743 F.2d 1261 (8th Cir. 1984), 82-1592, United States v. Sager

Docket Nº:82-1592, 82-1593.
Citation:743 F.2d 1261
Party Name:UNITED STATES of America, Appellee, v. John Roger SAGER, Appellant. UNITED STATES of America, Appellee, v. Jay Houston HARMON, Appellant.
Case Date:September 27, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1261

743 F.2d 1261 (8th Cir. 1984)

UNITED STATES of America, Appellee,


John Roger SAGER, Appellant.

UNITED STATES of America, Appellee,


Jay Houston HARMON, Appellant.

Nos. 82-1592, 82-1593.

United States Court of Appeals, Eighth Circuit

September 27, 1984

Submitted Aug. 13, 1984.

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

Page 1262

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.


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.


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)

Page 1263

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...

To continue reading