Watson v. Flores et al

Filing 17

ORDER DENYING 15 Motion for Leave to File. Signed by Judge David A. Ezra. (aej)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ROBERT JAMES WATSON,
Plaintiff,
vs.
JOHN EDDIE FLORES and
KRIS DESLATTE,
Defendants.

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No. SA:13–CV–265–DAE

ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE AN
AMENDED COMPLAINT
Before the Court is a Motion for Leave to File an Amended Complaint
filed by Plaintiff Robert James Watson (“Plaintiff.”) (Dkt. # 15.) Pursuant to
Local Rule 7(h), the Court finds this matter suitable for disposition without a
hearing. After reviewing the Motion, the Court DENIES Plaintiff’s Motion for
Leave to File an Amended Complaint. (Dkt. # 15.)
BACKGROUND 1
Plaintiff alleges Defendant Kris Deslatte (“Deslatte”), an investigator
for the Narcotics Division for the Guadalupe County Sherriff’s Office under the
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Plaintiff filed his original complaint in this case on April 1, 2013. (Dkt. # 2.) On
July 3, 2013, pursuant to an order issued by U.S. Magistrate Judge John W.
Primomo, Plaintiff filed a supplemental complaint. (Dkt. # 7.) The Court here
relies on factual allegations from both the original and the supplemental
complaints.
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supervision of Defendant John Eddie Flores (“Flores”), included false information
in an affidavit for a warrant to search Plaintiff’s residence. (Dkt. # 2 at 2–3.)
Plaintiff claims that Deslatte stated he had received information from an unnamed,
credible and reliable source that Plaintiff had been seen at Plaintiff’s residence
with a useable amount of cocaine within the past 48 hours; Plaintiff asserts that this
information was false. (Id.) Deslatte’s search warrant affidavit stated the
following:
Affiant was provided with information from a Credible and
Reliable Source (that for safety reasons will remain unnamed). The
Credible Source has provided Affiant information in the past over four
(4) times and each time the Source provided information, this
information has led to the seizure of illegal narcotics. This Credible
Source is familiar with Cocaine by sight, because this Credible Source
has purchased Cocaine for Affiant in the past while working as a
Credible Source.
Affiant received information from this Credible Source
stating that the Credible Source had seen Robert James Watson use a
usable amount of Cocaine within the past 48 hours at Watsons’
residence of 2310 Sherman Street, in the City of Seguin, Guadalupe
County, Texas. Robert Watsons’ criminal history shows that Watson
was convicted of delivery of Cocaine in the past.
(Dkt. # 8 at 5–6.)
Plaintiff claims that at the time Deslatte made the affidavit, he knew
the “Credible Source,” Melvin Bruns, was not in fact a credible source. (Dkt. # 2
at 3.) Plaintiff alleges that when Deslatte made the affidavit he knew Melvin
Bruns “was an active criminal with a serious criminal background” and “was in
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violation of his second confidential enformant in violation of the code of conduct
[sic].” (Id.) Specifically, Plaintiff claims that on the day before the search warrant
was executed, Deslatte had lost contact with Bruns who, in violation of his contract
as a confidential source, had become a “fugitive from justice.” (Dkt. # 7 at 4.)
Plaintiff also asserts that in the past, Bruns, while acting as a confidential
informant, had violated the law by the commission of three forgery offenses,
resulting in the termination of his contract as a confidential informant in April
2010. (Id.) Next, Plaintiff states that Bruns had various other run-ins with the law,
including an arrest for evading arrest in a motor vehicle and an indictment in
another forgery charge. (Id.) Plaintiff asserts that on April 5, 2011, Bruns entered
into a second contract with the Guadalupe County Narcotics Division to work off
the evading arrest and forgery charges. (Id.)
Based on Deslatte’s affidavit, the magistrate judge issued a search
warrant authorizing Defendants to search Plaintiff’s residence for a useable amount
of cocaine and implements or instruments used in the commission of the offense of
delivery of a controlled substance. (Id. at 5.) Plaintiff alleges that Deslatte and
Flores (collectively, “Defendants”) executed the warrant and Deslatte located a
jewelry box in Plaintiff’s home with a stain on it that tested positive for cocaine.
(Dkt. # 2 at 3.) According to Plaintiff, even though no cocaine was found and the
warrant authorizing the search did not authorize his arrest, he was arrested on April
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13, 2011 and booked into the Guadalupe County Jail for possession of less than a
gram of cocaine and drug paraphernalia. (Dkt. # 7 at 6.) The Guadalupe County
District Attorney declined to prosecute the case. (Id.)
The search warrant return obtained from the Guadalupe County Clerk
reflects that the officers seized a trace amount of cocaine, a portable digital scale,
and a marijuana pipe with marijuana residue from Plaintiff’s residence. (Dkt. # 8
at 6.) The cocaine charge was dismissed, and Plaintiff was never prosecuted for
possession of drug paraphernalia. (Id.) However, the Guadalupe County Clerk’s
records reflect that on August 15, 2011, Plaintiff was indicted for delivery of one
to four grams of cocaine on or about April 12, 2011—one day prior to the
execution of the search warrant. (Id.) After a jury trial in February 2012, Plaintiff
was found guilty and subsequently sentenced as a repeat offender. (Id.) A report
obtained from the Guadalupe County Narcotics Unit indicates that the charge arose
from Plaintiff’s delivery of cocaine to a confidential source at Plaintiff’s residence
on April 12, 2011. (Id.)
Plaintiff’s complaint first alleges that Defendants subjected him to an
unreasonable search and seizure because Deslatte “deliberately and recklessly
included false information in an affidavit in support of a search warrant” and
Flores approved Deslatte’s actions, knowing the information was false. (Dkt. # 2
at 5.) Next, he asserts that Defendants subjected him to an unlawful arrest without
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probable cause or an arrest warrant. (Id.) Finally, he contends that Defendants’
actions caused him to be falsely imprisoned. (Id. at 6.)
On July 10, 2013, United States Magistrate Judge John W. Primomo
recommended dismissing Plaintiff’s complaint in a Memorandum and
Recommendation. (Dkt. # 8.) On August 1, 2013, Plaintiff filed objections to the
Memorandum. (Dkt. # 13.) On May 6, 2014, this Court overruled those
objections, adopted Magistrate Judge Primomo’s Memorandum and
Recommendation, and dismissed Plaintiff’s complaint without prejudice. (Dkt.
# 14.) On June 25, 2014, Plaintiff filed the Motion for Leave to File an Amended
Complaint (Dkt. # 15) that is now before this Court. On the same day, Plaintiff
filed a Memorandum in Support of Motion for Leave to File Amended Complaint.
(Dkt. # 16.)
LEGAL STANDARD
The Fifth Circuit has explained that “when a district court dismisses
the complaint, but does not terminate the action altogether, the plaintiff may amend
under Rule 15(a) with permission of the district court.” Rosenzweig v. Azurix
Corp., 332 F.3d 854, 864 (5th Cir. 2003) (citing Whitaker v. City of Hous., 963
F.2d 831, 835 (5th Cir. 1992)). “A district court’s dismissal of the complaint
constitutes dismissal of the action when it states or clearly indicates that no

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amendment is possible—e.g., when the complaint is dismissed with prejudice or
with express denial of leave to amend.” Whitaker, 963 F.3d at 835.
Rule 15(a) of the Federal Rules of Civil Procedure provides that
courts should “freely give leave [to amend] when justice so requires.” Fed. R. Civ.
P. 15(a)(2). Following the Supreme Court’s guidance, the Fifth Circuit uses five
factors in determining whether to grant a party leave to amend a complaint:
(1) undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure
deficiencies by previous amendments, (4) undue prejudice to the opposing party,
and (5) futility of the amendment. Rosenzweig v. Azurix Corp., 332 F.3d 854, 864
(5th Cir. 2003) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
An amendment is futile if it could not survive a motion to dismiss.
Rio Grande Royalty Co., Inc. v. Energy Transfer Partners, L.P., 620 F.3d 465, 468
(5th Cir. 2010). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)).
DISCUSSION
As a preliminary matter, because the Court’s Order Adopting
Magistrate Judge’s Memorandum and Recommendation and Dismissing Plaintiff’s
Complaint (Dkt. # 14) dismissed Plaintiff’s complaint without prejudice, the Court
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may consider Plaintiff’s Motion for Leave to File an Amended Complaint under
Rule 15(a). See Whitaker, 963 F.3d at 835.
Plaintiff’s Memorandum in Support of Motion for Leave to File an
Amended Complaint (Dkt. # 16) is largely duplicative of Plaintiff’s previous
arguments, which were ruled on in this Court’s Order Adopting Magistrate Judge’s
Memorandum and Recommendation, and the Court will not re-address those
arguments here. Plaintiff seeks to amend his complaint to add the following new
allegations: (1) Deslatte’s affidavit did not state the circumstances under which
Bruns allegedly saw the useable amount of cocaine in Plaintiff’s residence;
(2) Deslatte’s affidavit does not allege that any ongoing criminal activity was
occurring at Plaintiff’s residence; (3) Plaintiff was not at home when Defendants
executed the search warrant; (4) Defendants were not authorized to seize the
jewelry box; and (5) Defendants placed Plaintiff under arrest without conducting
an investigation as to the true owner of the jewelry box. (Dkt. # 15 at 3–5.)
I.

Circumstances Under Which Bruns Saw a Useable Amount of Cocaine at
Plaintiff’s Residence
Plaintiff first seeks to amend his complaint to include the assertion

that Deslatte’s affidavit lacked detail regarding the circumstances under which
Bruns had seen the useable amount of cocaine at Plaintiff’s residence within the
last 48 hours. (Id. at 3.) Specifically, Plaintiff suggests the affidavit should have
included information regarding whether Plaintiff had used the cocaine himself, or
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whether he had bought or sold it. (Id.) In other words, Plaintiff appears to argue
that the affidavit did not provide enough evidence to provide probable cause to
support the issuance of a search warrant.
The affidavit in this case is nearly identical to the affidavit at issue in
United States v. McKnight, 953 F.3d 898 (5th Cir. 1992). In McKnight, the
affidavit stated (1) the confidential informant had seen drugs at the defendant’s
house in the past 72 hours; and (2) the confidential informant was known to be
reliable and had furnished information in the past that had been proved to be
reliable and true. 953 F.3d at 904–05. There, the Fifth Circuit found that
“probable cause is at the very least most likely supplied by this affidavit.” Id. at
905. The court further found that “the affidavit and resulting warrant clearly
qualify for the good-faith exception to the probable cause requirement.” Id. The
court concluded, “it is impossible to argue that the warrant was facially invalid and
that an officer’s reliance on it could be unreasonable.” Id.; see also United States
v. Gallegos, 239 F. App’x. 890, 894 (5th Cir. 2007) (relying on McKnight to hold
that the good faith exception applied to another virtually identical affidavit and the
resulting warrant and search).
Because the Defendants would be able to rely on the good faith
exception to the probable cause requirement, Plaintiff’s argument regarding lack of

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probable cause would not survive a motion to dismiss. The Court thus finds that
allowing Plaintiff to amend his complaint to include this argument would be futile.
II.

Lack of Allegations Regarding Ongoing Criminal Activity
Next, Plaintiff seeks to amend his complaint to include the assertion

that Deslatte’s affidavit “does not allege that any ongoing criminal activity was
occurring at [Plaintiff’s] residence to show [Plaintiff] would likely be in possession
of cocaine two days after the alleged source saw plaintiff with the useable
amount.” (Dkt. # 15 at 4.) The Court construes this as another iteration of
Plaintiff’s argument that the affidavit did not provide probable cause to support the
issuance of a search warrant. However, as discussed above, Fifth Circuit law
clearly provides that this affidavit and warrant qualify for the good-faith exception
to the probable cause requirement. Under McKnight, Plaintiff cannot prevail on
the argument that the warrant and the resulting search were invalid. The Court
therefore finds that granting Plaintiff leave to amend his complaint to include this
argument would be futile.
III.

Plaintiff’s Absence During Execution of Search Warrant
Third, Plaintiff seeks to amend his complaint to include the fact that

he was not present at his residence when Defendants executed the search warrant.
(Dkt. # 15 at 4.) However, there is no requirement that the owner or occupant of a
property be present when the property is searched, and police officers may enter
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the premises to execute a search warrant in the owner or occupant’s absence.
Payne v. United States, 508 F.2d 1391, 1394 (5th Cir. 1975); United States v.
Woods, 416 F. Supp. 2d 489, 496 (N.D. Miss. 2006). Plaintiff’s assertion that he
was not present when Defendants entered his residence does not call into question
the validity or legality of the search. Therefore, the Court finds that allowing
Plaintiff leave to amend his complaint to include this claim would be futile.
IV.

Authorization to Seize Jewelry Box
Fourth, Plaintiff seeks leave to amend his complaint to include the

allegation that Defendants were not authorized to seize the jewelry box containing
traces of cocaine. (Dkt. # 15 at 5.) Plaintiff states the jewelry box should not have
been seized because it was not an implement or instrument used in the commission
of drug-related offenses. (Id.) Plaintiff also claims that Deslatte had no reason to
believe the box contained cocaine. (Id.) The Court construes these allegations to
mean Plaintiff believes the box was not covered by the search warrant, or that he
had a reasonable expectation of privacy in the jewelry box such that it should not
have been searched or seized.
An unlocked container such as a jewelry box may be searched and
seized without a separate search warrant as long as the container is located within
the area the police are validly searching, and the object being sought could fit
within the container. United States v. Morris, 647 F.2d 568, 572–73 (5th Cir.
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1981) (holding that a search warrant authorizing search of a residence for cash
allowed agents to search a jewelry box); United States v. Ross, 456 U.S. 798, 823
(1982) (“[a] container that may conceal the object of a search authorized by a
warrant may be opened immediately; the individual’s interest in privacy must give
way to the magistrate’s official determination of probable cause.”). Here,
Defendants obtained a warrant to search for cocaine in Plaintiff’s residence. (Dkt.
# 2 at 3.) The jewelry box was located in the residence, and was obviously large
enough to conceal cocaine. The Court finds that Plaintiff did not have a reasonable
expectation of privacy in the jewelry box.
For these reasons, the Court finds that Defendants were entitled to
search and seize the jewelry box, and granting Plaintiff leave to amend his
complaint to include this allegation would be futile.
V.

Lack of Investigation as to Owner of Jewelry Box
Plaintiff last seeks to amend his complaint to include the argument

that Defendants arrested him “without conducting any type of investigation to find
out who owned the [jewelry] box.” (Dkt. # 15 at 5.) Plaintiff appears to claim that
Defendants should not have seized the jewelry box because it may not have
belonged to Plaintiff, or that they were required to ask the other people present at
Plaintiff’s residence whether the box belonged to any of them.

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The Fourth Amendment requires that “items to be seized [pursuant to
a search warrant] be described with sufficient particularity so as to leave ‘nothing
. . . to the discretion of the officer executing the warrant.” United States v. Allen,
625 F.3d 830, 834–35 (5th Cir. 2010) (quoting Marron v. United States, 275 U.S.
192, 196 (1927)). In this case, according to Plaintiff, the warrant authorized
Defendants to search his residence for a useable amount of cocaine. (Dkt. # 7 at
5.) The warrant did not limit Defendants to searching for cocaine or other items
that incontrovertibly belonged to Plaintiff. Furthermore, Plaintiff admits the
jewelry box was found in his bedroom. (Dkt. # 2 at 3.) The Court finds that based
on the terms of the search warrant and the location of the jewelry box, the
Defendants were entitled to seize the jewelry box without conducting an
impromptu investigation as to the true owner of the box. Thus, allowing Plaintiff
to amend his complaint to include this allegation would be futile.
CONCLUSION
For the reasons stated above, the Court hereby DENIES Plaintiff’s
Motion for Leave to File an Amended Complaint. (Dkt. # 15.)
IT IS SO ORDERED.
DATED: San Antonio, Texas, December 8, 2014.

_____________________________________
David Alan Ezra
Senior United States Distict Judge
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