* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 11, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-51311

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

RALPH RAMIREZ

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas, San Antonio

No. 5:05-CR-247

Before KING, DAVIS, and CLEMENT, Circuit Judges..

PER CURIAM:*

Defendant-appellant Ralph Ramirez appeals his conviction, pursuant to

a conditional guilty plea, on one count of possession with intent to distribute

methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). We affirm.

On April 8, 2005, Detective Johnny Gomez of the San Antonio, Texas,

Police Department received a tip from a confidential informant who was in

custody and facing criminal charges that Ramirez was in possession of
No. 06-51311

2

methamphetamine at his residence. Detective Gomez prepared an affidavit,

averring that the informant “had observed RALPH RAMIREZ in possession of

METHAMPHETAMINE within the past FORTY-EIGHT HOURS at 223 W.

SILVER SANDS #6 in San Antonio, Bexar County, Texas.” The affidavit also

stated that Detective Gomez had confirmed through a computer search that the

address on Ramirez’s drivers license matched the address given by the

informant. Additionally, the affidavit set forth certain facts to support the

informant’s credibility: (1) based on Detective Gomez’s conversations with the

informant and his own knowledge of and experience with methamphetamine, the

informant was familiar with methamphetamine (including how it looks and

smells and how it is packaged, sold, and used); (2) a separate confidential

informant had informed Detective Gomez that the primary informant was a

seller of methamphetamine; (3) although the informant was facing criminal

charges and provided the information with the expectation that his or her

cooperation could, if proven valid, result in leniency, no officer had promised the

informant anything in exchange for the information; (4) Detective Gomez had

explained to the informant that it would jeopardize his or her opportunity for

leniency if law enforcement were to discover that he or she had provided

information in a bad-faith attempt to obtain leniency; and (5) Detective Gomez

had explained to the informant that giving a false report to a police officer

violated section 37.08 of the Texas Penal Code, and he described the possible

penalties for such a violation.

Based on the affidavit, a city magistrate issued a search warrant for

Ramirez’s apartment. The next day, San Antonio Police Department officers,

including Detective Gomez, performed a search of Ramirez’s residence and

seized, inter alia, 55.7 grams of methamphetamine.

The grand jury indicted Ramirez on one count of possession with intent to

distribute five grams or more of methamphetamine in violation of 21 U.S.C. §
No. 06-51311

3

841(a)(1) and (b)(1)(B). Ramirez filed a motion to suppress the evidence seized

during the search of his apartment, but the district court denied the motion.

Pursuantto a plea agreement, Ramirez conditionally pleaded guilty, preserving

his right to appeal the denial of his suppression motion.

On appeal, Ramirez contends that the district court should have granted

his motion to suppress because there was not probable cause to support the

warrant and because the affidavit used to secure the warrant was a “bare bones”

affidavit,thereby making it objectively unreasonable for an officer executing the

warrant to rely on it.

When reviewing a ruling on a motion to suppress, we review questions of

law de novo and factual findings for clear error. United States v. Jones, 234 F.3d

234, 239 (5th Cir. 2000). We review de novo the reasonableness of an officer’s

reliance upon a warrant issued by a magistrate. United States v. Satterwhite,

980 F.2d 317, 321 (5th Cir. 1992). We view the evidence in the light most

favorable to the party that prevailed in the district court. Jones, 234 F.3d at

239.

Where the challenged search was conducted pursuant to a warrant, we

must determine “(1) whether the good-faith exception to the exclusionary rule

applies; and (2) whether probable cause supported the warrant.” United States

v. Marmolejo, 86 F.3d 404, 417 (5th Cir. 1996). If the good-faith exception

announced in United States v. Leon, 468 U.S. 897 (1984), applies, then “we need

not reach the question of probable cause for the warrant unless it presents a

‘novel question of law,’ resolution of which is ‘necessary to guide future action by

law enforcement officers and magistrates.’” United States v. Payne, 341 F.3d

393, 399 (5th Cir. 2003) (citing United States v. Pena-Rodriguez, 110 F.3d 1120,

1129-30 (5th Cir. 1997)). As this case does not present a novel question of

Fourth Amendment law, we will bypass the probable-cause determination and

proceed to the application of the Leon good-faith exception.
No. 06-51311

4

“In considering whether the good-faith exception applies, we do not

attempt an ‘expedition into the minds of police officers’ to determine their

subjective belief regarding the validity of the warrant.” Id. (quoting Leon, 468

U.S. at 922 n.23 (internal quotation marks omitted)). “Rather, our inquiry is

‘confined to the objectively ascertainable question whether a reasonably well

trained officer would have known that the search was illegal despite the

magistrate’s authorization.’” Id. (quoting Leon, 468 U.S. at 922 n.3). “Whether

the exception applies will ordinarily depend on an examination of the affidavit

by the reviewing court, but all of the circumstances surrounding issuance of the

warrant may be considered.” Id. (internal citations, brackets, and quotation

marks omitted) (quoting United States v. Gant, 759 F.2d 484, 487-88 (5th Cir.

1985); Leon, 468 U.S. at 922 n.23).

“Under the good-faith exception, evidence obtained during the execution

of a warrant later determined to be deficient is admissible nonetheless, so long

as the executing officers’ reliance on the warrant was objectively reasonable and

in good faith.” Id. (citing Leon, 468 U.S. at 921-25). One of the circumstances

where an officer’s reliance on a warrant is not objectively reasonable is where

the affidavit used to secure the warrant is “bare bones,” i.e., “the warrant is

based on an affidavit so lacking in indicia of probable cause as to render official

belief in its existence entirely unreasonable.” Id. at 399-400 (quoting United

States v. Webster, 960 F.2d 1301, 1307 n.4 (5th Cir. 1992)). “‘Bare bones’

affidavits typically ‘contain wholly conclusory statements, which lack the facts

and circumstances from which a magistrate can independently determine

probable cause.’” United States v. Pope, 467 F.3d 912, 920 (5th Cir. 2006)

(quoting Satterwhite, 980 F.2d at 321); see also Marmolejo, 86 F.3d at 417.

“Generally, examples of ‘bare bones’ affidavits include those 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
No. 06-51311

5

on the premises.” Id. (brackets omitted) (quoting United States v. Brown, 941

F.2d 1300, 1303 n.1 (5th Cir. 1991)).

Ramirez first argues that the affidavit was deficient because the

information within it was stale, as at the time it was completed it had been up

to forty-eight hours since the informant had observed Ramirez in possession of

methamphetamine. It is true that the passage of time may affect the probable

cause inquiry. See United States v. Freeman, 685 F.2d 942, 951 (5th Cir. 1982)

(“Although probable cause may exist at one point to believe that evidence will be

found in a given place, the passage of time may (without additional newer facts

confirming the location of the evidence sought) render the original information

insufficient to establish probable cause at the later time.”). But in granting the

search warrant,the magistrate implicitly determined that the information in the

affidavit was sufficiently recent to support probable cause. We are not

persuaded that the passage of up to forty-eight hours in this case rendered the

information in the affidavit so stale thatthe officers’ reliance on the magistrate’s

probable-cause determination was objectively unreasonable.

Ramirez’s remaining contentions relate to the confidential informant’s

credibility and reliability, or alleged lack thereof. He argues (1) that although

Detective Gomez explained to the informant the possible penalties for making

a false statement to a police officer, this did not enhance the informant’s

credibility because the informant was not notified that he faced a “real risk” of

prosecution; (2) the informant’s personal motivation for assisting the police cast

doubt on the veracity of his tip; (3) the affidavit did not establish the credibility

and reliability of the second informant, who had informed Detective Gomez that

the primary informant was a seller of methamphetamine; and (4)the officers did

not sufficiently corroborate the primary informant’s tip.

We conclude, however, that there was sufficient evidence in the affidavit

to objectively justify the officers’ reliance on the magistrate’s independent
No. 06-51311

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probable-cause determination. The information set forth in the affidavit about

Ramirez’s possession of methamphetamine did not come from an anonymous tip;

it was information that a known individual had provided. The affidavit

recounted activities that the informant had witnessed himself or herself. The

informant appeared to be knowledgeable about methamphetamine; indeed,

Detective Gomez had information that the informant sold methamphetamine.

The informant had been warned of the possible danger he or she might face if

law enforcement discovered that the information was untrue. And Detective

Gomez verified that the address given by the informant was Ramirez’s.

Regardless of whether all of this together actually amounts to probable cause to

believe that Ramirez possessed methamphetamine at his home, it is beyond the

realm of mere conclusory statements and is sufficient for a magistrate to make

a probable-cause determination. Cf. Pope, 467 F.3d at 920 (“‘Bare bones’

affidavits typically ‘contain wholly conclusory statements, which lack the facts

and circumstances from which a magistrate can independently determine

probable cause.’”). The affidavit was therefore not bare bones, and the officers’

reliance on the magistrate’s probable-cause determination was not objectively

unreasonable. Consequently, the good-faith exception to the exclusionary rule

applies, and the district court’s denial of the motion to suppress was not

erroneous.

AFFIRMED.