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

No. 12

- 50954

UNITED STATES OF AMERICA,

Plaintiff

– Appellee , v. RAYMOND RODRIGUEZ,

Defendant

– Appellant

.

Appeal from the United States District Court for the Western District of Texas USDC No. 5:10

- CR

- 794

Before JONES, ELROD , and HAYNES, Circuit Judges

. PER CURIAM: * Raymond Rodriguez appeals the district court’s denial of his motion to

suppre ss evidence seized from his residence. W e AFFIRM. I. Factual and Procedural H istory Steve Wilkins, a Texas Department of Public Safety ( “ DPS ” ) officer, sought a warrant to search a residence located at 318 Amberdale Oak, San Antonio, Texas ( the “Residenc e”) . In his affidavit in support of the warrant, Agent Wilkins stated that probable cause existed to suggest that Rodriguez

* Pursuant to 5 TH C IR . R. 47.5, t he court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 8, 2014

Lyle W. Cayce Clerk Case: 12-50954 Document: 00512492561 Page: 1 Date Filed: 01/08/2014No. 12

- 50954 was living at the R esidence in possession of cocaine. Agent Wilkins explained that during an unrelated investigation, a cooperatin g defendant ( “ CD ” ) gave information to a nother DPS agent, alleging that Rodriguez was a supplier of

co caine in the San Antonio area. 1 Based on this information, Agent Wilkins
be gan to investigate Rodri g uez and determined on August 27, 2010, that he

curren tly resided at the Residence . Agent Wilkins confirmed this belief through surveillance of the Residence. He also conducted a utilities check on the location and performed a registration check on the v ehicle parked at the
R esidence, which revealed that the utilities and the vehicle were registered to Rodriguez. On August 31, 2010, Agent Wilkins searched a trash can that had been placed against the curb in front of the residence. Agent Wilkins concluded that the trash can had been placed there for gar bage pickup because the day of his search was a garbage collection day in the neighborhood and there were other trash cans along the street presumably placed there in anticipation of trash pickup. Agent Wilkins searched two trash bags that he retrieved fr om the trash can and discovered “several clear plastic sandwich style baggies containing a white powdery residue.” 2 Agent Wilkins found a cell phone bill addressed to Rodriguez in the same trash bag as the plastic baggies. One of the baggies was field te sted, and the residue tested positive for cocaine.

1 The CD also related that he had seen cocaine at Rodriguez’s previous residence and that he had previously purchased two ounces of cocaine from Rodriguez. However, Agent Wilkins’s affidavit gave no indication as to when the CD had seen cocaine at Rodriguez’s previous residence, when the CD purchased the cocaine, when this information was relayed by the CD to the other DPS agent , or when the other DPS agent relayed this information to Agent Wilkins. The Government concedes that the information provided by the CD standing alone is insufficient to constitute probable cause.
2 The size of the baggies was also consistent with the amount of cocaine the CD stated that he had previously purchased from Rodriguez. 2 Case: 12-50954 Document: 00512492561 Page: 2 Date Filed: 01/08/2014No. 12

- 50954 The same day he conducted his trash search, Agent Wilkins signed the affidavit, stating that he believed that the R esidence contained a quantity of cocaine intended for distribution. A magistrate judge is sue d the search warrant, and a search of the R esidence took place on that same day. During the sea rch, the police located over $9 000 in cash, a 9 mm Taurus handgun, a le dger, two cell phones, and 1 755.39 grams of cocaine. Rodriguez was charged with poss ession with intent to distribute over 500 grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). He moved to suppress the evidence seized from the R esidence . After the district court denied his motion, Rodriguez entered a conditional plea of guilty, reserving his right to appeal the denial of his suppression motion. He filed a motion for reconsideration concerning his motion to suppress, which the district court denied. Rodriguez timely appealed. II. Discussion The factual findings unde rlying the district court’s denial are reviewed for clear error; the court’s legal conclusions are reviewed de novo

. United States v. Gibbs , 421 F.3d 352, 356

– 57 (5th Cir. 2005)

. When the evidence sought to be suppressed was discovered pursuant to a search warrant, “ we [first] determine whether the good

- faith exception to the exclusionary rule announced in United States v. Leon , 468 U.S . 897 (1984), applies.” 3 Cherna , 184 F.3d at 407.

3 If the good

- faith exception applies, “we end our analysis and affirm the district court’s decision to deny the motion to suppress” without considering whether the warran t was supported by probable cause. United States v. Cherna , 184 F.3d 403, 407 (5th Ci r. 1999) ; see also United States v. Payne , 341 F.3d 393, 399 (5th Cir. 2003) (“If [the good

- faith exception applies], we nee d not reach the question of probable cause for the warrant unless it presents a novel question of law, resolution of which is necess ary to guide future action by law enforcement officers and magistrates.” ( citations and internal quotation marks omitted)). 3 Case: 12-50954 Document: 00512492561 Page: 3 Date Filed: 01/08/2014No. 12

- 50954 The good

- faith exception provides that a motion to suppress shou ld not be granted if the officer executing the warrant relied upon it in good faith. Gibbs , 421 F.3d at 357

. “Good faith” is determined by examining the objective reasonableness of the officer’s “ reliance on the issuing

- judge’s probable

- cause determinati on and the technical sufficiency of the warrant ” in light of the totality of the circumstances

. I d. at 358. While the issuance of the warrant ordinarily suffices to establish good cause, reliance on a warrant issued upon a “bare bones affidavit” is not goo d faith. Id. ; United States v. Craig , 861 F.2d 818, 821 (5th Cir. 1988) ; s ee also Payne , 341 F.3d at 399

– 400

. A “bare bones” affidavit is defined as one that contains “ wholly conclusory statements, [lacking] the facts and circumstances from which a magistrate can independen tly determine probable cause.” United States v. Satterwhite , 980 F.2d 317, 32 1 (5th Cir. 1992); see also United States v. Pope , 467 F.3d 912, 920 (5th Cir. 2006) ( “ [E] xamples of ‘ bare bones ’ affidavits include those that merely
st ate 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 on the premises.” (alteration s in original) (citation omitted) )

. Whether an affidavi t is “ bare bones ” i s determined under “ the totality of the circumstances, including the veracity, reliability, and basis of knowledge of a confidential informant. ” United States v. Fisher , 22 F.3d 574, 578 (5th Cir. 1994). The issuing judge must be allowed to draw reasonable inferences from the affidavit, and the ultimate determination of the affidavit’s adequacy is entitled to great deference on review. United States v. May , 819 F.2d 53 1, 535 (5th Cir. 1987). Rodriguez argues that Agent Wilkins’s affidavit is “bare bones” because it does not establish a sufficient nexus connecting the drugs (and related evidence) to the Residence

. However, i n addition to describing information he recei v ed from the CD, Agent Wilkins detailed the investigation he performed
4 Case: 12-50954 Document: 00512492561 Page: 4 Date Filed: 01/08/2014No. 12

- 50954 tying Rodriguez to the Residence, which included performing surveillance of the location and conducting utilities and vehicle registration checks

. Agent Wilkins also described his searc h of the trash , which revealed drug paraphernalia and a bill addressed to Rodriguez leading him to conclude that there w ere probably drugs intended for distribution, as well as drug

- related evidence, at the Residence

. Based on this information, a reasonab ly objective officer could conclude that Agent Wilkins’s in vestigation established a sufficient “nexus between the house to be searched and the evidence sought.” 4 See Payne , 341 F.3d at 400. Rodrig uez also argues that the evidence from the trash search is stale because Agent Wilkins did not witness Rodrig uez place the trash can outside for collection , and thus it is possible that the trash waited on the curb for several days. However, the fact that the trash c an and the baggies contained therein may hav e been on the curb for several days does not preclude a reasonably objective officer from concluding in good

- faith that it was probable that the items sought (i.e., drugs and “records, receipts, notes, ledgers, and other papers relating to the

. . . distri bution of controlled substances”) were still in the R esidence. See Craig , 861 F.2d at 823 (observing that records “can

4 W e have previously applied the good

- faith exception under similar circumstances, observing that a trash search that revealed plastic baggies containing cocaine residue, combined with evidence of the defendant ’ s prior arrests on narcotics violations, was “sufficient to suppo rt a reasonable belief that contraband would be found inside the residence.” See United States v. Sauls , 192 F. App’ x 298, 300 (5th Cir. 2006) (unpublished)

. Moreover, the Eighth Circuit concluded that a search of the garbage left outside a defendant’s

r esidence that revealed marijuana seeds and stems was “independently adequate” as stand

alone evidence to establish probable cause that the defendant’s residence contained drugs and related evidence. United States v. Briscoe , 317 F.3d 906, 907

– 08 (8th Cir. 2003) (declining to apply the good

- faith exception because stand

- alone evidence of drugs in the garbage was sufficient to establish probable cause). B ecause we conclude that the good

- faith exception applies , we need not decide here whether the drug

- relat ed evidence discovered in the trash can outside Rodriguez’s residence standing alone suffice s to establish probable

cause. 5 Case: 12-50954 Document: 00512492561 Page: 5 Date Filed: 01/08/2014No. 12

- 50954 reasonably be expected to be kept for long periods of time in the place to be searched ”); United States v. Freeman , 685 F.2d 942, 952 (5 th Cir. 1982) (evidence is not stal e if the issuing judge could reasonably conclude that the evidence sought under the warrant would still be present at the residence)

. In sum, Agent Wilkins’s reliance on the warrant was not objectively unreasonable. See Craig , 861 F.2d at 823. Because we conclude that the good

faith exception applies, we do not address Rodrig uez’s argument that the warrant was not supported by probable cause. See Cherna , 184 F.3d at 407

. AFFIRMED.

6 Case: 12-50954 Document: 00512492561 Page: 6 Date Filed: 01/08/2014