Petition for Writ of Certiorari — Fabian Hernan Hernandez, Petitioner v. United States

Case: 25-10386

Document: 66-1

Page: 1

Date Filed: 12/04/2025

United States Court of Appeals

for the Fifth Circuit

____________

United States Court of Appeals

Fifth Circuit

No. 25-10386

Summary Calendar

____________

December 4, 2025

FILED

Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Fabian Hernan Hernandez,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:24-CR-44-1

______________________________

Before Jones, Duncan, and Douglas, Circuit Judges.

Per Curiam: *

Fabian Hernan Hernandez appeals his conviction for possession with

intent to distribute methamphetamine, contending that the district court

erred by denying his motion to suppress evidence. Because we agree with the

district court’s determination that the good-faith exception to the

_____________________

*

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

Fabian Hernandez v. United States

Petition Appendix

1a

Case: 25-10386

Document: 66-1

Page: 2

Date Filed: 12/04/2025

No. 25-10386

exclusionary rule applies, we affirm. See United States v. Lopez-Moreno, 420

F.3d 420, 429 (5th Cir. 2005).

Where, as here, a search warrant is involved, we employ “a two-step

process for reviewing a district court’s denial of a motion to suppress.”

United States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002). First, we

determine “whether the good-faith exception to the exclusionary rule

applies.” Id. Under the good-faith exception, “where probable cause for a

search warrant is founded on incorrect information, but the officer’s reliance

upon the information’s truth was objectively reasonable, the evidence

obtained from the search will not be excluded.” Id.

The good-faith exception does not apply if the warrant affidavit is “so

lacking in probable cause as to render belief in its existence unreasonable.”

United States v. Morton, 46 F.4th 331, 336 (5th Cir. 2022) (en banc). Contrary

to Hernandez’s arguments, the warrant affidavit for the search of his

residence was not bare bones. The warrant affidavit sets out sufficient facts

confirming that the confidential informant (CI) in this case was reliable and

truthful and that the CI had a sufficient basis of knowledge for his assertions

about Hernandez’s drug trafficking activity, which was based on the CI’s

recent observations of Hernandez’s possession of distribution-level

quantities of methamphetamine as well as Hernandez’s statement, made

within 48 hours of the warrant application, that he would have

methamphetamine to sell to the CI. That agents did not independently

corroborate the CI’s information prior to obtaining the search warrant is

immaterial, as the CI was not an anonymous tipster. Cf. Florida v. J.L., 529

U.S. 266, 270 (2000); Alabama v. White, 496 U.S. 325, 329 (1990).

Critically, Hernandez errs by considering each piece of information in

a vacuum rather than as “closely intertwined issues” that collectively

“illuminate the commonsense, practical question whether there is ‘probable

2

Fabian Hernandez v. United States

Petition Appendix

2a

Case: 25-10386

Document: 66-1

Page: 3

Date Filed: 12/04/2025

No. 25-10386

cause’ to believe that contraband or evidence is located in a particular place.”

Illinois v. Gates, 462 U.S. 213, 230 (1983). Taken together, Hernandez’s link

to the 2022 seizure of 11 pounds of methamphetamine, the CI’s recent

observations of large quantities of methamphetamine in Hernandez’s

residence, and the CI’s incriminating conversation with Hernandez sufficed

both to demonstrate the CI’s reliability and to show a fair probability that

methamphetamine would be found in Hernandez’s house. See United States

v. Turner, 125 F.4th 693, 708 (5th Cir. 2025). Thus, the good-faith exception

applies here. As such, we do not reach Hernandez’s alternative argument

that the magistrate did not have a substantial basis for finding probable cause

for the search. See Cavazos, 288 F.3d at 709.

The judgment is AFFIRMED.

3

Fabian Hernandez v. United States

Petition Appendix

3a

Case 2:24-cr-00044-Z-BR

Document 42

Filed 09/25/24

Page 1 of 12

PageID 135

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

2:24-CR-00044-Z-BR-(1)

FABIAN HERNAN HERNANDEZ,

Defendant.

MEMORANDUM OPINION AND ORDER

Defendant Fabian Heman Hernandez ("Defendant" or "Hernandez") is charged in a twocount indictment with (1) Conspiracy to Distribute and Possess with Intent to Distribute

Metharnphetarnine, in violation of 21 U.S.C. § 846; and (2) Possession with Intent to Distribute

Metharnphetarnine, in violation of 21 U.S.C. §§ 841(a)(l) and 841(b)(l)(C). ECF No. 19.

Defendant moves to suppress all evidence seized by law enforcement during a search of 1942

South Marrs in Amarillo, Texas, conducted pursuant to a search warrant. ECF No. 31. For the

reasons stated below, the Court DENIES the motion.

Because neither party requested a hearing on the pending Motion to Suppress ("Motion")

and because the sole issues in Defendant's Motion are issues of law, not of fact, the Court, in its

discretion, declines to hold a hearing on Defendant's Motion and the Government's Response. 1

See ECF Nos. 31, 37.

1 See United States v. Harrellson, 705 F.2d 733, 737 (5th Cir. 1983) (holding evidentiary hearings are only required

on a Motion to Suppress where necessary to receive an issue of fact). Here the sole issue before the Court is whether

the search warrant affidavit in question is "so lacking in indicia of probable cause" as to qualify as "bare bones." As

such, the Court relied solely on the information contained in the four comers of the search warrant and search warrant

affidavit in deciding Defendant's Motion to Suppress.

Fabian Hernandez v. United States

Petition Appendix

4a

25-10386.132

- - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - ---- ·----·

Case 2:24-cr-00044-Z-BR

Document 42

Filed 09/25/24

Page 2 of 12

··----·

····-··-

....

...

PageID 136

BACKGROUND

In 2022, Task Force Officer Kerry Blackerby ("TFO Blackerby") began a Drug

Enforcement

Administration

("DEA")

investigation

of

Defendant

for

large-scale

methamphetamine trafficking in the Amarillo division. ECF No. 31-1 at 2. Homeland Securities

Investigations ("HSI") simultaneously began investigating Defendant's drug trafficking activities.

Id. HSI informed TFO Blackerby that it had received information that Defendant was trafficking

drugs from his place of business, High Rollerz, located in Amarillo, TX. Id. Defendant then closed

his business in 2022. Id

While investigating Defendant's activities, TFO Blackerby discovered that Defendant had

a previous federal conviction for drug distribution and had posted a picture on his Facebook page

in which he wore a Santa Muerte necklace, a symbol frequently used by high-level distributors of

narcotics affiliated with foreign drug cartels. ECF No. 31-1 at 2.

In 2024, a confidential informant ("CI") contacted TFO Blackerby to inform him that the

CI had been inside Defendant's residence at 1942 South Marrs on "numerous occasions" over the

last few months and "routinely observed" Defendant in possession of "distributable amounts of

Methamphetamine." ECF No. 31-1 at 2-3. The CI stated that he observed one-half to one pound

of methamphetamine "almost every other day" during his visits to Defendant's residence. ECF

No. 31-1 at 3. In May 2024, the CI informed TFO Blackerby that he had observed at least one

pound of methamphetamine at Defendant's residence within the last ten days. ECF No. 31-1 at 3.

TFO Blackerby then applied for a warrant to search for evidence of methamphetamine

trafficking at 1942 South Marrs in Amarillo, Texas. ECF No. 31-1 at 3-4. In support of an

application for the warrant, TFO Blackerby provided an affidavit containing, in part, the following

information:

Fabian Hernandez v. United States

Petition Appendix

5a

25-10386.133

, - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - -.. --. ···-·-·--·-· ·····-

Case 2:24-cr-00044-Z-BR

Document 42

Filed 09/25/24

Page 3 of 12

., .. _,,.,,.

..._ _ _ ,,______

PageID 137

Within the last 48 hours the confidential informant was at the

suspected place and was informed by the suspected party that the

suspected party would be in possession of distribution amounts of

methamphetamine if the confidential informant needed to purchase

any. The suspected party told the confidential informant that if they

needed to purchase methamphetamine, to come to the suspected

place to pick the methamphetamine up and the suspected party

would have them ready. The confidential informant knows that the

substance is Methamphetamine because the confidential informant

has purchased and used Methamphetamine in the past. The

confidential informant has provided information to the affiant and

other law enforcement partners about narcotics traffickers in the past

and through investigations, the affiant, and the affiant' s partners,

was able to establish the information has been proven to be reliable,

true and correct. The confidential informant has been told by the

affiant and other narcotic agents and the confidential informant is

aware that possession of Methamphetamine is a violation of the

Texas Health and Safety Code.

Id. at 3.

The affidavit also described TFO Blackerby's education, experience, and training. Id. at 12. TFO Blackerby has served for twenty-two years as a Randall County Sheriffs Deputy. Id. For

the past several years, he has also concurrently served as a TFO with the DEA. Id. TFO Blackerby

also completed training in criminal investigations and drug offenses through the Randall County

Sheriffs Office, the Amarillo Police Department, Midwest Counter Drug Training Center, the

Texas Narcotics Officers Association, the DEA, and several other organizations. Id. He has "been

involved with numerous criminal investigations including multiple organized crime cases, and

multiple narcotics cases ranging from street level user to cartel large-scale distributors." Id. at 2.

Upon review of the affidavit, Judge Dee Johnson issued a search warrant for 1942 South

Marrs. See id. at 4. During the search, law enforcement found Defendant inside the residence. ECF

No. 1 at 2. Officers located a Ruger .22 rifle, approximately 1.1 kilograms of methamphetamine,

and $7,600.00 in cash. Id.

Fabian Hernandez v. United States

Petition Appendix

6a

25-10386.134

,.,,,._

Case 2:24-cr-00044-Z-BR

Document 42

Filed 09/25/24

Page 4 of 12

PageID 138

The Government subsequently charged the Defendant with two counts: (1) Conspiracy to

Distribute and Possess with Intent to Distribute Methamphetamine, in violation of21 U.S.C. § 846;

and (2) Possession with Intent to Distribute Methamphetamine, in violation of 21 U.S.C.

§§ 84l(a)(l) and 841(b)(l)(C). ECF No. 19.

STANDARDS

Where a Defendant challenges a search warrant for lack of probable cause, the Court

applies a two-step test. United States v. Payne, 341 F.3d 393, 399 (5th Cir. 2003). First, the Court

determines whether the good-faith exception to the exclusionary rule, announced in United States

v. Leon, 468 U.S. 897, 919-20 (1984), applies. Payne, 341 F.3d at 399. Under the good-faith

exception, evidence obtained during a search pursuant to a legally-deficient warrant is admissible,

"so long as the executing officers' reliance on the warrant was objectively reasonable and in good

faith." Id. "Issuance of a warrant by a magistrate normally suffices to establish good faith on the

part of law enforcement officers who conduct a search pursuant to the warrant." United States v.

Craig, 861 F.2d 818, 821 ( 5th Cir. 1988). Second, if the good-faith exception applies, the Court

"need not reach the question 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."' Payne, 341 F.3d at 399. But, if the good-faith exception does not apply, the Court

must then determine whether "the magistrate had a substantial basis for . . . concluding that

probable cause existed." See United States v. Pena-Rodriguez, 110 F.3d 1120, 1129-30 (5th Cir.

1997) (internal citations omitted).

The good-faith exception does not apply where: (1) the affiant recklessly disregarded the

truth and misled the magistrate or judge with false information; (2) the issuing judge or magistrate

"wholly abandoned" his judicial role; (3) the warrant is based on an affidavit "so lacking in indicia

Fabian Hernandez v. United States

Petition Appendix

7a

25-10386.135

Case 2:24-cr-00044-Z-BR

Document 42

Filed 09/25/24

Page 5 of 12

PageID 139

of probable cause as to render belief in its existence entirely unreasonable;" and (4) where the

warrant is so facially deficient in failing to particularize the place to be searched or things to be

seized the executing officers cannot reasonably presume it to be valid. Payne, 341 F.3d at 399400 (citing United States v. Webster, 960 F.2d 1301, 1307 n. 4 (5th Cir. 1992)).

A district court's review of the sufficiency of an affidavit should pay "great deference" to

the magistrate's decision. Illinois v. Gates, 462 U.S. 213, 236 (1983). A "grudging or negative

attitude by reviewing courts toward warrants is inconsistent with the Fourth Amendment's strong

preference for searches conducted pursuant to a warrant," and "courts should not invalidate

warrants by interpreting affidavits in a hyper-technical, rather than a commonsense manner." Id.

(internal citations omitted).

ANALYSIS

Here, in considering the totality of the circumstances, the Court FINDS that the affidavit

was not "bare bones," and the good-faith exception thus applies in this case. The affidavit sets

forth sufficient specific details about the Cl's presence at 1942 South Marrs to survive the "bare

bones" analysis under binding Fifth Circuit precedent. It also provides sufficient detail regarding

the CI' s veracity and reliability for the magistrate to have found probable cause. The executing

Task Force Officers, therefore, had an objectively reasonable basis to believe in the validity of the

warrant.

But even if the good-faith exception does not apply, the affidavit is still supported by

sufficient indicia of probable cause for this Court to uphold the warrant. Here, the affidavit sets

forth sufficient facts to support the magistrate's finding of a fair probability that contraband or

evidence would be found at 1942 South Marrs.

Fabian Hernandez v. United States

Petition Appendix

8a

25-10386.136

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - -- -- - - -···-·".....

Case 2:24-cr-00044-Z-BR

Document 42

Filed 09/25/24

Page 6 of 12

,._

PageID 140

A. The good-faith exception applies because the warrant was not obtained with a

"bare-bones" affidavit.

The good-faith exception applies "when an officer acting with objective good faith has

obtained a search warrant from a judge or magistrate and acted within its scope." United States v.

Brown, 567 Fed. Appx 272, 281 (5th Cir. 2014) (quoting Leon, 468 U.S. at 920). "[E]vidence

obtained by law enforcement officials acting in objectively reasonable good-faith reliance upon a

search warrant is admissible in the prosecution's case-in-chief, even though the affidavit on which

the warrant was based was insufficient to establish probable cause." Brown, 567 Fed. Appx at 281

(quoting United States v. Shugart, 117 F.3d 838, 843 (5th Cir. 1997)).

The exception does not apply when law enforcement obtains a warrant with a "bare bones"

affidavit, meaning one containing "wholly conclusory statements, which lack the facts and

circumstances from which a magistrate can independently determine probable cause."

United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992) (internal citations omitted).

"[E]xamples of 'bare bones' affidavits include those that merely state 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." United States v. Pope, 467 F.3d 912, 920 (5th

Cir. 2006). An affidavit need not contain direct evidence of criminal activity to support a finding

of probable cause. Rather, a magistrate may make reasonable inferences and draw common sense

conclusions from an affidavit. 2 "In determining the sufficiency of an affidavit, the Court must

examine the totality of the circumstances, including the (1) veracity, (2) reliability, and (3) basis

of knowledge of a confidential informant." See United States v. Fisher, 22 F.3d 574,578 (5th Cir.

2 See Brown, 94 l

F.2d at 1303 (holding a magistrate "could have reasonably inferred" that criminal activity was

occurring from information in an affidavit); see also United States v. Wylie, 919 F·.2d 969, 975 (5th Cir. 1990) (stating

that a magistrate "might reasonably have drawn such [a] common sense conclusion" from an affidavit lacking direct

evidence of narcotic sales at a residence).

Fabian Hernandez v. United States

Petition Appendix

9a

25-10386.137

.

.,_

·- ··· ·· -

Case 2:24-cr-00044-Z-BR

Document 42

Filed 09/25/24

Page 7 of 12

PageID 141

1994) (emphasis added). This "totality of the circumstances" approach to probable cause does not

require that all tips be corroborated by subsequent police investigation to be considered credible.

See United States v. Blount, 123 F.3d 831,836 (5th Cir. 1997).

Defendant argues that the good-faith exception is inapplicable because the affidavit is a

"bare bones" affidavit that "lacks all indicia of reliability." ECF No. 31 at 9. Specifically,

Defendant argues that the affidavit failed to specify sufficient facts, especially facts establishing

that Defendant would possess methamphetamine on the date of the search. Id. at 11. Defendant

further argues that there "was no allegation [in the affidavit], whatsoever, of any independent

verification [of the CI' s statements]" by law enforcement and that the affidavit failed to allege

sufficient facts to indicate that the CI was a credible source upon whom the magistrate could rely

on to find probable cause to issue the warrant. Id. at 10-11.

Here, the affidavit is not so conclusory or lacking in indicia of probable cause to qualify as

"bare bones." First, the affidavit sets forth sufficient specific details about the Cl's presence and

first-hand observation of drugs at 1942 South Marrs. The affidavit alleges that Defendant was "in

charge of' or "controlled" the 1942 South Marrs residence. ECF No. 31-1 at 1. See Satterwhite,

980 F.2d at 321 (affidavit was not "bare bones" where it alleged that the defendant controlled the

premises). The affidavit also included a description and photograph of the residence. ECF No. 311 at 1, 8. The CI also told TFO Blackerby that he observed Defendant at the residence in possession

of distributable amounts of methamphetamine numerous times within ten days of the date the

search warrant was issued. ECF No. 31-1 at 2. See United States v. Cutwright, 247 F. Appx 499,

501 (5th Cir. 2007) (affidavit was not "bare bones" where CI observed possession and sale of

bagged cocaine); McKnight, 953 F.2d at 904--05 (affidavit was not "bare bones" where CI

personally observed methamphetamine inside the defendant's residence). Furthermore, the CI

Fabian Hernandez v. United States

Petition Appendix

10a

25-10386.138

, - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - --·- ------·-----

Case 2:24-cr-00044-Z-BR

Document 42

Filed 09/25/24

Page 8 of 12

PageID 142

confirmed that he was in Defendant's residence within forty-eight hours of the search warrant, and

Defendant stated that he would have methamphetamine at the residence on the date of the search

warrant. ECFNo. 31-1 at 3. See Satterwhite, 980 F.2d at 321 (affidavit was not bare bones although

it partially relied on hearsay because the affidavit presented a 'substantial basis for crediting the

hearsay'"). The CI further averred that the substance was methamphetamine because he had both

"purchased and used Methamphetamine in the past." ECF No. 31-1 at 3. See Satterwhite, 980 F.2d

at 321 (affidavit based on allegations of CI upheld where CI recognized cocaine based on Cl's

previous cocaine possession and use); Gallegos, 239 F. Appx at 894 (same). For the purpose of

the good-faith exception, the allegation that (1) Defendant controlled the premises, (2) the CI

observed Defendant on numerous occasions with distributable amounts of methamphetamine at

the residence within the last ten days, (3) Defendant informed the CI that he would have

methamphetamine on the day of the search and (4) the CI recognized the methamphetamine

because the CI had previously possessed and used methamphetamine are sufficient facts "from

which a magistrate can independently determine probable cause." Satterwhite, 980 F.2d at 321.

Second, the affidavit does not lack probable cause simply because it predominately relies

on the statements of a confidential informant without additional corroboration by law enforcement.

The affidavit provides sufficient detail regarding the Cl's veracity and reliability for the magistrate

to find probable cause. When there are no "specific reasons for police to doubt his ... truthfulness,

an ordinary citizen, who provides information to police ... during an ongoing investigation, may

be presumed credible without subsequent corroboration." Blount, 123 F.3d at 835; see also

McKnight, 953 F.2d at 905 ("The 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 reliability and veracity of

Fabian Hernandez v. United States

Petition Appendix

11a

25-10386.139

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - ----···--···- --·-···"·''··"- ···-

Case 2:24-cr-00044-Z-BR

Document 42

Filed 09/25/24

Page 9 of 12

PageID 143

the informant's tip."). Whether subsequent corroboration is necessary "must be determined in the

light of the totality of the circumstances presented by the particular set of facts." Id at 836.

Here, law enforcement had no reason to doubt the CI' s credibility or the truthfulness of the

Cl's statements. The affidavit alleged that the CI had "provided information to the affiant and other

law enforcement partners about narcotics traffickers in the past" which the affiant had been able

to establish was "reliable, true and correct." ECF No. 31-1 at 3. See Satterwhite, 980 F.2d at 321

(finding the CI trustworthy where the affidavit alleged that the CI had assisted law enforcement

reliably in the past); McKask/e, 731 F.2d at 1200 (same). Furthermore, the CI made an inculpatory

statement against interest when he admitted past methamphetamine use. ECF No. 31 -1 at 3 (CI

admitted that he "purchased and used Methamphetamine in the past."). And "[a]dmissions of crime

carry their own indicia of reliability - sufficient at least to support a finding of probable cause to

search." United States v. Harris, 403 U.S. 573, 583 (1971). Additionally, law enforcement had

been investigating Defendant for several years and had received other tips that Defendant was

trafficking methamphetamine. ECF No. 31-1 at 2. For purposes of the good-faith exception, this

information is sufficient to establish the informant's "basis of knowledge" that there was

methamphetamine in the residence. See McKnight, 953 F.2d at 905 (holding affiant's assertion

that informant's presence at the defendant's house and observations therein provided information

by which a magistrate could judge whether informant had sufficient basis of knowledge).

Taken together, the information in TFO Blackerby's affidavit exceeds mere conclusory

statements. The affidavit provides sufficient evidence for a magistrate to make reasonable

inferences and draw common sense conclusions regarding criminal activity at 1942 South Marrs.

When combined with TFO Blackerby's statement about his experience as a DEA Task Force

Fabian Hernandez v. United States

Petition Appendix

12a

25-10386.140

Case 2:24-cr-00044-Z-BR

Document 42

Filed 09/25/24

Page 10 of 12

PageID 144

Officer and his extensive training, 3 it was objectively reasonable for the executing officers to

believe in the validity of the warrant issued by the judge. Consequently, the Court FINDS that the

good-faith exception applies and Defendant's Motion to Suppress should be DENIED.

B. Even if the Good-Faith Exception does not apply, the warrant was supported by

sufficient indicia of probable cause.

Even if the good-faith exception did not apply, the warrant is still valid because it is

supported by probable cause. Probable cause requires a "reasonable ground for belief' that a crime

has been committed and evidence of such crime would be found at the suspected place; or there is

a reasonable expectation contraband would be found at the suspected place. See Kohler v. Englade,

470 F.3d 1104, 1109 (5th Cir. 2006) (quoting Gates, 462 U.S. at 249) ("Probable cause exists when

there are reasonably trustworthy facts which, given the totality of the circumstances, are sufficient

to lead a prudent person to believe that the items sought constitute fruits, instrumentalities, or

evidence of a crime."); Carroll v. United States, 267 U.S. 132, 149 (1925) (explaining that "the

seizing officer shall have reasonable or probable cause for believing that the automobile which he

stops and seizes has contraband liquor therein which is being illegally transported.").

The magistrate must have a "substantial basis for . . . concluding that probable cause

existed." Pena-Rodriguez, 110 F.3d at 1129-30. To have a "substantial basis" in determining

probable cause, the magistrate judge must decide "given all the circumstances set forth in the

affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a

particular place." United States v. Allen, 625 F.3d 830, 840 (5th Cir 2010). And the reviewing

courts "will pay substantial deference to [magistrates'] determinations of probable cause ...."

Aguilar v. Texas, 378 U.S. 108, 111 (1964); see also United States v. Morton, 984 F.3d 421,430

3

As described earlier, TFO Blackerby has twenty-two years of experience with the Randall County Sheriff's Office,

several years of experience as a TFO with the DEA and has received extensive drug interdiction training through the

Randall County Sheriffs Office, the DEA, and several other organizations. ECF No. 31-l at 2-3.

Fabian Hernandez v. United States

Petition Appendix

13a

25-10386.141

Case 2:24-cr-00044-Z-BR

Document 42

Filed 09/25/24

Page 11 of 12

PageID 145

(5th Cir. 2021) (explaining that a "[magistrate judge's) determination of probable cause is entitled

to great deference by the reviewing court .... ").

Here, the affidavit presents more than a substantial basis for the judge to conclude that the

residence would contain evidence of methamphetamine trafficking. The CI was personally present

inside the 1942 South Marrs residence and observed Defendant in possession of methamphetamine

on multiple occasions. ECF No. 31-1 at 3. The CI also identified the amount ofmethamphetamine

observed as a "distributable amount" between one-half to one pound. Id. The CI further stated he

could confidently identify the substance as methamphetamine because of previous personal

methamphetamine possession and use. Id. Given the information in the affidavit, the magistrate

judge could conclude that there is a "fair probability that contraband or evidence" would be found

at the 1942 South Marrs residence. TFO Blackerby's affidavit further notes that the CI was inside

the residence within 48 hours of the issuance of the search warrant and had been informed that

Defendant would possess methamphetamine on the day of the search. Id. Based on the Cl's reliable

information and excellent track record of providing effective and accurate information to law

enforcement, a magistrate had a substantial basis in determining probable cause. Thus, this

affidavit is not so "lacking in indicia of probable cause as to render belief in its existence entirely

unreasonable." Payne, 341 F.3d at 399-400 (citing Webster, 960 F.2d at 1307 n. 4). Accordingly,

the Court FINDS that the affidavit was supported by probable cause, which serves as an

independent basis to DENY Defendant's Motion.

CONCLUSION

For the reasons discussed above and the Fifth Circuit jurisprudence cited, Defendant's

Motion to Suppress is DENIED.

Fabian Hernandez v. United States

Petition Appendix

14a

25-10386.142

Case 2:24-cr-00044-Z-BR

Document 42

Filed 09/25/24

Page 12 of 12

PageID 146

SO ORDERED.

I

September 2£2024.

MA-;ZKACSMARYK

UNITED STATES DISTRICT WDGE

Fabian Hernandez v. United States

Petition Appendix

15a

25-10386.143

Case 2:24-cr-00044-Z-BR

Document 31-1

Filed 09/06/24

Page 1 of 8

PageID 83

SEARCH WARRANT AFFIDAVIT

STATE OF TEXAS

POTTER COUNTY

DEFENDANT’S

EXHIBIT

§

§

§

A

2:24-CR-0044-Z

The undersigned affiant, being a peace officer pursuant to the laws of the State of Texas, and

having been duly sworn, upon oath, makes the following statements and accusations:

1.

There is in Potter County, Texas, a suspected place (hereinafter referred to as "suspected

place") and more specifically described as: Tan single family residence located at 1942

South Marrs Amarillo, Potter County, Texas. This residence is on the Westside of Marrs

and faces the East. The front door is on the Northeast comer of the residence with the

driveway on the Northside also. The exterior is tan in color with blue grey trim. There is

a brick mailbox with the numbers 1942 displayed at the curb.

Attached hereto as Exhibit A is a diagram/ photograph illustrating the location of the place to be

searched; to be considered as part of this affidavit as if written herein

2.

The suspected place is in the charge of, or is controlled by, each of the following named

and/or described individuals (hereinafter referred to as "suspected party", whether one or

more) namely: Fabian Hernan Hernandez 5'8"; 210lbs; Texas DL#44741628

Hispanic/Male "Luis" All other Unknown

3.

Affiant believes that the suspected party is in possession of and is concealing at the

suspected place the following property:

A drug, controlled substance, immediate precursor, chemical precursor, or other

controlled substance property, including apparatus or paraphernalia kept, prepared, or

manufactured in violation of the laws of this state, specifically, Possession of

Methamphetamine (HSC 481.115), Possession of Drug Paraphernaila (HSC481.125);

property specifically designed, made or adapted for or commonly used in the commission

of the offense of possession of, delivery of, or the manufacture of controlled substances.

Further, affiant believes, that the suspected party is also concealing at the

suspected place implements or instruments used in the commission of a crime,

specifically, the possession, distribution, delivery, sale and/or manufacture of any

substance prohibited by Chapter 481 of the Texas Health and Safety Code.

4.

Affiant has probable cause for his beliefs by reason of the following facts, to wit:

Affiant, Kerry Blackerby, is a Police Officer, employed in good standing by the

Randall County Sheriffs Office and so employed since 2002. Affiant has completed

basic and advanced training related to criminal investigation through the Randall County

Sheriffs Office, Amarillo Police Department, Midwest Counter Drug Training Center

(MCDTC), The Texas Narcotics Officers Association and several other organizations

Fabian Hernandez v. United States

Petition Appendix

16a

25-10386.86

Case 2:24-cr-00044-Z-BR

Document 31-1

Filed 09/06/24

Page 2 of 8

PageID 84

including the Drug Enforcement Administration (DEA). The affiant has been involved

with numerous criminal investigations including multiple organized crime cases, and

multiple narcotics cases ranging from street level user to cartel large-scale distributors.

The Affiant also has worked numerous years as a Task Force Officer with the Drug

Enforcement Administration.

During Affiant's career, Affiant has assisted with multiple state and federal

criminal investigations, e.g. Amarillo Police Department, Randall County Sheriffs

Office, Potter County Sheriffs Office, Texas DPS, Federal Bureau oflnvestigations,

Department of Homeland Security, and the Bureau of Alcohol, Tobacco, and Firearms. I

have received training in investigating drug offenses including drug conspiracies, and

financial crimes. I have also received training in undercover operations, visual and

electronic surveillance techniques, Interview and Interrogation techniques, cultivation

and handling of confidential informants, the execution of searches and seizures, writing

affidavits to support the arrest and/or search warrants, drug recognition, exploiting

communication devices, the Use of Force, clandestine laboratory and laboratory

procedures, internet investigation training, and asset forfeiture training.

In 2022, the affiant began a DEA investigating the suspected party as a large-scale

methamphetamine trafficker. In September 2022 the affiant received information from

Homeland Securities Investigations HSI, they had also begun an investigation into the

suspected party. A criminal history check of ~l>,.~S~ t hows that he has a previous

federal conviction for drug distribution. ~ agcflrim'ormed the affiant in a traffic stop

was conducted on a vehicle in the State of Alabama. The vehicle was found to have

approximately 11 pounds of methamphetamine and 3 pounds of M-30 fentanyl. During

the debrief of the driver the driver informed Agents this was the second trip in which she

had made where the vehicle was loaded at High Rollerz shop at 2612 SE 10 th Ave in

Amarillo, Texas. This shop was owned and operated by the suspected party. The driver

also identified the suspected party as being present for the loading of narcotics into the

vehicle, during at least one of these trips. The suspected party closed his business shortly

after the traffic stop occurred in 2022. rv,·l,eH flt leet1:1t 6fte ef tlrie hips ~

Law Enforcement also contacted the Texas Comptroller's Office and learned the

suspected party has never completed proper paperwork for any business that he has

opened, and he never had any reportable income. The suspected party owns several

vehicles and the house the suspected party lives in shows to be paid for.

The affiant also conducted an open-source check and located a Facebook for the

suspected party. The suspected party identifies several vehicles that belong to him. The

suspected party also has a picture wearing a Santa Muerte necklace. From the affiant's

training and experience the affiant knows there is a close relation between the Santa

Muerte figures and high-level narcotics trafficker. To this date, the affiant has yet to see a

street level user, street level dealer, or a retail dealer in possession of a Santa Muerte

emblem. The affiant has located several Santa Muerte emblems and statues in the

possession of multi-pound dealers of narcotics mostly with ties to foreign drug cartels.

A reliable confidential informant contacted the affiant and advised the affiant that

the said confidential informant was inside the said suspected place on numerous

occasions over the last couple of months for various reasons, and routinely observed the

Fabian Hernandez v. United States

Petition Appendix

17a

25-10386.87

Case 2:24-cr-00044-Z-BR

Document 31-1

Filed 09/06/24

Page 3 of 8

PageID 85

suspected party in possession of a distributable amounts of Methamphetamine, which is

in violation of the Texas Health and Safety Code. The confidential informant stated they

have seen ½ pound to pound quantities almost every other day during this time. The last

time the confidential informant saw approximately one pound of methamphetamine was

less than IO days ago.

Affiant, through training and education, and through personal experience, is aware and

knows that individuals engaged in this type of criminal activity on a large scale such as

this (possession/distribution of Methamphetamine) utilize items of contraband such as

scales and packaging materials/equipment. These types of items are not consumable and

are rarely traded. In the affiants' experience these items are kept for long periods of time

and only replaced when they break, or need to be replaced for some malfunction.

Within the last 48 hours the confidential informant was at the suspected place and was

informed by the suspected party that the suspected party would be in possession of

distribution amounts of methamphetamine if the confidential informant needed to

purchase any. The suspected party told the confidential informant that if they needed to

purchase methamphetamine, to come to the suspected place to pick the methamphetamine

up and the suspected party would have them ready.

The confidential informant knows that the substance is Methamphetamine because the

confidential informant has purchased and used Methamphetamine in the past. The

confidential informant has provided information to the affiant and other law enforcement

partners about narcotics traffickers in the past and through investigations, the affiant, and

the affiant' s partners, was able to establish the information has been proven to be reliable,

true and correct. The confidential informant has been told by the affiant and other

narcotic agents and the confidential informant is aware that possession of

Methamphetamine is a violation of the Texas Health and Safety Code. The affiant does

not wish to reveal the identity of the said confidential informant for the protection and

safety of the said confidential informant.

Affiant, through training and education, and through personal experience, is

aware and knows that individuals engaged in this type of criminal activity will conceal

and secret away the contraband and other evidence of their illegal activity in their

residence and vehicles. Affiant, through training and education, and through personal

experience, is aware and knows that individuals engaged in this type of criminal activity

(possession of Methamphetamine) keep items of contraband such as scales and packaging

materials.

The Affiant does believe based on the information and contact made with the

suspected party, there is a high probability agents will locate and find the items specified

in Paragraph Three of this affidavit and seize the same.

Fabian Hernandez v. United States

Petition Appendix

18a

25-10386.88

Case 2:24-cr-00044-Z-BR

Document 31-1

Filed 09/06/24

Page 4 of 8

PageID 86

THEREFORE, Affiant asks for the issuance of a search warrant that will

authorize the search of the suspected place, including the vehicles, outbuildings, edifices

and the curtilage of the suspected place for the items specified in Paragraph Three of this

affidavit and seize the same.

TAT

SUBSCRIBED ~

ORN TO BEFORE ME BY THE AF".lf.NT ON THIS

~J

~ ~ Sb=

DAY OF

IST.

Fabian Hernandez v. United States

Petition Appendix

j

19a

•

25-10386.89

Case 2:24-cr-00044-Z-BR

Document 31-1

Filed 09/06/24

Page 5 of 8

PageID 87

SEARCH WARRANT

STATE OF TEXAS

POTTER COUNTY

§

§

§

THE STATE OF TEXAS, to the Sheriff or any Peace Officer of Potter County, Texas, or any

Peace Officer of the State of Texas, GREETINGS:

WHEREAS, the Affiant, whose name appears on the Affidavit, attached hereto, is a

Peace Officer under the laws of the State of Texas, and did this day subscribe and swear to the

affidavit before me, which the affidavit is hereby made part of this warrant for all purposes, I

find that the verified facts stated by Affiant in the affidavit show that probable cause exists for

the issuance of the warrant requested.

THEREFORE, you are commanded to enter the suspected place: Tan single family

residence located at 1942 South Marrs Amarillo, Potter County, Texas. This residence is on the

Westside of Marrs and faces the East. The front door is on the Northeast corner of the residence

with the driveway on the Northside also . The exterior is tan in color with blue grey trim. There is

a brick mailbox with the numbers 1942 displayed at the curb and search the suspected place, and

suspected party for the items specified in Paragraph Three of the affidavit and, if found, to seize

the same and bring those things before me as required by law. You are to execute this warrant

with three (3) days, exclusive of the day of its issuance and the day of its execution and make

your return thereon showing how you have executed the warrant.

FURTHERMORE, all US Currency or assets seized and subject to asset forfeiture

proceedings under Texas state law or under Title 21, Section 881 et seq, of the United States

Code, be released to the appropriate agency, whether state of federal, by either depositing the

currency in an appropriate bank account or by converting the currency into a cashier's check or

other acceptable negotiable instrument to be deposited into an appropriate account for forfeiture

proceedings.

IT IS ORDERED, that the property seized by the authority of this Warrant shall be and

remain under the care, custody and control of that peace officer or his designated party, and may

be removed to any location within the State of Texas, as deemed necessary by the officer, for the

purposes of safekeeping and completion of any investigation or proceedings related to the

activities described in the affidavit upon which the warrant was issued.

Fabian Hernandez v. United States

Petition Appendix

20a

25-10386.90