United States v. Sauls

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 28, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
____________________

No. 05-51011
Summary Calendar
____________________

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

KENNETH M SAULS

Defendant-Appellant

_________________________________________________________________

Appeal from the United States District Court
for the Western District of Texas
No. 1:04-CR-118-1
_________________________________________________________________

Before KING, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:*

Kenneth M. Sauls appeals his guilty-plea conviction of

possession of cocaine base, in violation of 21 U.S.C. § 844(a),

for which he received a sixty-month prison sentence and a three-

year term of supervised release.

*
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that this opinion should not be published and is not precedent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.
 Sauls challenges the district court’s denial of his motion

to suppress evidence seized from a residence in Austin, Texas,

where he apparently lived with Shantillia Spruill, following a

search conducted on April 9, 2004, pursuant to a warrant issued

on April 7, 2004. The government consented to a conditional

guilty plea that would permit Sauls to appeal the suppression

issue, but after a substitution of appointed counsel for Sauls,

Sauls entered into a written plea agreement in which he waived

the right to appeal his conviction and sentence, except for an

upward departure from the applicable range under the Sentencing

Guidelines. The parties do not address whether the waiver

provision might have superseded the government’s prior written

consent to a conditional plea. In any event, the government does

not explicitly seek to enforce the waiver-of-appeal provision,

and therefore we review the merits of Sauls’s Fourth Amendment

arguments. See United States v. Story, 439 F.3d 226, 230-31 (5th

Cir. 2006) (stating that in the absence of a government

objection, a potential appeal waiver provision “is not binding

because the government has waived the issue”).

In reviewing the denial of a suppression motion, we review

the “district court’s factual findings for clear error, and its

legal conclusions, including its ultimate conclusion as to the

constitutionality of the law enforcement action, de novo.”

United States v. Phillips, 382 F.3d 489, 494 (5th Cir. 2004)

(citations and internal quotation marks omitted). Sauls contends

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that the search warrant was based on a “bare bones” affidavit

that lacked sufficient support and detail to survive even the

“good faith” exception of United States v. Leon, 468 U.S. 897

(1984). In the affidavit, an Austin police detective reported

that a confidential informant (“CI”) told him that Sauls lived at

5304 Towser Court and that Sauls often sold cocaine base out of a

“small white four-door car with front-end damage,” selling mostly

in the “downtown area.” The parties do not dispute that this

information, standing alone, was insufficient to establish

probable cause, as the affidavit contained no information

corroborating the CI’s veracity, reliability, or the basis of his

knowledge. See United States v. Fisher, 22 F.3d 574, 578 (5th

Cir. 1994) (stating that “in determining the sufficiency of an

affidavit we examine the totality of circumstances, including the

veracity, reliability, and basis of knowledge of a confidential

informant”).

A probable-cause determination, however, must be based on

the “totality of the circumstances” rather than on isolation of

“each factor of suspicion.” United States v. Saucedo-Munoz, 307

F.3d 344, 351 (5th Cir. 2002) (citing United States v. Arvizu,

534 U.S. 266 (2002)). Here, the CI’s information was

supplemented by the following information supplied by the

affiant’s own investigation: The utilities at 5304 Towser Court

were registered to Spruill, as was a driver’s license with the

same address. Surveillance at the address showed that a “white

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Plymouth four-door” was parked in the driveway, a car that was

registered to Spruill. Sauls had been arrested while driving the

same car in January 2004. Moreover, Sauls had an “extensive

history” of narcotics arrests, the most recent being for

possession of crack cocaine in 1999. Finally, on April 6, 2004,

the affiant had searched the garbage placed by the street for

collection at 5304 Towser Court. The garbage contained eight

plastic baggies, five of which tested positive for cocaine

residue. Also found in the trash was a December 2003 letter to

Sauls and a letter to Spruill post-marked March 25, 2004.

This information, in its totality, supported a good faith

conclusion by an objectively reasonable officer that the

affidavit on which the warrant was based was adequate to

establish probable cause. See United States v. Shugart, 117 F.3d

838, 843-44 (5th Cir. 1997) (holding that certain “technical

errors” in “applications for search warrants do not undermine”

the objectively reasonable good faith reliance of law

enforcement); Leon, 468 U.S. at 919-20. Sauls’s arrest three

months earlier in the same car that was registered to a resident

at 5304 Towser Court was sufficient to connect him to that

residence, and Sauls’s prior arrests on narcotics violations and

the evidence discovered in the curbside garbage were sufficient

to support a reasonable belief that contraband would be found

inside the residence. Whether or not the garbage inspection was

sufficient by itself to support a probable-cause finding,

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see United States v. Briscoe, 317 F.3d 906, 907-08 (8th Cir.

2003) (holding that such evidence, standing alone, establishes

probable cause), it was sufficient in combination with the

additional information submitted. See Fisher, 22 F.3d at 578.

For the reasons given above, the judgment of conviction is

AFFIRMED.

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