* 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this opinion should not be published and is not precedent except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

January 8, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-40893

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES ERIC TILLMAN,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

(1:01-CR-231-1)

--------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

 Defendant-Appellant James Eric Tillman appeals the district

court’s denial of his motion to suppress evidence that resulted in

his conviction for possession with the intent to distribute

methamphetamine. Tillman entered a guilty plea to the offense

conditioned on his right to appeal the district court’s denial of

the suppression motion. He argues that the district court failed

to apply the correct legal standard regarding misstatements made in

the search warrant. Citing Franks v. Delaware, 438 U.S. 154, 155-
2

56 (1978), Tillman argues that, although the court determined that

the misstatements were not intentional, it erred by failing to

determine whether the statements were made with reckless disregard

for the truth.

 When we consider the denial of a motion to suppress, we review

factual findings for clear error and the sufficiency of a warrant

de novo. United States v. Cherna, 184 F.3d 403, 406 (5th Cir.

1999). The first step in reviewing the denial of a motion to

suppress is determining whether the good-faith exception to the

exclusionary rule applies. Id. at 407. If it does, we never reach

the question of probable cause. Id. 

 The good-faith exception to the exclusionary rule does not

apply if a search warrant affidavit contains a false statement that

was made intentionally or with reckless disregard for its truth.

United States v. Cavazos, 288 F.3d 706, 709-10 (5th Cir.)(citing

Franks, 438 U.S. at 155-56), cert. denied, 537 U.S. 910 (2002). If

an allegation of intentional falsity or reckless disregard for the

truth is established by the defendant by a preponderance of the

evidence, we excise the offending language from the affidavit and

then determine whether the remaining portion would have established

the necessary probable cause. Id. at 710. The defendant bears the

burden of showing, by a preponderance of the evidence, that a

misstatement was made with more than mere negligence. United
3

States v. Runyan, 290 F.3d 223, 234 n.6 (5th Cir.), cert. denied,

537 U.S. 888 (2002).

 Here, the explanation for the misstatement that Officer Hinton

offered was entirely plausible. Thus, the good-faith exception

applies and the warrant did not violate the Fourth Amendment. See

Cavazos, 288 F.3d at 710. Moreover, when the misstatements are

excised from the affidavit, the remaining portions of the affidavit

provides probable cause for the search. 

 Tillman also challenges the pre-warrant protective sweep of

the apartment, arguing that there were no exigent circumstances.

The district court found the presence of exigent circumstances

justifying the protective sweep. Even if we were to assume

arguendo that no exigent circumstances were present, the evidence

obtained from the search was admissible under the independent

source doctrine. Runyan, 290 F.3d at 235. We therefore do not

address the question whether exigent circumstances justified the

warrantless entry. See United States v. Register, 931 F.2d 308,

311 (5th Cir. 1991). 

 AFFIRMED.