “bare bones”.
In the absence of allegations of judicial misconduct,
“suppression is appropriate only if the officers were dishonest or
reckless in preparing their affidavit or could not have harbored an
objectively reasonable belief in the existence of probable cause”.
Leon, 468 U.S. at 926. As Gibbs recognizes, although the second
affidavit is missing, this does not invalidate per se the search
warrant; other evidence may be admitted to prove the affidavit’s
contents. Lambert, 887 F.2d at 1571. Here, such other-evidence is
the testimony of the original affiant – Agent Bailey – and the
reconstructed affidavit.
Employing the requisite deferential standard of review for
credibility determinations based on the suppression hearing
testimony, we hold the district court did not clearly err in
concluding Agent Bailey testified credibly to: his participation
in two drug buys from Gibbs’ home; and the presence of evidence of
at least one of those buys in the second affidavit submitted to the
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issuing judge. This credible testimony is sufficient to prove the
existence and contents of an affidavit underlying the warrant.
Contrary to Gibbs’ contentions: an officer may rely in good
faith on an issued-warrant based on an affidavit describing a
single drug buy conducted by a confidential informant supervised by
the affiant officer, see United States v. Foy, 28 F.3d 464, 474
(5th Cir.), cert. denied, 513 U.S. 1031 (1994); and the Agent could
rely in good faith on a warrant issued pursuant to an affidavit to
which he swore, see United States v. Cherna, 184 F.3d 403, 414 (5th
Cir. 1999), cert. denied, 529 U.S. 1065 (2000); Foy, 28 F.3d at
474. The district court did not err in concluding that the record
demonstrated the state judge “issued the warrant after reviewing an
affidavit containing facts establishing at least a colorable case
of probable cause”. We also hold that the district court did not
clearly err in finding no evidence that Agent Bailey acted in
“anything other than good faith in obtaining the warrant”.
(Because we hold Agent Bailey relied on the warrant in good faith,
we need not reach the probable cause issue. See Cherna, 184 F.3d
at 407; Laury, 985 F.2d at 1311.)
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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