United States v. Gallegos

United States Court of Appeals
Fifth Circuit
F I L E D
July 10, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-50138
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ALEX GALLEGOS,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m 5:04-CR-81-1
______________________________
Before SMITH, BENAVIDES, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
A jury found Alex Gallegos guilty of five
different drug and weapon offenses. Gallegos
appeals his conviction, arguing that the district
court erred in denying his motion to suppress,
that the court erred in denying disclosure of a
confidential informant’s identity, and that the
evidence is insufficient to support his convic-
tion. We affirm.
I.
Detective David Berrigan of the San Anto-
nio Police Department received information
from a confidential informant that a man
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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named Roland was selling drugs in the front
yard of a house. Through a computer search,
Berrigan determined that the Gallegos family
lived at the house and that the license plate
numbers on the vehicles outside the house
were registered to members of the Gallegos
family. He took no further action to corrobo-
rate the information the informant provided.
Based on this information, Berrigan pre-
pared an affidavit to support a search warrant.
The affidavit stated the address of the house
and a description of a Hispanic male, known
only as Roland, who was approximately 35 to
40 years old, 180 to 200 pounds, 5' 8'' to
5' 10'', and clean shaven. He had short brown
hair and tattoos on both arms. The affidavit
noted that this man controlled the house and
had possessed cocaine there in the past 48
hours. Finally, it recounted that a confidential
informant, who had previously provided accur-
ate information, had provided this information
to the police.
A magistrate issued a warrant. As police
were driving up to the house to execute it,
they saw two men in the front yard exchanging
drugs. The police approached the men, one of
them threw the bag being exchanged into the
air, and Gallegos fled. Police caught both
men, did a security sweep, and searched the
property.
Gallegos was indicted for and convicted of
(1) conspiring to distribute and possess co-
caine within 1,000 feet of a secondary school
in violation of 21 U.S.C. §§ 846, 860(a), and
841(a)(1) and (b)(1)(B); (2) aiding and abet-
ting in the possession with intent to distribute
cocaine within 1,000 feet of a secondary
school in violation of 21 U.S.C. §§ 860(a) and
841(a)(1) and(b)(1)(B) and 18 U.S.C. § 2;
(3) possessing with intent to distribute 100
grams or more of heroin within 1,000 feet of a
secondary school in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B) and 860(a); (4) using
and carrying and possessing a firearm during
and in relation to and in furtherance of a drug
trafficking crime in violation of 18 U.S.C.
924(c)(1)(A)(i); and (5) using and carrying and
possessing a firearm during and in relation and
in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(B)(i).
Gallegos filed a motion to suppress and re-
quested to discover the identity of the confi-
dential informant. The district court denied
the motion and the request.
At trial the government offered the follow-
ing evidence: Officers observed Gallegos con-
ducting a drug transaction. In their search of
the property, officers found a plastic bag
containing heroin and cocaine in the back of
the property; $14,000 in a tub; $3,000, pack-
aged in $100 increments and tied in $1,000
bundles in a safe for which Gallegos had a key;
$7,000 in a dresser drawer that contained
some of Gallegos’s personal items; evidence of
a drug ledger; a sandwich bag containing
baggies filled with heroin and cocaine; a large
bag of cocaine between the rafters and wall of
a shed; two bottles of lactose, one of which
had Gallegos’s fingerprint on it; a digital scale;
and other packaging material. When con-
fronted with the cocaine, Gallegos looked to
the rafters where the police had found it, even
though the police had not told him they had
found it there. Gallegos said he would take
the rap for the cocaine. A map with a legend
on it and a computer program that analyzes
locations showed the house was within 1,000
feet of the school.
To prove the firearm offense, the govern-
ment stated that police found two sawed-off

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shotguns, a semiautomatic handgun, a revol-
ver, an automatic assault handgun, and a rifle.
The weapons were found close to the drugs,
one was loaded, two were illegal by them-
selves, and all were illegal for Gallegos be-
cause he is a convicted felon.
II.
Gallegos urges that the court erred in deny-
ing his motion to suppress. We review the
court’s factual findings in a denial of a motion
to suppress for clear error and its legal conclu-
sions de novo. United States v. Solis, 299
F.3d 420, 435 (5th Cir. 2002). We review de
novo whether an officer’s reliance on a war-
rant was objectively reasonable and accord-
ingly in good faith. United States v. Satter-
white, 980 F.2d 317, 321 (5th Cir. 1992).
A.
Gallegos contends that the search warrant
was not supported by probable cause.
“‘Principles of judicial restraint and precedent
dictate that, in most cases, we should not
reach the probable cause issue if a decision on
the admissibility of evidence under the
good-faith exception [to the exclusionary rule]
will resolve the matter.’”1 We proceed directly
to the probable cause inquiry only where “the
resolution of a ‘novel question of law . . . is
necessary to guide future action by law en-
forcement officers and magistrates.’” Craig,
861 F.2d at 820-21 (quoting Illinois v. Gates,
462 U.S. 213, 264 (1983) (White, J., concur-
ring)). Here, we only need to apply estab-
lished Fourth Amendment principles to this set
of facts, so we determine whether the good
faith exception to the exclusionaryrule applies.
Gallegos posits that the good faith excep-
tion does not apply, because the warrant was
supported by only a bare bones affidavit. We
disagree. To avoid being a bare bones affida-
vit, the affidavit must provide “the magistrate
with facts, and not mere conclusions, from
which he could determine probable cause.”
United States v. Satterwhite, 980 F.2d 317,
321 (5th Cir. 1992).
To assess the value of a confidential infor-
mant’s report, we consider his veracity, reli-
ability, and basis of knowledge. Mack v. City
of Abilene, 461 F.3d 547, 551 (5th Cir. 2006).
Reliability and veracity are established by in-
formation indicating the informant has given
previous reliable information. Mack, 461 F.3d
at 551; Christian v. McKaskle, 731 F.2d 1196,
1200 (5th Cir. 1984). Direct personal obser-
vation is a sufficient basis of knowledge.
Mack, 461 F.3d at 551; United States v. Cor-
dero, 465 F.3d 626, 630 (5th Cir. 2006).
Here the informant’s report is valuable be-
cause the affidavit establishes the informant’s
veracity, reliability, and basis of knowledge.
The affidavit shows the informant’s veracity
and reliability by stating that the informant
“has on previous occasions given affiant in-
formation regarding the trafficking and pos-
session of a controlled substance which has
proven to be true and correct . . . .” The affi-
davit also reflects the basis of the knowledge:
The informant saw the unlawful possession of
cocaine within forty-eight hours of the affida-
vit.
1 United States v. Flanders, 468 F.3d 269, 270
(5th Cir. 2006) (quoting United States v. Craig,
861 F.2d 818, 820 (5th Cir. 1988)). The good
faith exception applies if an officer’s “reliance on
the magistrate’s probable-cause determination and
on the technical sufficiency of the warrant he issues
[is] objectively reasonable”; a court need not sup-
press the fruits of a search if this exception applies.
United States v. Leon, 468 U.S. 897, 922 (1984).

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The information in this affidavit is similar to
the information in the affidavit in United States
v. McKnight, 953 F.2d 898 (5th Cir. 1992).
There the affidavit said (1) that the informant
had furnished the officer information in the
past and had proven reliable and true and (2)
that the informant had seen methamphetamine
at a specific house in the past seventy-two
hours. Id. at 904-05. We held that “[t]he
Constable’s assertion that the confidential
informant was ‘reliable’ and had ‘furnished
him with information in the past that has
proved to be reliable and true’ provided the
magistrate with sufficient indicia of the reliabil-
ity and veracity of the informant’s tip.” Id. at
905. Also, the informant’s personal observa-
tions were a sufficient basis of knowledge. Id.
Because these facts alone made probable cause
“at the very least most likely supplied by this
affidavit,” the affidavit was not bare bones. Id.
The instant affidavit is virtually identicalSS
McKnight’s includes more information about
how the drugs were processed at the resi-
dence, but these facts do not bear on the ve-
racity or reliability of the informant or the basis
of his knowledge. Just as McKnight’s affidavit
was not a bare bones affidavit, neither is the
one in this case. The good faith exception
applies, and the district court correctly denied
the motion to suppress.
B.
Gallegos argues that the government cannot
use the good faith exception, because Berrigan
misled the magistrate in two ways. First,
Berrigan discovered that the Gallegos, not
“Roland,” controlled the residence, but he still
told the magistrate only about Roland’s con-
trolling the residence, omitting any mention of
the Gallegos family. Second, Berrigan told the
magistrate that drugs were dealt “at” the
residence and not outside it as the informant
had indicated.
We will not uphold an officer’s good faith
reliance on a warrant if “the issuing-judge ‘was
misled by information in an affidavit that the
affiant knew was false or would have known
was false except for his reckless disregard of
the truth . . . .’” United States v. Gibbs, 421
F.3d 352, 358 (5th Cir. 2005) (quoting United
States v. Leon, 468 U.S. 897, 923 (1984)).
“‘In evaluating this argument, we apply the
standard from Franks v. Delaware, 438 U.S.
154 (1978), which requires a defendant to
show that ‘(1) allegations in a supporting
affidavit were deliberate falsehoods or made
with a reckless disregard for the truth, and (2)
the remaining portion of the affidavit is not
sufficient to support a finding of probable
cause.’” United States v. Mays, 466 F.3d 335,
343 (5th Cir. 2006) (quoting United States v.
Brown, 298 F.3d 392, 395 (5th Cir. 2002)),
cert. denied, 127 S. Ct. 1313 (2007).
The district court found Berrigan did not
mislead the magistrate, and we review this fact
finding for clear error. Gallegos has the bur-
den of “establishing by a preponderance of the
evidence that the misrepresentation was made
intentionally or with reckless disregard for the
truth.” United States v. Alvarez, 127 F.3d
372, 373 (5th Cir. 1997); United States v.
Wake, 948 F.2d 1422, 1428-29 (5th Cir.
1991).
Two decisions from this court demonstrate
the sort of evidence that meets this burden to
prove that an officer acted intentionally or with
reckless disregard for the truth. See Alvarez,
127 F.3d at 375; United States v. Namer, 680
F.2d 1088, 1094 (5th Cir. 1982). In conclud-
ing that an officer recklessly disregarded the
truth in Alvarez, we went through a laundry

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list of reasons the officer in that case was
reckless:
The lack of exigency, [police officer] Ri-
vera’s level of training and experience, his
failure to consult with an attorney, his fail-
ure to disclose in the affidavit the facts un-
derlying his conclusorystatements, coupled
with Rodriguez’s statement that Alvarez
claimed to have other similar tapes (there
was no testimony that the other tapes were
more explicit), and the fact that Rivera’s
only justification for proceeding with the
warrant application was his testimony that
he believed breasts were genitals, lead us to
conclude that Rivera acted in reckless dis-
regard for the truth.
Alvarez, 127 F.3d at 375. In Namer, a similar
list of factors compelled our conclusion that
law enforcement recklessly disregarded the
truth: Attorneys drafted the affidavit, they had
experience with this type of case, no exigency
or haste preceded the affidavit, and the attor-
neys understood the importance of being ac-
curate. Namer, 680 F.2d at 1094.
Gallegos does not present this sort of evi-
dence of intent or recklessness. He alleges
that Berrigan’s statements were the product of
intentional or reckless conduct, but other than
his argument that the statements were false,
Gallegos offers no proof that Berrigan intend-
ed his statements to be false or acted in reck-
less disregarded for the truth. Even if, ar-
guendo, the district court incorrectly held the
statements were true, Gallegos still cannot pre-
vail, because he did not prove Berrigan pos-
sessed the required mental state.
C.
Gallegos claims the good faith exception is
inapplicable because the affidavit failed to es-
tablish a nexus between the residence and the
drugs. For an officer’s conduct to qualify un-
der the good faith exception, “[t]he affidavit
must establish a nexus between the house to be
searched and the evidence sought. United
States v. Freeman, 685 F.2d 942, 949 (5th Cir.
1982). That nexus may be established, how-
ever, by direct observation or through normal
inferences as to where the articles sought
would be located. See id.; United States v.
Pace, 955 F.2d 270, 277 (5th Cir. 1992).”
United States v. Broussard, 80 F.3d 1025,
1034 (5th Cir. 1996).
When compared to defendants’ assertions
in our previous cases dealing with the nexus
requirement, Gallegos’s claim that this affida-
vit presented an insufficient nexus fails. In one
case, an affidavit established a nexus between
a residence and drugs because the affidavit
suggested the defendant’s salvage business
was not confined to his place of business,
because it stated that a drug maker had previ-
ously gone to the rear of the residence, and
because it indicated the defendant’s place of
business and residence were contiguous and
controlled by the same people. United States
v. Anderson, 853 F.2d 313, 316 (5th Cir.
1988). In Broussard, the affidavit established
a nexus between the defendant and his resi-
dence because it stated that drugs were placed
in a car that was later parked in the residence’s
driveway and that the defendant picked up a
bag believed to contain drugs and took the bag
inside his residence. Broussard, 80 F.3d at
1035.
In contrast, cases holding that the nexus to
a residence was insufficiently established in-
volve crimes that occur away from the home.
For instance, in United States v. Freeman, 685
F.2d 942, 950-51 (5th Cir. 1982), police found
evidence of drug smuggling at an airport, but

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no suspicious activity had taken place at the
drug smuggler’s home, so there was not a suf-
ficient nexus to search the home.
In the present case, the affidavit stated Rol-
and possessed drugs at the residence. This
statement is evidence of a nexus between the
narcotics and the residence, and it even more
directly connects the illicit items to the house
than did the evidence in Anderson and Brous-
sard. This case is unlike Freeman, because
here the crime and suspicious activity occurred
at, not away from, the residence. Because the
information in this affidavit is like the informa-
tion in affidavits that we have held established
a nexus, Gallegos’s argument that no nexus
existed lacks merit.
D.
Gallegos contends the district court erred
by denying his motion to suppress, because the
warrant was void for staleness. Stale informa-
tion in an affidavit cannot support probable
cause. “The proof must be of facts closely re-
lated in time to the issuance of the warrant in
order to justify a finding of probable cause at
that time.” United States v. McKeaver, 5 F.3d
863, 866 (5th Cir. 1993). Even if stale infor-
mation cannot support probable cause, how-
ever, officers may be able to execute a warrant
in good faith. “To prevail on his fourth
amendment claim, [Gallegos] must establish
that the facts alleged in the affidavit were so
dated that no reasonable officer could have be-
lieved that the affidavit established probable
cause . . . .” United States v. Pena-Rodriguez,
110 F.3d 1120, 1130 (5th Cir. 1997).
Information that someone possessed drugs
forty-eight hours earlier is stale, Gallegos pos-
its, because drugs are quickly consumed. But,
this fact does not entail the conclusion that the
information was so dated that no reasonable
officer could have believed that the affidavit
established probable cause.2
III.
Gallegos claims the district court should
have ordered the government to disclose the
confidential informant’s identity.
This Court reviews the district court’s
grant or denial of disclosure of an infor-
mant for abuse of discretion. United States
v. Wilson, 77 F.3d 105, 111 (5th Cir.
1996). The district court weighs three fac-
tors to determine whether to grant or deny
disclosure of an informant’s identity:
‘(1) the level of involvement in the alleged
criminal activity, (2) the helpfulness of
disclosure to any asserted defense, and
(3) the government’s interest in non-dis-
closure.’ Id.
United States v. Thomas, 348 F.3d 78, 85 (5th
Cir. 2003).
Gallegos makes no arguments about the
informant’s levelof involvement in the criminal
activity or the government’s interest in non-
disclosure. Instead, he relies entirely on the
prejudice to his defense. He asserts that the
confidential informant should have been called
to testify that the informant saw “Rol-
and”SSnot GallegosSSdealing drugs. This tes-
timony could have led the jury to doubt wheth-
er Gallegos was dealing drugs at the residence.
2 See United States v. Leaster, 35 Fed. Appx.
402, 410-12 (6th Cir. 2002) (noting that it is dif-
ficult to determine whether 48-hour-old information
about drug possession is stale but that because of
this uncertainty, officers are entitled to rely on the
warrant under the good faith exception because the
information is not so stale as to render the officer’s
belief unreasonable).

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“Whether a proper balance renders nondis-
closure erroneous must depend on the particu-
lar circumstances of each case, taking into
consideration the crime charged, the possible
defenses, the possible significance of the in-
former’s testimony, and other relevant fac-
tors.” United States v. Cooper, 949 F.2d 737,
749 (5th Cir. 1991). The factors that Gallegos
does not discuss favor the district court’s deci-
sion: The informant was not involved in the
crime, favoring non-disclosure, Cooper, 949
F.2d at 749, and the government has an inter-
est in getting future tips from the informant.
Gallegos has not demonstrated significant pre-
judice to his defense; the fact that someone
other than he was dealing drugs at the same
house does not negate the possibility that he
was also doing so there. Whatever prejudice
he may have suffered is outweighed by the
other factors the district court addressed. The
court did not abuse its discretion.
IV.
Gallegos argues that the evidence is insuf-
ficient to support the verdict. “We review the
sufficiency of the evidence by examining all the
evidence in the light most favorable to the
verdict. See United States v. Thomas, 120
F.3d 564, 569 (5th Cir. 1997). We will affirm
if the evidence is such that a rational trier of
fact could have found the requisite elements of
the offense beyond a reasonable doubt. Id.”
United States v. Guerrero, 234 F.3d 259, 261-
62 (5th Cir. 2000).
A.
Gallegos avers that the evidence was not
sufficient for the jury to find that he possessed
drugs with intent to distribute, that he aided
and abetted possession with the intent to dis-
tribute, or that he conspired to possess with in-
tent to distribute narcotics. “The essential
elements of possession with the intent to dis-
tribute controlled substances in violation of 21
U.S.C. § 841 are 1) knowledge, 2) possession,
and 3) intent to distribute the controlled sub-
stances.” United States v. Delgado, 256 F.3d
264, 274 (5th Cir. 2001). To prove aiding and
abetting, “the government must establish that
the defendant became associated with, partici-
pated in, and in some way acted to further the
possession and distribution of the drugs. To
aid and abet, a defendant must share in the in-
tent to commit the offense as well as play an
active role in its commission.” Id. (internal
quotations and citations omitted). Finally,
“[t]o prove a drug conspiracy under 21 U.S.C.
§ 846, the government must prove (1) an
agreement between two or more persons to
violate the narcotics laws, (2) the defendant’s
knowledge of the agreement, and (3) the
defendant’s voluntary participation in the
conspiracy.” United States v. Reveles, 190
F.3d 678, 691 n.1 (5th Cir. 1999).
The police found vast quantities of drugs,
money, and narcotic distribution devices, all
linked to Gallegos, providing evidence that he
possessed drugs intending to distribute them.
Conspiracy and aiding and abetting were dem-
onstrated by testimony that officers directly
witnessed Gallegos in a drug transaction. Gal-
legos’s suggestion that these facts are equally
consistent with a conclusion that he merely
shared the drugs does not change the result,
given the deferential standard we use to review
jury findings.
B.
Gallegos maintains the evidence is insuffi-
cient to establish that he carried a firearm
during and in relation to a drug trafficking
crime or possessed a firearm in furtherance of
a drug trafficking crime as required under 18
U.S.C. § 924(c). Yet, this case is similar to
United States v. Molinar-Apodaca, 889 F.2d

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1417, 1424 (5th Cir. 1989), in which we held
that evidence that two guns were near drugs at
a home was sufficient to permit an inference
that the guns were being used for the purpose
of protection in a drug trafficking offense. In
Molinar-Apodaca, two firearms were seized
on a property that also housed drugs. Id. at
1422. We held that the presence “of an Uzi
rifle, a high powered handgun, and several
rounds of ammunition [in the defendant’s
house] at the time when a considerable quan-
tity of marijuana was seized on the premises”
was sufficient “to show that the firearm was
available to provide protection” and thus was
used “in relation to” a drug crime. Id. at 1424.
The evidence in our case is like that in Mol-
inar-Apodaca and is sufficient for a jury to
find that Gallegos violated § 924(c).
AFFIRMED.

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