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United States v. Huerra

United States Court of Appeals, Fifth Circuit

February 27, 2018

JESSE HUERRA, Defendant-Appellant.

         Appeal from the United States District Court for the Northern District of Texas

          Before REAVLEY, SMITH, and OWEN, Circuit Judges.


         Jesse Huerra was convicted of distributing methamphetamine, using firearms to further a drug-trafficking crime, and possessing firearms as a convicted felon. Huerra has appealed and contends that: (1) there was no probable cause to issue the warrant and therefore the district court should have suppressed the evidence seized during a search of his home; (2) errors during voir dire violated his Sixth Amendment right to a fair and impartial jury; and (3) the district court erroneously applied the career-offender enhancement to his Sentencing Guidelines range. We affirm.


         Police in San Angelo, Texas, suspected Huerra of trafficking methamphetamine and applied for a warrant to search his home. Primary support for the warrant application came from San Angelo Detective Hank Heathcock's five-page affidavit, which recounted Huerra's suspected trafficking activities and included information from two confidential informants (CIs) and two other police officers. A Texas state-court judge issued a warrant to search Huerra's house for methamphetamine and related items. San Angelo police, including Heathcock, executed the warrant and found drug paraphernalia, three firearms, and more than 1, 500 grams of methamphetamine.

         Relevant to this appeal, Huerra was charged with possession with intent to distribute 500 grams or more of methamphetamine (Count 12), possession of firearms in furtherance of a drug trafficking crime (Count 13), and possession of firearms by a convicted felon (Count 14). Huerra pled not guilty to all counts.

         Before trial, Huerra filed a motion to suppress the evidence seized during the search. He argued that the affidavit so lacked indicia of probable cause that the officers who executed the warrant could not in good faith have thought that it was valid. The district court held a hearing and then denied the motion. It ruled that the good-faith exception to the exclusionary rule applied and, alternatively, that the supporting affidavit gave the state-court judge a substantial basis to find probable cause.

         During voir dire, potential juror Jemal Floyd disclosed in open court that he was a parole officer who was currently supervising Huerra. The district court immediately excused Floyd. Prompted by defense counsel's follow-up questions, two other panel members expressed doubt about their ability to remain impartial in light of Floyd's statement. The district court then re- explained to the venire the presumption of innocence and the burden of proof and re-emphasized the jury's proper role in the case, following which a third panel member asserted that he too could be neither fair nor impartial. Defense counsel moved to strike the panel, arguing that Floyd's "outburst" had "tainted" the venire. The district court overruled the objection but ultimately excused the three panel members who questioned their ability to be impartial.

         The jury convicted Huerra on all counts. The district court ordered preparation of a presentence report (PSR), and the probation officer filed a PSR with two addenda. For Count 12, the PSR recommended life imprisonment because Huerra had two prior "convictions for a felony drug offense, " triggering a statutory "mandatory term of life imprisonment."[1] For Count 13, the PSR concluded that Huerra was a "career offender" under Section 4B1.1 of the Federal Sentencing Guidelines and applied that enhancement to Huerra's Guidelines range. The PSR based the career-offender designation on three prior Texas convictions: one for aggravated assault and two for possession with intent to distribute a controlled substance. The career-offender enhancement increased the Guidelines range for Count 13 from 295-months-to-life to 420-months-to-life in prison. For Count 14, the PSR recommended a 10-year term of imprisonment because the Guidelines range exceeded the statutory maximum of 10 years, with or without the career-offender enhancement.

         Huerra objected to the PSR, contending that the mandatory life sentence as to Count 12 did not apply and that he did not qualify as a career offender under the Guidelines. The probation officer declined to amend the PSR, and the district court overruled Huerra's objections and adopted the PSR. The district court sentenced Huerra to three concurrent sentences: life imprisonment on Count 12; 420 months of imprisonment on Count 13; and 120 months of imprisonment on Count 14. Huerra appealed.


         Huerra contends that his motion to suppress the evidence found at his home should have been granted because the search warrant was invalid. We first consider whether the good-faith exception to the exclusionary rule applies. We review de novo the district court's determination that it did.[2]


         When law-enforcement officers seize evidence through objectively reasonable reliance on a search warrant, the Fourth Amendment does not require that courts suppress the evidence.[3] This principle is the good-faith exception to the exclusionary rule. Typically, the fact that a magistrate has issued the warrant can establish that officers executed the warrant in good faith.[4] However, officers may not rely on a warrant that was supported only by a "bare bones affidavit."[5] We label an affidavit "bare bones" only "if it is so deficient in demonstrating probable cause that it renders an officer's belief in its existence completely unreasonable."[6] For example, affidavits "that merely state that the affiant 'has cause to suspect and does believe' or 'has received reliable information from a credible person and does believe' that contraband is located on the premises" are bare bones.[7] We make this determination by evaluating the totality of the circumstances.[8]

         A reasonable officer could have relied on this warrant in good faith. First, a magistrate issued the warrant, which normally establishes good faith. Second, Officer Heathcock's five-page affidavit was not bare bones. It included tips from two reliable CIs that Huerra was involved in methamphetamine distribution in San Angelo. The affidavit also described a San Angelo Police Department investigation that had identified Huerra as the supplier for several San Angelo methamphetamine dealers. Heathcock's affidavit further explained that, through "numerous investigative techniques, " New Braunfels Police Officer Kristen Malish had determined that Huerra was distributing methamphetamine from his home. Malish also gave "credible and reliable information" that Huerra was storing a large amount of methamphetamine at his home and had negotiated to sell four ounces of it to a San Angelo narcotics dealer. Finally, Heathcock explained that San Angelo police had conducted a four-month surveillance operation and confirmed that Huerra was distributing methamphetamine from his home. The affidavit contained much more than "wholly conclusory statements" that "lack the facts and circumstances from which a magistrate can independently determine probable cause."[9] The affidavit was not bare bones, and a reasonable officer could have relied on this warrant in good faith.

         Huerra asserts that the CIs' tips were stale and unreliable. Older tips are not stale if "the affidavit clearly shows a long-standing, ongoing pattern of criminal activity."[10] This affidavit demonstrated Huerra's longstanding, ongoing pattern of methamphetamine distribution. The tips were not stale. The affidavit also contained facts that support a conclusion that the CIs' tips were reliable. The CIs based their tips on personal knowledge, and both had given reliable information before. It is inconsequential that San Angelo Detective Craig Thomason was the original source for the second CI's tip because "officers may submit warrant applications containing hearsay, including, of course, information provided by other officers."[11] It makes no difference that the affidavit does not identify the source for the information obtained during the San Angelo Police Department investigation. The affidavit contains the common-sense inference-an inference that officers and magistrates are free to make-that Heathcock's information came either from his direct participation in the investigation or from other officers who participated in the same investigation, two presumptively reliable sources.[12]Finally, and contrary to Huerra's contention, the information from Malish was reliable. Officers "may submit warrant applications containing [police-officer] hearsay."[13] Heathcock's statements about Malish's investigative techniques are presumptively reliable because he based them on his "observation of [a] fellow officer[] participating in the same investigation."[14] Malish's information was "particularly detailed, " which can also establish the tip was reliable.[15] Furthermore, an officer could reasonably infer that Malish's "numerous investigative techniques" were a reliable source for her information.[16] Huerra has identified nothing that undermines the affidavit's reliability.

         The fact that a magistrate issued the search warrant coupled with the apparent reliability of the supporting affidavit shows that a reasonable officer could have relied on this warrant in good faith. The good-faith exception applies, and the district court correctly denied Huerra's motion to supress.


         Even if the good-faith exception did not apply, the affidavit gave the Texas district court a substantial basis for concluding that there was probable cause to search Huerra's home.

         Probable cause exists if "there is a fair probability that contraband or evidence of a crime will be found in a particular place, " considering "all the circumstances set forth in the affidavit."[17] Mindful that the Fourth Amendment's requirements "are practical and not abstract, " a warrant's supporting affidavit "must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion."[18] The "[t]echnical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area."[19] Accordingly, we must give "great deference" to the state district court's determination that probable cause existed.[20]

         Officers had a fair probability of finding contraband or evidence of a crime at Huerra's home. As discussed above, the affidavit provided ample evidence that Huerra was distributing methamphetamine from his home. That evidence came from at least four reliable sources, spanned several months, and told a consistent story. The district court gave appropriate deference to the state district court's determination and correctly concluded that the state district court had a substantial basis for issuing the search warrant.

         Because the good-faith exception applies or alternatively because there was a substantial basis for issuing the warrant, the district court did not err in denying Huerra's motion to supress.


         Huerra contends that his Sixth Amendment right to a fair and impartial jury was violated because the district court refused to dismiss the panel of potential jurors after one of them (Floyd) revealed that he was Huerra's parole officer. The Sixth Amendment guarantees a fair and impartial jury.[21] A jury is unfair and partial if the jurors "had such fixed opinions that they could not judge impartially the guilt of the defendant."[22] But "jurors need not . . . be totally ignorant of the facts and issues involved."[23] Jurors are considered fair and impartial so long as they "can lay aside [an] impression or opinion and render a verdict based on the evidence presented in court."[24]

         The district court's actions before and after Floyd's disclosure ensured that Huerra's jurors would be fair and impartial. As voir dire began, the district court told the panel to presume Huerra's innocence. After Floyd offered that he was Huerra's parole officer, the district court immediately excused him. Subsequently, the district court gave the panel members an opportunity to disclose whether, for any reason, they should not serve on the jury. The district court allowed defense counsel to ask the panel members whether Floyd's statement might affect their ability to be fair and impartial. In response, two panel members told the court that Floyd's statement might affect them, prompting the district court to remind the panel about the presumption of innocence, the burden of proof, and the jury's proper role in the case. Then the court asked these two panel members whether Floyd's statement might prevent them from being fair and impartial, and they said that it would. The district court then permitted defense counsel to ask whether anyone else felt the same, and a third panel member also said that Floyd's statement might have an impact. Defense ...

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