United States v. Salvadore R. Sulanke ( 1997 )


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  •                        United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    No. 97-1428
    United States of America,          *
    *
    Appellee, *
    * Appeal             from     the     United
    States
    v.                      * District Court for the
    * Southern District of Iowa.
    Salvadore Ramon Sulanke,    *
    *     NOT FOR PUBLICATION
    Appellant.
    *
    Submitted: June 12, 1997
    Filed: July 28, 1997
    Before MURPHY, HEANEY and NORRIS,1 Circuit Judges.
    NORRIS, Circuit Judge.
    Salvadore Sulanke appeals his convictions for one
    count of being a felon in possession of a firearm in
    violation of 18 U.S.C. § 922(g), and one count of
    knowingly possessing a firearm that was not registered in
    the National Firearms Registry in violation of 26 U.S.C.
    § 5861(d). Sulanke argues that the District Court erred
    in failing
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    The Honorable William A. Norris, United States Circuit Judge for the Ninth
    Circuit, sitting by designation.
    to suppress evidence that was seized pursuant to a search
    warrant that was not supported by probable cause.      We
    affirm.
    Two search warrants were issued on the day Sulanke
    was arrested. The first warrant authorized a search of
    the warehouse at 108 Main Street for stolen property.
    The second warrant, obtained based on observations made
    by law enforcement officers while executing the first
    warrant, authorized a further search for firearms. This
    subsequent search revealed the shotgun that formed the
    basis of Sulanke’s convictions.      Sulanke attacks the
    legality of the first warrant and argues that the shotgun
    should have been suppressed as “fruit of the poisonous
    tree.”
    Deputy Wilkens arrested Sulanke in the vicinity of
    the Thiessen farm while responding to a report of a
    burglary in progress there. Wilkens may well have had
    probable cause to believe that Sulanke was involved in
    that burglary. However, the question is whether there
    was probable cause to believe that Sulanke was involved
    in the prior October 13, 1993 burglary at the Thiessen
    farm and, further, that Sulanke was storing the fruits of
    that burglary at the 108 Main Street warehouse.
    In his affidavit, Wilkens swore that he found Sulanke
    near the Thiessen farm shortly after the second burglary
    was reported, and that Sulanke matched the description of
    the suspect in that burglary.         However, Sulanke’s
    presence near the farm around the time of the second
    burglary is not probative of his involvement in the prior
    burglary. A search of Sulanke’s car revealed gloves, a
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    flashlight, tools, and various car parts. Tools and car
    parts had been reported stolen in the prior burglary.
    However, there was no indication that the tools and car
    parts in Sulanke’s car had been stolen from the Thiessen
    farm during the prior burglary. Wilkens further swore
    that he suspected Sulanke had lied about entering the
    Thiessen machine shed, and that the same shed had been
    entered by the perpetrator of the prior burglary.
    Finally, Wilkens’ affidavit reflected his knowledge that
    Sulanke had an extensive criminal history,
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    including convictions for burglary and receiving stolen
    property, and that Sulanke was not forthcoming about the
    fact that he resided in the 108 Main Street warehouse.
    It is questionable whether these facts established
    probable cause to believe that Sulanke was storing the
    fruits of the 1993 burglary in his residence at 108 Main
    Street. We need not resolve that issue, however, because
    the exclusionary rule does not apply if the facts
    supported an objectively reasonable, good-faith belief in
    the officers that they had probable cause. United States
    v. Leon, 
    468 U.S. 897
    (1984).             Suppression is
    inappropriate unless the affidavit was “so lacking in
    probable cause as to render official belief in its
    existence entirely unreasonable.” 
    Id. at 923.
    The court
    below held that the officers’ belief that they had
    probable   cause   was   not   “entirely   unreasonable.”
    Reviewing that decision de novo, see United States v.
    Rugh, 
    968 F.2d 750
    , 753 (8th Cir. 1992), we agree with
    the District Court that there were sufficient indicia of
    probable cause in the affidavit to satisfy Leon.
    The judgment of the District Court is AFFIRMED.
    HEANEY, Circuit Judge, dissenting.
    I respectfully dissent.         Clearly there were
    insufficient facts to establish probable cause to believe
    that Sulanke was storing the fruits of the 1993 robbery
    in his residence at 108 Main Street; thus, I agree with
    the majority on that score.
    My difference is with their conclusion that Deputy
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    Wilken’s affidavit, given more than four months after the
    1993 robbery reflects an objective reasonable good faith
    belief that he had probable cause to search defendant’s
    home. It must be remembered that Deputy Wilkens prepared
    the affidavit, presented it to the magistrate, and then
    undertook the search. Objective reasonable good faith is
    difficult to assert under those circumstances. The only
    evidence before the district court that Deputy
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    Wilkens acted in good faith was his own testimony to such
    belief.
    The majority also implied that Burt Tecklenburg, the
    officer that accompanied Wilkens to make the search,
    acted in good faith.     There is no evidence in this
    record, however, to support Tecklenburg’s good faith; he
    simply was with Wilkens when the warrant was executed.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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Document Info

Docket Number: 97-1428

Filed Date: 7/28/1997

Precedential Status: Non-Precedential

Modified Date: 4/18/2021