United States v. Davis

242 F. App'x 264
Procedural entryThis page is a short order in United States v. Davis. Read the opinion of the Court — 393 F.3d 540
Court of Appeals for the Fifth Circuit·Decided September 18, 2007·No. 06-30954·Unpublished

Opinion

PER CURIAM: *

Plaintiff-Appellant, Sammy Davis, Jr. (Davis), appeals his conviction for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Concluding that the district court properly denied his motion to suppress and that the evidence is sufficient to sustain his conviction, we AFFIRM.

I. BACKGROUND

In 1999, Stevie Chariot began buying crack cocaine irom Davis and his extended family in Church Point, Louisiana. Char-lot later began working as a paid informant for the Acadia Parish Drug Task Force (APDTF). On October 22, 2001, Chariot contacted an APDTF narcotics investigator, Agent Brian Hundley, and informed him that Davis’s brother, Edward Colomb, was in possession of a large amount of crack cocaine. Based on this information, the agents planned to have Chariot conduct a controlled drug transaction that day at 847 South Broadway, the home of Davis’s mother, Mary Colomb.

Agent Hundley and another APDTF agent took Chariot to a secluded area near the Colomb residence. The agents gave Chariot $50 to purchase the drugs and an audio transmitter that was then hidden in a pack of cigarettes in Chariot’s sock. Chariot demonstrated that his pockets were empty by turning them inside out. Chariot and the agents agreed that, after the drug buy, they would meet at a nearby church.

Chariot exited the vehicle, and the agents observed him walk to the yard of the Colomb residence but a fence blocked their view of his entrance into the house. After a few seconds, the agents heard Mary Colomb’s voice over the transmitter.

Chariot asked to purchase $50 worth of crack (“score a 50”), and Mary responded that he would have to wait because Edward was not there. Although Mary patted down Chariot, she did not discover the transmitter in the cigarette pack. Edward arrived, and the agents heard his voice over the transmitter. Chariot paid Edward $50 and left. Chariot met the agents as planned and gave them the three rocks of crack and the transmitter. 1

*266 The agents then obtained a search warrant for the Colomb residence and executed it that night. Davis, Mary, Mary’s husband, and Davis’s sister were at the home when the agents executed the search warrant. Davis was in a rear bedroom of the house. After Agent Reginald Guidry escorted Davis from the bedroom to a sofa in the living room, other agents searched the house. Agent Hebert found a 16-gauge Mossberg shotgun in a closet in the rear bedroom. Agent Guidry asked Davis who owned the gun, and Davis admitted that it was his gun. He also admitted that his bedroom had the shotgun in the closet.

In May 2002, Davis was charged by indictment with several counts of trafficking in cocaine and one count of possession of a firearm by a convicted felon. He pleaded not guilty and filed a motion to suppress, contending that affiant had deliberately or recklessly misled the issuing state judge. On August 16, the magistrate judge conducted a hearing on the motion. On August 22, the prosecutor sent a letter to defense counsel advising that Agent Hundley had been mistaken when he testified that the Colomb residence was surrounded by a privacy fence; instead, it was surrounded by a chain link fence.

On September 11, the magistrate issued a report recommending that the motion to suppress be denied. On October 15, Davis filed objections based primarily on Agent Hundley’s mistaken testimony regarding the fence. As a result of the objections, the magistrate judge conducted a second evidentiary hearing to determine whether the mistaken testimony was material and whether it affected the court’s credibility determination. The magistrate issued a second report recommending denial of the motion to suppress, concluding that any errors were immaterial and “innocent and easily explained.” Over Davis’s objections, the district court adopted the findings of the magistrate and denied the motion to suppress.

Subsequently, Davis filed a motion to sever the instant charge of possession of a firearm by a convicted felon from the remaining five charges in the indictment. Ultimately, the district court granted the motion to sever. Davis was tried on the sole charge of possession of a firearm by a convicted felon. After a jury found him guilty, the district court imposed a 15-month sentence of imprisonment. Davis appeals.

II. ANALYSIS

A. Motion to Suppress

Davis argues that the district court erred in denying his motion to suppress. “Our review of a district court’s denial of a motion to suppress evidence seized pursuant to a warrant is limited to (1) whether the good-faith exception to the exclusionary rule applies, and (2) whether the warrant was supported by probable cause.” United States v. Alix, 86 F.3d 429, 435 (5th Cir.1996). We need not address the probable cause inquiry if the good-faith exception applies. Id.

Findings of fact are accepted unless clearly erroneous or based on an incorrect view of the law. United States v. Randall, 887 F.2d 1262, 1265 (5th Cir.1989). A clearly erroneous finding is one that is not plausible in light of the record viewed in its entirety. Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

Davis asserts that Agent Hundley made material misrepresentations regarding the informant’s reliability in his affidavit in support of the search warrant. This Court will uphold a police officer’s good-faith reliance on a warrant unless “the issuing-judge was misled by information in an affidavit that the affiant knew was false or *267 would have known was false except for his reckless disregard of the truth.” United States v. Mays, 466 F.3d 335, 343 (5th Cir.2006), cert. denied, — U.S.-, 127 S.Ct. 1313, 167 L.Ed.2d 124 (2007) (citation and internal quotation marks omitted).

Specifically, Davis asserts that Agent Hundley’s affidavit indicates that he had past dealings with Chariot that demonstrated Chariot’s reliability. Davis states that this is belied by Agent Hundley’s subsequent testimony that this was the first time he worked with Chariot. As the government responds, although Hundley testified that this transaction was the first time he had worked with Chariot, he had learned through another officer about Chariot’s reliability on other cases. Indeed, there was evidence of Chariot’s work as an informant resulting in the seizure of drugs on other occasions. The district court did not clearly err in finding no false statements in the affidavit regarding Agent Hundley’s representation of Chariot’s reliability.

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United States v. Davis, 242 F. App'x 264 (5th Cir. 2007).

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