UNITED STATES of America, Plaintiff-Appellee v. Cassetti Dewayne BROWN, Defendant-Appellant.
No. 12-30235.
United States Court of Appeals, Fifth Circuit.
May 12, 2014.
We lack jurisdiction to review Phillips‘s argument, which was not exhausted before the BIA, that the attorney who represented him in connection with his 1988 conviction rendered ineffective assistance, and thus his plea of guilty to that offense was involuntary. See
PETITION DISMISSED IN PART FOR LACK OF JURISDICTION; DENIED IN PART.
Camille Ann Domingue, Assistant U.S. Attorney, Brett L. Grayson, Assistant U.S. Attorney, U.S. Attorney‘s Office, Lafayette, LA, for Plaintiff-Appellee.
Stephen H. Shapiro, New Orleans, LA, for Defendant-Appellant.
Before WIENER, DENNIS, and OWEN, Circuit Judges.
Defendant-Appellant Cassetti Dewayne Brown (“Brown“) appeals his conviction of possession with intent to distribute 28 grams or more of crack cocaine in violation of
I. Background
A. Facts
1. Traffic Stop
On August 11, 2010 at approximately 11:20 p.m., Bryan Somers (“Somers“), then a police officer with the Leesville Police Department, was driving his marked police unit on highway 171 in Leesville, Louisi
Somers asked for Brown‘s driver‘s license, registration documents, and proof of insurance. Brown provided his driver‘s license but did not have the remaining documents. Somers took the license and informed Brown that he was going to conduct a computer check but that Brown could leave if the check came back clean and no further problems arose. Somers then returned to his car. While radioing for the computer check, Somers‘s sergeant asked if he intended to perform a K-9 free air sniff of the vehicle. Somers then remembered that, several months prior, he had been told that a K-9 officer should be summoned if Brown was pulled over during a traffic stop because Brown was the subject of an ongoing drug investigation. At this point, Somers radioed for additional officer assistance but did not conduct a K-9 open air sniff. He returned to Brown‘s vehicle and asked Brown to exit the Jeep. Somers informed Brown that he was a narcotics officer and asked if there were drugs or weapons in the vehicle. Brown answered that there were not. Somers then twice asked for consent to search Brown‘s vehicle. Brown refused both times. Somers continued to question Brown as two additional officers arrived to assist Somers, Josh Martin (“Martin“) and Dakota Cryer (“Cryer“). Cryer heard Somers ask for permission to search the car the third time. This time, Brown agreed to allow the search. Somers testified that the conversation in which he asked for Brown‘s consent to search the vehicle lasted approximately sixty seconds.
After obtaining Brown‘s consent, Somers then instructed Cole to exit the Jeep. When she exited the car, Somers leaned inside the vehicle and saw a small bag that contained a second, smaller bag—described as a small, blue, plastic ziptop bag—on the center hump between the driver‘s seat and the passenger seat. The bag contained one rock of what appeared to be be crack cocaine. The substance was subsequently tested and confirmed to be crack cocaine weighing 0.7 of a gram. Somers estimated that eight minutes elapsed from the time he pulled Brown over until the search of the vehicle was conducted.
After Somers found the substance, Martin and Cryer handcuffed Brown and Cole. Martin patted Brown down and found a folding knife and a second object, which Martin testified looked like a “prison shank,” in Brown‘s waistband. After transporting Brown and Cole to the police station, Martin found a small bag of marijuana and rolling papers in the back of the police car on the side where Cole had been sitting. During a subsequent interrogation, Cole said that the cocaine found in the car belonged to her but misidentified the bag as being green rather than blue.
2. Search Warrant and Search of Residence
While on the scene of the traffic stop, Somers contacted Charlie Lopez (“Lo
On August 11, 2010 PFC Bryan Somers made a traffic stop on a 1986 Jeep Grand Cherokee.... While making contact with the driver, identified as Cassetti Brown, PFC Somers observed an open container of alcohol in the vehicle. PFC Somers asked Brown to step out of the vehicle with him where PFC Somers asked Brown if he had any narcotics or weapons in the vehicle. Brown gave PFC Somers verbal consent to search the vehicle. PFC Somers then had the passenger Taiwanna Cole exit the vehicle. As PFC Somers entered the vehicle to begin his search, he saw in plain view a clear plastic bag with a white substance believed to be crack cocaine located on the driver‘s side of the center console area. PFC Somers continued to search the vehicle, but was unable to do a thorough search due to area of the traffic stop and having to transport Brown and Cole back to Leesville Police Department. Both Brown and Cole were transported to LPD in the same unit by P/O Joshua Martin and P/O Dakota Cryer. P/O Martin searched the back seat prior to placing Brown and Cole in the vehicle. During transport, both Cole and Brown were moving around in the back of the vehicle. After removing Brown and Cole from the vehicle, P/O Martin found a plastic bag containing marijuana in the back of his vehicle. Both Brown and Cole were booked into the Leesville City Jail on drug-related charges. Brown is currently on Federal Parole for drugrelated charges and has a lengthy criminal history for violent and drug-related charges. Brown has also been the target of an on-going investigation for the trafficking of narcotics during the past four months which included information of how Brown packaged narcotics for sell [sic] which was consistent with the item located in Brown‘s vehicle during the traffic stop. This information was obtained through a Confidential Reliable Source. It is believed that additional narcotics may still be located in the vehicle, which was towed to the Leesville Impound Lot. It is also believed that additional narcotics and paraphernalia are located at Brown‘s residence.
On the basis of the affidavit, the magistrate judge signed the search warrant at 11:55 a.m. on August 12, 2010.
Prior to obtaining the warrant, Lopez sent two Leesville Police Department officers, Landon Dowdin (“Dowdin“) and Jeremy Swisher (“Swisher“), to conduct a protective sweep and to secure the premises pending the search. According to the police report, they arrived at 10:59 a.m. and knocked on the front door. Heggie Reynolds (“Reynolds“) answered the door. Reynolds granted them permission to do a protective sweep of the house. Dowdin and Swisher placed Reynolds in the back
Swisher searched the defendant‘s bedroom. He found Brown‘s expired identification card and mail addressed to Brown in the room. In the trash can, Swisher found a brown bag. Inside the brown bag was a large baggie that contained several small, blue-colored ziptop baggies. Each blue baggie contained a substance later tested and confirmed to be crack cocaine. There were also larger baggies containing “crack cookies.” The cocaine weighed 90.6 grams. In the drawer of the bedside table, Swisher found Brown‘s social security card, his birth certificate, other identification with his name on it, and mail and bills addressed to Brown. The two remaining bedrooms in the house belonged to Reynolds, Brown‘s uncle Jerry Brown (“Jerry“), and Jerry‘s twelve-year-old son. Reynolds and Jerry both testified at trial that they never entered Brown‘s bedroom.
B. Procedural History
Brown was indicted with one count of possession with intent to distribute 28 grams or more of a mixture or substance containing a detectable quantity of cocaine base or “crack,” in violation of
II. ANALYSIS
Brown argues that the district court erred in denying his motions to suppress the evidence obtained during the search of his vehicle and residence. In reviewing a district court‘s denial of a motion to suppress, we review the district court‘s findings of fact for clear error and its conclusions of law de novo. United States v. Raney, 633 F.3d 385, 389 (5th Cir.2011). Thus, while “determinations of reasonable suspicion and probable cause[] are reviewed de novo,” United States v. Zavala, 541 F.3d 562, 574 (5th Cir.2008), “[t]he voluntariness of a detainee‘s consent to a warrantless search is a finding of fact to be reviewed for clear error.” United States v. Tompkins, 130 F.3d 117, 120 (5th Cir. 1997). When “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. Gibbs, 421 F.3d 352, 357 (5th Cir.2005). We view the evidence in the light most
A. Traffic-Stop Evidence
1.
Brown contends that the district court erred in denying his motion to suppress the evidence gathered during the search of his vehicle. “The stopping of a vehicle and detention of its occupants constitutes a ‘seizure’ under the Fourth Amendment.” United States v. Brigham, 382 F.3d 500, 506 (5th Cir.2004) (en banc). The Supreme Court has “long held that the ‘touchstone of the Fourth Amendment is reasonableness.’ Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.” Ohio v. Robinette, 519 U.S. 33, 39 (1996) (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)). Under the Terry v. Ohio, 392 U.S. 1 (1968), two-step test, “we determine the reasonableness of an investigative stop by examining: (1) whether the officer‘s action of stopping the vehicle was justified at its inception, and (2) whether the officer‘s actions were reasonably related in scope to the circumstances that justified the stop.” United States v. Stevens, 487 F.3d 232, 244 (5th Cir.2007) (citing Terry, 392 U.S. at 19-20).
Somers had initial justification for the traffic stop based on Brown‘s failure to yield. Thus, the first prong of the Terry inquiry is not at issue, and Brown does not contend otherwise. Rather, Brown argues that the stop was unconstitutionally prolonged, and thus was unreasonable in scope under Terry‘s second prong. Under the second prong of the Terry test, we ask whether Somers‘s actions after stopping Brown‘s vehicle “were reasonably related to the circumstances that justified the stop, or to dispelling his reasonable suspicion developed during the stop.” Brigham, 382 F.3d at 507. The detention of Brown and his vehicle “must be temporary and last no longer than is necessary to effectuate the purpose of the stop, unless further reasonable suspicion, supported by articulable facts, emerges.” Id. (citing United States v. Dortch, 199 F.3d 193, 200 (5th Cir.1999), and United States v. Machuca-Barrera, 261 F.3d 425, 434 (5th Cir. 2001)). Therefore, unless additional reasonable suspicion arises during the course of the stop, “once all relevant computer checks have come back clean, there is no more reasonable suspicion, and, as a general matter, continued questioning thereafter unconstitutionally prolongs the detention.” United States v. Lopez-Moreno, 420 F.3d 420, 431 (5th Cir.2005).
“Reasonable suspicion exists when the detaining officer can point to specific and articulable facts that, when taken together with rational inferences from those facts, reasonably warrant the search and seizure.” United States v. Estrada, 459 F.3d 627, 631 (5th Cir.2006). “The determination ... must be made based on the totality of the circumstances and the collective knowledge and experience of the officer.” Id. Under the collective-knowledge doctrine, an officer may rely on a prior alert or report from other law-enforcement officers to establish reasonable suspicion for a traffic stop, even if the officer conducting the stop does not himself have personal knowledge of the evidence supporting the alert. See United States v. Khanalizadeh, 493 F.3d 479, 483 (5th Cir.2007); United States v. Ibarra-Sanchez, 199 F.3d 753, 759 (5th Cir.1999). Evidence gathered during such a stop is admissible if the officer made the stop in objective reliance on another law-enforcement department‘s flyer or bulletin, if “the police who issued
Because Somers extended the stop to seek Brown‘s consent to search the car in objective reliance on Lopez‘s alert, the first inquiry should be whether Lopez possessed reasonable suspicion justifying the issuance of the alert. However, Brown neglected to argue to the district court that Lopez‘s alert was not adequately founded upon reasonable suspicion. Instead, defense counsel argued that Somers was obligated to terminate the stop once Brown‘s license check came back clean, and that, by the time Somers recalled the information he received from Lopez, Brown had already been unconstitutionally detained without probable cause. In response to the district court‘s inquiries, Brown‘s counsel conceded that, if Somers had recalled the “intelligence” he received from Lopez earlier in the traffic stop, then Somers‘s efforts to seek Brown‘s consent to search would have been lawful. Accordingly, we find that Brown waived his argument that Somers could not objectively rely upon Lopez‘s alert to justify the prolongation of the traffic stop. See United States v. Cano, 519 F.3d 512, 515 (5th Cir.2008) (declining to consider defendant-appellant‘s argument regarding the voluntariness of his consent to search, when defendant argued in the district court only that the scope of his consent was insufficient to justify the search).3 Thus, we may consider Lopez‘s alert as part of the totality of the circumstances informing Somers‘s decision to extend the stop. Khanalizadeh, 493 F.3d at 483 (finding that the officer conducting the traffic stop and subsequent search “could rely on the FBI‘s drug alert, even though he did not have personal knowledge of the evidence uncovered by the FBI, to establish his reasonable suspicion that the [suspect‘s vehicle] contained drugs“). In addition to the alert from Lopez, Somers possessed independent knowledge that Brown appeared to be drunk and that there was an open container of alcohol in the Jeep. Somers therefore had reasonable suspicion based on both his personal observations during the traffic stop and on the collective knowledge from Lopez‘s alert that “something illegal was afoot,” beyond the initial reason
for the stop, justifying a reasonable extension of the roadside detention to dispel or confirm his suspicions. United States v. Pack, 612 F.3d 341, 350, 355 (5th Cir.2010).
Accordingly, we conclude that Somers‘s actions during the stop were reasonable. After initially stopping the vehicle and observing the open container of alcohol and other evidence suggesting Brown had been drinking, Somers lawfully questioned Brown and Cole about the open container, asked whether Brown had been drinking, and inquired as to his travel plans. Thereafter, while conducting the license check, Somers recalled Lopez‘s alert that Brown was the subject of an ongoing narcotics investigation and Lopez‘s directive that, if stopped, officers should conduct a K-9 dog sniff around Brown‘s vehicle. Rather than conduct a dog sniff, Somers chose to extend the stop by sixty seconds to seek Brown‘s consent to search the vehicle. This brief prolongation of the traffic stop was an appropriate, reasonable attempt to dispel or confirm the suspicions regarding Brown‘s involvement in narcotics trafficking. Id. When we objectively consider the totality of the circumstances, including Lopez‘s alert, we conclude that Somers had specific, factual grounds to reasonably suspect that Brown had violated, was violating, or was about to violate drug trafficking laws, and that this reasonable suspicion justified Somers‘s prolonga
2.
Brown next contends that the search of his vehicle was unconstitutional because his consent to the search was not voluntary.4 We review the district court‘s factual finding of voluntariness of consent for clear error. United States v. Solis, 299 F.3d 420, 436 (5th Cir.2002). As noted supra, we view the evidence in the light most favorable to the government as the party that prevailed in the district court, see Raney, 633 F.3d at 389, and, because the “district court‘s denial of a suppression motion is based on live oral testimony, the clearly erroneous standard is particularly strong....” Gibbs, 421 F.3d at 357.
“A search conducted pursuant to consent is excepted from the Fourth Amendment‘s ... requirements.” United States v. Solis, 299 F.3d 420, 436 (5th Cir.2002). Where the government asserts that no
Several factors favor a finding of voluntariness. Brown was calm and cooperative when speaking with Somers. Somers testified that Brown gave consent to search his vehicle approximately one minute after Brown exited the vehicle, and thus the record does not reflect that Brown was subject to a lengthy interrogation or any coercive police tactics.5 Somers and Cryer both testified that no threats, force, or intimidation were used to obtain Brown‘s consent. Additionally, while the record does not reflect Brown‘s education levels, the record reveals that Brown was aware he had the right to refuse consent, as he had already declined to give his consent twice. Because no single factor is dispositive and because several factors supported a finding of voluntariness, we conclude that, viewing these facts in the light most favorable to the government and under the highly deferential standard which we are compelled to apply on review of a denial of a suppression motion after a hearing with live testimony, there is no clear error in the district court‘s finding that Brown voluntarily consented to the search of his car. See Estrada, 459 F.3d at 634. Therefore, under the totality of the circumstances specific to this case, neither the prolonged traffic stop nor the consensual car search violated Brown‘s Fourth Amendment rights.6 Thus, the district court did not err in determining that the evidence seized during the traffic stop is admissible.
B. Residence Search
Brown also challenges the district court‘s denial of his motion to suppress evidence gathered at his residence. Because a search warrant had been procured, we engage in a two-part test to review the district court‘s decision. See United States v. Rojas Alvarez, 451 F.3d 320, 329 (5th Cir.2006). “First, [we] determine[ ]
The Fourth Amendment exclusionary rule does not apply “when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope.” United States v. Leon, 468 U.S. 897, 920 (1984). Under this good-faith exception, “evidence obtained by law enforcement officials acting in objectively reasonable good-faith reliance upon a search warrant is admissible in the prosecution‘s case-in-chief, even though the affidavit on which the warrant was based was insufficient to establish probable cause.” United States v. Shugart, 117 F.3d 838, 843 (5th Cir.1997) (quoting United States v. Craig, 861 F.2d 818, 821 (5th Cir.1988)). We confine our good-faith inquiry to “the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate‘s authorization.” Leon, 468 U.S. at 922 n. 23. The good-faith exception does not apply, and the officer may not merely rely on the magistrate judge‘s determination of probable cause, when “the officer [does not have] reasonable grounds for believing that the warrant was properly issued.” Id. at 922-23. The exception therefore does not apply, and suppression is the appropriate remedy, where: (1) the magistrate or judge who issued the warrant “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 magistrate wholly abandoned his judicial role“; (3) the officer relied on an affidavit “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—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.” Id. at 923 (citations omitted); accord United States v. Mays, 466 F.3d 335, 343 (5th Cir.2006).
Here, a reasonably well trained officer would have known that the search of Brown‘s house was based on insufficient evidence of probable cause and therefore was a violation of Brown‘s Fourth Amendment rights. The affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923. It was a “bare bones” affidavit, containing only “wholly conclusory statements, which lack the facts and circumstances from which a magistrate can independently determine probable cause.” United States v. Satterwhite, 980 F.2d 317, 320-21 (5th Cir.1992). “Generally, examples of bare bones affidavits include those that merely state that the affiant has cause to suspect and does believe or [has] received reliable information from a credible person and [does] believe that contraband is located on the premises.” United States v. Pope, 467 F.3d 912, 920 (5th Cir.2006) (citations omitted).
Such is the case here. The brief, one-page affidavit detailed the previous night‘s traffic stop of Brown‘s vehicle but left out key details that would have better informed the magistrate of the incident.
In the second half of the affidavit, Lopez declared that “Brown has also been the target of an ongoing investigation for the trafficking of narcotics during the past 4 months which included information of how Brown packaged narcotics for sell [sic] which was consistent with the item located in Brown‘s vehicle during the traffic stop. This information was obtained through a confidential reliable source.” Lopez did not provide any details about the investigation or the reliability of the confidential source. Although he noted that the informant‘s information about packaging was consistent with what was found in the car, he did not explain how they were consistent or if the packaging was unique to Brown. Indeed, Somers testified at trial that the packaging—a small, ziptop baggie—was a common way to package cocaine rocks.
“An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause,” and the mere statement that the affiant “received reliable information from a credible person” is inadequate to provide such a basis. Illinois v. Gates, 462 U.S. 213, 239 (1983). When an affiant relies upon information obtained from an informant, the affiant must provide sufficient information to allow the magistrate to determine, by reviewing the totality of the circumstances, whether the informant‘s information is sufficient to create probable cause. Id. at 238-39, 240-41. Lopez failed to provide such information in his affidavit. His “wholly conclusory statements ... lack[ed] the facts and circumstances from which a magistrate can independently determine probable cause.” Satterwhite, 980 F.2d at 321.
Moreover, the affidavit provided no information linking the drug-trafficking investigation to Brown‘s residence. “Facts in the affidavit must establish a nexus between the house to be searched and the evidence sought. The nexus may be established through direct observation or through normal inferences as to where the articles sought would be located.” Payne, 341 F.3d at 400. Lopez did not present any evidence, either direct or inferential, linking the investigation to Brown‘s home.7 He did not reference the residence until the concluding paragraph of the affidavit, at which point he attested only that: “It is
believed that additional narcotics may still be located in the vehicle.... It is also believed that additional narcotics and paraphernalia are located at Brown‘s residence.” We have held that such bare-bones statements cannot support the good-faith exception. See Pope, 467 F.3d at 920; United States v. Brown, 941 F.2d 1300, 1303 n. 1 (5th Cir.1991) (per curiam) (“Examples of ‘bare bones’ affidavits include one that states the affiant ‘has cause to suspect and does believe’ ... and one where the affiants ‘have received reliable information from a credible person and do believe‘....“).
Lopez and the remaining officers could not have acted in objectively-reasonable good-faith reliance upon the search warrant because the affidavit in support of the warrant was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923. Therefore, the good-faith exception does not apply and we proceed now to the second step of the test to consider whether probable cause existed for the warrant. Rojas Alvarez, 451 F.3d at 329-30. Probable cause must be established in the affidavit and evidence presented to the magistrate; an “otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate.” Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 565 n. 8 (1971). “Probable cause exists when under the ‘totality of the circumstances ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.‘” United States v. Newman, 472 F.3d 233, 237 (5th Cir.2006) (quoting Gates, 462 U.S. at 238). It “means something more
The affidavit did not provide the magistrate with the substantial basis he needed to conclude that there was probable cause to justify the search. Lopez 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 reliability. See Kohler, 470 F.3d at 1110-11 (explaining that there is no probable cause when officers rely on anonymous tips, offer no indication in the affidavit as to the tipster‘s credibility or basis for the tipster‘s information, and offer no independent corroboration of the tips). Lopez did not disclose any details about his investigation into Brown other than the vague statement that the cocaine package in the car was consistent with the informant‘s description of Brown‘s packaging methods. Moreover, Lopez provided no specific facts that would allow the magistrate to con
The district court clearly erred in finding that the officers acted in good faith in relying on the warrant and in finding that the warrant was not lacking in indicia of probable cause. Because the search of Brown‘s residence violated his Fourth Amendment rights, the district court erred in denying Brown‘s motion to suppress evidence gathered during the search.8
CONCLUSION
We AFFIRM the district court‘s denial of Brown‘s motion to suppress the evidence collected during the traffic stop, REVERSE the district court‘s denial of Brown‘s motion to suppress the evidence collected during the search of Brown‘s residence, VACATE the conviction and sentence, and REMAND for further consistent proceedings.
Stanley G. ROTHENBERG, Petitioner-Appellant v. Maureen CRUZ, Warden, FCI Seagoville, Respondent-Appellee.
No. 13-10651 Summary Calendar.
United States Court of Appeals, Fifth Circuit.
May 12, 2014.
Stanley G. Rothenberg, Seagoville, TX, pro se.
Angie Lee Henson, Assistant U.S. Attorney, U.S. Attorney‘s Office, Dallas, TX, for Respondent-Appellee.
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Stanley G. Rothenberg, federal prisoner # 76042-004, appeals the district court‘s denial of his