United States v. Gallegos

Opinion

United States Court of Appeals Fifth Circuit F I L E D In the July 10, 2007 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________

m 06-50138 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ALEX GALLEGOS,

Defendant-Appellant.

_________________________

Appeal from the United States District Court for the Western District of Texas m 5:04-CR-81-1 ______________________________

Before SMITH, BENAVIDES, and DENNIS, different drug and weapon offenses. Gallegos Circuit Judges. appeals his conviction, arguing that the district court erred in denying his motion to suppress, JERRY E. SMITH, Circuit Judge:* that the court erred in denying disclosure of a confidential informant’s identity, and that the A jury found Alex Gallegos guilty of five evidence is insufficient to support his convic- tion. We affirm.

* Pursuant to 5TH CIR. R. 47.5, the court has de- I. termined that this opinion should not be published Detective David Berrigan of the San Anto- and is not precedent except under the limited cir- nio Police Department received information cumstances set forth in 5TH CIR. R. 47.5.4. from a confidential informant that a man named Roland was selling drugs in the front grams or more of heroin within 1,000 feet of a yard of a house. Through a computer search, secondary school in violation of 21 U.S.C. §§ Berrigan determined that the Gallegos family 841(a)(1) and (b)(1)(B) and 860(a); (4) using lived at the house and that the license plate and carrying and possessing a firearm during numbers on the vehicles outside the house and in relation to and in furtherance of a drug were registered to members of the Gallegos trafficking crime in violation of 18 U.S.C. family. He took no further action to corrobo- 924(c)(1)(A)(i); and (5) using and carrying and rate the information the informant provided. possessing a firearm during and in relation and in furtherance of a drug trafficking crime in Based on this information, Berrigan pre- violation of 18 U.S.C. § 924(c)(1)(B)(i). pared an affidavit to support a search warrant. The affidavit stated the address of the house Gallegos filed a motion to suppress and re- and a description of a Hispanic male, known quested to discover the identity of the confi- only as Roland, who was approximately 35 to dential informant. The district court denied 40 years old, 180 to 200 pounds, 5' 8'' to the motion and the request. 5' 10'', and clean shaven. He had short brown hair and tattoos on both arms. The affidavit At trial the government offered the follow- noted that this man controlled the house and ing evidence: Officers observed Gallegos con- had possessed cocaine there in the past 48 ducting a drug transaction. In their search of hours. Finally, it recounted that a confidential the property, officers found a plastic bag informant, who had previously provided accur- containing heroin and cocaine in the back of ate information, had provided this information the property; $14,000 in a tub; $3,000, pack- to the police. aged in $100 increments and tied in $1,000 bundles in a safe for which Gallegos had a key; A magistrate issued a warrant. As police $7,000 in a dresser drawer that contained were driving up to the house to execute it, some of Gallegos’s personal items; evidence of they saw two men in the front yard exchanging a drug ledger; a sandwich bag containing drugs. The police approached the men, one of baggies filled with heroin and cocaine; a large them threw the bag being exchanged into the bag of cocaine between the rafters and wall of air, and Gallegos fled. Police caught both a shed; two bottles of lactose, one of which men, did a security sweep, and searched the had Gallegos’s fingerprint on it; a digital scale; property. and other packaging material. When con- fronted with the cocaine, Gallegos looked to Gallegos was indicted for and convicted of the rafters where the police had found it, even (1) conspiring to distribute and possess co- though the police had not told him they had caine within 1,000 feet of a secondary school found it there. Gallegos said he would take in violation of 21 U.S.C. §§ 846, 860(a), and the rap for the cocaine. A map with a legend 841(a)(1) and (b)(1)(B); (2) aiding and abet- on it and a computer program that analyzes ting in the possession with intent to distribute locations showed the house was within 1,000 cocaine within 1,000 feet of a secondary feet of the school. school in violation of 21 U.S.C. §§ 860(a) and 841(a)(1) and(b)(1)(B) and 18 U.S.C. § 2; To prove the firearm offense, the govern- (3) possessing with intent to distribute 100 ment stated that police found two sawed-off

2 shotguns, a semiautomatic handgun, a revol- 462 U.S. 213, 264 (1983) (White, J., concur- ver, an automatic assault handgun, and a rifle. ring)). Here, we only need to apply estab- The weapons were found close to the drugs, lished Fourth Amendment principles to this set one was loaded, two were illegal by them- of facts, so we determine whether the good selves, and all were illegal for Gallegos be- faith exception to the exclusionaryrule applies. cause he is a convicted felon.

II. Gallegos posits that the good faith excep- Gallegos urges that the court erred in deny- tion does not apply, because the warrant was ing his motion to suppress. We review the supported by only a bare bones affidavit. We court’s factual findings in a denial of a motion disagree. To avoid being a bare bones affida- to suppress for clear error and its legal conclu- vit, the affidavit must provide “the magistrate sions de novo. United States v. Solis, 299 with facts, and not mere conclusions, from F.3d 420, 435 (5th Cir. 2002). We review de which he could determine probable cause.” novo whether an officer’s reliance on a war- United States v. Satterwhite, 980 F.2d 317, rant was objectively reasonable and accord- 321 (5th Cir. 1992). ingly in good faith. United States v. Satter- white, 980 F.2d 317, 321 (5th Cir. 1992). To assess the value of a confidential infor- mant’s report, we consider his veracity, reli- A. ability, and basis of knowledge. Mack v. City Gallegos contends that the search warrant of Abilene, 461 F.3d 547, 551 (5th Cir. 2006). was not supported by probable cause. Reliability and veracity are established by in- “‘Principles of judicial restraint and precedent formation indicating the informant has given dictate that, in most cases, we should not previous reliable information. Mack, 461 F.3d reach the probable cause issue if a decision on at 551; Christian v. McKaskle, 731 F.2d 1196, the admissibility of evidence under the 1200 (5th Cir. 1984). Direct personal obser- good-faith exception [to the exclusionary rule] vation is a sufficient basis of knowledge. will resolve the matter.’”1 We proceed directly Mack, 461 F.3d at 551; United States v. Cor- to the probable cause inquiry only where “the dero, 465 F.3d 626, 630 (5th Cir. 2006). resolution of a ‘novel question of law . . . is necessary to guide future action by law en- Here the informant’s report is valuable be- forcement officers and magistrates.’” Craig, cause the affidavit establishes the informant’s 861 F.2d at 820-21 (quoting Illinois v. Gates, veracity, reliability, and basis of knowledge. The affidavit shows the informant’s veracity and reliability by stating that the informant 1 “has on previous occasions given affiant in- United States v. Flanders, 468 F.3d 269, 270 formation regarding the trafficking and pos- (5th Cir. 2006) (quoting United States v. Craig, 861 F.2d 818, 820 (5th Cir. 1988)). The good session of a controlled substance which has faith exception applies if an officer’s “reliance on proven to be true and correct . . . .” The affi- the magistrate’s probable-cause determination and davit also reflects the basis of the knowledge: on the technical sufficiency of the warrant he issues The informant saw the unlawful possession of [is] objectively reasonable”; a court need not sup- cocaine within forty-eight hours of the affida- press the fruits of a search if this exception applies. vit. United States v. Leon, 468 U.S. 897, 922 (1984).

3 The information in this affidavit is similar to residence and not outside it as the informant the information in the affidavit in United States had indicated. v. McKnight, 953 F.2d 898 (5th Cir. 1992). There the affidavit said (1) that the informant We will not uphold an officer’s good faith had furnished the officer information in the reliance on a warrant if “the issuing-judge ‘was past and had proven reliable and true and (2) misled by information in an affidavit that the that the informant had seen methamphetamine affiant knew was false or would have known at a specific house in the past seventy-two was false except for his reckless disregard of hours. Id. at 904-05. We held that “[t]he the truth . . . .’” United States v. Gibbs, 421 Constable’s assertion that the confidential F.3d 352, 358 (5th Cir. 2005) (quoting United informant was ‘reliable’ and had ‘furnished States v. Leon, 468 U.S. 897, 923 (1984)). him with information in the past that has “‘In evaluating this argument, we apply the proved to be reliable and true’ provided the standard from Franks v. Delaware, 438 U.S. magistrate with sufficient indicia of the reliabil- 154 (1978), which requires a defendant to ity and veracity of the informant’s tip.” Id. at show that ‘(1) allegations in a supporting 905. Also, the informant’s personal observa- affidavit were deliberate falsehoods or made tions were a sufficient basis of knowledge. Id. with a reckless disregard for the truth, and (2) Because these facts alone made probable cause the remaining portion of the affidavit is not “at the very least most likely supplied by this sufficient to support a finding of probable affidavit,” the affidavit was not bare bones. Id. cause.’” United States v. Mays, 466 F.3d 335, 343 (5th Cir. 2006) (quoting United States v. Brown, 298 F.3d 392, 395 (5th Cir. 2002)), The instant affidavit is virtually identicalSS cert. denied, 127 S. Ct. 1313 (2007). McKnight’s includes more information about how the drugs were processed at the resi- The district court found Berrigan did not dence, but these facts do not bear on the ve- mislead the magistrate, and we review this fact racity or reliability of the informant or the basis finding for clear error. Gallegos has the bur- of his knowledge. Just as McKnight’s affidavit den of “establishing by a preponderance of the was not a bare bones affidavit, neither is the evidence that the misrepresentation was made one in this case. The good faith exception intentionally or with reckless disregard for the applies, and the district court correctly denied truth.” United States v. Alvarez, 127 F.3d the motion to suppress. 372, 373 (5th Cir. 1997); United States v. Wake, 948 F.2d 1422, 1428-29 (5th Cir. B. 1991). Gallegos argues that the government cannot use the good faith exception, because Berrigan Two decisions from this court demonstrate misled the magistrate in two ways. First, the sort of evidence that meets this burden to Berrigan discovered that the Gallegos, not prove that an officer acted intentionally or with “Roland,” controlled the residence, but he still reckless disregard for the truth. See Alvarez, told the magistrate only about Roland’s con- 127 F.3d at 375; United States v. Namer, 680 trolling the residence, omitting any mention of F.2d 1088, 1094 (5th Cir. 1982). In conclud- the Gallegos family. Second, Berrigan told the ing that an officer recklessly disregarded the magistrate that drugs were dealt “at” the truth in Alvarez, we went through a laundry

4 list of reasons the officer in that case was tablish a nexus between the residence and the reckless: drugs. For an officer’s conduct to qualify un- der the good faith exception, “[t]he affidavit The lack of exigency, [police officer] Ri- must establish a nexus between the house to be vera’s level of training and experience, his searched and the evidence sought. United failure to consult with an attorney, his fail- States v. Freeman, 685 F.2d 942, 949 (5th Cir. ure to disclose in the affidavit the facts un- 1982). That nexus may be established, how- derlying his conclusorystatements, coupled ever, by direct observation or through normal with Rodriguez’s statement that Alvarez inferences as to where the articles sought claimed to have other similar tapes (there would be located. See id.; United States v. was no testimony that the other tapes were Pace, 955 F.2d 270, 277 (5th Cir. 1992).” more explicit), and the fact that Rivera’s United States v. Broussard, 80 F.3d 1025, only justification for proceeding with the 1034 (5th Cir. 1996). warrant application was his testimony that he believed breasts were genitals, lead us to When compared to defendants’ assertions conclude that Rivera acted in reckless dis- in our previous cases dealing with the nexus regard for the truth. requirement, Gallegos’s claim that this affida- vit presented an insufficient nexus fails. In one Alvarez, 127 F.3d at 375. In Namer, a similar case, an affidavit established a nexus between list of factors compelled our conclusion that a residence and drugs because the affidavit law enforcement recklessly disregarded the suggested the defendant’s salvage business truth: Attorneys drafted the affidavit, they had was not confined to his place of business, experience with this type of case, no exigency because it stated that a drug maker had previ- or haste preceded the affidavit, and the attor- ously gone to the rear of the residence, and neys understood the importance of being ac- because it indicated the defendant’s place of curate. Namer, 680 F.2d at 1094. business and residence were contiguous and controlled by the same people. United States Gallegos does not present this sort of evi- v. Anderson, 853 F.2d 313, 316 (5th Cir. dence of intent or recklessness. He alleges 1988). In Broussard, the affidavit established that Berrigan’s statements were the product of a nexus between the defendant and his resi- intentional or reckless conduct, but other than dence because it stated that drugs were placed his argument that the statements were false, in a car that was later parked in the residence’s Gallegos offers no proof that Berrigan intend- driveway and that the defendant picked up a ed his statements to be false or acted in reck- bag believed to contain drugs and took the bag less disregarded for the truth. Even if, ar- inside his residence. Broussard, 80 F.3d at guendo, the district court incorrectly held the 1035. statements were true, Gallegos still cannot pre- vail, because he did not prove Berrigan pos- In contrast, cases holding that the nexus to sessed the required mental state. a residence was insufficiently established in- volve crimes that occur away from the home. C. For instance, in United States v. Freeman, 685 Gallegos claims the good faith exception is F.2d 942, 950-51 (5th Cir. 1982), police found inapplicable because the affidavit failed to es- evidence of drug smuggling at an airport, but

5 no suspicious activity had taken place at the officer could have believed that the affidavit drug smuggler’s home, so there was not a suf- established probable cause.2 ficient nexus to search the home. III. In the present case, the affidavit stated Rol- Gallegos claims the district court should and possessed drugs at the residence. This have ordered the government to disclose the statement is evidence of a nexus between the confidential informant’s identity. narcotics and the residence, and it even more directly connects the illicit items to the house This Court reviews the district court’s than did the evidence in Anderson and Brous- grant or denial of disclosure of an infor- sard. This case is unlike Freeman, because mant for abuse of discretion. United States here the crime and suspicious activity occurred v. Wilson, 77 F.3d 105, 111 (5th Cir. at, not away from, the residence. Because the 1996). The district court weighs three fac- information in this affidavit is like the informa- tors to determine whether to grant or deny tion in affidavits that we have held established disclosure of an informant’s identity: a nexus, Gallegos’s argument that no nexus ‘(1) the level of involvement in the alleged existed lacks merit. criminal activity, (2) the helpfulness of disclosure to any asserted defense, and D. (3) the government’s interest in non-dis- Gallegos contends the district court erred closure.’ Id. by denying his motion to suppress, because the warrant was void for staleness. Stale informa- United States v. Thomas, 348 F.3d 78, 85 (5th tion in an affidavit cannot support probable Cir. 2003). cause. “The proof must be of facts closely re- lated in time to the issuance of the warrant in Gallegos makes no arguments about the order to justify a finding of probable cause at informant’s level of involvement in the criminal that time.” United States v. McKeaver, 5 F.3d activity or the government’s interest in non- 863, 866 (5th Cir. 1993). Even if stale infor- disclosure. Instead, he relies entirely on the mation cannot support probable cause, how- prejudice to his defense. He asserts that the ever, officers may be able to execute a warrant confidential informant should have been called in good faith. “To prevail on his fourth to testify that the informant saw “Rol- amendment claim, [Gallegos] must establish and”SSnot GallegosSSdealing drugs. This tes- that the facts alleged in the affidavit were so timony could have led the jury to doubt wheth- dated that no reasonable officer could have be- er Gallegos was dealing drugs at the residence. lieved that the affidavit established probable cause . . . .” United States v. Pena-Rodriguez, 110 F.3d 1120, 1130 (5th Cir. 1997). 2 See United States v. Leaster, 35 Fed. Appx. 402, 410-12 (6th Cir. 2002) (noting that it is dif- Information that someone possessed drugs ficult to determine whether 48-hour-old information forty-eight hours earlier is stale, Gallegos pos- about drug possession is stale but that because of its, because drugs are quickly consumed. But, this uncertainty, officers are entitled to rely on the this fact does not entail the conclusion that the warrant under the good faith exception because the information was so dated that no reasonable information is not so stale as to render the officer’s belief unreasonable).

6 “Whether a proper balance renders nondis- tribute controlled substances in violation of 21 closure erroneous must depend on the particu- U.S.C. § 841 are 1) knowledge, 2) possession, lar circumstances of each case, taking into and 3) intent to distribute the controlled sub- consideration the crime charged, the possible stances.” United States v. Delgado, 256 F.3d defenses, the possible significance of the in- 264, 274 (5th Cir. 2001). To prove aiding and former’s testimony, and other relevant fac- abetting, “the government must establish that tors.” United States v. Cooper, 949 F.2d 737, the defendant became associated with, partici- 749 (5th Cir. 1991). The factors that Gallegos pated in, and in some way acted to further the does not discuss favor the district court’s deci- possession and distribution of the drugs. To sion: The informant was not involved in the aid and abet, a defendant must share in the in- crime, favoring non-disclosure, Cooper, 949 tent to commit the offense as well as play an F.2d at 749, and the government has an inter- active role in its commission.” Id. (internal est in getting future tips from the informant. quotations and citations omitted). Finally, Gallegos has not demonstrated significant pre- “[t]o prove a drug conspiracy under 21 U.S.C. judice to his defense; the fact that someone § 846, the government must prove (1) an other than he was dealing drugs at the same agreement between two or more persons to house does not negate the possibility that he violate the narcotics laws, (2) the defendant’s was also doing so there. Whatever prejudice knowledge of the agreement, and (3) the he may have suffered is outweighed by the defendant’s voluntary participation in the other factors the district court addressed. The conspiracy.” United States v. Reveles, 190 court did not abuse its discretion. F.3d 678, 691 n.1 (5th Cir. 1999).

IV. The police found vast quantities of drugs, Gallegos argues that the evidence is insuf- money, and narcotic distribution devices, all ficient to support the verdict. “We review the linked to Gallegos, providing evidence that he sufficiency of the evidence by examining all the possessed drugs intending to distribute them. evidence in the light most favorable to the Conspiracy and aiding and abetting were dem- verdict. See United States v. Thomas, 120 onstrated by testimony that officers directly F.3d 564, 569 (5th Cir. 1997). We will affirm witnessed Gallegos in a drug transaction. Gal- if the evidence is such that a rational trier of legos’s suggestion that these facts are equally fact could have found the requisite elements of consistent with a conclusion that he merely the offense beyond a reasonable doubt. Id.” shared the drugs does not change the result, United States v. Guerrero, 234 F.3d 259, 261- given the deferential standard we use to review 62 (5th Cir. 2000). jury findings.

A. B. Gallegos avers that the evidence was not Gallegos maintains the evidence is insuffi- sufficient for the jury to find that he possessed cient to establish that he carried a firearm drugs with intent to distribute, that he aided during and in relation to a drug trafficking and abetted possession with the intent to dis- crime or possessed a firearm in furtherance of tribute, or that he conspired to possess with in- a drug trafficking crime as required under 18 tent to distribute narcotics. “The essential U.S.C. § 924(c). Yet, this case is similar to elements of possession with the intent to dis- United States v. Molinar-Apodaca, 889 F.2d

7 1417, 1424 (5th Cir. 1989), in which we held that evidence that two guns were near drugs at a home was sufficient to permit an inference that the guns were being used for the purpose of protection in a drug trafficking offense. In Molinar-Apodaca, two firearms were seized on a property that also housed drugs. Id. at 1422. We held that the presence “of an Uzi rifle, a high powered handgun, and several rounds of ammunition [in the defendant’s house] at the time when a considerable quan- tity of marijuana was seized on the premises” was sufficient “to show that the firearm was available to provide protection” and thus was used “in relation to” a drug crime. Id. at 1424. The evidence in our case is like that in Mol- inar-Apodaca and is sufficient for a jury to find that Gallegos violated § 924(c).

AFFIRMED.