UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-41259
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JORGE LUIS ALVAREZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
October 24, 1997
Before POLITZ, Chief Judge, BENAVIDES and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Appellant Jorge Luis Alvarez (“Alvarez”) appeals his
conviction and sentence for the sexual exploitation of minors, 18
U.S.C. § 2252. We reverse.
FACTS AND PROCEDURAL HISTORY
Alvarez was indicted for possession of videotapes depicting,
and produced with the use of, minors engaging in sexually explicit
conduct in violation of 18 U.S.C. § 2252(a)(4)(B). After the
district court denied his motion to suppress, Alvarez was tried
before the court. The parties stipulated to the evidence. The
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district court viewed the tapes and found Alvarez guilty. Alvarez
was sentenced to 48 months confinement, three years of supervised
release, a mandatory assessment of $50 and an order of “conditional
restitution” of $5000.
Appellant Alvarez showed police officer Rodriguez of Mathis,
Texas a video tape depicting a minor female exposing her breasts
for about a second while Alvarez’s voice is heard telling her how
to pose. Alvarez also stated to Rodriguez that he had other
similar tapes. Rodriguez reported the incident to Captain Gaitan
and Police Chief Rios. Gaitan and Rios reported it, in turn, to
Texas Ranger Rivera. Rivera briefly consulted an investigator with
the district attorney’s office. Together they looked up the
definition of “sexual conduct” in the Texas Penal Code and
concluded that the video tape depicted Sexual Performance of a
Child under § 43.26(a) Tex. Penal Code. Rivera swore out an
affidavit that he had received information that Alvarez had
“produced a video tape that visually depicts a child younger than
18 years of age . . . who is engaging in sexual conduct.” Based on
the affidavit, the search warrant that is the subject of this
appeal was issued.
MOTION TO SUPPRESS
a. Standard of review
Alvarez filed a motion to suppress the evidence seized in the
search of his residence alleging, inter alia, that the affidavit
supporting the search warrant contained a false statement made in
reckless disregard of the truth and that the warrant itself was
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unconstitutionally overbroad. The district court denied the motion
and Alvarez appeals that ruling. Determinations of fact made by a
district court in ruling on a motion to suppress are accepted
unless the district judge’s findings are clearly erroneous or
influenced by an incorrect view of the law. United States v.
Gonzales, 79 F.3d 413, 419 (5th Cir.), cert. denied, 117 S. Ct. 183
(1996). Questions of law are reviewed do novo. Id.
b. The validity of the affidavit
The Fourth Amendment’s exclusionary rule will not bar the
admission of evidence obtained with a warrant later found to be
invalid so long at the executing officers acted in reasonable
reliance on the warrant. United States v. Leon, 468 U.S. 897, 920,
104 S. Ct. 3405, 3418-19, 82 L. Ed. 2d 677 (1984). However, if the
warrant was issued in reliance on an affiant’s deliberate or
reckless material misstatement, the Leon good faith exception will
not apply. Id. 468 U.S. at 923, 104 S. Ct. at 3421. The party
attacking the warrant bears the burden of establishing by a
preponderance of the evidence that the misrepresentation was made
intentionally or with reckless disregard for the truth. United
States v. Namer, 680 F.2d 1088, 1094 (5th Cir. 1982).
If a search warrant affidavit contains a false, material
statement made intentionally or with reckless disregard for the
truth, the reviewing court must excise the offensive language from
the affidavit and determine whether the remaining portion
establishes probable cause. Franks v. Delaware, 438 U.S. 154, 98
S. Ct. 2674, 57 L. Ed. 2d 667 (1978); United States v. Namer, 680
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F.2d 1088, 1093 (5th Cir. 1982). In the district court, Alvarez
argued that the affiant’s use of the term “sexual conduct” was a
false, material statement, made with reckless disregard for the
truth because exposing a female breast does not fall within the
definition of “sexual conduct” in the Texas Penal Code.1 At the
suppression hearing, Rivera testified that he believed that
“breasts” were “genitals” and that the tape therefore satisfied the
“lewd exhibition of the genitals” portion of the definition of
“sexual conduct” in the Texas Penal Code. After considering that
testimony, the district court found that the statement was false
and was necessary to the finding of probable cause, but
nevertheless denied the motion to suppress because it concluded
that the affiant’s misstatement was “[a]t best . . . negligent.”
The affidavit contained another false statement, that is, it
identified the police officer who had actually seen the video tape
as Ruben Hernandez when the officer’s name was Ruben Rodriguez.
While clearly false, Alvarez does not contend that this
misstatement was material. On appeal, Alvarez challenges the
district court’s finding of negligence, and asks this court to find
that the statement was made “with reckless disregard for the
truth.”
Alvarez argues that using the term “sexual conduct” instead of
describing the actual act on the video tape was reckless because it
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Texas Penal Code § 43.25(a)(2) provides:
“Sexual conduct” means actual or simulated sexual intercourse,
deviate sexual intercourse, sexual bestiality, masturbation,
sado-masochistic abuse, or lewd exhibition of the genitals.
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prevented the judicial officer from determining the applicability
of the term to the facts of this case, citing a Ninth Circuit case
that approved a warrant in the face of a Franks challenge in part
because “[t]he facts underlying the officer’s [allegedly false]
conclusions were set forth in the affidavit.” United States v.
Burnes, 816 F.2d 1354, 1358 (9th Cir. 1987). A determination by a
neutral magistrate is a prerequisite to the sufficiency of an
application for a warrant. Johnson v. United States, 333 U.S. 10,
68 S. Ct. 367, 92 L. Ed. 436 (1948).
The point of the Fourth Amendment, which often is not
grasped by zealous officers, is not that it denies law
enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection
consists in requiring that those inferences be drawn by
a neutral and detached magistrate instead of being judged
by the officer engaged in the often competitive
enterprise of ferreting out crime.
Id. 333 U.S. at 13-14, 68 S. Ct. at 369. Setting out the
underlying facts in the affidavit provides some insurance against
the kind of error which occurred here. While we decline to hold
that the absence of such facts in the affidavit invariably converts
negligence into recklessness for Fourth Amendment purposes, it is
certainly one factor that must be considered in the analysis.
Next, Alvarez contends that recklessness should be inferred
from the materiality of the statement and the circumstances
surrounding the investigation. Both Alvarez and the Government
cite United States v. Namer, 680 F.2d 1088 (5th Cir. 1982), in
which this court held that a misstatement in a search warrant
application was made in reckless disregard for the truth. In
Namer, we considered both materiality and surrounding
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circumstances, noting that the draftsmen were attorneys,
experienced in prosecuting the type of case at issue, that there
was no exigency or even a need for haste in a year-long
investigation, that the prosecution hinged on a novel theory of
criminal liability, and that the draftsmen understood the
importance and the inaccuracy of the statement at issue. Id. at
1094. Based on these findings, the court concluded that the
defendant had carried his burden and that the misrepresentation was
made with reckless disregard for the truth. Id.
Applying the guidance of Namer to the facts of this case, we
are convinced that the district court clearly erred in holding that
the false statement was “at best negligent.” First, Rivera was an
experienced, highly trained law enforcement officer, serving for
over 18 years, with two years as a Texas Ranger responsible for
high profile crimes. Second, Rivera did not consult with any
attorney. He read the Texas Penal Code section defining sexual
conduct and discussed the case with the district attorney’s
investigator, who told him, “Go for it.” The Justice of the Peace,
before approving the search warrant, specifically asked Rivera if
he had “gone through it with the D.A.’s office.” Rivera told him
that he had. Although not false, Rivera’s representation may have
left the impression that he had checked with an attorney who was
familiar with the legal definition of sexual conduct, when that was
not the case. In fact, much like the circumstances in Namer, the
state prosecutor dismissed this case for insufficient evidence
without ever presenting it to a grand jury. See Namer, 680 F.2d at
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1092 n.9. Third, there is no evidence that there was any exigency
that would have precluded Rivera from carefully setting out the
facts upon which he based his conclusion that the tape in question
depicted sexual conduct. Rodriguez had seen the tape on March 3,
1995. Rivera received the report on March 7th and presented the
warrant application to the justice of the peace on March 8th.
Rivera testified that he was not rushed in drafting the warrant and
that he did not anticipate that there was any risk that the
individuals who knew about the investigation would interfere with
it.
The lack of exigency, Rivera’s level of training and
experience, his failure to consult with an attorney, his failure to
disclose in the affidavit the facts underlying his conclusory
statements, coupled with Rodriguez’s statement that Alvarez claimed
to have other similar tapes (there was no testimony that the other
tapes were more explicit), and the fact that Rivera’s only
justification for proceeding with the warrant application was his
testimony that he believed breasts were genitals, lead us to
conclude that Rivera acted in reckless disregard for the truth. In
the final analysis, we simply cannot accept the premise that an
officer with Rivera’s qualifications could in good faith believe
that breasts are genitals. Or to say it in the context of the
Texas statute, that the one second exposure of a young girl’s
breasts amount to a “lewd exhibition of the genitals.”
CONCLUSION
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Because the statement made with reckless disregard for the
truth was necessary to the finding of probable cause in this case,
the Fourth Amendment requires that the fruits of the search warrant
be excluded from evidence. Franks v. Delaware, 438 U.S. 154, 156,
98 S. Ct. 2674, 2675, 57 L. Ed. 2d 667 (1978). We therefore
reverse the district court’s order denying Alvarez’s motion to
suppress the tapes and remand for further proceedings consistent
with this opinion.
REVERSED and REMANDED.
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