United States v. Morales, 19-11934

• Decision Date: 05 February 2021
• Docket Number: No. 19-11934,19-11934
• Citation: 987 F.3d 966
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Jose Antonio MORALES, Defendant - Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

987 F.3d 966

UNITED STATES of America, Plaintiff - Appellee,

v.Jose Antonio MORALES, Defendant - Appellant.

No. 19-11934

United States Court of Appeals, Eleventh Circuit.

February 5, 2021

Brandy Brentari Galler, U.S. Attorney's Office, West Palm Beach, FL, H. Ron Davidson, Emily M. Smachetti, U.S. Attorney's Office, U.S. Attorney Service - Southern District of Florida, Jason Wu, Assistant U.S. Attorney, U.S. Attorney Service - SFL, Miami, FL, for Plaintiff-Appellee.

Michael Caruso, Federal Public Defender, Federal Public Defender's Office, West Palm Beach, FL, for Defendant-Appellant.

Before JORDAN, MARCUS, and GINSBURG,^* Circuit Judges.

MARCUS, Circuit Judge

Based on evidence seized during a search of his home, Jose Antonio Morales was convicted of possession of marijuana with intent to distribute and of unlawful possession of a firearm and ammunition. On appeal, Morales claims that the affidavit supporting the search warrant -- which reported that police had found a small amount of marijuana and related items in trash outside Morales's house on two separate occasions three days apart -- did not establish probable cause to justify the search. We need not decide whether Morales is correct, for even if he is (and this matter is hotly contested), suppression of the fruits of the search would be inappropriate under the good faith exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

The exclusionary rule exists to deter unreasonable searches, but the police here did exactly what the Fourth Amendment required of them: they obtained a warrant in good faith from a neutral magistrate and reasonably relied on it. They had no reason to believe that probable cause was absent despite the magistrate's authorization. There is no evidence in this record that the affidavit supporting the warrant misled the magistrate or that it contained false information. The affidavit was not lacking in indicia of probable cause so as to render the executing officers’ belief in its existence unreasonable. Nor, finally, was the warrant facially deficient because it failed to particularize the place to be searched or the things to be seized. All of that makes this case a clear application of the good faith exception.

Morales also claims that the district court lacked subject matter jurisdiction over the unlawful possession of a firearm and ammunition charge because his indictment failed to allege that he knew he was a convicted felon. But in United States v. Moore, we held that such an omission is not a jurisdictional defect. 954 F.3d 1322, 1336–37 (11th Cir. 2020). We therefore affirm Morales's convictions.

I.

A.

Around May 15, 2018, the St. Lucie County Sherriff's Office received an anonymous tip that Jose Antonio Morales was selling narcotics out of his Fort Pierce, Florida home. That day -- trash pick-up day for the neighborhood -- Detective Bryan Saliba and Detective Dietrich searched trash cans located at the end of the driveway at Morales's single-family home. They found a plastic bag containing small amounts of raw marijuana, and took these pictures:

Just three days later (the next trash pick-up day), Saliba and another detective conducted another trash pull at Morales's residence, which yielded "multiple burnt marijuana blunts" and "multiple cut vacuum sealed plastic bags," one of which was labeled "Kush":

Two weeks passed. Then, on June 1, Saliba applied for a warrant to search Morales's home for evidence of illegal marijuana possession or distribution. Saliba's supporting affidavit recounted the trash-pull evidence, save for one important detail: the affidavit made no mention of the tip that Morales was selling drugs from his house. The affidavit further explained that Saliba had been a Sheriff's Deputy for three years and was then assigned as a detective. Saliba averred that he had participated in 50 narcotics investigations, worked drug cases at the street level, and attended approximately 100 hours of narcotics investigation training. He explained that based on his training and experience, "the word ‘Kush’ is commonly used as a slang word to describe marijuana/cannabis." A St. Lucie County Circuit Court judge granted the application that day and issued a warrant to search Morales's home.

Another week passed before Saliba and other officers executed the search warrant, on June 8. Though the trash pulls had revealed just a handful of marijuana evidence, the search of Morales's home turned up considerably more evidence of illegal activity. Most significantly, the officers found a loaded .45 caliber Kahr CW pistol, two boxes of ammunition, and 972 grams of marijuana in a bedroom safe. In the kitchen, they found five grams of marijuana, two marijuana pipes, two marijuana grinders, plastic baggies, and a digital scale. The officers discovered 86 grams of marijuana in the laundry room and less than one gram of cocaine in a bedroom dresser. Morales's girlfriend, who was present for the search (Morales arrived on the scene later), claimed that the gun belonged to her. Morales told the police that all the marijuana belonged to him, that he used it only for personal consumption, and that he possessed a medical marijuana card.

B.

A federal grand jury in the Southern District of Florida returned an indictment charging Morales with: (1) knowingly possessing a firearm and ammunition after having been convicted of a crime punishable by more than one year in prison, in violation of 18 U.S.C. § 922(g)(1) ; and (2) possession with intent to distribute a mixture and substance containing a detectable amount of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D). Morales pled not guilty.

Before trial, Morales moved to suppress the evidence recovered during the search of his home. He argued that Saliba's affidavit did not establish probable cause because it did not explain the reason for the trash pulls, reported only minimal amounts of marijuana, and made no mention of items linking the trash to Morales's residence. Morales also claimed that the affidavit deliberately or recklessly contained false information. Specifically, he alleged that the affidavit's description of the evidence was false because not all the evidence described appeared in the photographs submitted with the affidavit, and that the affidavit improperly omitted the fact that Morales's residence abutted an open lot where neighborhood youth routinely used marijuana.

The magistrate judge presiding over the suppression motion allowed limited testimony on the allegation that the affidavit omitted the fact that the trash stood next to an open lot. Detective Saliba testified that he did not know the field next to Morales's home was a frequent venue for drug use. Saliba also clarified that he found the trash cans at the end of Morales's driveway on days scheduled for trash pick-up and that he found the marijuana evidence within sealed trash bags, not loose in the can.

Based on this testimony, the magistrate judge concluded in her Report and Recommendation that the omission of facts about the neighboring field had not been intentional or reckless; nor did any inconsistency between the photographs and the affidavit's description of the evidence show that the description was false. The magistrate judge next observed that the Eleventh Circuit had not decided "whether [a] small amount[ ] of drugs found during a trash pull is sufficient [to establish probable cause] without any other evidence." Still, since the affidavit recounted the discovery of evidence from trash pulls on two separate days, she held that the affidavit established probable cause that some items connected with unlawful marijuana activity would be found in Morales's home. Finally, the magistrate judge concluded that even if there was not probable cause, the good faith exception to the exclusionary rule applied to preclude suppression of the fruits of the search. Morales filed objections to the Report and Recommendation, but the district court adopted the Report in full.

Morales proceeded to trial, where he stipulated that he had been convicted of a felony offense before the date of his charged firearm and ammunition possession. He called his girlfriend as a witness, who testified that the pistol belonged to her and that Morales had never held the gun because he knew he was prohibited from doing so. Nevertheless, the jury found Morales guilty on both counts.

The district court sentenced Morales to concurrent 84-month sentences on each count and four years’ supervised release. Morales's effective Sentencing Guidelines range was 120 months due to prior felony convictions for aggravated assault and possession of marijuana with intent to distribute, but the district court granted a downward variance. Morales's presentence investigation report ("PSI") noted that the police conducted the trash pulls based on an anonymous tip -- the first time any information about this tip appeared in the record. Morales did not object to this PSI fact. He timely appealed the district court's judgment.

II.

We reject Morales's first claim on appeal -- that the district court erred in denying his motion to suppress the evidence found during the search of his home. Even if we assume Saliba's affidavit did not establish probable cause, Saliba and the other searching officers relied in good faith on the warrant.

In the typical trash-pull case, trash-pull findings either corroborate or draw corroboration from other evidence of illegal activity in the home to be searched, such as reports of drug activity in the home or maybe a resident's history of criminal drug activity. See, e.g., United States v. Jones, 471 F.3d 868, 873 (8th Cir. 2006) (drug residue found in two successive trash pulls combined with anonymous tip reporting drug sales at the target address). Morales's case falls within a rarer set: warrant applications whose case for probable cause rises or falls on trash-pull evidence standing...