United States v. Gray
Justia.com Opinion Summary: Defendant appealed his conviction for possession of five grams or more of crack cocaine with intent to distribute. Defendant argued that the district erred in admitting the crack cocaine and in admitting four photographs of defendant posing with a gun. Defendant was forced to undergo a proctoscopic examination under sedation pursuant to a warrant obtained on the police's belief that he was concealing crack cocaine in his rectum. The court found that the search was unreasonable but that the evidence should not be suppressed because the police acted in good-faith reliance on a valid search warrant. The court held that the district court abused its discretion in admitting the non-probative photographs but there was no reversible error because there was substantial evidence supporting defendant's conviction. Accordingly, the judgment was affirmed.
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The court issued a Revised version of this opinion on February 2, 2012
The court issued a Revised version of this opinion on December 18, 2012
Case: 10-11150 Document: 00511744663 Page: 1 Date Filed: 02/01/2012 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-11150 February 1, 2012 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, PlaintiffâÄďAppellee v. RONDRICK LAMAR GRAY, DefendantâÄďAppellant Appeal from the United States District Court for the Northern District of Texas Before BENAVIDES, PRADO, and GRAVES, Circuit Judges. EDWARD C. PRADO, Circuit Judge: âÄúThe overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.âÄĚ Schmerber v. California, 384 U.S. 757, 767 (1966). This case forces us to balance this fundamental interest in a personâÄôs bodily integrity and dignity against the significant need of law enforcement officers to unearth evidence of crime. Specifically, the Appellant Rondrick Gray was forced to undergo a proctoscopic examination under sedation pursuant to a warrant obtained on the policeâÄôs belief that he was concealing crack cocaine in his rectum. Weighing the competing interests, we find that the search was unreasonable but that the evidence should not be suppressed because the police acted in good-faith reliance on a valid search warrant. Accordingly, we AFFIRM. Case: 10-11150 Document: 00511744663 Page: 2 Date Filed: 02/01/2012 No. 10-11150 I. FACTUAL AND PROCEDURAL BACKGROUND On April 23, 2010, a confidential informant told San Angelo Police Department (âÄúSAPDâÄĚ) Detective Hank Hethcock that Rondrick Gray was in possession of and selling crack cocaine. Based on the information about GrayâÄôs vehicle, SAPD Officers Garza and Elrod stopped GrayâÄôs vehicle and arrested him on outstanding warrants. At the time of the stop (around 3 p.m.), Gray was driving with a passenger, Selah Simmons, who was taken into custody as well. Simmons told SAPD Sergeant Dornhecker that as the police were approaching GrayâÄôs vehicle during the traffic stop, Gray threw a plastic bag containing what she believed to be crack cocaine at her and asked her to conceal it, which Simmons refused to do. SAPD officers conducted a search of GrayâÄôs vehicle for the drugs but found nothing. Garza conducted a search of Gray, which also did not turn up any drugs. A K-9 unit arrived, and a drug dog alerted on the center console area of GrayâÄôs vehicle, but no drugs were found. Gray was taken to the jail, where upon his arrival a strip search was conducted. Garza, who witnessed the strip search of Gray, described Gray as âÄúnot fully cooperative.âÄĚ Gray was placed into the general population of the jail, during which time he was not observed. While Gray was being searched and booked at the jail, SAPD officers did an extensive, two-hour search of GrayâÄôs vehicle, which also turned up nothing. Gray was eventually taken out of the general population and stripsearched a second time with Garza and Elrod watching. As a part of his strip search, he was instructed to squat, pull his buttocks apart, and cough, in order to dislodge anything that may be concealed in the anus. Gray was described as âÄúbeing evasive,âÄĚ because he would only âÄúslightly bend at the knees and give a faint cough.âÄĚ In addition to the two strip searches, SAPD did a second search of the scene where they stopped Gray, and jail personnel conducted strip searches 2 Case: 10-11150 Document: 00511744663 Page: 3 Date Filed: 02/01/2012 No. 10-11150 of all inmates who were in GrayâÄôs holding cell with him. None of these searches turned up any drugs or other contraband. At this point, Hethcock presented Gray with some options of how to proceed: Gray could undergo a third strip search, he could be placed in a cell with a waterless toilet, or he could consent to a rectal x-ray examination. Gray did not consent to any of these options. Based on all of these events and his education, training, and experience, Hethcock believed that the âÄúonly placeâÄĚ Gray could be concealing the crack cocaine that the police suspected him of possessing was in his rectum. Hethcock informed Gray that the police would seek a search warrant to try to uncover the drugs. By 10:15 p.m., Gray posted a bond on his traffic warrants and was released. SAPD, however, detained Gray for thirty minutes while waiting to secure the search warrant. At about 10:45 p.m., over seven hours after GrayâÄôs initial arrest, a state judge signed the search warrant, and Gray was taken to the hospital for the search. The state judge found probable cause for a search based on HethcockâÄôs affidavit. The judge ordered Gray to be presented to a âÄúqualified medical technician to examine [Gray] for the concealment of controlled substances and to remove said controlled substances from his body in accordance with recognized accepted medical procedure as described in [HethcockâÄôs] affidavit.âÄĚ HethcockâÄôs affidavit, while it did state that the police suspected Gray of concealing crack cocaine in his âÄúanal cavity,âÄĚ did not describe the medical procedure to be performed at all. The only limitation on the procedure was the same as in the warrant itselfâÄĒâÄúin accordance with recognized medical procedures.âÄĚ At the hospital, the first procedure performed was an x-ray using a portable x-ray machine. Gray was, according to Hethcock, uncooperative with the x-ray technician and as a result, the technician was unable to âÄúget a good picture with the portable x-ray.âÄĚ The next procedure attempted was another x3 Case: 10-11150 Document: 00511744663 Page: 4 Date Filed: 02/01/2012 No. 10-11150 ray but this time using a stationary machine. At first, Gray was asked to do a standing x-ray, but Gray âÄúrefused to stay where he was told.âÄĚ The medical staff then tried to x-ray Gray while he was lying down, but Gray would not lie still. Eventually, the x-ray technician obtained a useable picture. From his review, he noticed something that he thought could either be a gas pocket or a foreign object but could not decide which. Hethcock took the x-ray to Dr. Roland Heidenhofer, a staff physician at the hospital, who also could not discern whether the anomaly was a gas pocket or a foreign object. Heidenhofer then went to GrayâÄôs room and informed Gray that he was going to perform a digital rectal examination on him. Though Hethcock described Gray as âÄúevasive and uncooperativeâÄĚ during the digital exam, Heidenhofer was able to perform the digital exam to some extent. From that examination, however, he was unable to determine if there was an object in GrayâÄôs rectum. After failing to determine anything from either the x-rays or the digital exam, Heidenhofer consulted with Dr. Emmette Flynn, the hospitalâÄôs Trauma Medical Director. Flynn believed that the best next step was to perform a proctoscopic examination of GrayâÄôs rectum. In such an examination, the proctoscope, essentially an illuminated tube, is inserted across the anal canal and into the rectum. The rectum is then filled with air, or insufflated, so that the interior can be examined. When the rectum is insufflated, the walls are distended, which permits a more thorough evaluation of the wall of the rectum and objects within the rectal vault. Flynn stated that he did not ask for GrayâÄôs consent for the proctoscopic exam and that at the time he made the decision, he had not reviewed the search warrant or GrayâÄôs medical history. For GrayâÄôs proctoscopic exam, two sedatives (Versed and Etomidate) were administered to Gray intravenously. Though the doctors later testified at the suppression hearing that the risks associated with the sedatives were low, Gray was placed on a number of monitors to measure GrayâÄôs cardiovascular status during the 4 Case: 10-11150 Document: 00511744663 Page: 5 Date Filed: 02/01/2012 No. 10-11150 examination. The sedatives carry with them a risk of respiratory depression or arrest. Proctoscopy also has associated risks, including pain and potential anal bleeding or perforation. Flynn admitted that proctoscopic exams are usually not conducted on uncooperative patients. At the time that the doctors decided to perform the proctoscopic exam, there were other less intrusive means available to try to recover the suspected drugs, including a cathartic or an enemaâÄĒneither of which would have involved sedation. During the proctoscopy, Flynn was unable to completely visualize the rectal vault due to a âÄúsubstantial amount of fecal debris.âÄĚ He did, however, intermittently see and feel something different from the other contents of the rectum. Flynn removed the scope and performed a second digital rectal examination, during which Flynn removed a plastic bag from GrayâÄôs rectal cavity. Flynn placed the plastic bag into a biohazard bag provided by the emergency department, and handed the bag to an SAPD officer. Subsequent testing revealed the contents of the bag recovered from GrayâÄôs rectum to be 9.62 grams of cocaine base. The Government indicted Gray for possession of crack cocaine with intent to distribute. Gray moved to suppress the crack cocaine recovered during the proctoscopic examination. After a suppression hearing, the district court found the exclusionary rule inapplicable because the police had relied in good faith on a valid search warrant in recovering the crack cocaine and that, regardless, the crack cocaine would have been inevitably discovered. Overall, the district court found that âÄúthe search and seizure of GrayâÄôs person was reasonable considering the manner and means and justification for the search and seizure.âÄĚ The Government proceeded to trial, which focused on GrayâÄôs intent to distribute. During the course of the trial, the Government introduced four photographs showing Gray posing with a gun. The district court admitted the photographs over GrayâÄôs objections on authentication, prior bad acts, prejudicial 5 Case: 10-11150 Document: 00511744663 Page: 6 Date Filed: 02/01/2012 No. 10-11150 effect, and Confrontation Clause grounds. At the close of evidence, Gray moved unsuccessfully for a judgment of acquittal. The jury convicted Gray of possession of five grams or more of crack cocaine with intent to distribute. The district court sentenced Gray to the statutory mandatory minimum under the pre-Fair Sentencing Act regimeâÄĒten years imprisonment and eight years of supervised release. Gray timely appealed (1) whether the district court should have suppressed the crack cocaine recovered from GrayâÄôs rectum because the search was unreasonable and (2) whether the district court erred in admitting the four photographs of Gray posing with a gun.1 II. DISCUSSION A. Seizure of the Crack Cocaine âÄúWhen the district court denies a motion to suppress, we review factual findings for clear error and conclusions of law de novo.âÄĚ United States v. Payne, 341 F.3d 393, 399 (5th Cir. 2003) (citation omitted). âÄúEvidence is considered in the light most favorable to the prevailing party. The ultimate conclusion about the constitutionality of the law enforcement conduct is reviewed de novo.âÄĚ United States v. Roberts, 612 F.3d 306, 309 (5th Cir. 2010) (internal quotation marks and citations omitted). This âÄúultimate conclusion,âÄĚ which is reviewed de novo, includes âÄúthe sufficiency of the warrant or the reasonableness of an officerâÄôs reliance on a warrantâÄĚ for purposes of the good faith exception. United States v. Allen, 625 F.3d 830, 834 (5th Cir. 2010). 1 Gray also appealed his sentence and argued that the Fair Sentencing Act of 2010 (âÄúFSAâÄĚ) should apply retroactively where, as here, the defendant committed the illegal conduct prior to the enactment of the FSA but was not sentenced until after the FSA went into effect. This argument is foreclosed by our recent holding in United States v. Tickles, 661 F.3d 212 (5th Cir. 2011). GrayâÄôs counsel conceded this point at oral argument. Oral Argument at 0:19, available at http://www.ca5.uscourts.gov/OralArgRecordings/10/10-11150_12-7-2011.wma. In Tickles, we surveyed the existing case law on the retroactivity of the FSA and concluded that âÄúthe penalties prescribed by the FSA do not apply to federal criminal sentencing for illegal conduct that preceded the FSAâÄôs enactment.âÄĚ Tickles, 661 F.3d at 215. 6 Case: 10-11150 Document: 00511744663 Page: 7 Date Filed: 02/01/2012 No. 10-11150 1. Purposes of the Exclusionary Rule and the Good Faith Exception In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court stated that the exclusionary rule is âÄúa judicially created remedy,âÄĚ id. at 906, designed to deter police misconduct, id. at 918. Therefore, where a police officer âÄúacting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope,âÄĚ id. at 920, âÄúthe marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.âÄĚ Id. at 922. We have held that âÄú[t]he good faith exception applies unless one of the four exceptions to it is present.âÄĚ United States v. Foy, 28 F.3d 464, 473 (5th Cir. 1994). Those exceptions are: âÄú(1) If the issuing magistrate/judge was misled by information in an affidavit that the affiant knew was false or would have known except for reckless disregard of the truth; (2) where the issuing magistrate/judge wholly abandoned his or her judicial role; (3) 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; and (4) where the warrant is so facially deficient in failing to particularize the place to be searched or the things to be seized that the executing officers cannot reasonably presume it to be valid.âÄĚ Id. at 473 n.20 (quoting United States v. Webster, 960 F.2d 1301, 1307 n.4 (5th Cir. 1992). In deciding on the applicability of the good faith exception, the âÄúevidence should be suppressed âÄėonly if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.âÄôâÄĚ Allen, 625 F.3d at 836 (quoting Herring v. United States, 555 U.S. 135, 143 (2009)). That is to say, the good faith exception applies unless âÄúa reasonably well trained officer would 7 Case: 10-11150 Document: 00511744663 Page: 8 Date Filed: 02/01/2012 No. 10-11150 have known that the search was illegal despite the magistrateâÄôs authorization.âÄĚ Id. at 835 (quotation marks omitted). 2. Good-Faith-First Two-Step To effectuate the purposes of the exclusionary rule and the good faith exception in cases where we are asked to review the constitutionality of a seizure conducted pursuant to a search warrant, we employ a two-step inquiry. Allen, 625 F.3d at 835 (citing United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999)). First, we determine the applicability of the good faith exception to the exclusionary rule. Id. (citing Leon, 468 U.S. at 920âÄď21 (1984)). If the good faith exception applies, we affirm the district courtâÄôs denial of the motion to suppress. Id. If we find the good faith exception inapplicable, we âÄúdetermine whether the magistrate issuing the warrant had a âÄėsubstantial basis for believing there was probable cause for the search.âÄôâÄĚ Id. (quoting United States v. Davis, 226 F.3d 346, 351 (5th Cir. 2000)). This case is different from Allen and the cases it cites because GrayâÄôs substantive challenge is not one claiming a lack of probable cause. Gray argues that the proctoscopy violated his right to âÄúâÄėpersonal privacy and dignity,âÄôâÄĚ as delineated in Winston v. Lee, 470 U.S. 753, 760 (1985) (quoting Schmerber, 384 U.S. at 767 (1966)). There, the Supreme Court dealt with an appeal of a permanent injunction issued by the district court enjoining the enforcement of a state court search warrant that authorized surgery under general anesthesia to retrieve a bullet that lodged in a suspectâÄôs chest during a robbery. Id. at 756âÄď57. The Court affirmed the injunction because it found the ordering of the surgery to be unreasonable under the Fourth Amendment. Id. at 766. In so doing, it stated that âÄú[t]he reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individualâÄôs interests in privacy and security are weighed against societyâÄôs interests in conducting the procedure.âÄĚ Id. at 760. The Court then elaborated a multi-factor balancing test, 8 Case: 10-11150 Document: 00511744663 Page: 9 Date Filed: 02/01/2012 No. 10-11150 based on Schmerber, that guides the analysis of the reasonableness of a medical procedure to obtain evidence. It noted that the âÄúthreshold requirements for . . . surgical search and seizureâÄĚ were probable cause and the issuance of a warrant. Id. at 760âÄď61. âÄúBeyond these standards,âÄĚ a court reviewing the issuance of a warrant for medical searches should consider the âÄúmagnitude of the intrusion,âÄĚ defined as the âÄúextent to which the procedure may threaten the safety or health of the individualâÄĚ and the âÄúextent of the intrusion upon the individualâÄôs dignitary interests in personal privacy and bodily integrity.âÄĚ Id. at 761 (emphasis added). The countervailing consideration is âÄúthe communityâÄôs interest in fairly and accurately determining guilt or innocence.âÄĚ Id. at 762. Additionally, the Court thought it noteworthy that the suspect was afforded âÄúa full measure of procedural protections,âÄĚ id. at 763; in fact, the state court held two evidentiary hearings before actually issuing the warrant, id. at 756âÄď57. GrayâÄôs challenge is distinct from the normal probable cause challenge because a probable cause determination considers only the policeâÄôs evidence and not any additional countervailing liberty interest of the defendant. The Government argues that this good-faith-first two-step ought to be employed regardless of the substantive challenge. To be sure, the good-faith-first two-step is grounded in the âÄú[p]rinciples of judicial restraint.âÄĚ United States v. Craig, 861 F.2d 818, 820 (5th Cir. 1988). But unwavering adherence to good-faith-first is not mandated by our precedent.2 Quite the opposite, we depart from good-faith- 2 The current framework is essentially a reverse of the familiar Saucier approach to qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (prescribing that courts should first consider the constitutional-violation prong before turning to the objectivereasonableness prong when deciding questions of qualified immunity), overruled in part by Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that it was no longer mandatory for courts to decide the constitutional-violation prong first); see also Groh v. Ramirez, 540 U.S. 551, 565 n.8 (2004) (describing the inquiry for good faith under the Fourth Amendment as the same as the objective-reasonableness prong under qualified immunity). The good-faith-first two-step goes one step further than Pearson does and mandates never reaching the constitutional violation until deciding that the officers were not objectively reasonable. 9 Case: 10-11150 Document: 00511744663 Page: 10 Date Filed: 02/01/2012 No. 10-11150 first when discussion by this court of the underlying substantive challenge will give âÄúsubstantial guidance to lower courts and law enforcement officials.âÄĚ Id. at 821. Because, in our view, this is a case where âÄúresolutionâÄĚ of the substantive challenge âÄúis necessary to guide future action by law enforcement officers and magistrates,âÄĚ Illinois v. Gates, 462 U.S. 213, 265 41983) (White, J., concurring in the judgment), we find âÄúcompelling reasonsâÄĚ to justify departure from our normal good-faith-first approach. Craig, 861 F.2d at 821; see also United States v. Husband, 312 F.3d 247, 256 (7th Cir. 2002) (declining to reach the question of the good faith exceptionâÄôs applicability to warrants authorizing medical procedure searches). a. Reasonableness of the Search Applying the Winston factors to the present case, the magnitude/danger of the proctoscopy appears to be slight. Though the testimony reveals that there was some risk of respiratory depression or arrest associated with the sedatives administered and risk of anal bleeding or perforation associated with the use of the proctoscope, these risks were low in the hospital setting where the proctoscopy occurred. The risks here are obviously greater than the blood draw found permissible in Schmerber, 384 U.S. at 771 (allowing a blood draw to determine the blood alcohol level of a drunk driver), but they do not seem to rise to the level of the risks associated with the surgery found unreasonable in Winston, 470 U.S. 763âÄď65. On the extent of the intrusion factor, Gray argues that âÄú[s]hy of full-on exploratory surgery [like in Winston], it is hard to imagine a more demeaning Compare Allen, 625 F.3d at 835, with Pearson, 555 U.S. at 236 (âÄúAlthough we now hold that the Saucier protocol should not be regarded as mandatory in all cases, we continue to recognize that it is often beneficial.âÄĚ). Unwavering adherence to good-faith-first will stagnate constitutional law in this area by completely shielding from review the magistrateâÄôs initial determination of whether to issue a medical procedures warrant. Cf. Saucier, 533 U.S. at 201. 10 Case: 10-11150 Document: 00511744663 Page: 11 Date Filed: 02/01/2012 No. 10-11150 and intrusive invasion of GrayâÄôs interestsâÄĚ in personal privacy and bodily integrity. Br. of DefendantâÄďAppellant at 29. This is an understatement: the proctoscopy here was a greater affront to GrayâÄôs dignitary interest than full-on exploratory surgery. Though sedated, Gray was conscious throughout the entire procedure. Moreover, the procedure targeted an area of the body that is highly personal and private. In our society, the though of medical technicians, under the direction of police officers, involuntarily sedating and anally probing a conscious person is jarring. Such a procedure is degrading to the person being probedâÄĒboth from his perspective and societyâÄôs. This type of search resembles the physical vaginal cavity search that the First Circuit encountered in Rodriques v. Furtado, 950 F.2d 805 (1st Cir. 1991). There, the First Circuit said, [t]he invasion here was extreme, constituting a drastic and total intrusion of the personal privacy and security values shielded by the fourth amendment [sic] from unreasonable searches. Searches of this nature instinctively give us cause for concern as they implicate and threaten the highest degree of dignity that we are entrusted to protect. Id. at 811. In taking both of the individual interests into account, the magnitude of the intrusion from the proctoscopy was minimal, but the extent of intrusion from the proctoscopy was great. SocietyâÄôs interest here, like in Winston, is âÄúof great importance.âÄĚ Winston, 470 U.S. at 762. The interest is even greater than in Winston, where there was other evidence of guilt, id., because the crack cocaine that Hethcock believed Gray was concealing in his anal cavity was the only direct evidence of GrayâÄôs possession. Unlike in Schmerber or Winston, however, there were other available avenues for obtaining this evidence, such as a cathartic or an enema. Such alternatives militate against societyâÄôs great interest âÄúin conducting the procedureâÄĚ used in this caseâÄĒproctoscopy. Id. at 760 (emphasis added). 11 Case: 10-11150 Document: 00511744663 Page: 12 Date Filed: 02/01/2012 No. 10-11150 When balancing these interests and comparing them to our benchmarks of the permissible Schmerber blood draw and the impermissible Winston surgery, the medical danger here is slightly greater than in the former but nowhere near the danger of the latter. As to the dignitary interest, this is one of the greatest dignitary intrusions that could flow from a medical procedureâÄĒinvoluntary sedation for an anal probe where the person remains conscious. The last consideration is societyâÄôs interests, which are not as great as in Schmerber but greater than in Winston. On balance, we find the proctoscopic search unreasonable due to the exceeding affront to GrayâÄôs dignitary interest and societyâÄôs diminished interest in that specific procedure in light of other less invasive means. b. Good Faith As stated above, the good faith exception applies unless one of the four exceptions to it applies. Foy, 28 F.3d at 473. In this case, none of the exceptions to the good faith exception applies. The magistrate was neither misled nor abandoned his judicial role. The warrant was not so devoid of probable cause nor so lacking in particularity to say that âÄúa reasonably well trained officer would have known that the search was illegal.âÄĚ Allen, 625 F.3d at 835. Where, as here, the magistrate issues a warrant that is more particularized than a search of the suspectâÄôs âÄúperson,âÄĚ see United States v. Nelson, 36 F.3d 758, 760âÄď61 (8th Cir. 1994),3 the warrant will not likely have any of the deficiencies identified by this court as a basis for not applying the good faith exception. That is to say a warrant, like the one at issue, that authorizes a medical procedure search of 3 In Nelson, the Eighth Circuit found that the warrant failed the particularity requirement of the Warrant Clause because a âÄúsearch warrant for appellantâÄôs âÄėpersonâÄô was not sufficient to authorize a body cavity search.âÄĚ 36 F.3d at 760. It also found that the good faith exception was inapplicable because âÄúeven if we agree that the officers could have reasonably believed that the warrant included authorization for a body cavity search, there is no objectively reasonable basis for the officersâÄô mistaken belief that the authorization contained in the warrant extended to the endoscopy.âÄĚ Id. at 761 (internal quotation marks omitted). 12 Case: 10-11150 Document: 00511744663 Page: 13 Date Filed: 02/01/2012 No. 10-11150 a specific area of the body but does not prescribe any off-limits procedures will be subject to good faith unless the police misled the magistrate, the magistrate abandoned her judicial role, or the warrant so clearly lacked probable cause. None of those situations exists in this case. This fact is of great concern to us because it seems that even if the magistrate were to authorize a medical procedure search that would violate the Fourth Amendment, like the general surgery found impermissible in Winston, there is no remedy for such a violation; the police officerâÄôs reliance on that warrant would be objectively reasonable. See Leon, 468 U.S. at 916; see also United States v. Husband, 226 F.3d 626, 636 (7th Cir. 2000) (Easterbrook, J., dissenting). Therefore, although we hold that the seizure is permissible under the good faith exception, we urge warrant-issuing magistrates to cabin the search warrant more than the âÄúrecognized medical procedureâÄĚ language in this warrant. Additionally, we encourage magistrates, where feasible, to hold a hearing like in Winston to allow for more careful consideration of the competing interests at stake in each one of these medical procedure search cases. As the Court noted in Winston, [t]he Fourth Amendment is a vital safeguard of the right of the citizen to be free from unreasonable governmental intrusions into any area in which he has a reasonable expectation of privacy. [W]hen the State seeks to intrude upon an area in which our society recognizes a significantly heightened privacy interest, a more substantial justification is required to make the search âÄúreasonable.âÄĚ 470 U.S. at 767. B. Admission of the Photographs Evidentiary rulings by the district court are reviewed for abuse of discretion, subject to harmless error review. United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011). âÄúA trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.âÄĚ Id. (internal quotation marks omitted). 13 Gray challenges the Case: 10-11150 Document: 00511744663 Page: 14 Date Filed: 02/01/2012 No. 10-11150 admission of four photographs that depict him posing with a gun. He contends that these photographs were erroneously admitted because they were (1) not properly authenticated and (2) unfairly prejudicial. 1. Authentication Federal Rule of Evidence 901(a) provides that âÄúauthentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.âÄĚ This standard is not a âÄúburdensome one,âÄĚ Jackson, 636 F.3d at 693, as we do not âÄúrequire conclusive proof of authenticity before allowing the admission of disputed evidence.âÄĚ United States v. Watkins, 591 F.3d 780, 787 (5th Cir. 2009). The Government used SAPD Detective Rodney Black to authenticate the photographs. He testified that the photographs were downloaded from SimmonsâÄôs cell phone, which she authorized him to do, and that the pictures âÄúappeared to be Mr. Gray holding a handgun or revolver.âÄĚ While usually a witness with personal knowledge would need to testify that the photographs accurately depict the scene at the time of their taking, see Kenneth S. Broun, 1 McCormick on Evidence Â§ 52 (6th ed. 2006), here, the Government was not seeking to prove anything relating to the time that the pictures were taken, but rather that these were pictures of Gray holding a gun. Therefore, Black did not need to testify that the photographs were a true and accurate depiction of anything more than Gray holding a gun. Black had sufficient personal knowledge to testify that the photographs depicted Gray holing a gun. See United States v. Jimenez Lopez, 873 F.2d 769, 772 (5th Cir. 1989) (âÄúRule 901 does not limit the type of evidence allowed to authenticate a document.âÄĚ). 2. Prejudice Gray also argues that it was error for the trial court to admit the photographs of him posing with a gun because of the minimal probative value of the photographs and the significant danger of unfair prejudice. 14 The Case: 10-11150 Document: 00511744663 Page: 15 Date Filed: 02/01/2012 No. 10-11150 Government argues that the photographs showing Gray with a gun is probative of GrayâÄôs intent to distribute the crack cocaine recovered from his person because âÄúfirearms are tools of the [drug] trade.âÄĚ See United States v. Martinez, 808 F.2d 1050, 1056âÄď57 (5th Cir. 1987) (internal quotation marks omitted). Martinez, like the other cases the Government cites to, held that guns recovered from the same location where drugs were found is probative of intent.4 These cases do not support the conclusion that the fact that Gray held a gun (perhaps legally) in a photograph was probative of GrayâÄôs intent to distribute the crack cocaine found in him. There was no probative value to the photographs, and therefore, the district court abused its discretion through its admission of the evidence. See United States v. Palmer, 37 F.3d 1080, 1085 (5th Cir. 1994) (where evidence has no probative value, admission is clear error). A finding that the district court abused its discretion in admitting the nonprobative photographs does not, however, end our inquiry. We must consider whether their admission was harmless error. Jackson, 636 F.3d at 692. Absent the photographs, the evidence relating to GrayâÄôs intent is the amount of the cocaine (street value of just over one thousand dollars) and the way the crack cocaine was divided (some in dealer sizes and other smaller pieces in user sizes). There is âÄúsubstantial evidenceâÄĚ supporting Gray's conviction, such that the outcome of the case would not be affected by the error. See United States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008). Therefore, there is no reversible error based on the admission of the four photographs. 4 See United States v. Townsend, 1999 WL 427597, at *9 (unpublished) (introduction of forty-one guns found at defendantâÄôs home where the police also found crack cocaine not unduly prejudicial); United States v. Gonzales, 9 F.3d 103, at *2 (1993) (per curiam) (introduction of a gun found in the defendantâÄôs car, which the police had seen the defendant run from carrying drugs, was not unduly prejudicial); Martinez, 808 F.3d at 1057 (introduction of guns found in defendantâÄôs car when he was arrested on drug-related charges was not unduly prejudicial). 15 Case: 10-11150 Document: 00511744663 Page: 16 Date Filed: 02/01/2012 No. 10-11150 III. CONCLUSION For the foregoing reasons, we AFFIRM the district courtâÄôs admission of the crack cocaine and the four photographs of Gray posing with a gun. AFFIRMED. 16