U.S. v. Hython, 05-3008.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation443 F.3d 480
Docket NumberNo. 05-3008.,05-3008.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Andre HYTHON, Defendant-Appellant.
Decision Date06 April 2006

ARGUED: Steven S. Nolder, Federal Public Defender's Office, Columbus, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. ON BRIEF: Steven S. Nolder, Federal Public Defender's Office, Columbus, Ohio, for Appellant. Michael J. Burns, Assistant United States Attorney, Columbus, Ohio, for Appellee.

Before: DAUGHTREY and GILMAN, Circuit Judges; RUSSELL, District Judge.*

OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

The defendant, Andre Hython, appeals his conviction for possession of crack cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), following his guilty plea to the first count of a three-count indictment. Hython's plea was conditional, permitting him to challenge the district court's order denying his motion to suppress, in which he contended that police had seized the evidence used to convict him during a search of his home pursuant to a defective search warrant. The district court agreed that the warrant was deficient but denied Hython's suppression motion on the basis that the officers were reasonable in their reliance on the warrant and, therefore, that the Leon good-faith exception applied. Because we find, to the contrary, that no reasonably objective police officer could have concluded that the warrant was supported by probable cause, we hold that Leon is inapplicable in this case and that the motion to suppress should have been granted.

FACTUAL AND PROCEDURAL BACKGROUND

The warrant in question was issued by a municipal judge and directed officers to a two-story brick residence located at 241 South Fifth Street in Steubenville, Ohio. It authorized the search of "all persons present at the time of officer entry" and the seizure of all property related to the sale of controlled substances. The judge issued the warrant on the basis of an affidavit sworn by Detective Jason Hanlin of the Steubenville Police Department Narcotics Division, which stated:

Narcotics Officers from the Steubenville Police Department, Toronto Police and Jefferson County Sheriff's Office in a joint investigation conducted a controlled buy of crack cocaine from 241 South Fifth Street in the city of Steubenville.

A reliable confidential informant advised officers that he was able to purchase crack cocaine from a female in Toronto. The female had advised the informant in the past that her source of crack cocaine is subject in the city of Steubenville. Officers provided the informant with one hundred and fifty dollars in marked U.S currency for a transaction. Officers conducted surveillance and were able to follow the informant to the known drug location in Toronto where the informant met with the female suspect. Officers were able to hear conversation via an audio transmitter. During the conversation the female received the currency from the informant and advised that she would travel to Steubenville to obtain the crack cocaine. Officers were then able to follow the female to 241 South Fifth Street in the City of Steubenville. The female entered the residence and exited within two minutes. Officers were then able to follow the female back to Toronto where she met with the informant and provided him with a baggie containing crack cocaine.

Due to the above transaction with the residence, officers believe the[re] to be further crack cocaine within the residence.

Detective Hanlin and other officers executed the "no-knock" warrant later that same day. After entering the house with drawn weapons, the officers found five people in the house, including defendant Hython. Hython was in the living room with two other men; there were two females in the kitchen. Hython and the two others in the living room were handcuffed and read their Miranda rights. In response to a question from Detective Hanlin, Hython indicated that he had contraband in the right front pocket of his pants. A search of this pocket yielded two baggies containing crack cocaine. Detective Hanlin found a large wad of cash in Hython's left pocket, and currency was strewn on the floor in the area near where Hython had been standing at the time of the officers' entry. Hython told Detective Hanlin that he had been counting the currency that was found on the floor, which was later identified as the pre-recorded buy money.

Following indictment on charges growing out of the execution of the warrant, Hython filed separate motions to suppress his confession and all physical evidence seized from both his house and person. The district court found that the affidavit contained sufficient information from which the issuing judge could have concluded that the informant was reliable and that there was probable cause to believe that crack cocaine was being supplied from the residence at 241 South Fifth Street. The court also found, however, that the warrant was void for staleness because neither the affidavit nor the warrant specified the date on which the transaction at the defendant's house took place. Nevertheless, the district court held that apart from this defect, the affidavit was not so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable and, therefore, that application of the good faith exception was warranted.

Next, the court addressed Hython's contention that the warrant was invalid because it authorized a search of all persons found within the residence. The judge found that the warrant contained insufficient probable cause to believe that every person in the two-story residence would be involved in the drug activity and, further, that no well-trained officer would have reasonably believed otherwise, militating against the application of the good faith exception to the warrant requirement. However, the judge observed that the search of Hython's person could be justified on different grounds: given the smell of marijuana in the house, Hython could have been arrested and the contraband inevitably discovered as the result of a search incident to that arrest. A ruling on this aspect of Hython's motion was deferred in order to hear testimony regarding the execution of the search warrant.

Following the evidentiary hearing, the district court denied Hython's motion to suppress his statements and held that the search of Hython's person was justified under the plain view rationale set forth in the earlier order. Hython subsequently pleaded guilty to a single count of the indictment, reserving the right to appeal the district court's rulings on his motions to suppress.

DISCUSSION

The government does not contest the district court's legal conclusion that the warrant was invalid due to staleness. Therefore, the sole issue on appeal is whether the district court properly applied the good-faith exception to the search, a question that we review de novo as a conclusion of law. See United States v. Frazier, 423 F.3d 526, 533 (6th Cir.2005) (the district court's application of the good-faith exception is a legal conclusion reviewed de novo).

United States v. Leon modified the exclusionary rule so as not to bar from admission evidence "seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective." 468 U.S. 897, 905, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Where an officer's reliance on a warrant is objectively reasonable, the Supreme Court held, no additional deterrent effect will be achieved through the exclusion from evidence of the fruits of that search. See id. at 922, 104 S.Ct. 3405. However, the good-faith exception is inapposite in four situations: (1) where the issuing 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 for the truth; (2) where the issuing magistrate wholly abandoned his judicial role and failed to act in a neutral and detached fashion, serving merely as a rubber stamp for the police; (3) where the affidavit was nothing more than a "bare bones" affidavit that did not provide the magistrate with a substantial basis for determining the existence of probable cause, or where the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where the officer's reliance on the warrant was not in good faith or objectively reasonable, such as where the warrant is facially deficient. See id. at 923, 104 S.Ct. 3405.

The record contains no indication that Detective Hanlin presented false or reckless statements to the magistrate; nor is there any indication that the magistrate acted merely as a rubber stamp or that the warrant was facially deficient. The question, therefore, is whether the affidavit supporting the warrant was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. The showing required to establish that reliance was "objectively reasonable" is less than the "substantial basis" showing required to establish probable cause. See United States v. Carpenter, 360 F.3d 591, 595 (6th Cir.2004) (en banc). "[I]t is entirely possible that an affidavit could be insufficient for probable cause but sufficient for good-faith reliance." United States v. Washington, 380 F.3d 236, 241 (6th Cir. 2004).

The parameters of "objective reasonableness" in the good-faith context have been explored primarily in relation to whether an affidavit established a sufficient nexus between illegal activity and a place to be searched. See Carpenter, 360 F.3d at 594 (affidavit describing marijuana field near residence "fall[s] short of establishing required nexus" between criminal activity and residence); United States v. Laughton, 409...

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