Case: 24-30043       Document: 62-1      Page: 1    Date Filed: 02/06/2025




        United States Court of Appeals
             for the Fifth Circuit
                             ____________                        United States Court of Appeals
                                                                          Fifth Circuit


                              No. 24-30043
                                                                        FILED
                                                                 February 6, 2025
                             ____________
                                                                   Lyle W. Cayce
United States of America,                                               Clerk

                                                         Plaintiff—Appellee,

                                   versus

George Peterson,

                                        Defendant—Appellant.
               ______________________________

               Appeal from the United States District Court
                  for the Eastern District of Louisiana
                        USDC No. 2:22-CR-231-1
               ______________________________

Before Elrod, Chief Judge, and Higginbotham and Southwick,
Circuit Judges.
Jennifer Walker Elrod, Chief Judge:
       Following a law enforcement raid on his home and place of business,
George Peterson pleaded guilty to possessing an unregistered suppressor in
violation of various provisions of the National Firearms Act (NFA). On
appeal, he challenges the denial of two pretrial motions: a motion to dismiss
his indictment on Second Amendment grounds and a motion to suppress
evidence on Fourth Amendment grounds. Because suppressors do not
trigger Second Amendment protection, we AFFIRM the district court’s
denial of Peterson’s motion to dismiss. And because the exclusionary rule’s
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                                 No. 24-30043


good-faith exception prevents suppression of the suppressor discovered at
Peterson’s home, we also AFFIRM the district court’s denial of his motion
to suppress.
                                       I
                                      A
       In the summer of 2022, federal and state law enforcement officers
executed a warrant at PDW Solutions, LLC, Peterson’s firearm business that
he operated out of his home. An Eastern District of Louisiana magistrate
judge issued that warrant based on an affidavit submitted by a Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF) officer.
       According to the officer, the ATF had spent several months
investigating Peterson before seeking the warrant. In one instance, the ATF
sent a Jefferson Parish Sherriff’s Office deputy into PDW to purchase two
handguns. Peterson sold the officer the guns, but he did not report the
transaction to the ATF despite 

.126a’s requirement that he
must. In another instance, an undercover ATF agent patronized PDW with
a confidential informant. Even though Peterson was aware that the informant
could not lawfully purchase a firearm, he nevertheless sold the agent two
firearms after watching the informant hand the agent money for the purchase.
Peterson failed to report this transaction as well. And because all of this
occurred at Peterson’s home, the ATF believed that Peterson had also
violated 

(a)(3) by representing, in his federal-firearms-
license application, that he would conduct business only at gun shows and
out of a leased storage unit.
       In light of this information, the magistrate judge issued a warrant
authorizing a search of Peterson’s home (where the ATF alleged he stored
his inventory) and of another structure attached to his home (where it alleged
he conducted business). The warrant also authorized seizure of PDW’s


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                                       No. 24-30043


transactional and financial records, proceeds from firearm sales, firearms
themselves, and computers and other digital devices, among other things.
          The ATF executed the warrant the next day. During the search, ATF
agents discovered a firearm suppressor inside Peterson’s bedroom-closet
safe. 1       Interestingly, Peterson did not purchase this suppressor from a
manufacturer; he acquired materials and a kit to make it himself. The
suppressor was in working condition, but it neither had a serial number nor
was registered in the National Firearms Registration and Transfer Record.
                                              B
          An Eastern District of Louisiana grand jury indicted Peterson for
possession of an unregistered suppressor under 

, 5861(d),
and 5871.
          In response, Peterson filed a motion to dismiss the indictment and a
motion to suppress the evidence obtained through the ATF’s search of his
property. Peterson argued (1) that the indictment should be dismissed
because the NFA’s registration scheme violates the Second Amendment and


          _____________________
          1
           A suppressor is “a device that attaches to the muzzle of a firearm and makes the
firearm quieter when discharged.” Paxton v. Dettelbach, 

 (5th Cir. 2024);
see also 

(a)(25) (“The terms ‘firearm silencer’ and ‘firearm muffler’ mean
any device for silencing, muffling, or diminishing the report of a portable firearm . . . .”).
Though many use the term “silencer,” that term “is a misnomer, in that—despite movie
fantasies—a noise suppressor reduces decibels[] but does not actually ‘silence’ the
discharge of a firearm. Noise may be muffled or diminished, and maybe by only a few
decibels at that, but it can still be heard.” Stephen P. Halbrook, Firearm Sound Moderators:
Issues of Criminalization and the Second Amendment, 

, 36 (2015).
Suppressors function by causing the gasses emanating from a fired weapon to do so more
slowly and therefore more quietly. 

 at 41–42. Hiram Maxim (whom TIME Magazine
affectionately labeled “Dr. Shush” and “noise’s bogeyman”) is credited not only with
inventing the suppressor but also with using the same sort of technology to abate the noise
produced by early combustion engines. 

, 45 & n.79.



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                                 No. 24-30043


(2) that the evidence obtained from the ATF’s search of his home should be
suppressed because that search violated the Fourth Amendment.
       The district court denied both motions, and Peterson agreed to enter
a conditional guilty plea. He reserved the right to appeal the denial of both
his motion to dismiss and his motion to suppress.
       The district court sentenced Peterson to twenty-four months’
imprisonment, and he timely appealed his two preserved issues.
                                       II
       Peterson first challenges the district court’s denial of his motion to
dismiss. Specifically, he argues that the NFA’s suppressor-registration
requirement unconstitutionally burdens his Second Amendment rights. But
because we conclude that suppressors are not “Arms” within the Second
Amendment’s purview, we disagree.
                                       A
       “We review de novo a district court’s denial of a motion to dismiss an
indictment, including any underlying constitutional claims.” United States v.
Parrales-Guzman, 

 (5th Cir. 2019).
       The Second Amendment protects “the right of the people to keep and
bear Arms.” U.S. Const. amend. II. But as Justice Scalia cautioned in
District of Columbia v. Heller, 

 (2008), that right “is not
unlimited.” United States v. Diaz, 

 (5th Cir. 2024) (citing
Heller, 

). To identify its limits, we employ a two-step analysis.
N.Y. State Rifle & Pistol Ass’n v. Bruen, 

 (2022). “We start, as
always, with the text.” United States v. Giglio, No. 24-60047, --- F.4th ---,
slip op. at 4 (5th Cir. Jan. 23, 2025). That is, we first consider whether “the
Second Amendment’s plain text covers an individual’s conduct.” Bruen, 

.    If it does, “the Constitution presumptively protects that



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                                       No. 24-30043


conduct.” 

 But if it does not, we need not move to the second step, which
compares our “Nation’s historical tradition of firearm regulation” against
the regulation at issue. See 

        “[T]he Second Amendment extends, prima facie, to all instruments
that constitute bearable arms, even those that were not in existence at the
time of the founding.” 

 at 28 (quoting Heller, 

) (italics
added). And as both parties agree, “arms” in the Second Amendment sense
comprises “weapons of offence,” “armour of defence,” and “anything that
a man wears for his defence, . . . takes into his hands, or useth in wrath to cast
at or strike another.” Heller, 554 U.S. at 581–82 (alterations adopted and
quotation marks omitted). That is, to constitute an “arm,” the object in
question must be a weapon. Heller, 

 (reasoning that the
Second Amendment “guarantee[s] the individual right to possess and carry
weapons”).
                                             B
        Whether suppressors constitute “arms” is an issue of first impression
in our circuit. And so far as we can tell, every court to have addressed it has
decided the question in the negative. The Tenth Circuit adopted that
position in United States v. Cox, 

 (10th Cir. 2018). Just
last month, the Fourth Circuit agreed (albeit in an unpublished opinion). See
United States v. Saleem, No. 23-4693, 

, at *2 (4th Cir. Dec.
12, 2024). 2 And district courts from at least two other circuits have reached
the same conclusion. See United States v. Cooperman, No. 22-CR-146, 

, at *1–2 (N.D. Ill. July 26, 2023); United States v. Villalobos, No.
        _____________________
        2
          See also United States v. McCartney, 

 (9th Cir. 2009) (reasoning
that suppressors are not protected by the Second Amendment because they “are not
‘typically possessed by law-abiding citizens for lawful purposes’” (quoting Heller, 

)).



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                                       No. 24-30043


3:19-CR-00040-DCN, 

, at *11–12 (D. Idaho Apr. 21,
2023).
         Peterson posits that suppressors are “an integral part of a firearm”
and therefore warrant Second Amendment protection: “Inasmuch as a bullet
must pass through an attached [suppressor] to arrive at its intended target,”
suppressors are used for casting and striking and thus fit Heller’s definition.
But that is wrong. A suppressor, by itself, is not a weapon. Without being
attached to a firearm, it would not be of much use for self-defense. And
unless a suppressor itself is thrown (which, of course, is not how firearms
work), it cannot do any casting or striking. 3 See United States v. Hasson, No.
GJH-19-96, 

, at *4 n.5 (D. Md. Sept. 20, 2019) (noting that
a suppressor “could be thrown at someone like a shoe or a baseball, which,
most would agree, are not arms protected by the Second Amendment”).
While a suppressor might prove useful to one casting or striking at another,
that usefulness does not transform a gas dissipater into a bullet caster.
Instead, we agree with the Tenth Circuit that a suppressor “is a firearm
accessory . . . not a weapon.” Cox, 

. 4 And while possession
of firearms themselves is covered by the plain text of the Second
Amendment, possession of firearm accessories is not. 

 Accordingly,



         _____________________
         3
          We do not mean to suggest that suppressors are not useful. Suppressors can
reduce noise, recoil, and flash, and many gun owners utilize them to protect their hearing,
be conscientious of neighbors, and avoid “spook[ing] game.” Halbrook, supra, at 35, 42.
Our point is simply that these benefits obtain only when a suppressor is used in conjunction
with a firearm, which indicates that suppressors are not themselves “arms” in the Second
Amendment sense.
         4
          Though Cox predates Bruen, Bruen did not abrogate its reasoning. See Bruen, 

 (Alito, J., concurring) (noting that the majority opinion did not “decide anything
about the kinds of weapons that people may possess”).



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                                        No. 24-30043


Peterson has not shown that the NFA’s registration scheme burdens a
constitutionally protected right.
        Attempting to broaden the Second Amendment’s scope, Peterson
points to United States v. Miller, 

 (1939). That case, he says,
stands for the proposition that “arms” includes the “‘proper
accoutrements’ that render the firearm useful and functional.”
Notwithstanding that the Supreme Court did not identify this principle in
Heller’s extensive treatment of Miller, 5 a suppressor is hardly the sort of
“accoutrement” Miller contemplated. Rather, the 1785 Virginia statute
quoted in Miller used that language to describe items like gunpowder, lead,
and cartridges—items necessary to a firearm’s operation, not just compatible
with it. See Miller, 307 U.S. at 181–82. As the government aptly explains,
“[a]n operable firearm will work perfectly well without a [suppressor], but a
[suppressor] will not transform an inoperable firearm into an operable one.”
        This same point dispenses with Peterson’s other scope-based
argument. He cites Ezell v. City of Chicago, where the Seventh Circuit held
that “[t]he right to possess firearms for protection implies a corresponding
right to acquire and maintain proficiency in their use.” 

(7th Cir. 2011). “[T]he core right,” the court reasoned, “wouldn’t mean
much without the training and practice that make it effective,” so it
concluded that Chicago’s city-wide firing-range ban was unlikely to pass
Second Amendment muster. 

. Even if we were to follow Ezell,
it can hardly be said that suppressor regulation has rendered the right to bear
arms meaningless. The use of a suppressor, as we noted above, is not
necessary to the use of a firearm, so it is not protected by the plain text of the
        _____________________
        5
          See Heller, 

; see also 

 (“We . . . read Miller to say only
that the Second Amendment does not protect those weapons not typically possessed by
law-abiding citizens for lawful purposes, such as short-barreled shotguns.”).



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Second Amendment. The Second Amendment, therefore, is not offended
by the NFA regulation, so we AFFIRM the district court’s denial of
Peterson’s motion to dismiss.
                                            III
        Next, Peterson challenges the denial of his motion to suppress the
suppressor. He argues “that the affidavit in support of the subject warrant
application failed to establish probable cause . . . in violation of the Fourth
Amendment.” But the good-faith exception to the exclusionary rule applies
to the evidence at issue here. That is, irrespective of whether the underlying
affidavit actually gave rise to probable cause, we conclude that it was
reasonable for the officers executing the warrant to rely on it. 6 Accordingly,
the exclusionary rule does not serve to bar admission of the suppressor, and
the district court rightly denied Peterson’s motion to dismiss.
                                             A
        When considering appeals of motion-to-suppress rulings, we review
“factual findings for clear error and legal conclusions de novo, viewing the
evidence in the light most favorable to the prevailing party.” United States v.
Martinez, 

 (5th Cir. 2024).                    “The district court’s

        _____________________
        6
           The district court concluded that the good-faith exception barred application of
the exclusionary rule. On appeal, though, Peterson does not mention the good-faith
exception. He argues instead that “the affidavit in support of the subject warrant
application failed to establish probable cause that a crime involving the seized firearms was
committed, involving, or having a relationship with” his home. Even if this were true, it
would not go toward establishing that the good-faith exception does not apply. See United
States v. Sibley, 

 (5th Cir. 2006) (enumerating the four scenarios wherein
the good-faith exception does not apply). Accordingly, Peterson has likely forfeited his
good-faith-exception argument. Rollins v. Home Depot USA, 

 (5th Cir.
2021). But we need not rest our conclusion on this basis because, as we explain infra, we
would affirm the district court’s good-faith-exception decision even if Peterson’s argument
were preserved.



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                                 No. 24-30043


determination of the reasonableness of a law enforcement officer’s reliance
upon a warrant issued by a magistrate [judge]—for purposes of determining
the applicability of the good-faith exception . . . —is also reviewed de novo.”
United States v. Cherna, 

, 406–07 (5th Cir. 1999) (italics added).
       If the good-faith exception applies, we “affirm the district court’s
denial of the motion to suppress.” United States v. Sibley, 

(5th Cir. 2006).
                                      B
       As the district court correctly reasoned, “[t]he good-faith exception
allows reliance on [a] warrant even if the search warrant is defective so long
as that reliance is objectively reasonable.” “Issuance of a warrant by a
magistrate [judge] 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, 

 (5th Cir. 1988). But the “exception does
not apply when: (1) the magistrate [judge] issuing the warrant was misled by
information in an affidavit that the affiant knew or should have known was
false; (2) the issuing magistrate [judge] abandoned the judicial role; (3) the
warrant was based on an affidavit so lacking in indicia of probable cause as to
render belief in its existence entirely unreasonable; or (4) the warrant was so
facially deficient that the executing officers could not have reasonably
presumed it to be valid.” Sibley, 448 F.4th at 757.
       The district court rightly construed Peterson’s argument as getting
closest to addressing the third exception to the exception. See supra note 6.
And we agree that, despite Peterson’s protests, neither it nor any of the other
exceptions apply. The warrant described “Peterson’s false representation to
the ATF that he would not store or sell guns on his property; three separate
law enforcement purchases from PDW; [and] PDW’s failure to ever file a
multiple sales report.” Regardless of whether these facts would actually give



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                                  No. 24-30043


rise to probable cause, they at least present “indicia of probable cause”
sufficient to render belief in its existence reasonable. See Sibley, 

. Indeed, the affidavit at issue here stands in stark contrast to the sorts of
“bare bones” affidavits that have been deemed insufficient. See United States
v. Brown, 

, 1303 n.1 (5th Cir. 1991) (collecting examples).
Accordingly, we conclude that the officers who executed the warrant acted
reasonably in relying on it. And because none of the exceptions to the good-
faith exception apply, it bars application of the exclusionary rule and the
district court rightly denied Peterson’s motion to suppress.
                                       IV
       For the forgoing reasons, we AFFIRM the district court’s denial of
Peterson’s motion to dismiss and its denial of his motion to suppress.




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