### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30235

UNITED STATES OF AMERICA, Plaintiff-Appellee
v. CASSETTI DEWAYNE BROWN, Defendant-Appellant

Appeal from the United States District Court for the Western District of Louisiana USDC No. 2:10-CR-291

Before WIENER, DENNIS, and OWEN, Circuit Judges. JAMES L. DENNIS, Circuit Judge * : Defendant-Appellant C assetti Dewayne Brown (“Brown”) appeals his conviction of possession with intent t o d i s tribute 28 grams or more of crack cocaine in violation of 18 U .S.C. § 841(a)(1) and (b)(1)(B). He contends that there

was insufficient evidence to support his conviction and that the distr i ct court erred i n denying his motion t o suppress e vidence seized from his vehicle after a traffic stop and f

rom his residence after a warrant se a rch. We hold that the district court did n o t err in f inding that the search of the vehicle w as lawful U n i t e d S t a t es C o u rt o f A p p e a l s

F i f t h C ir c u i t 

### F I L E D May12, 2014 Ly le W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-30235 Document: 00512626487 Page: 1 Date Filed: 05/12/2014No. 12-30235

u n der t he Fourth Amendment, and denying Brown’s motion t o suppress t h e evidence seized in the vehicle. However, because the polic e o f f i c e r s who conducted the search of B rown’s residence did not act i n good faith and because the magistrate judge did not have a substantial basis f or finding probable cause f o r t h e s earch o f Brown’s home, the district court erred in denying Brown’s motion to suppress with regard to the evidence obtained d uring the search of his residence. We therefore affirm the district court’s o rder denying Brown’s motion to suppress the evidence found in Brown’s car, reverse the district c ourt’s order denying Brown’s motion t o s u p p r ess the evidence found in Brown’s residence, vacate the conviction and sentence, and remand for further proceedings. I. Background A. Facts 1. Traffic Stop O n August 11, 2010 at approximately 1 1:20 p.m., Bryan Somers (“Somers”), then a police officer with t he Leesville Police Department, was driving his marked police unit on h ighway 171 i n Leesville, L ouisiana. He was t raveling with his d rug-detecting dog, who was trained to detect narcoti c s
. Somers conducted a traffic stop of a Jeep sports utility vehicle, driven by Brown,

a f t e r B rown turned onto the highway w i thout yielding to Somers. Brown wa s accompanied b y Taiwanna Cole (“Cole”), who sat in the f ront passenger seat. When Somers a p p r o a c hed Brown’s vehicle, he observed an open container of alcohol in the center console, smelled alcohol, and noticed t h a t B r own had bloodshot eyes and slurred speech. Brown admitted that he had been drinking

e a r l i e r i n the evening but s tated that he was not intoxicated and that he was driving to h is house “down the road.” Brown and Cole both told Somers that the open container of alcohol belonged to Cole. Somers asked for Brown’s driver’s license, registration d o c u ments, and proof o f insurance. Brown provided his driver’s license but did not have the

2 Case: 12-30235 Document: 00512626487 Page: 2 Date Filed: 05/12/2014No. 12-30235

remaining documents. Somers took t he license and informed Brown that he was going to c onduct a c omputer c heck but that Brown could leave if t he check came back clean and no further problems arose. S omers then returned t o h i s car. While radioing for the computer check, Somers’s sergeant a sked if he intended to perform a K-9 free a i r s n i f f of the vehicle. Somers then remembered that, several month s p r ior, he h ad been told that a K-9 officer should be summoned if B rown was p ulled over during a traffic stop b ecause Brown was the subject of

an ongoing drug inve s t i g ation. At this point, Somers radioed for additional officer assistance but did n ot conduct a K-9 open air sniff. H e r e t u rned to Brown’s vehicle and asked Brown to exit t h e Jeep. Somers informed B rown that he wa s a n arcotics officer a nd asked if there were drugs or w eapons in the vehicle. Brown a nswered t hat there were n ot. Somers then twice asked for consent to search Brown’s vehicle. Brown refused both times. Somers continued to question Brow n a s t w o additional officers arrived to assist Somers, Josh Martin (“Martin”) an d D a k o t a Cryer ( “Cryer”). Cryer heard Somers ask for permission to se a rch t h e car the third time. This time, Brown agreed to allow the s earch. Somers testified that the c onversation in which he a sked for Brown’s consent to search the vehicle lasted approximately sixty seconds. After obtaining Brown’s consent, S omers t hen instructed Cole to exit the Jeep. When she e xited t he car, Somers l e aned inside the vehicle and saw a small bag t hat contained a second, smaller b ag—described as a small, b lue, plastic ziptop bag—on the center h ump between the driver’s seat and t h e p a ssenger seat. The bag contained one rock o f w h a t a p p e ared to be crack cocaine. The substance was subsequently tested and confirmed to be crack cocaine weighing 0.7 o f a gram. Somers estimated that eigh t m i n utes e lapsed from the time he pulled Brown over until the search of the vehicle was conducted. After Somers found the substance, Martin and C ryer handcuffed Brown and C ole. Martin patted Brown down an d f ound a folding knife and a second

3 Case: 12-30235 Document: 00512626487 Page: 3 Date Filed: 05/12/2014No. 12-30235

object, which Martin testified looked l ike a “ pr i s o n s h ank,” in Brown’s waistband. After t ransporting Brown and Cole to the police station, Martin found a small bag of marijuana and rolling papers in the back of the police car

on the s i d e w here C ole h ad been sitting. During a subsequent interrogation, Cole said that the c ocaine found in the car belonged to her but misidentified the bag as being green rather than blue.

2 . Search Warrant and Search of Residence While on the scene o f t he traffic stop, S omers contacted Charlie Lopez (“Lopez”), who at the time was a narcotics agent w ith the Lees v ille Police Department. 1 L o p ez was investigating Brown for his involvement in drug trafficking. On the morning after Brown’s arrest, Lopez prepar e d an affidavit for a search warrant for Brown’s residence, located at 1729 N ona Street (“Nona Street residence” or “residence”). In the affidavit, Lopez declared that: O n Au g ust 1 1, 2010 PFC Bryan Somers made a t raffic stop o n a 1986 Jeep Grand Cherokee

. . . . While making contact w i t h t h e driver, identified as Cassetti Brown, PFC Somers observed an open container of alcohol in the vehicle. PFC Somers asked B r o wn to step out o f the vehicle with him where PFC Somers a sked Brown if h e had any narcotics or weapons in the vehicle. B r o w n gave PFC Somers verbal consent to s e arch the vehicle. PFC Somers then had the p a s s e n ger Taiwanna Cole exit the vehicle. As PFC S omers entered the vehicle to begin his search, h e s aw in plain view a clear plastic ba g w i t h a w hite substance believed t o be crack cocaine located on t he driver’s side of the c enter console area. PFC S omers continued to s earch the vehicle, but was unable to do a thorough search due to area of the traffic stop and having t o transport Brown and Cole b ack to Leesville Police Department. B oth Brown and C ole

1 Ap proxim ately tw o m on t h s af ter the events of this cas e, Lop ez w as arres ted on charges of drug d is tribution. H e p lead ed guilty to d is tribution of anabolic s t e r o i d s
. H e ad m itted to purchas ing, us ing, and d is tributing anabolic s teroid s to at leas t one other m em ber of the p olice f

orce. H e als o ad m itted to s elling p res crip tion p aink illers to his p olice chief, w ho
w as term inated from his p os ition. John Sim s , an inves tigator with the Lees ville Police D ep artm ent w ho w as p res ent fo r a n d a s s i s ted in the search of Brow n’s hom e, w as als o im p licated in Lop ez’s d is tribution of s teroid s
. 4 Case: 12-30235 Document: 00512626487 Page: 4 Date Filed: 05/12/2014No. 12-30235

were transported to L PD in the same unit b y P/ O J oshua Martin and P/O Dakota C ryer. P/O Martin searched the b ack seat p rior to placing Brown and Cole in the v ehicle. D uring transport, both C ole and Brown w ere moving a round i n t h e b ack of the vehicle. After removing Brown a nd Cole from t he vehicle, P/ O M a r tin f ound a plastic bag containing mari j u a n a i n the back of his vehicle. Both Brown a nd Cole w ere b ooked into t h e L e e sville City J ail on d rugrelated charges. B rown is currently on Federal Parole for d rugrelated charges a nd has a lengthy criminal history for violent and drug-related charges. Brown has a lso been the target of an on-going investigation for the trafficking o f n a r c o tics d uring the p ast four months which include d information of how Brown packaged narcotics for sell [sic] which was consistent with the item located in Brown’s v ehicle du r ing the traffic stop. This information was obtained through a Confidential Reliable Source. It i s believed that additional n a r cotics may still b e located in the v ehicle, which was towed to the L eesville Impound L o t

. It i s also believed that additional narcotics and paraphernalia are located at Brown’s residence. On the basis of the affidavit, the magistrate j udge signed the search warrant at 11:55 a.m. on August 12, 2010. Prior to o btaining the warrant, Lopez sent t w o L eesville Police Departm e n t o f

ficers, L andon Dowdin (“Dowdin”) and Jeremy Swisher (“Swisher”), to conduct a protective sweep and to secure the premises pending the search

. Ac c ording to the police report, they arrived at 1 0:59 a.m. and knocked on the front door. Heggie Reynolds (“Reynold s”) answered the door. Reynolds grant e d t h e m p ermission to do a protective sweep of the house. Dowdin and Swisher placed Reynolds in the b ack o f t he police vehicle and then conducted a sweep o f the house. T he officers did not f ind anyone else present. John Sims (“Sims”), an investigator for the Leesville Police Department, arrived at 11:17 am. Lopez arrived soon thereafter and the search commenced. 2

2 D ow d in and Sw is her tes tif ied that L op ez and Sim s arrived at the s am e tim e, but in
s ep ara t e cars
. Sw is her tes tif ied that w hen Lop ez arrived , he had the s earch warrant w ith him , and that t h e s earch began s oon af ter Lop ez arrived , around 11: 17 am
. T he rad io log 5 Case: 12-30235 Document: 00512626487 Page: 5 Date Filed: 05/12/2014No. 12-30235

Swisher searched the defendant’s bedroom. He found B r o w n ’ s expired identification card a nd mail addressed t o Brown in the room. In the trash can, Swisher found a brown bag. Inside the b rown bag was a la r g e b a g g i e that contained several small, blue-colored zipto p b a g gi e s
. E a c h b lu e baggie c ontained

a substance later tested and confirmed to b e cra c k c ocaine. There were also larger baggies containing “crack cookies.” T he cocaine w eighed 9 0.6 grams. In the drawer of the bedside table, Swisher found Brown’s social security card, his b i rth certificate, other identification with h is name on it, and mail and b i l l s addressed to B rown. The two remaining bedrooms in the house b elon g e d t o Reynolds, Brown’s uncle Jerry Brown (“Jerry”), and Jerry’s twelve-year-old son. Reyno l d s a n d Jerry both testified at trial that they never entered Brown’s bedroom. B. Procedural History Brown was indicted with one count of possession with intent to distribute 28 grams or m ore of a mixture or substance containing a d e tectable quantity of cocaine b ase or “crack,” in violation of 21 U.S.C. § 841(a)(1). B rown’s attorney filed a motion to suppress the evidence collected during the t raffic stop and the evidence c ollected during t h e s e a r c h of his residence. The district court conducted a suppression h e aring on January 13, 2011, at w hich S omers and Cryer test i f

i e d a s government witnesses, Lopez testified as a defense witness, and Somers was recalled as a defense witness. At the conclusion of the hearing, the district c ourt denied the motions. At trial, Brown reurged his suppression motions, which the district c ourt denied. The district court also denied Brown’s motions for judg m e n t of acquittal, which Brown urged at the close of the government’s case and again at the close o f all evidence. The j ury found Brown

ref lected that Lop ez w as at the dis trict court at 11: 43 a. m. and en route to Brow n’s res id ence at 12: 02 p
. m
. T he w arrant w as s igned at 11: 55 a. m
.

6 Case: 12-30235 Document: 00512626487 Page: 6 Date Filed: 05/12/2014No. 12-30235

guilty. He was sentenced to 150 months of i mpris o n m e n t , followed by eight years of supervised release. He now appeals. II. ANALYSIS Brown a rgues that the district c ourt erred in d enyi n g h i s m o tions to suppress the evidence o btained during the search o f his vehicle and residence. In reviewing a district c ourt’s denial of a m o t i o n to suppress, we review the district court’s f

indings o f fact for clear error a nd its conclusions o f law de novo
. United S tates v. Raney , 633 F.3d 385, 3 8 9 ( 5 t h Cir. 2011). Thus, while “determinations of reasonable suspicion and p ro b able cause[] are reviewed de

novo ,” United States v. Zavala, 541 F.3d 562, 574 (5th Cir. 2 0 0 8 ) , “[t]he voluntariness of a detainee’s consent to a warrantless search is a f inding of fact to be revi e w e d for clear error.” United States v. Tompkins , 130 F.3d 117, 120 (5th C ir. 1997)

. When “a district court’s denial o f a suppression motion is based

on live oral testimony, the clearly erroneous standard is particularly strong because the j u d g e had the opportunity to observe the demeanor of the witnesses.” United States v. Gibbs , 421 F .3d 352, 3 57 (5th Cir. 2005). We view the e v i d e nce in the light most favorable to the government as the party that prevailed in the district court. See Raney , 633 F.3d at 389

. A. Traffic-Stop Evidence

1
. Brown conten d s t h a t the district court erred in d enying his motion to
suppress the evidence gathered during the search of his vehicle. “The stopping of a vehicle and detention o f i t s o c c upants constitutes a ‘seizure’ under the Fo u rth Amendment.” United States v. Brigham , 382 F.3d 500, 506 (5th Cir. 2004) (en b anc). The Supreme Court h as “long held that the ‘touchstone of the Fourth Amendme n t i s r easonableness.’ Reasonableness, in turn, is measured in objective terms by examining the totalit y of the circumstances.” Ohio v. Robinette , 519 U .S. 3 3, 39 (1996) (quoting Florida v. Jimeno , 5 00 U.S. 248, 250

7 Case: 12-30235 Document: 00512626487 Page: 7 Date Filed: 05/12/2014No. 12-30235

(1991)). Under t he Terry v. Ohio , 392 U

. S. 1 (1968), two-step test, “we determine the reasonableness of an i nvestigative sto p b y e x amining: (1) whether the officer’s actio n o f s topping the vehicle was justified at its inception, and (2) whether t he officer’s acti o n s were r easonably related in scope to the cir c umstances that justified the s top.” United States v. Stevens , 487 F.3d 232, 244 (5th Cir. 2007) (citing Terry , 392 U.S. at 19-20). Somers had i nitial justification for the traffic stop b a s e d o n B r o wn’s failure to yield. Thus, the first p r o ng of the Terry i n quiry i s not at i ssue, and Brown does n ot contend o t herwise. Rather, Brown argues that the stop was unconstitutionally prolonged, and thus was unreasonable in s cope under Terry’s second prong. Under the second prong of the Terry test , we ask whether Somers’s actions after stopping Brown’s v ehicle “were reasonably related to the circumstances that justified the stop, or t o dispelling his reasonable suspicion developed during the s top.” Brigham , 382 F.3d at 507. T he detention o f Brown and his vehicle “must be temporary and last no longer t han is necessary to effectuate the purpose of the stop, u nless f u r t h e r reasonable suspicion, supported by articulable facts, emerges.” Id. (citing United States v. Dortch , 199 F.3d 193, 2 00 (5th Cir. 1999), and United States v. Machuca-Barrera , 261 F.3d 425, 434 (5th Cir. 2 001)). T h e r e f ore, u nless additional reasonable suspicion arises during the c ourse of the stop, “once all r elevant c o mputer che c k s h a v e

come ba c k c l e a n, there is no more reasonable suspicion, a nd, as a general matter, continued questioning thereafter unconstitutionally prolongs the detention.” United States v. Lopez-Moreno , 420 F.3d 420, 431 (5th Cir. 2005). “Reasonable suspicion exists when the detaining officer can p o i nt to specific and articulable facts t hat, when taken together with rational inferences from t hose facts, reasonably warrant the search a nd seizure.” United S tates v. Estrada , 459 F.3d 627, 631 (5th Cir. 2001). “The determination

. . . must be made based on t h e t otality of the circumstances and t he collective knowledge

8 Case: 12-30235 Document: 00512626487 Page: 8 Date Filed: 05/12/2014No. 12-30235

and e x perience of t he officer.” Id. U n der t h e collective-knowledge doctrine, an officer may rely on a prior alert or report from other law-enforcement officers to establish reasonable suspicion for a traffic s top, even if the officer conducting the stop does not himself have p ersonal knowledge of the evidence sup p o r t i ng the aler t

. Se e U

n i ted States v. Khanalizadeh , 493 F.3d 479, 483 (5th Cir. 2007); United States v. Ibarra-Sanchez , 199 F.3d 753 , 7 5 9 ( 5th Cir. 1999). Evidence gathered during s uch a stop is admissible if t he officer made the stop in objective reliance on another law-enforcement d epartment’s flyer or bulletin, i f “the police who issued the flyer or bulletin possessed a r easona b l e s u spicion justifying a stop, and if t he stop t hat in fact occurred w as not significantly more intrusive than would have been p ermitted the is s u i ng department.” United States v. Hensley , 469 U.S. 221, 232 (1985). Because Somers extended t he stop to seek Brown’s c onsent to search the

car in o bjective reliance on Lopez’s al e rt, the first inquiry s hould be whether Lopez possessed r easonable su s p i c i o n justifying the issuance o f the alert. However, Brown neglected to argue to the district court that Lopez’s alert was not adequately founded upon reasonable suspicion. Instead, de f e n s e c ounsel argued that Somers was obligat e d t o t e rminate the stop o nce Brown’s license check came b a c k clean, a nd t hat, by the t ime Somers recalled the information he received from Lopez, Brown had a l r e a d y been u n constitutionally d etained without probable cause. In response to the distric t court’s inquiries, Brown’s counsel conceded that, i f Somers had recalled the “intelligence” he received from Lopez earlier in t he traffic stop, then Somers’s effo r t s t o seek Brown’s consent to search would have been lawful. Accordingly, we find that Brown waived his argument that Somers c ould not objectively rely upon Lopez’s alert to justify the
p r o l ongation of the t r affic stop. See United States v
. Cano, 519 F.3d 5 1 2 , 5 1 5 (5th Cir. 2008) (declining to consider defendant-appellant’s argument regarding the voluntariness of his consent to search, when defendant argued in the district

9 Case: 12-30235 Document: 00512626487 Page: 9 Date Filed: 05/12/2014No. 12-30235

c o u r t o nly that the scope o f his consent was insufficient to justify the searc h)

. 3 Thus, we may c onsider Lopez’s alert a s p art of the totality of t he circumstances informing Somers’s decision to extend the stop. Khanalizadeh , 493 F.3d at 483 (finding that the officer conducting t he traffic stop and subsequent search “could rely on the FBI’s drug alert, even though h e did n ot h ave p e rsonal knowledge of the evidence uncovered by the FBI, t o establish his reasonable suspicion that the [suspect’s vehicle] contained drugs”). In addition t o the alert f r o m L opez, Somers
p o s s e ssed independent knowledge that B rown appeared to be drunk and that there was a n o p e n container of alcohol in the Jeep. Somers therefore had reasonable suspicion based on both his p ersonal o bservations during the traffic stop and on the c ollective knowledge from Lopez’s alert t h at “ something illegal

was afoot,” beyond t he i nitial reason for the stop, j ustifying a r e a sonable extension of the roadside detention to dispel or confirm his suspicions. United States v. Pack, 612 F.3d 341, 350; 355 (5th Cir. 2010).

3 Even if the is s ue w as not w aived but rather was f orf eited , Brow n can only p revail on this argum ent if w e f ind that t h e d i s t r i c t court com m itted p lain error w hen it relied up on Lop ez’s alert to jus tif

y Som ers ’s d etenti o n a n d q u e s t ioning. See U ni t ed Sta tes v
. Pop e , 467 F. 3d 912, 917 ( 5th Cir. 2006) ; see a lso U ni ted Sta tes v
. G uz m a n , 739 F. 3d 241, 246 ( 5th Cir. 2014) ; U ni ted Sta t es v. Scroggi ns , 599 F. 3d 433, 448 ( 5th Cir. 2010) ( “[ O ] ur cas es id entif ying
s uch waiver have of

ten p roceed ed to evaluate the is s ues und er a p lain error s tand ard f or good
m eas ure. ”)

. U nd er the p lain erro r s tand ard , w e m ak e three initial d eterm inations : ( 1)
w hether the d is trict court com m itted error; ( 2) whether th e e r r or is clear and obvious ; and ( 3) w hether the error af f ects s ubs tantial rights

. If thes e cond itions
are m et, w e have d is cretion to revers e the d is trict court if the error s erious ly af f ects the f

airnes s , integrity, or p ublic rep utation of jud icial p roceed ings

. Scroggi ns , 599 F. 3d at 449 ( quotation m ark s and internal citations om itte d)

. B a sed on the lim ite d facts ad d uced in the s up p res s ion hearing regard ing Lop ez’s alert, and view ing the evid ence in the light m os t f avorable to the governm ent, w e cannot conclud e that the d is trict court com m itted p lain error in f ind ing that Som ers p rop erly relied up on Lop ez’s alert to jus tif y the extens ion of the traf f ic s top

. “While it w ould be a clos e ques tion und er a les s d ef erential
s tand ard of review , w e d o not und ers tand the exis tence of [reas onable s us p icion] to be p lain
error given thes e f

acts

. ” Uni ted Sta tes v
. N ew ma n , 472 F .3d 233, 237 ( 5th C ir. 2006)

. 10 Case: 12-30235 Document: 00512626487 Page: 10 Date Filed: 05/12/2014No. 12-30235

Accordingly, w e conclude that Some r s ’s actions during the stop were reasonable. After i nitially stopping t he vehicle and observing the open c ontainer of alcohol and other evidence suggesti n g B r o w n had been drinking, Somers lawfully questioned Brown and Cole ab o u t t h e open c o ntainer, asked whether Brown had been drinking, and inquired a s t o his t ravel plans. Thereafter, while conducting the license check, Somers recalled Lopez’s alert that Brown was the subject of an ongoing narcotics inve s t igation and Lopez’s directive that, if stopped, officers should conduct a K-9 dog sniff around Brown’s vehicle. Rather than c o n d u c t a dog sniff, Somers chose to extend the stop by sixty seconds to seek B rown’s consent to search the vehicle. This brief prolongation of the traffic stop was an appropriate, r easonable attempt to dispel o r confirm the suspicions regarding Brown’s involvement in n a rc o t i c s trafficking. I d. When we objectively consider the totality of the circumstances, including Lopez’s alert, we conclude that Somers had specific, factual grounds to reasonably suspect t hat Brown had violated, was vio l a t i n g , o r was about to violate drug trafficking laws, and that t h i s r e a sonable suspicion justified Somers’s prolongation of the traffic stop f o r approximately sixty seconds to seek Brown’s consent to s e a r c h t h e car
. See Brigham, 382 F.3d at 5 08 (finding t hat a seven minute extension of a t raffic stop to question the defendant regarding his travel plans and to obtain consent to search his vehicle was reasonable under t he circumstances). The district court d i d n o t err in finding that the traffic stop was lawful under the Fou r t h Amendment. 2. Brown next contends that the search of his vehicle was unconstitutional because his consent to the s e arch was n ot voluntary. 4 We review the district

4 Although Brow n d id not exp licitly argue to the d is trict court that his co n s e n t w as involuntary, w e find that his argum ents in the d is trict court regard ing cons ent w ere ad equate to p res erve the is s ue f or our review

. At the s up p res s ion hearing, Brow n’s couns el contend ed that Som ers im p rop erly d etained Brow n w hile “go[ ing] back and f orth w ith” Brow n “until he
11 Case: 12-30235 Document: 00512626487 Page: 11 Date Filed: 05/12/2014No. 12-30235

court’s factual finding of voluntariness of consent for clear error. United States

v. Solis , 299 F .3d 420, 436 ( 5th Cir. 2 002). As noted supra, we view the evidence in the light most favorable t o the government as the party that prevailed in the district court, see Raney , 633 F.3d at 3 89, and, because the “district court’s denial of a suppression motion is b ased on live oral testimony, t h e clearly erroneous standard is particularly strong. . . .” Gibbs , 421 F.3d at 357. “A search conducted pursuant to consent is excepted from the F o u r th Amendment’s

. . . r equirements.” United States v. Solis , 299 F.3d 420, 4 36 (5th Cir. 2002). Where the government asserts that no s earch warrant was required because the officer obtained voluntary c onsent f or th e s earch, the government must p rove by a preponderance of the evidence that consent was freely and voluntarily given. United States v. Tompkins , 130 F.3d 117, 121 ( 5th Cir. 1997). Whether “consent to a search was in fact ‘voluntary’ o r was the product of duress

or coercion, express or implied, is a question of fact to b e determined f r o m the totality of a ll the circumstances.” Schneckloth v
. Bustamonte , 412 U.S. 218, 227 (1973). “ In evaluating the voluntariness of consent, [the Fifth Circuit] look[s] to six factors: (1) the voluntariness of the defendant’s custodial stat u s ; ( 2 ) the
presence of coercive police procedures; ( 3) the e xtent a nd level of the defendant’s cooperation w ith the police; (4) the defendant’s awareness of his r i ght to refuse consent; (5) the defendant’s education and intelligence; and (6) the defendant’s belief that no incriminating evidence will b e found.” United States v. Cavitt , 550

g[ ave] [ Som ers ] an ans w er ‘yes ’ or ‘no. ’” Ad d itionally, the ques tioning of the w itnes s es at the
s up p res s ion hearing elicited f acts relevant to the voluntarines s inquiry; f or exam ple, O f

f icers Som ers and Cryer both tes tif ied that Brow n w as never thre a t e n e d or intim id ated bef ore p rovid ing cons ent to s earch. O n cros s exam ination, Brow n’s couns el ques tioned the of f icers regard ing the w ord ing B row n us ed to initially ref us e cons ent, and inquired about the tim ing of B row n’s cons ent. Thus , although not artf ully articulated und er the relevant cas e law , the
s ubs tance of Brow n’s argum ent at the s up p res s ion hearing was , in part, that Som ers ’s actions i n s e e k i ng the cons ent w ere coercive becaus e they w ere cond ucted d uring an unlaw ful d etention, thereby rend e r ing Brow n’s cons ent involuntary. The d is trict court w as p rop erly p res entedw ith this is s ue and w e may analyze it und er the ord inary stand ard s of review

. 12 Case: 12-30235 Document: 00512626487 Page: 12 Date Filed: 05/12/2014No. 12-30235

F.3d 430, 439 ( 5th Cir. 2008). No single factor i s dispositive or controlling. Solis , 299 F.3d at 436. Several factors favor a finding of voluntariness. Brown was calm and cooperative when speaking with Somers. Somers testified that Brown gave consent to search his vehicle approximately one minute a fter Brown exited the vehicle, a nd thus the r ecord does not reflect that Brown was subject to a lengthy interrogation or any c o e r c i v e police tactics. 5 Somers a nd Cryer both testified tha t no t hreats, force, or intimidation were used to obtain Brown’s consent. Additio n ally, while the record does not reflect Brown’s education l e vels, the record r eveals t hat Brown was aware he had the right to refuse consent, as he had already declined to give his consent t wice. B e c a u se no single factor is dispositive and because s everal factors s upported a finding of voluntariness, we conclude that, viewing these facts in t he light most favorable to t he government and under the highly deferential standard which we a re compelled to apply on review of a denial of a s uppression motion after a hearing with live testimony, t h e r e is no clear error i n the district court’s f inding that Brown voluntaril y consented to the s e a rch of his car. Se e Es trada , 459 F.3d at 634. Therefore, under the t o t a l i t y o f the circumstances specific to this case, neither the prolo n g e d t r affic stop n or t he consensual car search violated Brown’s Fourth Amendment rights. 6 Thus, the district court did not err in determining that the evidence seized during the traffic stop is admissible.

5 Although it is coercive f or a p olice of

f icer to retain id entif

ication d ocum ents a f

t e r a law f ul s top is com p lete, see, e. g. , Ca v i tt , 550 F. 3d at 439, the traf fic s top here had been law f ully p rolonged , and thus was not com pleted w hen Som ers sought Brow n’s cons ent. Accord ingly,
w e d o not cons id er the retention of Brow n’s licens e coercive und er thes e circum s tances

.

6 If the p rolonged traf f ic s top was u n c o ns titutional, the d is trict court w ould need to conclud e that the cons ent w as both voluntary and the res ult of an ind ep end ent act of f ree w ill becaus e “cons ent cannot be the p rod uct of the illegal d etention. ” Uni ted Sta tes v
. Jenson , 462 F. 3d 399, 407 & n. 10 ( 5th Cir. 2006)

. Becaus e the p rolonged traf f ic s top w as cons titutional,
w e need not as s es s w hether cons ent w as an ind ep end ent act of f ree w ill. See Kha na l i za deh , 493 F. 3d at 484. 13 Case: 12-30235 Document: 00512626487 Page: 13 Date Filed: 05/12/2014No. 12-30235 B. Residence Search Brown also challenges the district court’s denial of his m otion to suppress evidence gathe r e d a t h i s residence. Because a search w arrant had been procured, we e n gage in a t w o-part test to revie w t h e d i s trict court’s decision. See United States v. Rojas A l v a r e z , 4 5 1 F.3d 320, 329 (5th Cir. 2006). “First, [we] determine[] w hether the good-faith e xception t o the e xclusionary rule applies; if it does not, [we] must ascertain whether the warrant was supported by probable cause.” Id. at 329-30 (quoting United States v. Gibbs , 421 F.3d 352, 355 (5th Cir. 2 005)). F or the purpose of the good-faith e xception, we r e view the district c ourt’s evaluation of the officers’ objective reasonableness de novo
. United States v. Payne , 341 F.3d 393, 399 (5th Cir. 2003). The Fourth Amendment exclusionary rule does n ot apply “when an officer acting with objective good faith has obtained a search w arrant from a judge or magistrate and acted within its scope.” United States v. Leon , 468 U.S. 897, 920 (1984). Under this good-faith exception, “evidence obtained by l aw enforcement officials acting in objectively reasonable good-faith reliance upon a search warrant is admissible in the p r o s e c ution’s case-in-chief, e ven though the affidavit on which t h e w arrant was based was insufficient to establish probable cause.” United States v
. Shugart , 1 17 F.3d 838, 843 (5th Cir. 1997) (quoting United S tates v. Craig , 861 F .2d 818, 821 (5th Cir. 1988)). We confine our goodfaith inquiry t o “the obj e c t iv e ly a s c e rt ai n ab l e qu e s t i o n whether a reasonably well trained officer w ould have known that the search w as i l l e g al despite the magistrate’s authorization. ” L e o n , 468 U.S. a t 922 n.23. The good-faith exception does n ot apply, a nd the officer may not merely rely on the magistrate judge’s determination of probable cause, wh e n “ t h e o fficer [does not have] reasonable grounds for believing that the warrant was properly issued.” Id. at 922-23. The exception therefore d oes not apply, and suppression is the appropriate remedy, where: (1) the magistrate or j udge who issued t he warrant

14 Case: 12-30235 Document: 00512626487 Page: 14 Date Filed: 05/12/2014No. 12-30235

“ w a s misled by information in an affidavit that the affiant k new was false o r would have known was false except for his reckless disregard of the truth”; (2) “the issuing magistrate wholly abandoned his judicial role”; (3) the officer relied

on an affidavit “so lacking in indicia of probable c ause as to render o fficial belief in its existence entirely unreasonable”; o r (4) the warrant is “so facially deficient—i.e., in failing to p articularize t he place to be searched or t he things to be seized—that the executing officers c annot reasonably presume i t t o be valid.” Id. at 9 23 (citations omitted) (internal quotation marks omitted); accord United States v. Mays , 466 F.3d 335, 343 (5th Cir. 2006). Here, a reasonably well trained officer would have known that the search of Brown’s house was based on ins u f f i c ient evidence of probable cause and therefore was a vi o l a t i o n of B rown’s Fourth Amendment rights. T he affidavit

was “so lacking in indicia of pr o b a b l e c a u s e as to render official belief in its existence entirely u nreasonable.” Leon , 468 U.S. at 9 23. I t was a “bare bones” affidavit, containing only “wholly conclus o r y s t a tements, w hich lack the facts and c i r c umstances from which a magistrate can independently determine probable cause.” United States v. Satterwhite , 980 F.2d 3 17, 320-21 (5th Cir. 1992). “Generally, examples of bare bones affidavits include those that merely state that the a ffiant has cause to su s p e c t a n d d o es believe or [has] received reliable information from a credible person and [does] believe that contraband is located on the premises.” U nited States v. Pope , 467 F.3d 9 1 2 , 9 2 0 (5th Cir. 2006) (citations omitted) (internal quotation marks omitted). Such is the c ase here. The brief, one-page affidavit detailed the previous night ’ s t r a f

f i c stop o f Brown’s vehicle but left out k ey details that would have better informed the magistrate of the incident. Lopez did not specify how much cocaine—namely, one rock—was recovered from the vehicle. Lopez referenced the marijuana found in the backseat of the p olice car after Brown and Cole were transported to the police station, but failed to specify t hat t h e m a r ijuana was

15 Case: 12-30235 Document: 00512626487 Page: 15 Date Filed: 05/12/2014No. 12-30235

found where Cole h ad been sitting, or that Brown was thoroughly patted down before being placed in the back of the c a r but that Cole was only given a cursory p a t-down. Lopez also misled the magistrate by asserting t hat Brow n w a s o n federal p arole for drug- r e l ated charges when h e was in fact o n supervised release for a weapons charge. As t he affiant, if Lopez did not know h is information to be false, he should have known except for his reckless disregard of the truth. In the second half o f the affidavit, Lopez declared that “Brown has also been the target of an ongoing i nvestigation for the trafficking of narcotics during the past 4 months w hich included information of how Brown packaged narcotics for sell [ s i c ] which was consistent with the item l o cated in Brown’s vehicle during the traffic stop. T his information w as obtained through a confidential reliable source.” L opez did not provide any details about the investigation or the reliability of the confidential source. Although he noted t hat the informa nt’s information about packaging was consistent with what was found in the car, he did not explain how t h e y were consistent or if the packaging was unique to Brown. Indeed, Somers testifie d at trial t hat the p ackaging—a small, ziptop baggie—was a common way to package cocaine rocks. “An affidavit m ust provide the magistrate with a s u b s t a ntial basis for determining the e xistence of probable cause,” a nd the mere statement that the affiant “ received reliable information from a c redible person” is inadequate to provide suc h a b a s i s
. Illinois v. Gates , 462 U.S. 213, 239 (1983). When an affiant r e lies upon information obtained f rom an i n formant, the affiant must provide sufficient information to allow t he magistrate to d e t e r m i n e , b y r e vi e w i n g the t otality of the circumstances, whether the informant’s informa t i o n i s sufficient to create probable cause. Id. at 238-39, 2 40-41. Lopez failed to provide such information in his affidavit. His “wholly conclusory s tatements

. . . lack[ed] the facts and circumstances from which a magistrate can indepen d e n tly determine probable cause.” Satterwhite , 980 F.2d at 321.

16 Case: 12-30235 Document: 00512626487 Page: 16 Date Filed: 05/12/2014No. 12-30235

Moreove r , t h e a ffidavit provided no information l i nking the drugtrafficking investigation to Brown’s r e sidence. “Facts in t he affidavit must establish a nexus between the house to be searched and the evidence sought. The nexus may be established through direct o bservation or thr o ugh normal inferences as to where the articles sought would be located.” P ayne , 341 F.3d at 400. Lopez did not present a ny evidence, either direct or inferential, linking the inves t i g a t i o n to Brown’s h ome. 7 H e did n ot reference t he residence until the concluding paragraph of the affidavit, at which point he attested only that: “It is b elieved that additional narcotics may still be located in the vehicle.

. . . It is also believed that additional narcotics and paraphernalia a re located at Brown’s residence.” We have held that such bare-bones statements cannot support the good-faith exception. See Pope , 4 67 F.3d at 920; U n i ted States v. Brown , 941 F.2d 1300, 1 303 n.1 (5th Cir. 19 9 1) (per curiam) ( “Examples of ‘bare bones’ affidavits include one that states the affiant ‘has c a u s e to suspect and does believe’

. . . and one where the affiants ‘ have r eceived reliable information from a credible person and do believe’ . . . .”). Lopez and the remaining officers could not have acted in o bj e c t i velyreasonable good-faith r eliance upon the search warrant because the affidavit in support of the warrant was “so lacking in indicia of probable cause as to render official b e l i e f i n its existence entirely unreasonable.” L e on , 468 U

. S. at 923 (citations o mitted) (i nternal quot a t i o n m a rk s o m i t t e d)

. Th e r e f o r e , th e good-faith exception does not apply and we proceed now to the second step o f t h e t e s t to consider whether prob a b l e c a use existed for t he warrant. Rojas A lvarez , 451

7 Ind eed , at the s up p res s ion hearing, Lop ez s till failed to tes tif y as to a nexus betw een Brow n’s car and his res id ence. Lop ez tes tif ied that a c o nf

id ential inf

orm ant told him that “Brow n was going to locations and bringing back

. . . large quantities of crack cocaine. ” Lop ez tes tif ied that he w ent to one of thos e locations to s ee if he could f ind evid ence verif

ying that the trans action took p lace, but d id not s tate w hether he d is covered any evid ence that Brow n trad ed drugs there. M oreover, the conf id ential inf

orm ant’s inf

orm ation d id not give Lop ez any ind ication that B row n us ed his hous e as a bas e to s tore and p ack age d rugs
. 17 Case: 12-30235 Document: 00512626487 Page: 17 Date Filed: 05/12/2014No. 12-30235

F.3d at 329-30. Probable cause must be established in t he affidavit and evidence presented to the magistrate; an “other w i s e i nsufficient affidavit cannot be

r e h ab il i t a t e d b y t e s t i m o ny c oncerning i nformation possessed by the affiant wh e n he s ought the warrant but not disclosed to the issuing magistrate.” Whiteley v. Warden, Wyo. State Penitentiary , 401 U .S. 560, 565 n.8 (1971). “Probable cause exists when under the ‘totality of t he circumstances

. . . there is a f air probability that contraband or evidence of a crime will be f o u n d i n a p articular place .’” U n i t e d S t a tes v. Newman , 4 72 F .3d 233, 237 (5th Cir. 2006) (alteration in original) (emphasis added) (quoting Gates , 462 U.S. a t 2 3 8 ). It “means something more t han m ere suspicion. Probable cause requires the existence of facts sufficient in themselves to warrant a man of reasonable caution in the b e l i e f t hat an offense has been or is being committed and the p erson to be arrested (or searched) committed it.” U nited States v
. Fr o m a n , 355 F.3d 882, 889 (5th Cir. 2 004) (quoting United States v. Gordon , 580 F.2d 827, 832-33 (5th Cir. 1978)) (i n t e r n al quotation marks omitted). “A magistrate n eeds only a substantial b asis for c oncluding that a search would uncover wrongdoing.” United States v. Allen , 625 F.3d 8 30, 8 40 (5th C ir. 2010). However, “[a]lthough

we accord great deference to a magistrate’s determination of probable cause, we will not defer to a warrant based on an a f f i d a v i t that does not provide the magistrate with a substantial b a s i s f or determining the existence o f probable

caus e .” Kohler v. Englade , 470 F.3d 1104, 1109 ( 5th Cir. 2006) (quoting Leon , 468 at 914-15) (internal quotation marks omitted). The affidavit did not provide the magistrate with the substantial basis he needed to conclude t hat there was probable c a use t o justify t he search. Lopez

a t t e s t ed that his confidential informant w as reliable b ut did n ot provide a n y facts upon which the magistrate could rely to make his o wn determination as to t h e i n formant’s reliability. See Kohler , 470 F.3d at 1110-11 (explaining t h a t there is no p r o b a ble cause when officers rely on anonymous tips, offer no

18 Case: 12-30235 Document: 00512626487 Page: 18 Date Filed: 05/12/2014No. 12-30235

indication in the affidavit as to the tipster’s credibility or b asis f or t he tipster’s information, and offer no independent corroboration of the tips). Lopez did not disclose any details about his investigation i n to Brown othe r t h a n t h e vague statement that the cocaine package in the car was consis t e n t w i t h the informant’s description of Brown’s p a ckaging methods. M oreover, Lopez provided no specific facts that would allow the m agistrate to conclude t hat there

was a fair probability that dr u g s would be found i n Brown’s residence. The affidavit contained no facts regarding t h e residence itself. R a ther, in the affidavit, Lopez made only a bare-bones assertion that it was believed that drugs would b e found in the residence. Considered in t otality, the affidavit—which fail e d t o p rovide specific facts as to the credibility of the informant, Lopez’s investigation i nto Brown’s trafficking a ctivities, or the nexus between Brown’s trafficking activities and his residence—was insufficient to a llow the magistrate to assess whether there existed probable cause to search Brown’s residence. The d i s t r i c t court clearly erred in finding that the officers acted in good faith i n relying on the warrant and i n finding t hat the w arrant was not lacking in indicia of probab l e cause. Because the search of Brown’s residence violated his Fourth Amendment ri g h t s, the district court erred in denying Brown’s motion to suppress evidence gathered during the search. 8 CONCLUSION We AFFIRM t he district court’s denial of Brown’s motion to suppress the evidence collected during the traffic stop, REVERSE the district court’s denial of Brown’s motion to suppress the evidence collecte d d u r i n g the search of Brown’s residence, VACATE the conviction and sentence, and REMA N D f or further consistent proceedings.

8 Becaus e we revers e the d is trict court’s d ecis ion regard ing the m otion to s up p res s the evid ence f

ound in the res id ence and rem and f or f urther p roceed ings , w e d o not reach Brow n’s other p oints on ap p eal, n a m e l y w hether the pros ecutor m ad e im prop er p ros ecutorial
s tatem ents and w hether there w as s uf f icient evid ence to s up p ort the conviction. 19 Case: 12-30235 Document: 00512626487 Page: 19 Date Filed: 05/12/2014No. 12-30235

20 Case: 12-30235 Document: 00512626487 Page: 20 Date Filed: 05/12/2014