# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 21

- 50738

**United States of America,**
Plaintiff

— Appellee **,**

versus
**Jimel Edward Harris,**
Defendant

— Appellant

**.**

Appeal from the United States District Court for the Western District of Texas USDC No. 6:20

- CR -122-1

Before **Smith, Clement,** and **Wilson,** Circuit Judges

**. Per Curiam**  **:** * Jimel Harris entered a conditional guilty plea of possession with intent to distribute a quantity of 5F

- AMB, otherwise known as “synthetic mari h uana,” in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Harris appeals the district court’s decision not to supp ress the evidence of a search

. Because the district court did not plainly err, we affirm.

* This opinion is not designated for publication. See **5th Cir. R. 47.5**

. United States Court of Appeals Fifth Circuit 

### FILED February 9, 2023

Lyle W. Cayce Clerk Case: 21-50738 Document: 00516640552 Page: 1 Date Filed: 02/09/2023No. 21

- 50738

2 I. P er a state

- issued search warrant containing allegations from a confiden

tial informant that Harris possessed crack cocaine, law enforcement searched a hotel room where Harris was present . The search yielded 6.9 ounces of syn

thetic mari h uana , cash, cell phones, and a digital scale with cocaine residue. Harris moved to suppress all evidence seized

. He p osit ed that the search warrant affidavit was “bare bones , ” so the good faith exception to the exclusion

ary rule did not apply , and that the issuing judicial officer lacked a substantial basis for belie v ing there was probable cause for the search

. In his report and

rec ommendation, the federal magistrate judge denied Harris’s motion, finding that the good faith exception applied because the warrant was more than bare bones. The report stated that a confidential informant had contacted the affiant detec tive, had previo usly provided reliable information, was familiar with cocaine, and had seen cocaine in Harris’s hotel room within the previous forty

eight hours. 1

1 The affidavit stated, in pertinent part , Within the 48

- hour period preceding the preparation of this affidavit, your Affiant received information from a reliable and confidential informant

. . . . Your affiant knows the informant has provided information in the past which has prove n reliable and credible. The informant has provided your affiant and other police officers with information in the past which has lead [ sic ] to arrests of person(s) for narcotics related offenses including offenses involving cocaine. The informant has demonstrated to your affi

ant that they know what cocaine looks like, how it is sold, how it is used, how it is packaged, and un derstand the various quantities and weight of cocaine as it is trafficked on the street. The informant has provided your affiant with information documented in this affidavit which your affiant verified through independent investigation.
Within the 48

- hou r period preceding the preparation of this affidavit, a Confidential Informant (CI) working for the Killeen Police Department Organized Crime Unit had observed a quantity of Cocaine, described by the CI as several crack rocks inside the [hotel room]

. The CI said he/she Case: 21-50738 Document: 00516640552 Page: 2 Date Filed: 02/09/2023No. 21

- 50738

3 No party filed an objection to the magistrate judge ’s report, and finding no clear error, the district cou rt adopted the report and denied the motion to
suppress. Harris entered a conditional guilty plea, reserving his right to chal

lenge the denial of his motion to suppress. H e timely appeals

.

II. When reviewing the denial of a motion to suppress, we review legal questions de novo and factual findings for clear error. United States v. Gentry , 941 F.3d 767, 779 (5th Cir. 2019). W e view the evidence in the light most favor able to the prevailing party ; here , th at party is the g overnment. See United S tates v. Cantu , 230 F.3d 148, 150 (5th Cir. 2000). We may uphold

t he district court’s decision “ on any basis established by the record. ” United States v. Charles , 469 F.3d 402, 405 (5th Cir. 2006).

D espite being notified of the consequences of failing t o raise timely objections , Harris concedes he failed to object to the magistrate judge’s report and recommendation

. Thus, our review is for plain error. See Puckett v. United States , 556 U.S. 129, 135 (2009). To establish plain error, Harris must show a clear and obvious error that has not been affirmatively waived and a ffect s his substantial rights. Id. Even if he makes that showing, we use our discretion to correct the error only if the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks and citation omitted).

III. We look to the totality of the circumstances to determine w hether an affidavit is bare bones

. United St ates v. Fisher , 22 F.3d 574, 578 (5th Cir. 1994) . And our judgment is made “in a common sense manner

. ” United

has also identified Jimel Edward Harris, a black male, date of birth [**/**/ ] by the use of un

- named photographs. Case: 21-50738 Document: 00516640552 Page: 3 Date Filed: 02/09/2023No. 21

- 50738

4 States v. Jackson , 818 F.2d 345, 348 (5th Cir. 1987) (internal quotation marks and citation omitted). “ ‘ Bare bones affidavits typically contain wholly con

clu sory statements, which lack the facts and circumstances from which a
mag is trate can independently determine probable cause. ’ ” Gentry , 941 F.3d at 780 ( quoting United States v. Pope , 467 F.3d 912, 9 2 0 (5th Cir. 2006) ); see also United States v. Satterwhite , 980 F.2d 317, 321 (5th Cir. 1992) (approving of an affidavit that “provided the magistrate with facts, and not mere conclu

sions”). Nevertheless , a n issuing magistrate can draw reasonable inferences from the affidavit, and th e ultimate determination of the affidavit’s suffi ci

ency is entitled to great deference on review. United States v. May , 819 F.2d 531, 535 (5th Cir. 1987). Through a totality

- of

- the

- circumstances inquiry , the affidavit here
pro vided more than conclusory statements or boilerplate

. The affidavit averred that the confidential informant had provided reliable and credible information in previous narcotics investigations and had observed crack cocaine in the hotel room within the 48

- hour period before executi on of the affidavit

. S ee United States v. McKnight , 953 F.2d 898, 904

– 05 (5th Cir. 1992) (approving an affidavit as sufficient to support the good faith exception on sim i lar facts)

. The affidavit provided specific facts and circumstances that allowed the issuing judge to make a probable cause determination regarding the search of the hotel room.

Because affidavits must be construed in a common

- sense manner , with great deference given to the issuin g judge’s probable

- cause deter min a

tion , we cannot reason that the district court erred , plainly or otherwise, in finding that the affidavit in the instant case was not bare bones

. The refore, the exe cut ing officer’s reliance on the warrant was objecti vely reasonable and made in good faith, so the district court was correct to deny Harris’s motion to sup press the evidence on that ground

. See Gentry , 941 F.3d at 780. We Case: 21-50738 Document: 00516640552 Page: 4 Date Filed: 02/09/2023No. 21

- 50738

5 therefore need not reach the issue of whether the warrant was supported by probabl e cause.
** AFFIRMED.** Case: 21-50738 Document: 00516640552 Page: 5 Date Filed: 02/09/2023