Page 33 - TPA Police Officers Guide 2021

Analysis

“When examining a district court’s ruling on a motion to suppress, we review questions of law de novo and fac-
tual findings for clear error, viewing the evidence in the light most favorable to the prevailing party.” “A factual
finding is not clearly erroneous as long as it is plausible in light of the record as a whole.” In cases where the gov-
ernment obtained a warrant, “[a] magistrate’s determination of probable cause is entitled to great deference by re-
viewing courts.” This court considers probable cause questions in “two stages.” First, the court determines
“whether the good-faith exception to the exclusionary rule . . . applies. If it does, [the court] need not reach the ques-
tion of probable cause for the warrant unless it presents a novel question of law, resolution of which is necessary
to guide future action by law enforcement officers and magistrates.” Herrera does not argue that this case pres-
ents a novel question of law.

“Under the good-faith exception, evidence obtained during the execution of a warrant later determined to be de-
ficient is admissible nonetheless, so long as the executing officers’ reliance on the warrant was objectively rea-
sonable and in good faith.” Id. Herrera provides two reasons why the good faith exception should not apply in this
case: (1) Agent Moore’s failure to inform the court that Everhart was incarcerated in June 2015 evidenced reck-
lessness in preparing the affidavit, and (2) the warrant was based on an affidavit that was facially deficient in terms
of its particularity. The good-faith exception does not apply where the magistrate judge “was misled by informa-
tion in an affidavit that the affiant knew was false or would have known except for reckless disregard of the truth.”
Material omissions are treated similarly. Herrera asserts that inclusion of Everhart’s arrest in the affidavit was nec-
essary to alert the magistrate judge to the fact that Herrera’s alleged participation in drug trafficking activities was
not ongoing. However, nothing in the affidavit suggests that Herrera continued selling drugs to Everhart at any time
after 2015. Therefore, the omission did not render the affidavit misleading. The good-faith exception is also un-
available “where the warrant is based on an affidavit so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable.” “Bare bones affidavits typically contain wholly conclusory state-
ments, which lack the facts and circumstances from which a magistrate can independently determine probable
cause.” The affidavit in this case was not bare bones. It included facts and circumstances from which the magis-
trate judge could have independently determined that probable cause existed. Specifically, the affidavit named
two co-conspirator witnesses (Sarah Kirkpatrick and Audra Bowden) who identified Herrera as having sold a pre-
cise quantity (four ounces) of meth on multiple occasions in a certain year, and Agent Moore explained why his
experience as a narcotics officer led him to believe that Herrera’s phones likely contained evidence of that drug
trafficking. Because we find that application of the good faith exception is appropriate in this case, we need not
decide whether there was probable cause for the warrant.

th
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U.S. v. Gentry, Jr., et. al., 5 Cir., Oct. 28 , 2019.
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SEARCH & SEIZURE – CELL PHONE SEARCH - CONSENT

The Department of Homeland Security (DHS) suspected Cristofer Gallegos-Espinal (Gallegos) of participating in
his mother’s alien-smuggling conspiracy. But when federal agents persuaded Gallegos voluntarily to consent to a
thorough search of his iPhone, they discovered evidence of an unrelated crime: possession of child pornography.
This discovery led to a three-count indictment charging Gallegos with sex offenses with a minor and destruction
of evidence. In the pretrial proceedings below, the district court suppressed three incriminating videos that the
government discovered in the course of an examination of extracted data from Gallegos’s iPhone. The court ruled
that Gallegos’s written consent to a “complete search” of the iPhone could not support a review of extracted data
three days after the phone was returned.

Because Gallegos signed a consent form that, in its broad terms, encompasses the search and seizure conducted,
and because Gallegos failed affirmatively to limit the scope of his broad consent, we reverse and vacate the dis-
trict court’s suppression of evidence and remand for further proceedings not inconsistent with this opinion.

A Peace Officer’s Guide to Texas Law 27 2021 Edition