U.S. v. Satterwhite

• Decision Date: 17 December 1992
• Docket Number: No. 92-8002,92-8002
• Citation: 980 F.2d 317
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bradford SATTERWHITE, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 317

980 F.2d 317

UNITED STATES of America, Plaintiff-Appellee, v. Bradford SATTERWHITE, III, Defendant-Appellant.

No. 92-8002.

United States Court of Appeals, Fifth Circuit.

Dec. 17, 1992.

Darwin McKee, Austin, Tex., for defendant-appellant.

Richard L. Durbin, Jr., Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before GOLDBERG, SMITH, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant, Bradford Satterwhite, III, entered a conditional plea of guilty to the charges of conspiracy to possess with intent to distribute cocaine base, and possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (1988). Satterwhite raises two issues on appeal. First, he argues that the federal prosecution of his case violated his due process rights. Second, Satterwhite contends that the district court erred in denying his motions to suppress evidence. Finding no reversible error, we affirm.

I

A confidential informant ("the CI") told DEA agent Gray Hildreth that he had received information from an acquaintance that cocaine was being stored and manufactured at Satterwhite's apartment. The acquaintance, Jimmie Cooks, had asked the CI to drive him to Satterwhite's apartment so that Cooks could purchase crack cocaine. The CI saw Cooks enter the apartment. When Cooks returned from the apartment, he showed the CI some crack cocaine. Cooks also told the CI that he saw a large quantity of crack cocaine in the apartment, and that Satterwhite was a financier of a cocaine distribution ring, which was using the apartment to store and manufacture cocaine. In addition, Cooks informed the CI that he had recently purchased at least three kilograms of cocaine, and delivered it to Satterwhite's apartment.

Agent Hildreth conveyed this information in an affidavit ¹ to a magistrate, who subsequently issued a warrant to search Satterwhite's apartment. Upon executing the warrant, agent Hildreth and officers of the Austin Police Department discovered large quantities of crack cocaine, cash, and tally sheets in the apartment. The officers subsequently arrested Satterwhite, and referred his case for federal prosecution. Satterwhite was charged with conspiracy to possess with intent to distribute cocaine base and possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (1988).

The district court denied two motions to suppress evidence obtained from the search of the apartment. The court found that the affidavit supporting the search warrant contained adequate probable cause and that the warrant was clearly valid on its face. Pursuant to a conditional guilty plea, the district court sentenced Satterwhite to 210 months in prison, a five-year term of supervised release, and a mandatory special assessment of $100.00.

Satterwhite appeals his conviction, contending that: (1) the absence of a policy governing the referral of his case for federal prosecution violated his due process rights; and (2) the district court erred in denying his motions to suppress evidence, because the affidavit supporting the search warrant was based on unreliable hearsay.

II

A

Satterwhite first argues that the decision to refer his case for federal prosecution violated his due process rights because it adversely affected his sentence ² and was made without any reviewable guidelines. We disagree.

We recently decided this issue in United States v. Carter, 953 F.2d 1449 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2980, 119 L.Ed.2d 598 (1992). In Carter, the defendant argued that the decision to refer his case for federal prosecution violated his due process rights "because it exposed him to substantially more severe sentences and was made without any objective or reviewable guidelines or standards." Id. at 1462. We concluded that "the ultimate decision of whether or not to charge a defendant presumably rests with the federal prosecutor ... [who] has complete discretion in deciding whether or not to prosecute or what charge to file." Id. "[Because] a defendant may be prosecuted and convicted under a federal statute even after having been convicted in a state prosecution based on the same conduct," id., we held that the defendant's claim lacked merit. Accordingly, Satterwhite's argument also lacks merit. ³

B

Satterwhite argues next that the district court erred in refusing to suppress evidence obtained from searching his apartment. We engage in a two-step review of a district court's denial of a motion to suppress evidence obtained pursuant to a warrant: (1) whether the good-faith exception ⁴ to the exclusionary rule applies; and (2) whether probable cause supported the warrant. See United States v. Webster, 960 F.2d 1301, 1307 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 355, 121 L.Ed.2d 269 (1992).

However, we need not reach the probable cause issue if the good-faith exception applies, and the case does not involve a "novel question of law whose resolution is necessary to guide future action by law enforcement officers and magistrates." Illinois v. Gates, 462 U.S. 213, 264, 103 S.Ct. 2317, 2346, 76 L.Ed.2d 527 (1983) (White, J., concurring); United States v. Maggitt, 778 F.2d 1029, 1033 (5th Cir.1985) (quoting Gates), cert. denied, 476 U.S. 1184, 106 S.Ct. 2920, 91 L.Ed.2d 548 (1986); see United States v. Craig, 861 F.2d 818, 820 (5th Cir.1988) ("Principles of judicial restraint and precedent dictate that, in most cases, we should not reach the probable cause issue if ... the good-faith exception of Leon will resolve the matter."). This case does not raise a novel question of law under the Fourth Amendment. The only question is whether, on the particular facts of this case, the affidavit supporting the search warrant established probable cause to search the apartment. We therefore turn to the good-faith issue first.

In Leon, the Supreme Court held that evidence obtained by officers in objectively reasonable good-faith reliance upon a search warrant is admissible, even though the affidavit on which the warrant was based was insufficient to establish probable cause. See Leon, 468 U.S. at 922-23, 104 S.Ct. at 3420. This rule does not apply where the warrant is based on an affidavit " 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.' " Leon, 468 U.S. at 923, 104 S.Ct. at 3421 (quoting Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 2265-66, 45 L.Ed.2d 416 (1975) (Powell, J., concurring in part)); see Craig, 861 F.2d at 821 (referring to this type of affidavit as a "bare bones" affidavit). Satterwhite argues that the affidavit supporting the search warrant for his apartment was a "bare bones" affidavit, which made agent Hildreth's reliance on the warrant unreasonable.

We review de novo the reasonableness of an officer's reliance upon a warrant issued by a magistrate. U.S. v. Wylie, 919 F.2d 969, 974 (5th Cir.1990). When a warrant is supported by more than a "bare bones" affidavit, officers may rely in good faith on the warrant's validity. United States v. Pigrum, 922 F.2d 249, 252 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2064, 114 L.Ed.2d 468 (1991); United States v. Settegast, 755 F.2d 1117, 1122 n. 6 (5th Cir.1985). "Bare bones" affidavits contain wholly conclusory statements, which lack the facts and circumstances from which a magistrate can independently determine probable cause. See United States v. Brown, 941 F.2d 1300, 1303 n. 1 (5th Cir.) (per curiam) (giving as an example, an affidavit that states the affiant " 'has cause to suspect and does believe' " that contraband is located on the premises (quoting Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933))), cert. denied, --- U.S. ----, 112 S.Ct. 648, 116 L.Ed.2d 665 (1991).

We conclude that the CI's personal observations and Cooks's statements to the CI provided the magistrate with more than a "bare bones" affidavit. Agent Hildreth's affidavit contains facts which the CI personally observed. As stated in the affidavit, the CI accompanied Cooks to the apartment for the purpose of buying cocaine. See Record on Appeal, vol. 1, at 152. Once there, the CI saw Cooks enter the apartment and return carrying cocaine. See id. This information provided the magistrate with facts, and not mere conclusions, from which he could determine probable cause. ⁵

Satterwhite maintains that the CI's observations are unreliable hearsay, because neither agent Hildreth nor the CI had personal knowledge that Satterwhite's apartment contained drugs. Satterwhite therefore argues that the government is attempting to put flesh on an otherwise "bare bones" affidavit by the use of unreliable hearsay.

An affidavit may rely on hearsay--information not within the personal knowledge of the affiant, such as an informant's report--as long as the affidavit presents a " 'substantial basis for crediting the hearsay.' " Gates, 462 U.S. at 242, 103 S.Ct. at 2334 (quoting Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960)). In assessing the credibility of an informant's report, we examine the informant's veracity and basis of knowledge. See id. 462 U.S. at 230-33, 103 S.Ct. at 2328-29 (these two factors are relevant considerations under the "totality of the circumstances" test for valuing an informant's report).

The affidavit supporting the search warrant for Satterwhite's apartment adequately demonstrated the CI's veracity. The affiant asserted that the CI had in the past given true and accurate information leading to arrests and the seizure of controlled substances. The affiant further asserted that the CI had accurately provided the names and addresses of other suspected narcotic traffickers. These assertions sufficiently establish the CI's veracity. See United States v. McKnight, ...