IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 21, 2009
No. 08-50488
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
PABLO ARISPE, JR
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:07-CR-381-ALL
Before SMITH, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Pablo Arispe, Jr., pleaded guilty to one count of possession with intent to
distribute less than 500 grams of cocaine within 1000 feet of a school. Arispe
challenges the district court’s denial of his request for hearing pursuant to
Franks v. Delaware, 438 U.S. 154 (1978). He also challenges the denial of his
motion to suppress evidence seized pursuant to a warrant during the search of
his residence and inculpatory statements made subsequent to the search.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-50488
The affidavit in support of the search warrant was signed by Deputy
Nathan Johnson and was based on the sworn statement of Wanda Williams.
Arispe argues that he was entitled to a hearing under Franks because Deputy
Johnson intentionally and/or recklessly omitted information concerning
Williams’s custodial status and her criminal history. Arispe also argues that
Deputy Johnson omitted the fact that Williams was engaging in criminal
behavior when she gathered the information that was used in the affidavit to
obtain the warrant. Arispe contends that by omitting this information, Deputy
Johnson intentionally misled the magistrate to issue a warrant based on
Williams’s status as an innocent crime victim and/or citizen-informant. Arispe
asserts that there was no corroboration of the information in the affidavit and
when the omitted information is considered, the remaining information in the
affidavit was insufficient to establish probable cause for the warrant.
Arispe was required to make a “substantial preliminary showing” that:
(1) the affiant knowingly and intentionally, or with reckless disregard for the
truth, made a false statement in the warrant affidavit and (2) the remaining
portion of the affidavit is insufficient to support a finding of probable cause. See
Franks, 438 U.S. at 170-72. “The deliberate falsity or reckless disregard whose
impeachment is permitted . . . is only that of the affiant, not of any
nongovernmental informant.” Id. at 171. “[I]f, when material that is the subject
of the alleged falsity or reckless disregard is set to one side, there remains
sufficient content in the warrant affidavit to support a finding of probable cause,
no hearing is required.” Id. at 171-72.
We have applied Franks to situations involving alleged omissions in a
supporting affidavit. See United States v. Tomblin, 46 F.3d 1369, 1377 (5th Cir.
1995). “Unless the defendant makes a strong preliminary showing that the
affiant excluded critical information from the affidavit with the intent to mislead
the magistrate, the Fourth Amendment provides no basis for a subsequent
attack on the affidavit’s integrity.” Id. (citations and internal quotations marks
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No. 08-50488
omitted). We review the denial of a Franks hearing de novo. United States v.
Brown, 298 F.3d 392, 396 (5th Cir. 2002).
As the district court determined, Arispe has not shown that Deputy
Johnson knowingly and intentionally, or with reckless disregard for the truth,
omitted material information from the affidavit, nor did he show that if
information concerning Williams’s criminal history had been included, the
affidavit would have been insufficient to establish probable cause. See Franks,
438 U.S. at 171. Williams’s arrest did not preclude her from also being a victim
of a crime, and the fact that her statements were made while she was in police
custody does not automatically render her statements untrue. There is no
evidence that Deputy Johnson intentionally or recklessly misled the magistrate
by omitting information concerning Williams’s background and conduct. Rather,
because Williams implicated herself in several burglaries and thefts while she
was in custody and provided reliable information that led to the recovery of
stolen property, it was reasonable for Deputy Johnson to believe that her
statements regarding Arispe’s theft of her shotgun were credible. Further, any
uncertainty about the veracity of Williams’s statements was compensated for by
the detail of the statements she provided and the internal consistency of the
statement and surrounding facts. See United States v. Privette, 947 F.2d 1259,
1262 (5th Cir. 1991).
The forgoing indicates that, even if the omitted information about
Williams, both favorable and unfavorable, had been included in the affidavit, the
magistrate could still have found probable cause to issue the warrant.
Accordingly, Arispe has not shown that he was entitled to a Franks hearing.
Arispe argues that the district court should not have applied the good faith
exception to the exclusionary rule. He asserts that if the magistrate had been
informed of Williams’s true status, he would not have been able to make a
determination of probable cause based on the liberal perspective that is afforded
information provided by a crime victim or citizen-informant.
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No. 08-50488
“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
exception to the exclusionary rule applies; and (2) whether probable cause
supported the warrant.” United States v. Satterwhite, 980 F.2d 317, 320 (5th
Cir. 1992) (citations omitted). If the good faith-exception applies, and there is
no “novel question of law whose resolution is necessary to guide future action by
law enforcement officers and magistrates,” the probable cause issue need not be
addressed. Id. (citations and internal quotation marks omitted).
Even if a search warrant is determined to be unsupported by probable
cause, evidence obtained by officers in “objectively reasonable good-faith
reliance” on the warrant is admissible. United States v. Laury, 985 F.2d 1293,
1311 (5th Cir. 1993) (citing United States v. Leon, 468 U.S. 897, 922-23 (1984)).
The good-faith exception to the exclusionary rule does not apply when a warrant
is based on an affidavit that is deliberately false or made in reckless disregard
of the truth. Leon, 468 U.S. at 914.
Arispe has not shown that Deputy Johnson intentionally and/or with
reckless disregard for the truth omitted information about Williams in his
affidavit. The district court did not err in applying the good faith exception and
in denying Arispe’s motion to suppress. See id. at 914.
AFFIRMED.
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