United States v. Moore, 042412 FED4, 11-4623

Docket Nº:11-4623
Opinion Judge:KEENAN, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellant, v. COREY A. MOORE, Defendant-Appellee.
Attorney:Jonathan Biran, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellant. Brian Keith McDaniel, BRIAN K. MCDANIEL & ASSOCIATES, Washington, D.C., for Appellee. Rod J. Rosenstein, United States Attorney, Mara Zusman Greenberg, Assistant United States Attorney, Jonathan Lenzner, Ass...
Judge Panel:Before WILKINSON, GREGORY, and KEENAN, Circuit Judges. GREGORY, Circuit Judge, dissenting:
Case Date:April 24, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellant,

v.

COREY A. MOORE, Defendant-Appellee.

No. 11-4623

United States Court of Appeals, Fourth Circuit

April 24, 2012

         UNPUBLISHED

          Argued: January 26, 2012.

         Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:10-cr-00648-AW-1)

         ARGUED:

          Jonathan Biran, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellant.

          Brian Keith McDaniel, BRIAN K. MCDANIEL & ASSOCIATES, Washington, D.C., for Appellee.

         ON BRIEF:

          Rod J. Rosenstein, United States Attorney, Mara Zusman Greenberg, Assistant United States Attorney, Jonathan Lenzner, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellant.

          Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.

         Reversed and remanded by unpublished opinion. Judge Keenan wrote the majority opinion, in which Judge Wilkinson joined. Judge Gregory wrote a dissenting opinion.

         Unpublished opinions are not binding precedent in this circuit.

          KEENAN, Circuit Judge.

         In this interlocutory appeal filed pursuant to 18 U.S.C. § 3731, the government challenges the district court's order granting Corey A. Moore's motion to suppress certain evidence seized during a search of his home. The district court concluded, among other things, that the warrant authorizing the search was so lacking in indicia of probable cause that the officers could not have relied on the warrant in good faith. We reverse the district court's order based on our conclusion that, as a matter of law, the good faith exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897 (1984), is applicable in the present case.

         I.

         On September 25, 2010, a police officer employed by the City of Takoma Park, Maryland, observed Corey Moore walking on a public street. The officer suspected that Moore had committed an alcohol-related violation because he was carrying a bottle while walking. When the officer attempted to confront Moore, he fled. In the pursuit that followed, both the officer and a bystander witnessed Moore throw a large object into a dumpster. Moore later was apprehended and taken into custody.

         When police officers searched the dumpster, they located only one item that resembled the object thrown by Moore. This item was a package that was found to contain more than one-half kilogram of cocaine having an estimated "street" value of $10, 000.00.

         Two days later, Takoma Park police officers responded to a report of an attempted burglary at a residence located at 118 Sherman Avenue (the residence). A citizen had reported hearing a "thumping noise" outside the residence, and had observed two men run from the driveway of the home. The residence was located on the same block in which the officer first encountered Moore.

         After arriving at the scene, the officers inspected the residence and saw a broken window in the basement. The officers contacted the owner of the residence, who informed them that he rented the basement of the residence to Corey Moore. The homeowner also informed the officers that Moore's BMW automobile was parked in front of the residence.

         The officers performed a "protective sweep" of the basement of the residence, but found no one there. Detective Charles Hoetzel of the Takoma Park Police Department determined that a grey BMW located across the street from the residence was registered in Moore's name.

         Hoetzel provided the above information in an affidavit he submitted to obtain a search warrant for the basement of the residence, except that the affidavit did not mention that the officers had conducted a protective sweep of the basement. A Maryland circuit court judge issued the search warrant, concluding that there was probable cause to believe that narcotics, firearms, and evidence of drug trafficking would be located in the basement of the residence. When Takoma Park police officers executed the search warrant, they found 2.8 kilograms of phencyclidine (PCP), $44, 780 in cash, and several firearms.

         A federal grand jury returned a four-count indictment against Moore. The indictment charged Moore with: (1) possession with intent to distribute a substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1); (2) possession with intent to distribute one kilogram or more of PCP, in violation of 21 U.S.C. § 841(a)(1); (3) possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (4) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

         Moore filed a motion to suppress the evidence seized from his residence, arguing that the search warrant did not establish probable cause for the search because the warrant did not contain any information to support an inference that contraband would be found at the residence. Moore further argued that the Leon good faith exception was not applicable because the officers allegedly were aware that probable cause had not been established.

         Moore also requested a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), to challenge the veracity of the information contained in the warrant. He based his request for a Franks hearing on the fact that Hoetzel had omitted from the affidavit the information that two days after arresting Moore, police officers had entered the basement of the residence and conducted a protective sweep of the premises, during which no contraband had been observed. Moore argued that this omission was material, and effectively would have negated both a finding of probable cause and the availability of the Leon good faith exception.

         The district court concluded that Moore's argument regarding this omission was merely speculative and, therefore, that Moore had not met his burden of establishing the need for a Franks hearing. However, the district court granted Moore's motion to suppress the evidence seized in the search of his home on the ground that the search warrant was not supported by probable cause. The district court further held that the Leon good faith exception was inapplicable, because the warrant was so deficient that the officers could not have relied on it in good faith.

          The government filed a motion for reconsideration, which the district court denied. This appeal followed.

         II.

         The government argues that the affidavit at issue established probable cause to believe that evidence of a crime would be found in Moore's home. The government contends that a nexus between Moore's criminal activity and his residence was established, because the affidavit included evidence that Moore had possessed large quantities of cocaine in close proximity to his residence two days before the officers obtained the warrant. Additionally, the government asserts that, irrespective whether the affidavit for the...

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