### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19

- 50754 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. JAMES LUTHER GODFREY, III , Defendant

- Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 6:18

- CR

- 302

- 1

Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges. PER CURIAM: * James Luther Godfrey, III, entered a conditional

- guilty plea to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), reserving his right to challenge the denial , after a hearing, of his motion to suppress evidence. Godfrey was sentenced below the advisory Sentencing G uidelines sentencing range to , inter alia , 50

- months ’ imprisonment

. H e contends the district court committed reversible error by denying his suppression motion

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4

. United States Court of Appeals Fifth Circuit 

### FILED May 18, 2020 Lyle W. Cayce Clerk Case: 19-50754 Document: 00515420158 Page: 1 Date Filed: 05/18/2020No. 19

- 50754

2 because the evidence against him was gathered pursuant to a warrant grounded in a bare

- bones affidavit. When considering the denial of a suppression motion , “ we review the district court’s factual findings for clear error and its legal conclusions de novo ”

. United States v. Bruno , 487 F.3d 304, 305 (5th Cir. 2007) (citations omitted)

. Officers executing a search warrant may rely in good faith on a warrant, even if it is subsequently invalidated. United States v. Leon , 468 U.S. 897, 922

– 2 4 (1984). This good

- faith exception does not apply , however, if, inter alia , the affidavit supporting the warrant so lack s indicia of probable cause that it is a
bare

- bones affidavit. See i d. at 923 (citation omitted) ; United States v. Mays , 466 F.3d 335, 343 (5th Cir. 2006) (citation omitted) . A bare

- bones affidavit is one that “ contain [ s ] wholly conclusory statements, which lack the facts and circumstances from which a magistrate can independently determine probable cause”

. United States v. Satterwhite , 980 F.2d 317, 321 (5th Cir. 1992) (citation omitted) . Whether an affidavit is bare bo nes is determined under the totality of the circumstances, see United States v. Fisher , 22 F.3d 574, 578 (5th Cir. 1994) (citation omitted) , and using common sense , see United States v. Jackson , 818 F.2d 345, 348 (5th Cir. 1987) (citation omitted)

. The aff idavit at issue is not made up of “wholly conclusory statements”, lacking “facts and circumstances from which [the] magistrate [could] independently determine probable cause”. See Satterwhite , 980 F.2d at 321 (citation omitted). Examples of such concluso ry statements include : “ the affiant ‘ has cause to suspect and does believe ’ that liquor illegally imported is located on certain premises ”; and “ the affiants ‘ have received reliable information from a credible person and do believe ’ that heroin is stored in a home ”. United States v. Brown , 941 F.2d 1300, 1303 n.1 (5th Cir. 1991) Case: 19-50754 Document: 00515420158 Page: 2 Date Filed: 05/18/2020No. 19

- 50754

3 (citations omitted). In contrast, the officer’s affidavit at issue specified that Ed Tally (a citizen

- informant property inspector) saw contraband in a certain apartment when he entered it as part of his job. Further, Godfrey’s contention the affidavit at issue was bare bones because it made no assertions regarding Tally’s credibility fails under United States v. Blount , which provide s that “ absent specific reasons for police to doubt his or her truthfulness, an ordinary citizen, who provides information to police at a crime scene or during an ongoing investigation, may be presumed credible without subsequent corroboration ”

. 123 F.3d 831, 835 (5th Cir. 1997) (en banc); s ee also Uni t ed States v. Fooladi , 703 F.2d 180, 183 (5th Cir. 1983) (“ W hen an average citizen tenders information to the police, the police should be permitted to assume that they are dealing with a credible person in t he absence of special circumstances suggesting that such might not be the case

. ” (alteration and citation omitted))

. Although Godfrey attempts to distinguish Blount on the basis that the informant in that case gave information in an ongoing investigation , there is no indication this distinction is material

. Instead, Blount held the pertinent inquiry is whether officials are aware of certain facts undermining the citizen

informant ’s credibility. See Blount , 123 F.3d at 835. Godfrey casts no specific dou bts on Tally’s credibility and , therefore, has not shown it should not be presumed credible

. AFFIRMED. Case: 19-50754 Document: 00515420158 Page: 3 Date Filed: 05/18/2020