467 F.3d 912 (5th Cir. 2006), 04-51008, United States v. Pope

Docket Nº:04-51008.
Citation:467 F.3d 912
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Cheryl Lea POPE, Defendant-Appellant.
Case Date:October 17, 2006
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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467 F.3d 912 (5th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,


Cheryl Lea POPE, Defendant-Appellant.

No. 04-51008.

United States Court of Appeals, Fifth Circuit.

Oct. 17, 2006

Rehearing Denied Dec. 13, 2006.

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[Copyrighted Material Omitted]

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Joseph H. Gay, Jr., Mark Randolph Stelmach (argued), Asst. U.S. Attys., San Antonio, TX, for U.S.

Allen Francis Cazier (argued), San Antonio, TX, for Pope.

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

Before JOLLY, WIENER and DENNIS, Circuit Judges.

WIENER, Circuit Judge:

The panel majority has sua sponte reconsidered arguments made by the dissenting opinion and has concluded that they are well taken. As a result, we now withdraw our original panel majority opinion and the dissenting opinion, 1 replacing them with the following unanimous opinion, which affirms the Order of the district court denying suppression as well as its judgment of conviction by guilty plea and the sentence imposed.

Defendant-Appellant Cheryl Lea Pope entered a conditional plea of guilty to a charge of conspiracy to manufacture methamphetamine, reserving her right to appeal the district court's denial of her motion to suppress evidence obtained during a two-stage evidentiary search of her residence. In the first stage, officers executed a search warrant issued for the purpose of uncovering evidence of a prescription-drug operation. At the outset of that stage, officers observed evidence of a methamphetamine laboratory in plain view. That evidence formed the basis of a second warrant issued to search for evidence of a meth lab, the second stage of the search.

At the suppression hearing, the district court ruled that the initial stage was unconstitutional because it was grounded in a warrant issued on the basis of stale evidence. The court nevertheless admitted the evidence from that unconstitutional search in reliance on the good faith exception to the exclusionary rule. Under that ruling, evidence from both stages of the search of Pope's residence was admitted.

The parties do not contest the district court's determination that, because of the staleness problem, the first stage prescription-drug warrant was unsupported by probable cause. Instead, Pope disputes the district court's application of the good faith exception to the exclusionary rule to the facts of this case. Specifically, Pope contends that the first stage of the search does not qualify under the good faith exception to the exclusionary rule because (1) the officer who conducted the initial search of her residence submitted a "recklessly false" affidavit to the state district judge who authorized the search warrant, and (2) the affidavit supporting the first search warrant was "so lacking in indicia of probable cause as to render an officer's belief in it unreasonable." We now hold that (1) because Pope did not make her falsity argument in the district court--either in her motion to suppress or at the pre-trial hearing on that motion--she has waived that contention for purposes of this appeal, and we are barred from considering it; and (2) the district court did not err in concluding that the original affidavit was sufficiently detailed to justify an officer's reasonable belief that it indicated probable

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cause to search Pope's residence. We thus affirm Pope's conviction and sentence.


A. The Search

On June 25, 2003, Officer Michael Baird bought six prescription pills from Pope as part of an undercover investigation into her alleged drug activity. During the ensuing 78 days, officers continued to investigate Pope and members of her family on suspicion of illicit drug trafficking. On or about September 9th, 2003, Baird received a tip indicating that Pope was cooking methamphetamine. Baird knew that he did not yet have probable cause to obtain a warrant to search Pope's residence for evidence of a meth lab but believed that he did have probable cause to justify a warrant based on the prescription drug violation. Following receipt of the meth-lab tip, he drafted a search warrant affidavit relating solely to the prescription-drug issue. In his affidavit, Baird chose not to disclose his suspicion that Pope was operating a meth lab, but instead avowed that he was applying for "an evidentiary search warrant .... The purpose is to obtain evidence of a crime that has already been committed," i.e., evidence of the previous prescription-drug buy. A state district judge issued a search warrant and authorized Baird to execute it. Baird and other officers went to Pope's home to execute the search and observed evidence of meth production in plain view. Baird immediately left the premises to obtain a second warrant, this one to search for additional evidence of the meth lab.

B. Suppression Proceedings

Pope filed a motion to suppress all evidence recovered from her home. In her motion, Pope argued that the first search warrant was invalid because (1) the facts related in Baird's affidavit were stale, depriving Baird of probable cause to search Pope's residence for anything, (2) Baird's affidavit was essentially conclusional in nature, i.e., a "bare bones" affidavit, and (3) the items listed in the warrant to be seized related exclusively to trafficking in illegal narcotics or money laundering, but Baird's affidavit mentioned only the single, ten-dollar prescription drug transaction that occurred 78 days earlier. Pope also contended that the infirmities in the first warrant effectively invalidated the second, the "fruit of the poisonous tree" argument. Finally, Pope insisted that, under the particular facts of this case, the government could not rely on the "good faith" exception to the exclusionary rule.

The district court held that (1) Baird's affidavit was not conclusional, and (2) the items to be searched for did relate to the activity detailed in the affidavit, but (3) the warrant lacked probable cause because the information regarding the prescription-drug sale was stale. The court nevertheless denied Pope's motion to suppress, applying the "good faith" exception to Baird's initial search. In reaching this conclusion, the district court rejected Pope's argument that the "good faith" exception should not apply in this case, because the search warrant was based on an affidavit "so lacking in indicia of probable cause as to render an officer's belief in it unreasonable." 2


A. Standard of Review

When a district court grants or denies a motion to exclude evidence, we review

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that court's factual findings for clear error. 3 We review its conclusions of law de novo. 4

B. Analysis

1. Law

The exclusionary rule requires courts to suppress evidence seized on the basis of a warrant that is unsupported by probable cause. 5 The purpose of the exclusionary rule is to deter unlawful police conduct. As the Supreme Court has repeatedly observed:

The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least...

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