United States v. Knox

• Decision Date: 27 February 2018
• Docket Number: No. 16-3324,16-3324
• Citation: 883 F.3d 1262
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jemel T. KNOX, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

883 F.3d 1262

UNITED STATES of America, Plaintiff-Appellee,
v.
Jemel T. KNOX, Defendant-Appellant.

No. 16-3324

United States Court of Appeals, Tenth Circuit.

Filed February 27, 2018

Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender, Chekasha Ramsey, Assistant Federal Public Defender, with him on the briefs), Kansas Federal Public Defender, Kansas City, Kansas, appearing for Appellant.

Jared S. Maag, Assistant United States Attorney (Thomas E. Beall, United States Attorney with him on the brief), Office of the United States Attorney, Topeka, Kansas, appearing for Appellee.

Before BRISCOE, EBEL, and MATHESON, Circuit Judges.

EBEL, Circuit Judge.

Defendant Jemel Knox was indicted in 2014 on one count of possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1). He moved to suppress the firearm that formed the basis for this charge as the product of an unconstitutional search.

The firearm had been seized during the execution of a search and arrest warrant issued by a Kansas state magistrate. The district court held that although there was insufficient evidence of probable cause to justify the warrant, the officers executing the warrant were entitled to rely in good faith on the magistrate's probable cause determination and the firearm was not subject to suppression. After his motion was denied, Knox entered a conditional guilty plea which preserved his right to appeal the district court's suppression decision. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court.

I. BACKGROUND

In mid-January 2014, after Jemel Knox failed to appear in Johnson County District Court on a state charge, the merits of which are unrelated to this appeal, Kansas officers discovered that Knox had cut off his GPS monitor and fled from the apartment at which he had been staying. Based

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on these events, a Kansas court issued a warrant for Knox's arrest, and Detective Kevin Finley from the Johnson County Sheriff's office was assigned to locate Knox and take him into custody.

A. The Investigation

Detective Finley's investigation took two primary tacks. First, Finley obtained an order to track a phone number he believed to be Knox's. On February 1, 2014, the phone was turned on, and several phone calls were placed to Lindsey Kurtz—with whom Knox had previously been living—and a young woman named Alecia Young. Two days later, on February 3, 2014, technicians tracked Mr. Knox's phone to the general vicinity of an apartment complex located at 431 Freeman Ave., Wyandotte County, Kansas City, Kansas.

On February 6, 2014, police received a "ping" from Mr. Knox's cell-phone that placed him at 431 Freeman. As Detective Finley told the magistrate in seeking a warrant to search 431 Freeman based in part on this information, a "ping" is "a notification from T-Mobile that the phone is active and turned on and provides a distance between the nearest cell phone tower and the phone." (R. Vol. I at 36) ("Finley Aff.") ¶ 10. In this case the "ping" was accurate within a range of six meters. Officers then confirmed that Ms. Young resided at 431 Freeman, and observed a white Cadillac in the parking lot registered to Ms. Kurtz.

The second aspect of Detective Finley's investigation involved speaking with a former girlfriend of Knox's, Cynthia McBee. Ms. McBee indicated that Knox had "become violent with her lately," that he had threatened her and her neighbor on one occasion, and her father on another, and that he "always" carries a firearm. (Finley Aff. ¶ 4). As a previously convicted felon, Knox is prohibited from possessing firearms. Id. ¶ 1

On the basis of this investigation, Detective Finley swore an affidavit in Johnson County District Court, and a judicial warrant was issued on February 6, 2014 authorizing the search of 431 Freeman "to obtain the person of Jemel T. Knox," and the seizure of "The body of Jemel T. Knox" and "Firearms." (R. Vol. I at 37.)

B. The Search

That same afternoon Detective Finley and other Kansas officers executed the warrant. The officers found Knox hiding underneath the bed in the master bedroom and took him into custody. After his arrest, the officers searched the residence and seized a rifle from a suitcase located on the floor next to the bed under which Knox had been hiding. On this basis the United States indicted Knox on one count of being a felon in possession of a firearm in violation of § 922(g)(1).¹

C. The Motion to Suppress

At the district court, Knox moved to suppress the rifle, arguing that Detective Finley's affidavit did not provide probable cause that a firearm would be located at 431 Freeman.² The district court

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agreed that the affidavit did not establish probable cause. The court based its decision on three things: (1) there was no information in the affidavit to establish Ms. McBee's reliability, (2) there was no information in the affidavit to establish the timeliness of Ms. McBee's assertions, particularly that the defendant "always" carried a gun, and (3) there was no information in the affidavit to establish a nexus between the firearm and 431 Freeman.

The district court nonetheless declined to suppress the firearm, deciding instead to apply the good-faith exception to the warrant requirement. In doing so, the court considered not only the information in Detective Finley's affidavit, but also information gleaned from Detective Finley at the suppression hearing that was not included in the affidavit, specifically: (1) that the affidavit had been prepared by an assistant district attorney, (2) the threat to Ms. McBee's father occurred less than two months prior to the warrant application, and (3) that a police report corroborated Ms. McBee's story about the threat to her and her neighbor.

Considering these facts alongside the information in the affidavit, the district court could not say it was "entirely unreasonable for Detective Finley to rely on the magistrate's authorization to search the apartment for firearms." (R. Vol. I at 83.) Therefore, it applied the Leon ³ good-faith exception to the warrant requirement. Following this ruling, Knox entered a conditional guilty plea to one count of being a felon in possession, judgment was entered, and Knox perfected our appellate jurisdiction by timely appealing.

II. DISCUSSION

The basic question presented in this appeal is whether the Leon good-faith exception to the warrant requirement should apply to the firearm found at 431 Freeman. Before reaching this question, however, we first address the standard of review on appeal, and whether it was appropriate for the district court to consider information outside the affidavit in assessing the executing officer's good-faith.

A. The standard of review is de novo.

Under ordinary circumstances we review a district court's application of the good-faith exception to the warrant requirement de novo. See United States v. Augustine, 742 F.3d 1258, 1262 (10th Cir. 2014) (citing United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir. 2000) ). This standard, however, is predicated on the appellant having objected to the challenged action at the district court. United States v. Burgess, 576 F.3d 1078, 1096 (10th Cir. 2009).

Here, there is no question that Knox objected to the weapon being introduced into evidence against him. Furthermore, Knox's suppression motion adequately considered, addressed, and briefed whether the good-faith exception would apply were the district court to find—as it did—that the warrant lacked probable cause. The government argues, nonetheless, that Knox's Leon argument on appeal is subject to plain-error review.

The government's position is predicated on the form of Knox's argument against the application of the good-faith exception, namely that he did not elaborate sufficiently on his argument that the district court was wrong to consider information beyond the scope of the affidavit. However, the government's characterization of Knox's arguments below as deficient is incorrect, so we need not address whether an insufficient elaboration would trigger a plain error standard of review.

In his Reply to the Government's Response to Defendant's Motion to Suppress,

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Knox says: "the reviewing Court must examine ‘the text of the warrant and the affidavit to ascertain whether the agents might have ‘reasonably presume[d] it to be valid.’ Any additional information that Detective Finley possessed, as well as information provided by the Government, is irrelevant to [the suppression] Court's determination." (R. Vol. I at 59–60) (quoting United States v. Corral-Corral, 899 F.2d 927, 932 (10th Cir. 1990) (internal quotations omitted) ).

Furthermore, at the suppression hearing, defense counsel objected multiple times to Detective Finley's testimony regarding information that would tend to support probable cause but was not included in the affidavit nor presented orally to the issuing magistrate. Counsel's basis for...