293 F.3d 192 (4th Cir. 2002), 00-4773, U.S. v. Bynum

• Citation: 293 F.3d 192
• Party Name: U.S. v. Bynum
• Case Date: June 14, 2002
• Court: United States Courts of Appeals, U.S. Court of Appeals — Fourth Circuit

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293 F.3d 192 (4th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellant,

v.

Terrell Lamont BYNUM, a/k/a Boo, a/k/a Boo-Man; Sumeka Plummer; Iris Johnson, Defendants-Appellees.

No. 00-4773.

United States Court of Appeals, Fourth Circuit

June 14, 2002

Argued Oct. 31, 2001.

ARGUED:

Brian Ronald Hood, Assistant United States Attorney, Richmond,

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Virginia, for Appellant. Reginald Moore Barley, Richmond, Virginia, for Appellee Johnson; JeRoyd Wiley Greene, III, Robinson & Greene, Richmond, Virginia, for Appellee Bynum; Susan Ann Kessler, White, Blackburn & Conte, P.C., Richmond, Virginia, for Appellee Plummer.

ON BRIEF:

Helen F. Fahey, United States Attorney, Richmond, Virginia, for Appellant.

Before MICHAEL, MOTZ, and KING, Circuit Judges.

Reversed by published opinion. Judge DIANA GRIBBON MOTZ wrote the majority opinion, in which Judge KING joined. Judge KING wrote a separate concurring opinion. Judge MICHAEL wrote a dissenting opinion.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge.

The Government appeals the district court's order suppressing certain physical evidence seized pursuant to a search warrant. Finding that the good faith exception adopted by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), renders this evidence admissible even if the search warrant lacked probable cause, we reverse.

I.

On February 10, 2000, Richmond Police Department Detective John O'Connor received information from a confidential informant that a black male known as "Boo-Man" possessed a large quantity of heroin and was dealing heroin in the end apartment (next to that of a Sequell Sedrick) on Walcott Place, in Richmond, Virginia. The informant advised O'Connor that "Boo-Man" had "quite a bit of heroin, that he had some in his crotch, [and] that he kept it in his Cadillac." The informant "described the Cadillac," and related that Boo-Man "made trips . . . out of the area frequently, back and forth to the apartment delivering drugs." The informant further told Detective O'Connor that Boo-Man and his group were "beefing with another group . . . over a dispute at a dance hall."

Later that evening, Detective O'Connor applied for a warrant, making an affidavit as to these facts and further stating that for the previous eight years this confidential informant had provided the Richmond Police Department with accurate information, which law enforcement officers had corroborated through "DMV, and Criminal History Checks, Search warrants and arrests," and that the information had led to the "seizure of large quantities of drugs, and guns" and several convictions. On the basis of this affidavit, a state magistrate issued a search warrant for the apartment at 2234 Walcott Place.

Detective O'Connor and other police officers conducted the search for several hours, beginning at 10:40 p.m. on February 10. The search yielded 196 gross grams of heroin, some marijuana, drug paraphernalia, a scale, bullets, and $10,750 in cash. The lessee of the apartment, Iris Johnson, was absent during the search, but two other residents of the apartment, Sumeka Plummer and Terrell Bynum (who the police learned was Boo Man), were present. However, the police arrested no one that evening.

On May 25, 2000, Drug Enforcement Administration (DEA) agent Kenneth Peterson sought another warrant to search 2234 Walcott Place. The affidavit, after two generic paragraphs identifying Agent Peterson as a DEA task force officer with training and experience in narcotics investigations, stated in relevant part:

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3. This affidavit is made in support of a SEARCH WARRANT for the residence of Terrell BYNUM, located at 2234 Walcott Place, Richmond, VA. This location has been utilized by BYNUM in furtherance of drug trafficking crimes and is within the Eastern District of Virginia and the jurisdiction of the Court.

4. BYNUM is described by the Virginia Department of Motor Vehicles as a male with a date of birth of 01/01/79 and social security number 227-43-1409. BYNUM has a criminal record in Virginia and is a convicted felon.

5. Information and intelligence provided in this investigation by a Confidential Source (CS) has been proven reliable and information provided to law enforcement has been verified. The CS has identified BYNUM as a large quantity dealer of heroin.

6. On February 10, 2000, a search warrant conducted at 2234 Walcott Place, Richmond, VA by DEA and the Richmond Police Department resulted in the seizure of approximately 196 gross grams of heroin. $10,750 in U.S. Currency was also seized from within the residence. Additionally, a digital scale, razor blade and packaging material were seized from the residence.

7. Within the past 72 hours, the CS has observed a large quantity of heroin within the residence at 2234 Walcott Place, Richmond, VA. The CS observed BYNUM packaging heroin for distribution and delivering a portion of the narcotics to three associates. A substantial amount of heroin remained within the residence after the delivery.

An Assistant United States Attorney reviewed and signed the affidavit, his signature indicating his approval of it. On the basis of this affidavit, a United States Magistrate Judge issued a search warrant. Government agents, including Agent Peterson, executed a search pursuant to the warrant on the evening of May 25, 2000. This search yielded a small amount of marijuana, a loaded .40 caliber Beretta semi-automatic pistol, and unspent .380 caliber and 9mm caliber ammunition. Brief of Appellant at 7.

Shortly thereafter, a grand jury indicted Bynum, Plummer, and Johnson for multiple drug and firearm offenses. Bynum, Plummer, and Johnson moved to suppress the physical evidence that law enforcement authorities had seized pursuant to the February and May search warrants. The district court issued an order denying the suppression motion with respect to the February warrant, but granting it as to the May warrant. United States v. Bynum, 125 F.Supp.2d 772 (E.D.Va.2000). The Government appeals the latter ruling; Bynum, Plummer, and Johnson do not cross appeal. Accordingly, the sole issue presented to us is whether the district court erred in suppressing evidence obtained pursuant to the May search warrant.

II.

In granting the motion to suppress on the basis of the Fourth Amendment exclusionary rule, the district court found (1) that no probable cause supported the warrant and (2) that the Leon good faith exception did not "save[ ] the yield of the May 25 search from suppression." Id. at 797-99. The Government contends that the court erred with respect to both rulings. Assuming without deciding that no probable cause supported the warrant, we will proceed "immediately to a consideration of the officers' good faith." Leon, 468 U.S. at 925,104 S.Ct. 3405 (recognizing the

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appropriateness of such an approach in some cases); accord United States v. Legg, 18 P.3d 240, 243 (4th Cir. 1994).

Leon teaches that a court should not suppress the fruits of a search conducted under the 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." Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405. The Court explained that an officer could not be found to have acted with "objective reasonableness," excluding application of this "good faith exception," in any of the following circumstances:

(1) "the magistrate . . . 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 the truth";

(2) the magistrate acted as a rubber stamp for the officers and so "wholly abandoned" his detached and neutral "judicial role";

(3) "an affidavit [is] so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"; or

(4) "a warrant [is] so facially deficient— i.e., 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. at 923, 104 S.Ct. 3405 (internal quotation marks omitted).

In holding that the third circumstance described by the Leon Court barred application of the good faith exception in this case, the district court misidentified when this circumstance occurs. Thus, the court stated that "[t]he good faith exception . . . does not apply" when the affidavit fails to provide "a substantial basis for determining the existence of probable cause." Bynum, 125 F.Supp.2d at 797. "Substantial basis" provides the measure for determination of whether probable cause exists in the first instance. See United States v. Harris, 403 U.S. 573, 581, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). If a lack of a substantial basis also prevented application of the Leon objective good faith exception, the exception would be devoid of substance. In fact, Leon states that the third circumstance prevents a finding of objective good faith only when an officer's affidavit is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Leon, 468 U.S. at 923, 104 S.Ct. 3405 (citation omitted). This is a less demanding showing than the "substantial basis" threshold required to prove the existence of probable cause in the first place.

With the correct standard in mind, we believe it is clear that even if Agent Peterson's affidavit does not provide a substantial basis for determining the existence of probable cause, see Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (requiring a magistrate judge assessing probable cause for the issuance of a search warrant to determine "whether given all the circumstances set forth in the affidavit[,] . . . including the veracity and basis of knowledge of persons supplying hearsay information,...