393 F.3d 457 (4th Cir. 2004), 04-4091, United States v. Perez

Docket Nº:04-4091.
Citation:393 F.3d 457
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Luis PEREZ, Defendant-Appellee.
Case Date:December 29, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 457

393 F.3d 457 (4th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellant,


Luis PEREZ, Defendant-Appellee.

No. 04-4091.

United States Court of Appeals, Fourth Circuit

December 29, 2004

Argued: Oct. 1, 2004.

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Joshua Clarke Hanks, Assistant United States Attorney, Office of the United States Attorney, Charleston, West Virginia, for Appellant.

David Robert Bungard, Assistant Federal Public Defender, Office of the Federal Public Defender, Charleston, West Virginia, for Appellee.


Kasey Warner, United States Attorney, Charleston, West Virginia, for Appellant. Mary Lou Newberger, Federal Public Defender, Charleston, West Virginia, for Appellee.

Before WILKINS, Chief Judge, TRAXLER, Circuit Judge, and Roger W. TITUS, United States District Judge for the District of Maryland, sitting by designation.

Reversed by published opinion. Judge TRAXLER wrote the opinion, in which Chief Judge WILKINS and Judge Titus joined.


TRAXLER, Circuit Judge:

Luis Perez was charged in a four-count indictment with narcotics and firearms offenses after law enforcement officers

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searched his home pursuant to an informant's tip. Perez filed a pretrial motion to suppress the evidence recovered in the search and his confession to the officers executing the search warrant. The district court granted Perez's motion to suppress, holding that the warrant was not supported by probable cause and was thus invalid and that the good faith exception to the warrant requirement did not apply. The government appeals, and we reverse.


On July 11, 2002, Deputy Kevin Unger, an officer employed by the Roane County, West Virginia, Sheriff's Department, was approached by Timothy Taylor while Unger was investigating a reported breaking and entering at the home of Taylor's parents. At Taylor's request, Unger spoke with him in private. Taylor revealed that ongoing drug-related activities had been occurring at the residence of Sarah Parkinson and Perez, who was Parkinson's boyfriend, on Mount Hope Road in Roane County. Taylor occasionally visited Parkinson's home because Parkinson was the mother of his girlfriend. Taylor told Unger that he witnessed Parkinson and Perez possessing and using large quantities of marijuana on several occasions. Unger spoke with Taylor for approximately 30 minutes and reduced the substance of their conversation to the following written statement, which was signed by Taylor and included his post-office box, date of birth, and social security number:

Myself and Stephanie Workman were living in the old school house on Mt. Hope. Sarah Parkinson McGlothlin, Stephanie's mom, rented it to us. Sarah's house is the two story white house on the same driveway as Rick Moores. Louis Perez lives there and her other daughter stays there. While at her house I've seen big bags of marijuana on several occasions. They have also smoked it around me on several occasions. I don't want my girlfriend around this. I also would like my name to be confidential and anonymous.

I have read this statement and find it to be true and correct.

J.A. 17. The signed statement was dated July 11, 2002.

The next day, Unger prepared an affidavit to be submitted with his application for a search warrant, which recounted his conversation with Taylor: "This officer took a statement from a reliable and credible witness that stated on several occasions [he had] been to the residence [of Perez and Parkinson]. While there, [he] noticed several bags of marijuana and observed [Perez and Parkinson] smoking marijuana on several occasions at the above residence." J.A. 18.

Unger presented to the magistrate his affidavit and the statement signed by Taylor. Additionally, Unger told the magistrate that Taylor indicated he had observed this marijuana use within a few days of their July 11 conversation. Prior to submitting the application for a search warrant, Unger learned from Senior Trooper Doug Starcher, who was familiar with Perez, that Perez had been convicted of distributing cocaine in 1995; however, there is no record evidence that Unger passed this information along to the magistrate. The magistrate issued the search warrant, pursuant to which Unger, Starcher, and other officers recovered marijuana, cocaine, drug paraphernalia, and firearms from the Mt. Hope residence identified by Taylor. Perez acknowledged responsibility for these items in response to questions from law enforcement officers.

Perez was indicted for possession with intent to distribute marijuana, possession with intent to distribute cocaine, possession of a firearm in furtherance of a drug

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trafficking offense, and possession of a firearm by a felon. Perez moved to suppress the items yielded by the search as well as his confession. The district court granted the motion.

First, the district court determined that the search warrant was not supported by probable cause and was therefore invalid. The district court based this conclusion on its belief that "Unger lacked information concerning Taylor's veracity or reliability" and "completely failed to corroborate any of the information provided by Taylor." J.A. 90. "[B]ecause Taylor's allegations of criminal misconduct provided the sole support for the issuance of the warrant," J.A. 89, the district court reasoned that the magistrate judge "lacked a substantial basis to believe the known facts and circumstances were sufficient" to establish probable cause that "evidence of a crime would be found at Parkinson's home." J.A. 94.

Second, the district court considered whether, even if the search had been illegal, the evidence was admissible under the good faith exception to the exclusionary rule carved out in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In concluding that the Leon good faith exception was not applicable, the district court reasoned that the "issuing judicial officer acted as a rubber stamp" for the" 'bare bones' affidavit" submitted by Unger, and that "[a] reasonably well[-]trained officer would have known the search was illegal, despite the Magistrate Judge's authorization." J.A. 96. Thus, the district court suppressed the evidence recovered from Perez's residence, and it determined that Perez's confession could not be used because "[t]he questions posed to [Perez] by law enforcement would not have been asked without the presence of the illegally seized contraband." J.A. 98.

The government immediately appealed this ruling.


Assuming without deciding that the district court correctly concluded the search warrant was invalid for lack of probable cause, we exercise our discretion to proceed directly to the question of good faith. See Leon, 468 U.S. at 925, 104 S.Ct. 3405; United States v. Legg, 18 F.3d 240, 243 (4th Cir. 1994).

The "search of private property without proper consent" violates the Fourth Amendment's prohibition against unreasonable...

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