U.S. v. Gibbs

• Decision Date: 16 August 2005
• Docket Number: No. 04-30952.,04-30952.
• Citation: 421 F.3d 352
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Brian GIBBS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

421 F.3d 352

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Brian GIBBS, Defendant-Appellant.

No. 04-30952.

United States Court of Appeals, Fifth Circuit.

August 16, 2005.

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Josette Louise Cassiere, Asst. U.S. Atty. (argued), Shreveport, LA, for Plaintiff-Appellee.

Peter Reichman Flowers (argued), Shreveport, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana.

Before HIGGINBOTHAM, BARKSDALE and CLEMENT, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Convicted pursuant to a conditional guilty plea for possession of a firearm by a convicted felon, Timothy Brian Gibbs appeals the denial of his suppression motion. Following an evidentiary hearing before a magistrate judge, the district court adopted the magistrate judge's recommendation that Gibbs' Fourth Amendment right against unreasonable search and seizure was not violated, because the searching officers relied in good faith on a facially valid warrant, even though the supporting affidavit, prepared by one of the officers involved in the search, had been lost prior to the hearing. AFFIRMED.

I.

In September 2003, the Sheriff's Department for Caddo Parish, Louisiana, executed a search warrant for drugs and other paraphernalia at Gibbs' residence. The police found marijuana and two firearms. Gibbs was advised of his Miranda rights; waived them; and confessed to selling marijuana and owning the firearms.

Charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), Gibbs moved to suppress the evidence and statements obtained from the search. He maintained: his statements were involuntary; and the search violated his Fourth Amendment rights because insufficient facts were alleged in the underlying affidavit for the warrant to be supported by probable cause.

According to the suppression-hearing testimony of the affiant for the supporting affidavit, Agent Bailey with the sheriff's department, there were two warrants and three affidavits in connection with the search. The Agent testified as follows.

The first affidavit he provided to the issuing state judge as the basis for the search warrant contained evidence of two supervised drug buys out of Gibbs' home. Prior to executing the warrant, however, the Agent realized the street numbers for Gibbs' address had been transposed on the warrant. As a result, Agent Bailey did not execute that warrant; he shredded it and the underlying affidavit.

The Agent then prepared a new affidavit (second affidavit), again detailing two drug buys, and submitted it to the same state judge, who signed a second search warrant. Agent Bailey executed that second warrant and, during the search, found the two firearms and marijuana.

Agent Bailey placed the second affidavit "somewhere in evidence"; subsequently, the affidavit was "lost". Upon the Agent's being notified that the second affidavit was needed as evidence, he could not find it. Nor could he produce a copy; the computer on which the information for that affidavit was stored had "crashed" during a thunderstorm. As a result, and using available police reports, the Agent "reconstructed" the lost second affidavit.

This third affidavit (reconstructed affidavit) was not an exact reproduction of the lost second affidavit, however. It did not contain a report of both alleged drug buys at Gibbs' house because Agent Bailey could not find the police reports detailing one of those buys, and he did not want to commit perjury by guessing its date.

The Agent submitted the reconstructed affidavit to the Government without explanation. Prior to the suppression hearing, the Government, believing the reconstructed affidavit was a true copy of the second affidavit, provided a copy of the reconstructed affidavit to Gibbs, who attached it to his suppression motion. Gibbs and the Government agreed to stipulate to the affidavit's authenticity.

On the day of the suppression hearing, however, Agent Bailey informed the Government that the reconstructed affidavit was not a copy of the second affidavit. Accordingly, the Government could no longer stipulate to its authenticity and informed Gibbs. On the other hand, the second, facially valid, executed search warrant, signed by the state judge and issued pursuant to the lost second affidavit, was in evidence at the hearing.

The hearing was conducted by a magistrate judge for recommended disposition by the district judge. See 28 U.S.C. § 636(b)(1)(B) (when designated, magistrate judge may conduct evidentiary hearing and make recommended disposition). For ruling on a contested search made pursuant to a warrant, an alternative test is employed, as more fully discussed infra. First, the court determines "whether the good-faith exception to the exclusionary rule applies"; if it does not, it must ascertain "whether the warrant was supported by probable cause". United States v. Laury, 985 F.2d 1293, 1311 (5th Cir.1993). The good-faith exception is applied unless: the issuing-judge 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"; the issuing-judge "wholly abandoned his judicial role" in such a manner that "no reasonably well trained officer should rely on the warrant"; the warrant was "based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"; or the warrant was facially invalid. United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (internal quotation marks omitted). After hearing testimony by Agent Bailey and Gibbs, the magistrate judge called for supplemental briefing on "the effect of not knowing what the evidence was that was offered in support of the warrant, [the second affidavit,] when all we have is the warrant itself".

In his supplemental brief, Gibbs reiterated his pre-hearing assertions: the second affidavit did not provide probable cause for a warrant; and his statements at the time of his arrest were involuntary. Concerning the alternative test for ruling on a contested search made pursuant to a warrant, Gibbs contended: because, at the suppression hearing, he had shown by a preponderance of the evidence that Agent Bailey had not acted in good faith in relying on the warrant, the burden had shifted to the Government to prove the sufficiency of the lost second affidavit; and the Government had already failed this burden because, at the hearing, the magistrate judge had concluded he could not determine the exact contents of that affidavit.

In its supplemental brief, the Government maintained: Agent Bailey's testimony, in conjunction with the state judge's signing the warrant, proved the Agent acted in good faith in executing it; and, in the alternative, having the second affidavit was not necessary to prove the warrant was supported by probable cause because Agent Bailey's credible testimony was enough to establish such cause.

In his report and recommendation (report) issued after the supplemental briefs were received, the magistrate judge stated it was credible that Agent Bailey participated in two controlled drug buys from Gibbs' residence, but the Agent's testimony about the handling of the search-warrant paperwork was "so equivocal and contradictory that the court [could not] rely upon it to determine whether the search warrant applications contained information about one or both of the drug buys". (Emphasis added.) In any event, pursuant to the first part of the alternative test, the magistrate judge recommended that the Agent executed the warrant in good faith because: (1) the absence of an affidavit to support an executed warrant does not invalidate it when "other evidence [can] be presented to establish the fact that an affidavit was presented, as well as its contents", United States v. Lambert, 887 F.2d 1568, 1571-72 (11th Cir.1989); (2) the Agent testified credibly that an application for a search warrant, containing an affidavit describing at least one undercover drug buy, was presented to the state judge before he signed the warrant; and (3) there was no evidence that the Agent was acting in anything other than good faith reliance on the warrant. Because he recommended the good-faith exception applied, the magistrate judge did not reach the alternative, probable cause issue. See Laury, 985 F.2d at 1311. (The magistrate judge also recommended that Gibbs' post-arrest statements were given voluntarily. Gibbs does not contest this.)

Gibbs filed an objection to the report, contending: because the second affidavit was missing, there was no valid warrant; and it was the Government's burden to prove beyond a reasonable doubt there was no violation of Gibbs' Fourth Amendment rights, not Gibbs' burden to prove there was one. After reviewing Gibbs' objections, the district court on 9 September 2004 adopted the report and denied the motion to suppress.

Gibbs entered a conditional guilty plea that day, reserving the right to appeal the denial of the suppression motion. He was sentenced, inter alia, to 30 months' imprisonment.

II.

When reviewing the district court's denial of a suppression motion, we review conclusions of law de novo and findings of fact for clear error; the evidence is viewed in the light most favorable to the prevailing party. E.g., United States v. Dortch, 199 F.3d 193, 197 (5th Cir.1999). On deciding whether to accept a magistrate judge's recommended disposition of a suppression motion, the district court makes "a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made". United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (emphasis omitted). In doing so, the district court need not re-hear testimony from the suppression hearing; its deference to the magistrate's credibility...