U.S. v. Tedford

• Decision Date: 02 June 1989
• Docket Number: No. 88-1803,88-1803
• Citation: 875 F.2d 446
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Richard TEDFORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 446

875 F.2d 446

UNITED STATES of America, Plaintiff-Appellee, v. Charles Richard TEDFORD, Defendant-Appellant.

No. 88-1803.

United States Court of Appeals Fifth Circuit.

June 2, 1989.

Jesse Carrillo, Austin, Tex., for defendant-appellant.

Dan Mills, Asst. U.S. Atty., Austin, Tex., LeRoy Morgan Jahn, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for defendant-appellee.

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

Before ALDISERT, ^* REAVLEY, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Charles Richard Tedford, a former police officer with the Texas Capitol Police Department, was convicted on two counts of possessing an unregistered firearm in violation of 26 U.S.C. Sec. 5861(d). He appeals the trial court's refusal to suppress firearms seized during a search of a rented storage unit. Tedford alleges that the search was tainted by a prior nighttime search of his residence pursuant to a warrant issued without probable cause and without specific authorization to search at night as required by Fed.R.Crim.P. 41(c). He further denies that his consent to search the storage space was voluntary. We agree with the trial court that the officers relied in "good faith" upon the validity of the warrant to search Tedford's residence. We are persuaded that the search of Tedford's residence violated Rule 41(c), but we refuse on that ground to suppress the firearms seized during the later search of the storage unit. We also conclude that the trial court's finding of consent to search the storage unit was not clearly erroneous.

I

Federal and state officers participated in a joint investigation of Tedford. Deciding to seek a search warrant for his residence, they presented the affidavit of Harold O'Brien, a narcotics officer with the Texas Department of Public Safety to Texas State District Judge Jon Wisser. At approximately 11:00 p.m. on February 3, 1988, Judge Wisser authorized the search of Tedford's residence. Federal and state officers executed the search warrant at approximately 11:55 p.m. that evening. The search lasted approximately two hours, during which time Tedford was arrested for possession of a controlled substance. ¹ Officers later confronted Tedford with a receipt for storage space seized during the search of his residence. Tedford signed a form consenting to a search of the storage unit. During this latter search, officers found a Russian sub-machine gun and a short-barreled shotgun.

The seized weapons led to Tedford's indictment on two counts of possession of an unregistered firearm in violation of 26 U.S.C. Sec. 5861(d). Tedford moved to suppress the firearms. The district court denied the motion after an evidentiary hearing, finding the search of Tedford's residence lawful and Tedford's consent to the search of his storage unit voluntary. Tedford entered a conditional guilty plea pursuant to Fed.R.Crim.P. 11(a)(2), preserving his right to appeal the denial of his motion to suppress.

II

Tedford contends here that the trial court erred by refusing to suppress the firearms because (1) the state search warrant for his residence was not supported by probable cause; (2) the "good faith" exception to the exclusionary rule did not apply; (3) the nighttime search of his residence violated Fed.R.Crim.P. 41(c); and (4) his consent to search the storage unit was not voluntary.

A. LEGALITY OF RESIDENTIAL SEARCH

When federal officers participated in the joint search of Tedford's residence it became a "federal search" subject to the constraints of federal law. See, e.g., United States v. Comstock, 805 F.2d 1194, 1200-1205 (5th Cir.1986) (Rule 41 applicable to state search warrant executed by both state and federal officers), cert. denied, 481 U.S. 1022, 107 S.Ct. 1908, 95 L.Ed.2d 513 (1987); United States v. Hanson, 469 F.2d 1375, 1377 (5th Cir.1972) ("if a federal agent is invited to participate in a joint search with state officers, the legality of the search and the admissibility of the evidence seized in the search must be tested, in a federal prosecution, as if the search were exclusively federal") (citing Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927); Lustig v. United States, 338 U.S. 74, 79, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819 (1949)). We therefore look to federal law to determine the legality of this search.

1. Good Faith

Tedford first argues that the search of his residence was unlawful because the search warrant was not supported by probable cause. He also contends that the "good faith" exception to the exclusionary rule adopted in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), does not apply because the officers did not rely in "good faith" upon that warrant. We decide the Fourth Amendment probable cause issue before considering the officers' "good faith" if its resolution would provide important guidance on Fourth Amendment limitations. United States v. Harper, 802 F.2d 115, 119 (5th Cir.1986) (citing Leon, 104 S.Ct. at 3422); United States v. Maggitt, 778 F.2d 1029, 1033 (5th Cir.1985), cert. denied, 476 U.S. 1184, 106 S.Ct. 2920, 91 L.Ed.2d 548 (1986). Tedford contends only that the underlying affidavits failed to provide sufficient factual support to establish probable cause for the warrant. Because this claim would be answered by well-settled Fourth Amendment principles, we proceed directly to the issue of "good faith."

The trial court determined that "the officers who executed the search warrant at [Tedford's] place of residence acted in objectively reasonable reliance upon a search warrant issued by Judge Wisser, whom the Court finds to be a detached and neutral Judge." We accept the facts underlying the trial court's finding of good faith unless they are clearly erroneous. However, the court's ultimate determination that the officers acted in "good faith" is a conclusion of law subject to de novo review. United States v. Breckenridge, 782 F.2d 1317, 1321 (5th Cir.1986), cert. denied, 479 U.S. 837, 107 S.Ct. 136, 93 L.Ed.2d 79 (1986); Maggitt, 778 F.2d at 1035.

In Leon, the Supreme Court held that the exclusionary rule did not apply to evidence discovered by officers acting in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate, even though the warrant was later found to be unsupported by probable cause as required by the Fourth Amendment. Leon, 104 S.Ct. at 3409, 3421-23. The Court reasoned that suppressing evidence obtained by officers acting in "good faith" would not effectuate the exclusionary rule's primary function of deterring police misconduct. Id. at 3419-20. Exclusion of evidence remains an appropriate remedy if:

1. the magistrate issued the warrant in reliance on a deliberately or recklessly false affidavit;

2. the magistrate abandoned his judicial role and failed to perform his neutral and detached function;

3. 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

4. the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized.

United States v. Breckenridge, 782 F.2d at 1320-21 (citing Leon, 104 S.Ct. at 3421-22; Maggitt, 778 F.2d at 1034).

Tedford argues that the "good faith" exception does not apply on two grounds. First, he contends that Judge Wisser abandoned his detached and neutral role by merely ratifying the officers' conclusions and issuing the warrant on the basis of "bare bones" affidavits. See Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979) (suppression appropriate where magistrate abandons judicial role). Second, he claims that the officers' reliance on the warrant was unreasonable because the underlying affidavits were completely "lacking in indicia of probable cause." See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (suppression appropriate where search warrant affidavit so lacking that official belief that probable cause exists is entirely unreasonable). We find the affidavits adequate to reject both contentions.

The primary affidavit was submitted by Officer O'Brien, a state narcotics investigator with twenty-one years experience in law enforcement. According to the affidavit, the day before O'Brien sought the warrant ATF Agent Littleton told O'Brien that he had spoken with an informant who had provided reliable information in the past leading to the arrest of several people for narcotics trafficking. Ten days earlier, this informant told Littleton that he had personal knowledge that Tedford was attempting to set up a methamphetamine lab for an individual in Austin. One of Tedford's fellow officers told O'Brien that Tedford last appeared for work on January 5, 1988, and would not return until February 5, 1988 due to intervening holidays and sick leave.

O'Brien's affidavit also described various methamphetamine investigations and "speed lab busts" during the two years prior to Tedford's arrest in which Tedford was either observed at the scene or his personal property was found there. In one instance, a person arrested for possession of methamphetamine claimed that Tedford owned the machine gun and had manufactured the three silencers seized during the search of his home. Tedford later contacted O'Brien and confirmed that three handguns found during the search were his and that they were being held as collateral for a loan. An officer later informed O'Brien that Tedford's binoculars had been found at the scene of another arrest for possession of methamphetamine. In another instance, an officer observed Tedford at the scene of a "speed lab bust," even though he had no part in the investigation and should not have known the arrest was imminent. The affidavit also contained information from police officers who observed Tedford at various times in the...