United States v. Corey Moore , 477 F. App'x 102 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4623
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
COREY A. MOORE,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:10-cr-00648-AW-1)
Argued: January 26, 2012 Decided: April 24, 2012
Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.
Reversed and remanded by unpublished opinion. Judge Keenan
wrote the majority opinion, in which Judge Wilkinson joined.
Judge Gregory wrote a dissenting opinion.
ARGUED: Jonathan Biran, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellant. Brian Keith McDaniel, BRIAN
K. MCDANIEL & ASSOCIATES, Washington, D.C., for Appellee.
ON BRIEF: Rod J. Rosenstein, United States Attorney, Mara Zusman
Greenberg, Assistant United States Attorney, Jonathan Lenzner,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
KEENAN, Circuit Judge:
In this interlocutory appeal filed pursuant to 18 U.S.C. §
3731, the government challenges the district court’s order
granting Corey A. Moore’s motion to suppress certain evidence
seized during a search of his home. The district court
concluded, among other things, that the warrant authorizing the
search was so lacking in indicia of probable cause that the
officers could not have relied on the warrant in good faith. We
reverse the district court’s order based on our conclusion that,
as a matter of law, the good faith exception to the exclusionary
rule established in United States v. Leon, 468 U.S. 897 (1984),
is applicable in the present case.
I.
On September 25, 2010, a police officer employed by the
City of Takoma Park, Maryland, observed Corey Moore walking on a
public street. The officer suspected that Moore had committed
an alcohol-related violation because he was carrying a bottle
while walking. When the officer attempted to confront Moore, he
fled. In the pursuit that followed, both the officer and a
bystander witnessed Moore throw a large object into a dumpster.
Moore later was apprehended and taken into custody.
When police officers searched the dumpster, they located
only one item that resembled the object thrown by Moore. This
2
item was a package that was found to contain more than one-half
kilogram of cocaine having an estimated “street” value of
$10,000.00.
Two days later, Takoma Park police officers responded to a
report of an attempted burglary at a residence located at 118
Sherman Avenue (the residence). A citizen had reported hearing
a “thumping noise” outside the residence, and had observed two
men run from the driveway of the home. The residence was
located on the same block in which the officer first encountered
Moore.
After arriving at the scene, the officers inspected the
residence and saw a broken window in the basement. The officers
contacted the owner of the residence, who informed them that he
rented the basement of the residence to Corey Moore. The
homeowner also informed the officers that Moore’s BMW automobile
was parked in front of the residence.
The officers performed a “protective sweep” of the basement
of the residence, but found no one there. Detective Charles
Hoetzel of the Takoma Park Police Department determined that a
grey BMW located across the street from the residence was
registered in Moore’s name.
Hoetzel provided the above information in an affidavit he
submitted to obtain a search warrant for the basement of the
residence, except that the affidavit did not mention that the
3
officers had conducted a protective sweep of the basement. A
Maryland circuit court judge issued the search warrant,
concluding that there was probable cause to believe that
narcotics, firearms, and evidence of drug trafficking would be
located in the basement of the residence. When Takoma Park
police officers executed the search warrant, they found 2.8
kilograms of phencyclidine (PCP), $44,780 in cash, and several
firearms.
A federal grand jury returned a four-count indictment
against Moore. The indictment charged Moore with: (1)
possession with intent to distribute a substance containing a
detectable amount of cocaine, in violation of 21 U.S.C. §
841(a)(1); (2) possession with intent to distribute one kilogram
or more of PCP, in violation of 21 U.S.C. § 841(a)(1); (3)
possession of firearms in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c); and (4) being a felon
in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1).
Moore filed a motion to suppress the evidence seized from
his residence, arguing that the search warrant did not establish
probable cause for the search because the warrant did not
contain any information to support an inference that contraband
would be found at the residence. Moore further argued that the
Leon good faith exception was not applicable because the
4
officers allegedly were aware that probable cause had not been
established.
Moore also requested a hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978), to challenge the veracity of the
information contained in the warrant. He based his request for
a Franks hearing on the fact that Hoetzel had omitted from the
affidavit the information that two days after arresting Moore,
police officers had entered the basement of the residence and
conducted a protective sweep of the premises, during which no
contraband had been observed. Moore argued that this omission
was material, and effectively would have negated both a finding
of probable cause and the availability of the Leon good faith
exception.
The district court concluded that Moore’s argument
regarding this omission was merely speculative and, therefore,
that Moore had not met his burden of establishing the need for a
Franks hearing. However, the district court granted Moore’s
motion to suppress the evidence seized in the search of his home
on the ground that the search warrant was not supported by
probable cause. The district court further held that the Leon
good faith exception was inapplicable, because the warrant was
so deficient that the officers could not have relied on it in
good faith.
5
The government filed a motion for reconsideration, which
the district court denied. This appeal followed.
II.
The government argues that the affidavit at issue
established probable cause to believe that evidence of a crime
would be found in Moore’s home. The government contends that a
nexus between Moore’s criminal activity and his residence was
established, because the affidavit included evidence that Moore
had possessed large quantities of cocaine in close proximity to
his residence two days before the officers obtained the warrant.
Additionally, the government asserts that, irrespective whether
the affidavit for the search warrant established probable cause,
the Leon good faith exception to the exclusionary rule is
applicable.
In response, Moore argues that the district court correctly
granted the motion to suppress, because the affidavit failed to
establish probable cause to search the residence based on
Moore’s earlier possession of cocaine away from his home.
According to Moore, his possession of cocaine, without more,
failed to create the necessary nexus between his criminal
activity and his residence. In addition, Moore contends that
the Leon good faith exception is inapplicable because the
affidavit was so lacking in probable cause that the officers
6
could not reasonably have relied upon it, and because the
officers misled the issuing judge by omitting material facts
from the affidavit. We disagree with the result advocated by
Moore.
In an appeal from a district court’s ruling on a motion to
suppress, we review the court’s legal conclusions de novo, and
the court’s factual findings for clear error. United States v.
Buckner, 473 F.3d 551, 553 (4th Cir. 2007). When, as here, no
facts are in dispute, the applicability of the Leon good faith
exception presents a question of law that we review de novo.
United States v. DeQuasie, 373 F.3d 509, 520 (4th Cir. 2004).
In determining whether a search warrant is supported by
probable cause, a judicial officer must consider “the facts and
circumstances as a whole and make a common sense determination
[] whether ‘there is a fair probability that contraband or
evidence of a crime will be found in a particular place.’”
United States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992)
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). A
reviewing court accords great deference to a judicial officer’s
determination of probable cause. United States v. Clyburn, 24
F.3d 613, 617 (4th Cir. 1994) (citing Gates, 462 U.S. at 236).
We long have held that “the nexus between the place to be
searched and the items to be seized may be established by the
nature of the item and the normal inferences of where one would
7
likely keep such evidence.” United States v. Anderson, 851 F.2d
727, 729 (4th Cir. 1988). Thus, when factually supported, a
sufficient nexus between a defendant’s residence and criminal
activity may be established even when the affidavit in support
of the search warrant does not contain factual information
directly linking the items sought to that residence. United
States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005).
Accordingly, we have declined to require direct evidence that
drugs are located in a residence when other facts and
circumstances sufficiently establish probable cause for the
search. Id. at 214.
Based on the present record, however, we need not determine
whether the search warrant for Moore’s home was supported by
probable cause. Instead, as permitted under Leon, we proceed
directly to consider the issue whether the officers could have
relied in good faith upon the issued search warrant. See Leon,
468 U.S. at 925; United States v. Andrews, 577 F.3d 231, 235
(4th Cir. 2009) (exercising discretion to proceed to good faith
exception); United States v. Legg, 18 F.3d 240, 243 (4th Cir.
1994) (same).
Evidence seized in violation of the Fourth Amendment
generally is subject to suppression under the exclusionary rule.
See Andrews, 577 F.3d at 235 (citing United States v. Calandra,
414 U.S. 338, 347-48 (1974)). However, in its decision in Leon,
8
the Supreme Court has instructed that a court should not
suppress “the fruits of a search conducted under authority of a
warrant, even a ‘subsequently invalidated’ warrant, unless ‘a
reasonably well trained officer would have known that the search
was illegal despite the magistrate’s authorization.’” United
States v. Williams, 548 F.3d 311, 317 (4th Cir. 2008) (quoting
Leon, 468 U.S. at 922 n.23)). Thus, under this good faith
exception, “evidence obtained pursuant to a search warrant
issued by a neutral magistrate does not need to be excluded if
the officer’s reliance on the warrant was ‘objectively
reasonable.’” United States v. Perez, 393 F.3d 457, 461 (4th
Cir. 2004) (citing Leon, 468 U.S. at 922).
An officer’s reliance on a warrant does not qualify as
being “objectively reasonable,” requiring that the seized
evidence be excluded in the following circumstances: (1) when
the affiant based the application for a search warrant on false
information that was supplied either knowingly or recklessly;
(2) when the judicial officer wholly abandoned his role as a
neutral decisionmaker and served simply as a ‘rubber stamp’ for
the police officers; (3) when the affidavit supporting the
search warrant was so lacking in indicia of probable cause that
official belief in its existence was objectively unreasonable;
and (4) when the search warrant was so facially deficient that
the police officers could not reasonably have believed that the
9
warrant was valid. United States v. Wellman, 663 F.3d 224, 228-
29 (4th Cir. 2011) (citing United States v. Doyle, 650 F.3d 460,
467 (4th Cir. 2011)).
In conducting this Leon analysis, we will assume, without
deciding, that the information contained in the affidavit was
insufficient to establish probable cause, and instead consider
whether the police officers’ reliance on the search warrant was
objectively reasonable. See Wellman, 663 F.3d at 228. Moore
argues, in effect, that the present affidavit falls under the
third Leon exclusion. 1 Upon our review, we conclude that the
affidavit was not so lacking in indicia of probable cause that
the officers’ reliance on the warrant was objectively
unreasonable. See Leon, 468 U.S. at 923.
The affidavit stated that Moore had possessed a substantial
amount of cocaine, worth an estimated $10,000, on the same block
where the residence was located. The affidavit also recited
that Moore’s landlord verified that Moore lived in the basement
of the residence. The affidavit further stated that the police
1
Although Moore also contends that the Maryland judge
issuing the search warrant acted as a “rubber stamp” for the
Takoma Park officers, the record does not provide any basis to
support a conclusion that the Maryland judge abandoned his role
as a neutral and detached decisionmaker. Because the basis of
Moore’s argument in this regard is that the search warrant
application contained grossly insufficient information, we
analyze his contention under the third Leon exclusion. See
Wellman, 663 F.3d at 229 (citing Doyle, 650 F.3d at 470).
10
had determined that a grey BMW parked across the street from the
residence was registered in Moore’s name. In addition,
Detective Hoetzel stated in the affidavit that “based upon his
training, experience, and participation in narcotics
investigations” during his seven-year tenure with the City of
Takoma Park Police Department, that drug traffickers tend to
hide contraband, firearms, and evidence of drug transactions “in
a secure location,” to which they can obtain “ready access.”
We conclude that these statements in the affidavit provided
sufficient indicia of probable cause to meet the requirements of
the Leon good faith exception. In particular, Moore’s
possession of a large amount of cocaine in close proximity to
his residence, combined with Detective Hoetzel’s stated
experience that drug traffickers tend to keep contraband and
other evidence of drug transactions in a secure place to which
they retain ready access, established a plausible nexus between
the place to be searched and the presence of contraband items
related to the distribution of narcotics.
We observe that the Supreme Court recently rejected a
similar challenge to a search warrant when the supporting
affidavits contained information of a suspect’s residence, of
his gang membership, and that he committed an assault with a
firearm at a separate location. Messerschmidt v. Millender, 132
S. Ct. 1235, 1242-43 (2012). The warrant was challenged as
11
lacking any facts to support probable cause to search the
suspect’s residence for any firearms and evidence of gang
membership. Id. at 1242, 1246. Although the affidavits
contained no facts directly linking firearms or evidence of gang
activity to the residence, the Court held that the officers
could have reasonably relied upon the warrant to search for such
items. Id. at 1246-49. The holding in Messerschmidt further
supports our conclusion that, in the present case, the affidavit
provided a sufficient nexus between the place to be searched and
criminal activity alleged to meet the requirements of the Leon
good faith exception. Accordingly, we conclude that the
evidence seized in the search of Moore’s residence should not
have been suppressed, because the officers’ reliance on the
warrant was objectively reasonable. See Leon, 468 U.S. at 922;
Perez, 393 F.3d at 461.
Our conclusion is not altered by Moore’s argument quoting
from our decision in United States v. Lalor, 996 F.2d 1578 (4th
Cir. 1993), in which we stated that “residential searches have
been upheld only where some information links the criminal
activity to the defendant’s residence.” Id. at 1583 (citing
Williams, 974 F.2d at 481-82). In Lalor, we were careful to
explain that the affidavit in that case had not established any
relationship between the area where the defendant allegedly
conducted drug transactions and the location of the defendant’s
12
home. Id. at 1583. Importantly, we observed that the record
did not show the distance between the searched premises and the
location of the defendant’s drug activity, and we stated that
this distance could have been significant because “the
magistrate might have been able to draw an inference from the
proximity of the drug sales to Lalor’s residence.” Id.
In contrast to the affidavit at issue in Lalor, the
affidavit before us conclusively established the close proximity
of the place where the defendant’s criminal activity occurred to
the premises to be searched. Moreover, in Lalor, we ultimately
held that despite the absence of a demonstrated nexus between
the location to be searched and the defendant’s criminal
activity, the Leon good faith exception still was applicable.
996 F.2d at 1583. Thus, the decision in Lalor not only fails to
aid Moore’s position, but provides significant support to our
conclusion that the officers executing the search warrant of
Moore’s residence could have relied in good faith upon that
warrant.
Moore argues, nevertheless, that the good faith exception
of Leon is inapplicable because Hoetzel omitted from the
affidavit any reference to the officers’ protective sweep of
Moore’s residence after the report of the attempted burglary.
We note that, in making this argument, Moore does not challenge
the district court’s denial of a Franks hearing, but instead
13
argues that the good faith exception is inapplicable because the
judge issuing the search warrant was “misled regarding the
information in the possession of law enforcement which would
have militated against the probable cause finding.” 2
Although we disagree with the conclusion Moore advances, we
likewise are troubled that Hoetzel’s affidavit omitted the fact
that Takoma Park police officers earlier had entered the
basement of the residence to conduct a protective sweep. The
government has offered no justification why discussion of the
protective sweep was omitted from the affidavit, while all other
aspects of the officers’ response were described in detail.
Nevertheless, on this record, we cannot conclude that Moore’s
challenge to the application of the Leon good faith exception is
meritorious.
When a warrant is challenged on the theory that an officer
omitted material facts in an affidavit, either intending to
mislead the magistrate or in reckless disregard whether the
omission rendered the affidavit misleading, the defendant must
show: (1) that the officer deliberately or recklessly omitted
the information at issue; and (2) that the inclusion of this
information would have been material to the probable cause
2
Moore does not argue in any part of this appeal that the
district court erred in denying his motion for a Franks hearing.
In fact, Moore does not even refer to a Franks hearing in his
brief filed with this Court.
14
determination. See United States v. Colkley, 899 F.2d 297, 301
(4th Cir. 1990); see also Andrews, 577 F.3d at 238-39(conducting this inquiry on issue whether the Leon good faith
exception applied when officer omitted information from a search
warrant application). We agree with the district court that,
although information about the protective sweep would have been
helpful to the judge reviewing the search warrant application,
Moore’s argument that the information was deliberately omitted
rests on total speculation.
Moore also has failed to show that inclusion of this
information would have been material to the probable cause
determination. A protective sweep is justified when a
reasonably prudent officer would be warranted “in believing that
the area to be swept harbors an individual posing a danger to
those on the . . . scene.” Maryland v. Buie, 494 U.S. 325, 334
(1990). Because the officers had received a report of an
attempted burglary at the residence and had observed a broken
basement window at that location, the officers were justified in
thinking that the basement could have harbored a person who
posed a danger to nearby residents. And, as the district court
succinctly stated, “if [a protective sweep is] done properly,
it’s just a cursory look, not a search but a sweep just to see
who is there.”
15
We have no basis to conclude, nor does Moore argue, that
the officers conducted an impermissible search of the basement
of the residence in the guise of a protective sweep. Moreover,
we cannot conclude from the present record that if the affidavit
had contained the information that the officers conducted a
protective sweep, and that no contraband was observed in plain
view at that time, this additional information would have been
material to the probable cause determination. Therefore, we
hold that Moore has failed to establish a basis for excluding
application of the Leon good faith exception. See Andrews, 577
F.3d at 239. Accordingly, because we conclude that the
affidavit was not so lacking in indicia of probable cause as to
render official belief in its existence objectively
unreasonable, we hold that the Leon good faith exception is
applicable and the district court erred in granting Moore’s
motion to suppress.
III.
For these reasons, we reverse the district court’s order
granting the motion to suppress, and we remand the case to the
district court for further proceedings.
REVERSED AND REMANDED
16
GREGORY, Circuit Judge, dissenting:
I.
A police officer saw Moore, an African-American male,
walking along the sidewalk of an affluent, suburban neighborhood
and approached him because he appeared to be carrying a
container that the officer suspected to be alcohol. After Moore
fled in response to the officer’s signal to approach, the
officer gave chase. Moore discarded the container into a
dumpster. Although the officer found drugs in the dumpster, the
bag with the drugs inside bore no resemblance to a bottle of
alcohol.
Two days later while investigating an unrelated break-in,
police learned that Moore was renting a basement apartment of a
home near the area where he was seen walking. They then sought
and obtained a search warrant for Moore’s basement residence.
The sole basis for seeking the warrant to search his home was
the fact that a few days earlier, Moore had possessed drugs near
that location. In fact, before encountering Moore on the
sidewalk on the day of his arrest, the police had no information
or observation relating to Moore possessing or distributing
drugs in his neighborhood or any place for that matter. Equally
troubling, the police never told the magistrate that they had
already entered Moore’s apartment and not seen any evidence of
drug possession or trafficking. In fact, in detailing the
17
police response to the unrelated break-in in the affidavit,
Detective Hoetzel affirmatively omitted that police entered the
basement residence and did not see any contraband or indication
of narcotics trafficking. Yet my dear colleagues find that the
defective warrant, lacking any indicia of probable cause and
issued under these misleading circumstances, is entitled to the
protection of the “good faith” exception under United States v.
Leon, 468 U.S. 897 (1984). I respectfully submit that this is
wrong.
II.
The district court correctly concluded that the affidavit
supporting the request for the search warrant of Moore’s
residence did not include sufficient evidence to establish that
Moore was involved in the drug trade or that it was probable
that evidence of narcotics trafficking would be found in his
apartment.
“To establish probable cause that evidence of a crime is
located in a particular place, an affiant must establish a
connection between the evidence of a crime and the place to be
searched.” United States v. Anderson, 851 F.2d 727, 729 (4th
Cir. 1988). In every case where this Court has found a
sufficient nexus between a defendant’s criminal conduct and his
residence, the affidavit supporting the warrant had at least
18
some factual assertion or allowable inference linking the items
sought to the defendant’s residence. And where this Court has
declined to require specific evidence of the existence of drugs
in a residence, it is only where other facts sufficiently
established probable cause for the search. United States v.
Grossman, 400 F.3d 212, 214 (4th Cir. 2005) (“We decline to
require specific evidence of the existence of drugs in a
residence where other facts sufficiently establish probable
cause for the search.”) (emphasis added).
Here, there was virtually no investigation of Moore or
assertion in the affidavit which supported the conclusion that
probable cause for the warrant existed. As the district court
aptly noted and in stark contrast to the investigatory facts
included in facially sufficient affidavits, there was nothing in
the affidavit in this case to support a permissible inference
that Moore was in fact a drug dealer and that the tools of that
trade would be found in his home. The affidavit did not include
any information evidencing Moore’s selling narcotics to
cooperating witnesses or informants, any surveillance by law
enforcement of any illegal or suspicious activity on the part of
Moore in the days or weeks leading up to his initial encounter
with law enforcement, any reference to Title III wiretap
recordings evidencing drug activity on the part of Moore, any
reference to the prior criminal history of Moore, any tip
19
information from a reliable confidential source alleging Moore’s
participation in drug trafficking, or any other information
except the assertion that Moore had discarded one half kilogram
of powder cocaine two days prior to the request. The sole fact
that Moore possessed narcotics on a nearby street cannot
establish probable cause that evidence of narcotics trafficking
would be found in his home.
The district court was correct in finding that the normal
indicia of investigative fruit were absent and that the
affidavit was lacking in probable cause to believe that any
contraband would be present in Moore’s residence.
III.
The only remaining issue is whether the “good faith”
exception under Leon applies. Under the good faith exception,
evidence obtained from an invalid search warrant will not be
suppressed if the officer’s reliance on the warrant was
“objectively reasonable.” United States v. Perez, 393 F.3d 457,
461 (4th Cir. 2004) (citing Leon, 468 U.S. at 922). Leon
identifies four circumstances in which an officer’s reliance on
a warrant would not qualify as “objectively reasonable:” (1)
when the magistrate judge in issuing a warrant was misled by
information in an affidavit that the affiant knew was false or
would have known was false except for his reckless disregard of
20
the truth; (2) when the magistrate has acted as a rubber stamp
for the officer and so wholly abandoned his detached and neutral
judicial role; (3) when a supporting affidavit is so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable; and (4) when a 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. Id.The district court did not err in holding that the good
faith exception is unavailable here. The combination of the
first and third circumstances identified by Leon –- that the
judge was misled by information in the affidavit and that the
supporting affidavit was “so lacking in indicia of probable
cause as to render official belief in its existence entirely
unreasonable,” Leon, 468 U.S. at 923 –- compels the application
of the exclusionary rule in this case. As detailed above, this
affidavit fell far short of providing probable cause for a
search warrant as it was devoid of any basis from which the
magistrate could infer that evidence of drug activity would be
found in the basement residence. Moreover, contrary to the
majority’s contention, ante at 15, the fact that officers
previously entered the residence, performed a protective sweep,
and observed no contraband, is absolutely material to the
reviewing judge’s probable cause determination when, as here,
21
the officers’ response to the attempted break-in was described
in detail in the affidavit –- suggesting this was not merely a
negligent omission -- and nothing approaching the information
necessary for probable cause is provided in the affidavit.
The Leon Court crafted the good faith exception to avoid a
deterrent effect on “objectively reasonable law enforcement
activity.” Id. at 919. This is not a case of “objectively
reasonable law enforcement activity.” Not only did Detective
Hoetzel fail to provide information of any kind that would in
itself have provided probable cause, he affirmatively omitted
the fact that law enforcement had previously entered the
basement residence and did not see any illegal contraband in the
location. The omission of this prior entrance in the recounting
of the attempted break-in in the affidavit is not only
misleading, it also suggests that the officer’s reliance on the
resulting warrant was not reasonable. Clearly, this does not
support a finding of good faith.
IV.
The right to privacy in one’s home is a most important
interest protected by the Fourth Amendment. The majority’s
application of the good faith exception to this warrant ratifies
police use of insufficient and misleading affidavits to justify
22
searching someone’s home. For the reasons set forth above, I
respectfully dissent.
23