U.S. v. Sager

• Citation: 743 F.2d 1261
• Decision Date: 27 September 1984
• Docket Number: Nos. 82-1592,82-1593,s. 82-1592
• Parties: UNITED STATES of America, Appellee, v. John Roger SAGER, Appellant. UNITED STATES of America, Appellee, v. Jay Houston HARMON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1261

743 F.2d 1261

UNITED STATES of America, Appellee, v. John Roger SAGER, Appellant.

UNITED STATES of America, Appellee, v. Jay Houston HARMON, Appellant.

Nos. 82-1592, 82-1593.

United States Court of Appeals,

Eighth Circuit.

Submitted Aug. 13, 1984.

Decided Sept. 27, 1984.

McDaniel, Gott & Wells, P.A., Jonesboro, Ark., for appellant.

Bruce J. Rosen, Fritschler, Pellino, Schrank & Rosen, S.C., Madison, Wis., for Sager; Stephen P. Hurley, Madison, Wis., of counsel.

Before BRIGHT, McMILLIAN and ARNOLD, Circuit Judges.

ON PETITION FOR REHEARING

ARNOLD, Circuit Judge.

On May 22, 1984, after oral argument, we filed our opinion in these cases. United States v. Little, 735 F.2d 1049 (8th Cir.1984). ¹ We reversed the convictions of defendants John Roger Sager and Jay Houston Harmon, holding that certain evidence introduced against them had been seized under a warrant based on an insufficient affidavit, in violation of the Fourth Amendment, and that the case would have to be re-tried, as to these two defendants, without the tainted evidence. Our holding was of course based on the accepted principle, first announced in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and not contested by the government in its arguments before us, that evidence seized in violation of the Fourth Amendment may not be used in the prosecution's case in chief.

On July 5, 1984, before the time for petitioning for rehearing expired, ² the Supreme Court decided United States v. Leon, --- U.S. ----, 104 S.Ct. 3405, 82 L.Ed.2d 677, holding that evidence seized under a warrant is admissible, even though the warrant might later be held to be based on an affidavit that failed to establish probable cause, if the officers executing the warrant reasonably relied on it. On July 10, 1984, the United States filed its petition for rehearing with suggestion for rehearing en banc. The petition asks us to apply Leon to these cases, to hold that the officers' reliance on the warrant involved here was objectively reasonable, and to reinstate these convictions. Defendants, responding to the petition at our request, argue that Leon should not be applied "retroactively," that even if it is this affidavit for warrant was so plainly insufficient as not to justify any reasonable officer in relying upon it, and, in the alternative, that in any event the cases should be remanded to the District Court for an evidentiary hearing on certain issues of fact said to be relevant to the application of Leon.

The petition for rehearing is granted. ³ We hold that Leon does apply to these cases, that the officers who executed the warrant in question behaved in an objectively reasonable fashion, and that no material issues of fact exist that would make an additional hearing necessary on defendants' motion to suppress. The Fourth Amendment exclusionary rule, as it has now been authoritatively defined, does not apply here, and the judgments of conviction are therefore affirmed.

I.

Leon holds that "evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant," --- U.S. at ----, 104 S.Ct. at 3420, is, in general, not to be excluded. The exclusionary rule will continue to apply, however, in certain exceptional situations: (1) "if the magistrate or 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 the truth. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)," 104 S.Ct. at 3421-22; (2) if "the issuing magistrate wholly abandoned his judicial role," id. at 3422, thus becoming a rubber stamp for the police; (3) if the affidavit is " 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.' Brown v. Illinois, 422 U.S. at 610-611 [95 S.Ct. 2254 at 2265-2266, 45 L.Ed.2d 416] (POWELL, J., concurring in part)," 104 S.Ct. at 3422; or (4) if the 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," ibid. These rules, the Supreme Court says, will result in "suppression of evidence obtained pursuant to a warrant ... only in ... unusual cases ...." Id. at 3419.

The first question is whether Leon, which was not the law (or was not thought to be) when defendants' allegedly criminal conduct took place, when this warrant was issued and executed, when this case was tried, or when we initially decided this appeal, has any application at all to Harmon's and Sager's situations. ⁴ The defendants say no, and cite us to United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). Johnson was a comprehensive review of the Court's precedents with respect to retroactivity of decisions in the field of criminal procedure. The opinion in effect codifies the law of retroactivity in Fourth Amendment cases. It holds, in summary, that "a decision of this Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final ⁵ at the time the decision was rendered," id. at 562, 102 S.Ct. at 2594, with, however, certain exceptions, the most prominent of which is that a rule of criminal procedure that is " 'a clear break with the past,' Desist v. United States, 394 U.S. at 248 [89 S.Ct. 1030, at 1032, 22 L.Ed.2d 248] [is] ... almost invariably ... nonretroactive." Johnson, 457 U.S. at 549, 102 S.Ct. at 2586. Leon, defendants say, was a clear break with the past, and it therefore is not to be applied retroactively to their cases.

The proposition that Leon was a clear break with the past gives us no trouble at all. But we cannot accept the rest of defendants' argument. It rests on a reading of Johnson that takes words and phrases completely out of context and attempts to fit them into a situation wholly foreign to that for which they were written. The question in Johnson was whether Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), which held that the police may not enter a suspect's home to make a routine felony arrest, absent either consent or a warrant, would be applied to an arrest that took place before Payton was decided. Payton enlarged the rights of criminal defendants and tightened the limits circumscribing the conduct of the police. The heart of the retroactivity issue in Johnson, therefore, was whether police conduct that perhaps was reasonable at the time under what was then thought to be the law, should now be "penalized" by the application of a later-decided case. The same thing is true of all the other cases in this field, beginning with Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the first case in which the Supreme Court held one of its own precedents in the field of constitutional law nonretroactive. ⁶ In each instance the question of retroactivity related to a new decision expanding the rights of criminal defendants, and a major argument made against retroactivity was that it would disappoint the reasonable reliance of the authorities on what they thought was the law. The extent to which law-enforcement authorities had relied on the old rule was always a major consideration in deciding the question of retroactivity. See, e.g., Solem v. Stumes, --- U.S. ----, 104 S.Ct. 1338, 1341, 1343-45, 79 L.Ed.2d 579 (1984); Johnson, 457 U.S. at 549, 102 S.Ct. at 2586.

Here, of course, the situation is reversed. The new rule (Leon ) is less favorable to defendants than the old one (Weeks ) and more supportive of police conduct. The authorities, far from resisting its application, seek it avidly. And application of Leon will not infringe on anyone's reliance interest. The defendants do not claim that they planned to fly drugs in from Jamaica in reliance on any set of rules having to do with the introduction of evidence in criminal cases. We faced much the same question in our prior opinion in this very case. When the warrant in question here was issued, the sufficiency of affidavits based on informants' tips was governed by the veracity and basis-of-knowledge tests set out in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Almost exactly two years after the issuance of the warrant, the Supreme Court decided Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), substituting a more flexible, totality-of-the-circumstances test, a standard considerably more indulgent towards official conduct. We held that Gates did apply retroactively to this case and applied its rule in assessing the validity of the affidavit. We said, in words equally applicable to the question of Leon 's retroactivity:

Defendants did not plan any of their own conduct in reliance on rules of law governing the requisite specificity of affidavits for search warrants. It is therefore not unfair to them to apply the new rule.

United States v. Little, 735 F.2d at 1054 (citation omitted).

There is some recent evidence that the Supreme Court would take the same position. In Massachusetts v. Upton, --- U.S. ----, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984) (per curiam), the question presented was whether a warrant issued in 1980 was supported by an affidavit establishing probable cause. The Supreme Court upheld the warrant, applying Gates. And in the course of its opinion the Court emphasized that Gates, far from being a mere refinement or qualification of the "two-pronged test" applied during the regime of Aguilar and Spinelli, was instead an outright rejection of that prior rule of law. Nothing in the Court's opinion gives any hint that this obviously "retroactive" application of Gates was at all out of the ordinary. Similarly, on July 5, 1984, the day Leon was decided, the Supreme Court vacated and remanded for further...