Case: 16-50301 Document: 00513966813 Page: 1 Date Filed: 04/25/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-50301 FILED
April 25, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
ADOLFO ORTEGA,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before KING, JOLLY, and PRADO, Circuit Judges.
KING, Circuit Judge:
Defendant–Appellant Adolfo Ortega pleaded guilty to charges of
possession with intent to distribute 500 grams or more of cocaine and
possession of a firearm in furtherance of a drug trafficking crime. On appeal,
Ortega argues that the district court erred in denying his motion to compel
disclosure of the identities of confidential informants and his motion to
suppress. Ortega also argues that the factual basis of his guilty plea was
insufficient to support the firearm conviction. Because additional fact findings
related to the motion to suppress are necessary, we VACATE the convictions
and sentences, and REMAND the case for further proceedings consistent with
Case: 16-50301 Document: 00513966813 Page: 2 Date Filed: 04/25/2017
No. 16-50301
this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Search Warrant
On April 19, 2013, San Antonio Police Officer Matthew Parkinson
secured a state search warrant for the home of Defendant–Appellant Adolfo
Ortega, who was suspected by Parkinson to be trafficking cocaine. The search
warrant was supported by an affidavit signed by Parkinson. In his affidavit,
Parkinson explained that he had received information from a confidential
informant about Ortega’s alleged cocaine possession:
Affiant did on the 18th of April, 2013 receive information from a
credible and reliable person who has on previous occasions given
Affiant information regarding the trafficking and possession of
controlled substances which has proven to be true and correct but
whose identity cannot be revealed for security reasons.
The said credible and reliable person stated that they did within
the last 48 [hours] see a controlled substance, to wit Cocaine, in
the possession of the aforesaid Defendant[] Ortega . . . inside the
location at [the address for Ortega’s house].
Parkinson also stated in his affidavit that surveillance of Ortega’s house
revealed that an unspecified number of individuals would occasionally arrive
and enter Ortega’s house for short periods of time or engage in a hand-to-hand
transaction with someone from the house, and “[t]hese types of behaviors are
consistent with the buying and selling of narcotics.”
When Parkinson and other officers executed the search warrant, Ortega
led the officers to a shed in his backyard, which contained more than 3,000
grams of cocaine. Ortega then led the officers to a closet in his house where
two handguns were located, one on the top shelf and one in a jacket hanging in
the closet. A weight scale, several baggies of cocaine, and a safe (which
contained approximately $45,000 in cash) were also in the same closet as the
handguns. Ortega was indicted for (1) possession with intent to distribute 500
2
Case: 16-50301 Document: 00513966813 Page: 3 Date Filed: 04/25/2017
No. 16-50301
grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and
(2) possession of a firearm in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c).
B. Ortega’s Motion to Suppress and Motion to Compel Disclosure
On March 27, 2015, Ortega filed two motions: (1) a motion to suppress
and request for a Franks hearing, see Franks v. Delaware, 438 U.S. 154 (1978),
and (2) a motion to compel disclosure of the identity of a confidential informant.
In his motion to suppress, Ortega argued, inter alia, that he was entitled to a
Franks hearing because Parkinson’s affidavit contained the false statement
that a confidential informant had seen cocaine in Ortega’s possession and
residence within the past 48 hours. With the motion, Ortega included his own
affidavit stating that, besides himself, only his wife and his in-laws had
entered his house during those 48 hours. In other words, Ortega argued that
the confidential informant’s tip must have been false because the confidential
informant could not have seen cocaine inside his house during that time given
that the confidential informant did not enter the house (assuming that neither
his wife nor in-laws were the confidential informant). In his motion to compel
disclosure, Ortega contended that the confidential informant’s identity should
be disclosed because the confidential informant’s allegations were the sole
support for the search warrant. 1 According to Ortega, “[s]ince [the confidential
informant] is the sole participant in this case, his testimony and therefore
access to him becomes paramount to [Ortega’s] defense.”
The district court referred Ortega’s motions to a magistrate judge. On
1Although Ortega’s motion references only a single confidential informant, during the
subsequent evidentiary hearing, Parkinson testified about four different anonymous
individuals who were involved with the investigation to varying degrees. Ortega’s counsel
made clear that the motion to compel disclosure applied to the identities of all four
anonymous individuals. For consistency, we refer to these individuals as the parties referred
to them in the district court and in their briefs (CI-1, CI-2, CI-3, and Person 4).
3
Case: 16-50301 Document: 00513966813 Page: 4 Date Filed: 04/25/2017
No. 16-50301
April 13, 2015, the magistrate judge held an evidentiary hearing on the
motions.
i. Testimony During the Hearing
During the hearing on Ortega’s motions, Parkinson, Ortega, and
Ortega’s wife testified. Parkinson testified that he first learned about Ortega
at the end of 2012 from a confidential informant (CI-1) who told Parkinson that
Ortega was involved in distributing cocaine in San Antonio. After learning
this information, Parkinson did not pursue further investigation of Ortega
besides some limited research. In April 2013, however, a different source
brought up a nickname for Ortega, and Parkinson decided to move forward
with the investigation. Specifically, Detective Mario Jacinto, another detective
in Parkinson’s office, had a confidential informant (CI-2) who was familiar with
Ortega’s alleged drug trafficking activities. Parkinson identified CI-2 as the
confidential informant referenced in his affidavit—i.e., CI-2 had seen cocaine
in Ortega’s possession inside Ortega’s house within the past 48 hours and had
provided Parkinson with reliable information in the past. Parkinson further
explained how CI-2 had seen Ortega in possession of cocaine: CI-2 had driven
his friend (Person 4) to Ortega’s house so that Person 4 could purchase cocaine,
and when they arrived, Ortega emerged from his house carrying cocaine and
engaged in a hand-to-hand sale with Person 4 while Person 4 and CI-2
remained in the car. 2
Notably, Parkinson testified that he had not actually worked with CI-2
previously. Rather, CI-2 had worked with Jacinto, and Jacinto told Parkinson
that CI-2 had proven to be very reliable in the past. Parkinson also testified
that he did not actually speak with CI-2. Instead, CI-2 conversed with Jacinto
2 There was also a third confidential informant (CI-3) who identified a photograph of
Ortega and provided other information that was not used in the search warrant.
4
Case: 16-50301 Document: 00513966813 Page: 5 Date Filed: 04/25/2017
No. 16-50301
mostly in Spanish, a language that Parkinson does not understand, and
Jacinto translated for Parkinson what CI-2 had said. 3
Ortega denied during his testimony that any hand-to-hand drug
transaction, such as the one described by CI-2, had occurred within 48 hours
of the execution of the affidavit. Ortega’s wife further supported Ortega’s
account by testifying that she did not see any unknown individuals come to
their house during the relevant timeframe.
ii. The Magistrate Judge’s Report and Recommendation
The magistrate judge recommended denying the motion to suppress.
Relevant to this appeal, the magistrate judge recognized that Parkinson only
had observed CI-2 speaking to Jacinto (mostly in Spanish) and that CI-2 had
not actually been inside Ortega’s house. However, the magistrate judge noted
that CI-2 had concluded that Ortega must have possessed the cocaine inside
the house because Ortega emerged from the house and directly delivered the
cocaine to Person 4 outside. The magistrate judge thus found that, “although
it is not as precise and definite as it could have been,” the language in the
affidavit “does appear to fairly fit the facts as they occurred.” The magistrate
judge then said that she “makes a credibility finding and, simply put, does not
accept defendant’s version of events.” Put another way, the magistrate judge
rejected Ortega’s testimony that the drug transaction with Person 4 (as
recounted by CI-2) did not occur. The magistrate judge completed her analysis
by stating that she “does not conclude the search warrant affidavit contains
materially false information or declines to state probable cause.”
The magistrate judge also recommended denying the motion to compel
3 The magistrate judge described this conversation as the following: “As made clear at
the April 13 hearing, Detective Parkinson indirectly received that information from CI-2; he
testified that he observed another . . . officer interview CI-2 (apparently by watching through
a window in an interview room) with the other officer and CI-2 speaking at times or entirely
in Spanish.”
5
Case: 16-50301 Document: 00513966813 Page: 6 Date Filed: 04/25/2017
No. 16-50301
disclosure. The magistrate judge highlighted how none of the four anonymous
individuals (CI-1, CI-2, CI-3, or Person 4) had participated in the search of
Ortega’s house, and Ortega was indicted on charges relating only to what was
found during that search. Moreover, the magistrate judge noted that Ortega’s
motion merely asserted his belief or speculation that disclosure may assist his
defense. Accordingly, the magistrate judge found that the individuals were
mere “tipsters” and disclosure should not be granted.
Ortega filed objections to the magistrate judge’s report and
recommendation, but the district court adopted it in full.
C. Plea Agreement
Pursuant to a plea agreement, Ortega pleaded guilty to charges of
(1) possession with the intent to distribute 500 grams or more of cocaine in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (2) possession of a firearm in
furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c).
Ortega reserved the right to appeal the denials of his motion to suppress and
motion to compel disclosure. Ortega was sentenced to 60 months for each of
the charges to run consecutively, resulting in a total term of imprisonment of
120 months.
Ortega timely appeals and raises three issues: (1) the factual basis of his
guilty plea was insufficient to support the firearm conviction; (2) the district
court erred in denying his motion to compel disclosure with respect to the
identities of CI-2 and Person 4; and (3) the district court erred in denying his
motion to suppress the evidence obtained based on the search warrant. We
address each argument in turn.
II. ORTEGA’S CONVICTION UNDER 18 U.S.C. § 924(c)
Ortega challenges the sufficiency of the factual basis of his guilty plea
6
Case: 16-50301 Document: 00513966813 Page: 7 Date Filed: 04/25/2017
No. 16-50301
for his firearm conviction under 18 U.S.C. § 924(c). 4 Relying on Bailey v.
United States, 516 U.S. 137 (1995), and United States v. Dickey, 102 F.3d 157
(5th Cir. 1996), Ortega argues that the mere proximity of the firearm to the
cocaine was insufficient to prove “use” under the statute, and instead, the
Government was required to show that he actively employed the firearm in
relation to his drug trafficking crime. Thus, according to Ortega, the
Government has failed to prove the “use” requirement of § 924(c). Given that
Ortega did not raise this argument in the district court, we review for plain
error. United States v. Palmer, 456 F.3d 484, 489 (5th Cir. 2006).
Ortega’s argument, however, relies on outdated precedent: Congress
effectively overruled Bailey with an amendment to § 924(c) criminalizing the
“possession” of a firearm in furtherance of a drug trafficking crime. See Abbott
v. United States, 562 U.S. 8, 16–17 (2010) (“The 1998 alteration responded
primarily to our decision in Bailey . . . . Congress legislated a different result;
in the 1998 revision, colloquially known as the Bailey Fix Act, the Legislature
brought possession within the statute’s compass.” (citations and internal
quotation marks omitted)). “[P]ossession of a firearm in furtherance of [a]
drug-trafficking offense is now a sufficient factual basis for a conviction under
§ 924(c)(1),” United States v. Ruiz, 533 F. App’x 361, 363 (5th Cir. 2013) (per
curiam), and indeed, the superseding indictment charged Ortega with
possession of a firearm in furtherance of a drug trafficking crime. Thus,
Ortega’s reliance on Bailey is misplaced, and he has failed to show any error
regarding his firearm conviction.
III. MOTION TO COMPEL DISCLOSURE
Ortega next contends that the district court erred in denying his motion
4 Contrary to the Government’s waiver argument, we interpret Ortega’s argument as
a challenge to the sufficiency of the factual basis rather than a challenge to the sufficiency of
the evidence.
7
Case: 16-50301 Document: 00513966813 Page: 8 Date Filed: 04/25/2017
No. 16-50301
to compel disclosure with respect to the identities of CI-2 and Person 4. We
review a district court’s decision to grant or deny disclosure of a confidential
informant’s identity for abuse of discretion. United States v. Ibarra, 493 F.3d
526, 531 (5th Cir. 2007).
The Government has a privilege, usually referred to as the informer’s
privilege, “to withhold from disclosure the identity of persons who furnish
information of violations of law to officers charged with enforcement of that
law.” Roviaro v. United States, 353 U.S. 53, 59 (1957). This privilege, however,
is not absolute, and there is “no fixed rule” for when a confidential informant’s
identity should be disclosed. Id. at 60–62. Instead, the issue “calls for
balancing the public interest in protecting the flow of information against the
individual’s right to prepare his defense.” Id. at 62. We apply a three factor
test to determine whether the identity of a confidential informant should be
disclosed: “(1) the level of the informant’s activity; (2) the helpfulness of the
disclosure to the asserted defense; and (3) the Government’s interest in
nondisclosure.” Ibarra, 493 F.3d at 531.
Here, the district court did not abuse its discretion in denying Ortega’s
motion to compel disclosure. Ortega contends that the district court abused its
discretion because CI-2 and Person 4 are essential to his defense given that
they are the only individuals who can contradict Parkinson’s testimony, and
without CI-2’s allegations to support probable cause, there would have been no
warrant, no search, and no indictment. But Ortega glosses over a key fact:
although CI-2’s information helped law enforcement secure the search
warrant, neither CI-2 nor Person 4 was a witness to or active participant in
the charged offenses (i.e., possession of the drugs and firearms discovered
during the search). Thus, the first factor weighs against disclosure. See, e.g.,
United States v. Edwards, 133 F. App’x 960, 963 (5th Cir. 2005) (per curiam)
(“[The defendant] was not charged with the sale of crack cocaine to the CI.
8
Case: 16-50301 Document: 00513966813 Page: 9 Date Filed: 04/25/2017
No. 16-50301
Although this information was used to obtain the search warrant, the CI did
not actively participate in the search and, thus, was not a witness to [the]
charged offense.”). Moreover, Ortega has not demonstrated that the identities
of CI-2 and Person 4 are essential to his defense beyond unsubstantiated
speculation, and therefore, the second factor also weighs against disclosure.
See United States v. Orozco, 982 F.2d 152, 155 (5th Cir. 1993) (“[M]ere
conjecture or supposition about the possible relevancy of the informant’s
testimony is insufficient to warrant disclosure.” (alteration in original)
(quoting United States v. Gonzales, 606 F.2d 70, 75 (5th Cir. 1979))). Ortega
had the opportunity to question Parkinson about what CI-2 told law
enforcement, and as CI-2’s and Person 4’s potential testimony could only relate
to probable cause, the underlying truthfulness of CI-2’s allegations was not at
issue because “the magistrate [was] concerned, not with whether the informant
lied, but with whether the affiant [was] truthful in his recitation of what he
was told.” 5 See United States v. Davis, 443 F. App’x 9, 13 (5th Cir. 2011) (per
curiam) (quoting McCray v. Illinois, 386 U.S. 300, 307 (1967)). 6 Accordingly,
Ortega has failed to show that the district court abused its discretion in
denying his motion to compel disclosure. 7
IV. MOTION TO SUPPRESS
Finally, we turn to Ortega’s argument that the district court erred in
denying his motion to suppress. Ortega argues that his motion to suppress
5 Ortega has not pointed to any evidence that CI-2 did not actually provide the tip
about seeing cocaine in Ortega’s possession to Jacinto.
6 “Because the first two factors do not establish a case for disclosure, we need not
consider the third factor.” Davis, 443 F. App’x at 14.
7 We also reject Ortega’s argument that Person 4’s identity is not entitled to any
protection simply because Person 4 did not serve as an informant. Allowing the automatic
disclosure of Person 4’s identity under these circumstances likely would allow Ortega to
deduce the identity of CI-2, thereby undermining the informer’s privilege. Ortega points to
no caselaw supporting his argument.
9
Case: 16-50301 Document: 00513966813 Page: 10 Date Filed: 04/25/2017
No. 16-50301
should have been granted because the search warrant was obtained based on
an affidavit that contained false statements that were made intentionally or
with reckless disregard for the truth, and once those false statements are
excised, the affidavit’s remaining content is insufficient to establish probable
cause. See Franks, 438 U.S. at 155–56. “When reviewing a district court’s
ruling on a motion to suppress, we review its findings of fact for clear error and
its legal conclusions de novo.” United States v. Cavazos, 288 F.3d 706, 709 (5th
Cir. 2002); see also United States v. Alvarez, 127 F.3d 372, 373 (5th Cir. 1997)
(“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. Questions of law are reviewed
de novo.” (citation omitted)). Following a Franks hearing 8 on a motion to
suppress, “[t]he district court’s factual finding that the affiant officer did not
deliberately or recklessly include the false statement in the affidavit cannot be
disturbed unless it is clearly erroneous.” United States v. Looney, 532 F.3d
392, 395 (5th Cir. 2008) (per curiam).
Under the Supreme Court’s decision in Franks, a search warrant must
be voided if the defendant shows by a preponderance of the evidence that the
affidavit supporting the warrant contained a false statement made
intentionally or with reckless disregard for the truth and, after setting aside
the false statement, the affidavit’s remaining content is insufficient to
establish probable cause. Franks, 438 U.S. at 155–56; see also Alvarez, 127
F.3d at 373–74 (“If a search warrant contains a false, material statement made
intentionally or with reckless disregard for the truth, the reviewing court must
8 Although the magistrate judge did not explicitly say that the evidentiary hearing
was a Franks hearing, the hearing effectively served as a Franks hearing given that each
party presented witnesses about the Franks issue. See United States v. Namer, 680 F.2d
1088, 1093 n.10 (5th Cir. 1982).
10
Case: 16-50301 Document: 00513966813 Page: 11 Date Filed: 04/25/2017
No. 16-50301
excise the offensive language from the affidavit and determine whether the
remaining portion establishes probable cause.”). Although the Franks inquiry
is often described as two prongs, see, e.g., United States v. Gallegos, 239 F.
App’x 890, 895 (5th Cir. 2007), the inquiry effectively consists of three
questions, all of which must be met. First, does the affidavit contain a false
statement? See, e.g., United States v. Singer, 970 F.2d 1414, 1416–17 (5th Cir.
1992) (affirming denial of motion to suppress because affidavit’s statement was
not false). Second, was the false statement made intentionally or with reckless
disregard for the truth? See, e.g., Looney, 532 F.3d at 394–95 (affirming denial
of motion to suppress because affiant officer did not intentionally or recklessly
include the false statement). And third, if the false statement is excised, does
the remaining content in the affidavit fail to establish probable cause? See,
e.g., United States v. Froman, 355 F.3d 882, 889–91 (5th Cir. 2004) (assuming
that purportedly false statement should be excised and affirming denial of
motion to suppress because remaining content in affidavit established probable
cause). On appeal, Ortega argues that two statements in the affidavit were
intentionally or recklessly made falsehoods: (1) CI-2 “did within the last 48
[hours] see a controlled substance, to wit Cocaine, in the possession
of . . . Ortega . . . inside” his house; and (2) Parkinson “receive[d] information
from a credible and reliable person who has on previous occasions given
[Parkinson] information regarding the trafficking and possession of controlled
substances which has proven to be true and correct.”
We first turn to whether the affidavit contained false statements.
Ortega has not shown that the first statement at issue—i.e., CI-2 saw cocaine
in Ortega’s possession inside Ortega’s house—is false. Ortega argues that CI-
2 only purportedly saw cocaine in Ortega’s possession outside the house, and
thus, it was false to say that CI-2 saw cocaine in Ortega’s possession inside the
house. However, the magistrate judge, whose reasoning was adopted by the
11
Case: 16-50301 Document: 00513966813 Page: 12 Date Filed: 04/25/2017
No. 16-50301
district court, concluded that, although the language “was not as precise and
definite as it could have been, [it] does appear to fairly fit the facts as they
occurred.” According to Parkinson’s testimony at the hearing credited by the
magistrate judge, CI-2 saw Ortega exit his house and then sell cocaine to
Person 4, who was in the same car as CI-2. Thus, Ortega must have possessed
the cocaine that was sold to Person 4 while he was inside his house given that
he walked directly from his house to the car. Although the wording of the
affidavit’s statement is imprecise, it reasonably could be read as truthful. See,
e.g., Singer, 970 F.2d at 1416–17 (holding that an affidavit’s statement was not
false because the wording used “could reasonably and sensibly be read” in a
truthful manner); United States v. Hare, 772 F.2d 139, 141 (5th Cir. 1985) (“A
statement in a warrant affidavit is not false merely because it summarizes or
characterizes the facts in a particular way.”). Thus, this statement is not false
under Franks, and no further analysis of this statement is necessary.
Unlike the first statement, however, Ortega has shown that the second
statement at issue—i.e., Parkinson received the information from CI-2, who
had previously provided Parkinson with credible and reliable information—is
false. Simply put, the affidavit’s statement that CI-2 had previously provided
Parkinson with credible and reliable information is clearly false. Parkinson
admitted that he had never worked with CI-2 previously; instead, CI-2 had
worked with Jacinto, who in turn told Parkinson that CI-2 had provided
reliable information in the past. Moreover, Parkinson testified that he did not
actually receive the information from CI-2; instead, CI-2 spoke mostly in
Spanish, a language that Parkinson does not understand, to Jacinto, who in
turn (possibly later) translated the information for Parkinson. Although,
during oral argument, the Government characterized the veracity of this
statement as having “greyness” to it given that Parkinson did observe CI-2
speaking to Jacinto, we find this statement to be false. At most, Parkinson
12
Case: 16-50301 Document: 00513966813 Page: 13 Date Filed: 04/25/2017
No. 16-50301
observed Jacinto and CI-2 conversing mostly or entirely in a language that he
could not understand, but a plain reading of the statement in the affidavit
implies that it was Parkinson conversing with CI-2. 9 See Namer, 680 F.2d at
1094 (“The affidavit’s statement is no less a misrepresentation because it
manipulates the facts subtly.”). Thus, this statement is false under Franks.
Given that the second statement is false, we must then confront the
question of whether Parkinson acted with the necessary intent under Franks
when including this false statement in his affidavit—i.e., whether Parkinson
made the false statement intentionally or with reckless disregard for the truth.
“[T]he district court’s determination of the affiant’s state of mind—whether the
affiant was lying intentionally, lying recklessly, or merely negligently
misstating—is a factual finding that we have reviewed for clear error.” United
States v. Neal, 182 F. App’x 366, 370 (5th Cir. 2006); see also, e.g., Alvarez, 127
F.3d at 375 (reversing as clearly erroneous a district court’s determination that
the affiant’s false statement was only negligent). However, our review of the
magistrate judge’s report and recommendation, which was adopted in full by
the district court, reveals that the magistrate judge did not make a finding
regarding Parkinson’s intent. 10 Instead, it appears that the magistrate judge
found that there were no false statements in the affidavit, and thus, the
9 Moreover, this does not appear to be a situation in which Jacinto was merely serving
as a real time translator in a discussion between Parkinson and CI-2. Parkinson testified
that he did not ask CI-2 any questions. And the magistrate judge surmised that Parkinson
watched Jacinto interview CI-2 through a window in an interview room.
10 The magistrate judge made a separate finding that the good-faith exception applied
because the affidavit was not “bare bones.” During oral argument, the Government
contended that this finding constituted an implicit finding that Parkinson did not make any
false statements intentionally or with reckless disregard for the truth. However, although
the magistrate judge’s wording could have been clearer, we do not read this separate finding
as representing an implicit finding that Parkinson did not have the necessary intent under
Franks. Instead, the magistrate judge was merely discussing the good-faith exception in the
context of rejecting Ortega’s argument that the affidavit was “bare bones,” an argument that
he does not renew on appeal.
13
Case: 16-50301 Document: 00513966813 Page: 14 Date Filed: 04/25/2017
No. 16-50301
magistrate judge (and therefore the district court) did not need to reach the
question of intent. 11
Even without an intent finding, we may still affirm the denial of the
motion to suppress if, assuming that the false statement should be excised from
the affidavit, the remaining content of the affidavit still establishes probable
cause. “In determining whether probable cause exists without the false
statements a court must ‘make a practical, common-sense decision as to
whether, given all the circumstances set forth in the affidavit [minus the
alleged misstatements], there is a fair probability that contraband or evidence
of a crime will be found in a particular place.’” Froman, 355 F.3d at 889
(alteration in original) (quoting United States v. Byrd, 31 F.3d 1329, 1340 (5th
Cir. 1994)); see also Illinois v. Gates, 462 U.S. 213, 238–39 (1983) (“The task of
the issuing magistrate is simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him,
including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime
will be found in a particular place.”). Given that the state magistrate judge did
not actually consider the excised affidavit, we must proceed “somewhat
hypothetically” in determining whether the remaining content in the affidavit
establishes probable cause. 12 Namer, 680 F.2d at 1095 n.12.
Here, assuming that Parkinson had the necessary intent such that the
false statement should be excised, the remaining content in the affidavit would
be insufficient to establish probable cause. Once the false statement is set
aside, the excised affidavit would be left with a confidential informant’s tip
11 For example, the magistrate judge stated that she “does not conclude the search
warrant affidavit contains materially false information or declines to state probable cause.”
12 Thus, “the normal presumption of validity attaching to a magistrate’s probable
cause finding does not apply.” Namer, 680 F.2d at 1095 n.12.
14
Case: 16-50301 Document: 00513966813 Page: 15 Date Filed: 04/25/2017
No. 16-50301
about seeing cocaine in Ortega’s possession without any further context or
detail. 13 Critically, there would no longer be any reference to the confidential
informant’s reliability or past history working with law enforcement. See, e.g.,
United States v. Jackson, 818 F.2d 345, 348–50 (5th Cir. 1987) (“In sum, the
affidavit fails to demonstrate adequately the informant’s veracity, reliability
or his basis of knowledge so as to support probable cause for issuance of the
arrest warrant.”); see also United States v. Mays, 466 F.3d 335, 343–44 (5th
Cir. 2006) (listing factors for determining whether an anonymous tip is reliable
under the totality of the circumstances). At most, the excised affidavit
demonstrates that the police confirmed that Ortega lived at the house and saw
an unspecified number of individuals briefly enter the house or engage in
unknown hand-to-hand transactions with someone from the house. But the
excised affidavit provides no other indication that the tip was credible, let alone
any other support for the allegation that cocaine would be found at the house,
and the Government cites no caselaw finding probable cause on such limited
facts. Accordingly, under these circumstances, the excised affidavit is
insufficient to establish probable cause. See, e.g., United States v. Brown, 567
F. App’x 272, 280–84 (5th Cir. 2014) (“[The affiant] attested that his
confidential informant was reliable but did not provide any facts upon which
the magistrate could rely to make his own determination as to the informant’s
13We note that the parties did not address precisely what should be excised from the
affidavit given that only one of the two statements at issue is false. Arguably, because the
affidavit falsely stated that Parkinson received the information from CI-2, all of the
information from CI-2 should be excised. However, we need not and do not decide whether
this broader approach should be applied rather than the narrower approach described above
(i.e., excising only the statement that Parkinson received information from a confidential
informant who had previously provided Parkinson with credible and reliable information).
As discussed infra, we find that, even assuming that the narrower approach is appropriate,
the remaining content of the affidavit is insufficient to establish probable cause.
15
Case: 16-50301 Document: 00513966813 Page: 16 Date Filed: 04/25/2017
No. 16-50301
reliability.”).
Thus, we must circle back to the factual question of whether Parkinson
included the false statement intentionally or with reckless disregard for the
truth. If Parkinson had the necessary intent, then the Franks test would be
met. Conversely, if Parkinson did not have the necessary intent, then the
Franks test would not be met. On the current record, we cannot say as a matter
of law whether Parkinson possessed the requisite intent. For example, on the
one hand, the statement was clearly false, and a cursory review by Parkinson
of the two page affidavit may have revealed the falsity. On the other hand,
Parkinson had no obvious motivation to lie because, as Ortega concedes, an
affiant officer can rely on information from another officer to establish probable
cause in an affidavit. See Neal, 182 F. App’x at 371 (“[W]e agree that the
relevant misrepresentation was immaterial to the magistrate judge’s finding
of probable cause, a fact which, in addition to being directly relevant to the
Fourth Amendment’s probable cause determination (which we here pretermit),
also provides circumstantial evidence of [the affiant’s] good faith.”). But see
United States v. Davis, 714 F.2d 896, 899 (9th Cir. 1983) (“This entire problem
could have been avoided if [the affiant] had simply rewritten the affidavit to
indicate that he was relying on his officers who had personally interviewed the
informants. . . . The fact that probable cause did exist and could have been
established by a truthful affidavit does not cure the error.”). In other words, if
Parkinson had simply accurately stated that he had received CI-2’s
information from Jacinto and that CI-2 had provided Jacinto with reliable
information in the past, then probable cause would likely have been found by
the state magistrate judge.
Given these arguments, among others, we decline to make the initial
factual finding about Parkinson’s intent. Cf. Froman, 355 F.3d at 888 (“The
absence of factual findings on whether Agent Binney’s statements that all
16
Case: 16-50301 Document: 00513966813 Page: 17 Date Filed: 04/25/2017
No. 16-50301
members received all e-mails were intentional false statements or reckless
misrepresentations precludes us from addressing whether the fruits of the
search are protected by the good faith exception.”). Accordingly, we vacate
Ortega’s convictions and sentences, and remand for the district court to
determine whether Parkinson included the false statement intentionally or
with reckless disregard for the truth. See United States v. Guzman, 739 F.3d
241, 248 (5th Cir. 2014); see also United States v. Davis, 663 F.2d 824, 830–31
(9th Cir. 1981). If after making the intent finding, the district court again
denies Ortega’s motion to suppress, the district court shall reinstate the
convictions and sentences, and Ortega may then appeal. Guzman, 739 F.3d at
248–49.
V. CONCLUSION
For the foregoing reasons, we VACATE the convictions and sentences,
and REMAND the case to the district court for further proceedings consistent
with this opinion. Any subsequent appeal will be expedited and returned to
this panel.
17