U.S. v. George, 91-5669

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore RUSSELL and LUTTIG; LUTTIG
Citation971 F.2d 1113
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Cyrus Jonathan GEORGE, Defendant-Appellee.
Docket NumberNo. 91-5669,91-5669
Decision Date12 August 1992

Karen Ingrid Skrivseth, U.S. Dept. of Justice, Washington, D.C., argued (William A. Kolibash, U.S. Atty., David E. Godwin, Lisa A. Grimes, Asst. U.S. Attys., Wheeling, W.Va., on brief), for plaintiff-appellant.

Brent E. Beveridge, Fairmont, W.Va., argued, for defendant-appellee.

Before RUSSELL and LUTTIG, Circuit Judges, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.


LUTTIG, Circuit Judge:

The United States District Court for the Northern District of West Virginia suppressed evidence critical to the racketeering prosecution of defendant-appellee Cyrus Jonathan George. We reverse in part, vacate in part, and remand.


Dallas P. Rice was shot near his secluded trailer home in Ten Mile, Upshur County, West Virginia, shortly after 5 p.m. on November 14, 1986. See App. at 205-09. Rice's trailer home was accessible by two roads--a main dirt road and Calico Road, a one-lane dirt road that could be traversed only by four-wheel drive vehicles. Upon arrival at the scene of the shooting, county police, including sheriff Fred Gaudet and deputy Lewis Anderson, determined that the shots had been fired from an area of freshly cut brush atop a cliff approximately 100 yards behind the clearing where Rice had been standing when he was shot. See id. at 222. The police also concluded that Calico Road had not been recently traveled and that the main road to Rice's trailer home had been traveled only by Rice's neighbors. See id. at 221.

When Gaudet and a county officer drove up Calico Road approximately 1-1 1/2 hours later, they broke through the ice that was covering numerous mudholes due to the recent freeze. Officers dispatched to block off the other end of Calico Road also found iced-over mudholes, confirming that no vehicle had recently exited the area via the road. See id. at 254-56. After driving a quarter mile on Calico Road, Gaudet discovered an area near the road where a vehicle had been parked. See id. at 255-56. Police with bloodhounds had followed a different quarter-mile trail to this same location from the site of the shooting. See id. at 239, 269. As Gaudet drove beyond this spot, he discovered that a vehicle driving in the same direction had already broken through the ice covering the mudholes in the road. See id. at 256. Proceeding along the road, Gaudet encountered defendant-appellee

Cyrus Jonathan George driving toward him in a four-wheel drive truck. See id. at 256-57. George was stopped by the police, and before they could interrogate him, George spontaneously said, "I don't have any guns. Go ahead and search my truck, I give you my permission," and "I didn't hear any shots." Id. at 258, 259; see also id. at 276. (George claimed to be tracking a bear. See id. at 260.) George also admitted to the police that he had been "parked ... earlier looking at the river." Id. Gaudet searched George's truck and found a tool box, but no gun. See id. at 262-63. The police did not arrest George. See id. at 264

George agreed to take polygraph and paraffin tests, see id. at 260-61, 276, and Gaudet asked him to drive back to the other end of Calico Road, see id. at 243. When George arrived at the end of Calico Road, however, he told the officer who met him that he would not take the tests. See id. at 261, 265. The police thereafter took photographs of George and his truck. See id. at 264. These photographs showed that George's knees and the back of his pants were damp and that he was wearing boots. See id. at 277. The police also photographed tire tracks near the crime scene. See id. at 270.

As the investigation of the Rice shooting continued in the days following, the police found assorted evidence in and around the Calico Road area. They recovered a cardboard box labeled "Remington Shells," some .30/30 shells, and parts of a gun that had been sawed into small pieces. Near where George had parked his truck, police recovered the receiver of a Winchester Model 94 .30/30 lever-action rifle. See id. at 228-29, 234-35, 241, 279. A trace of the serial number found on the receiver disclosed that the gun had been purchased by George on August 10, 1973. See id. at 233-34. The police also recovered half a hacksaw blade from the river, metal shavings, cloth fragments, paper towels, and scraps of black electrician's tape. See id. at 228-31, 238-39, 242. 1

On February 3, 1987, someone shot at Sheriff Gaudet. The bullet missed Gaudet and lodged in his car. See id. at 119-20. (George knew at this time that he was under investigation for the Rice shooting. See id. at 114.) The next day, after a meeting with the state prosecutor, county police decided to obtain arrest and search warrants for George in connection with the Rice shooting. See id. at 106-07. Testimony revealed that the police had felt an "urgency" to procure the search warrants following the Gaudet shooting because they had feared that the Rice and Gaudet shootings might be "signature crimes," given the similarities between the two incidents. Id. at 114; see also id. at 106. 2

Deputy Anderson swore out two affidavits, one in support of a search warrant for George's residence and one in support of a search warrant for George's truck. The affidavit supporting the search warrant for the residence recited as follows:

George was found and located in the immediate vicinity at or near the time ... Dallas P. Rice was shot and is a suspect in the shooting. The affiant has also personally observed rifles in said residence, and the said Cyrus J. George has been observed test firing high powered rifles within close proximity to the above described residence.

Id. at 200. This affidavit sought authorization to search for "any and all high powered rifles, cartridges, bullets, components, cartridge cases [or] boxes, expended bullets, other firearms, ammunition, reloading components and equipment, hacksaws, clothing and footwear." Id.

The affidavit submitted in support of the search warrant for George's truck sought authorization to search for the same items, plus "tires located on the ... truck." This affidavit read in relevant part:

George was found in the immediate area at or near the time of [the Rice] shooting in the above mentioned vehicle; affiant has knowledge that the said Cyrus J. George has carried the above items in said truck; the affiant is of the belief that the above vehicle was used in the commission of said offense and was being operated by the said Cyrus J. George at the time of said offense.

Id. at 195.

Deputy Anderson also swore out a complaint in support of a warrant for George's arrest. See id. at 125-26. Although this complaint is not in the record, the government represents that the complaint stated as follows:

Cyrus J. George was found in the immediate vicinity of the location where ... Dallas P. Rice was shot at the time of the shooting; ... pieces of a rifle belonging to Cyrus J. George were found in the immediate area of said shooting, and ... no other person or person(s) were found in [the] area.

Appellant's Br. at 10 n. 8.

A county magistrate issued the three requested warrants on February 5, 1987, and George was arrested that day while in his truck. His truck was impounded, see App. at 159, and tires and three hacksaw blades, among other items, were seized from the vehicle, see id. at 193. Three pairs of boots and various other items were seized from George's residence. See id. at 198. Only the tires, hacksaw blades, and boots seized pursuant to the warrants are at issue in this appeal.

On April 16, 1990, George was indicted in the United States District Court for the Northern District of West Virginia on a variety of racketeering counts, including two counts of conspiring to commit murder in aid of racketeering, one count of maiming in aid of racketeering, and one count of attempted murder in aid of racketeering. See generally id. at 8-70. George filed two suppression motions relating to the evidence seized pursuant to the search warrants for the truck and the residence. See id. at 71-81. After an evidentiary hearing on these motions, a federal magistrate issued proposed findings of fact and recommended that the court grant the motions. See id. at 133-45.

The federal magistrate concluded that both warrants were invalid because the affidavits presented to the county magistrate were "too scanty and too far removed in time to support a finding of 'present' probable cause." Id. at 139. The magistrate rejected the argument of the United States that the county officers had reasonably relied in good faith upon the warrants and that the evidence was therefore admissible on the authority of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). He found that the affidavit supporting the search warrant for the truck was made with a reckless disregard for the truth and that Leon's good faith exception was thus inapplicable. See App. at 140-41 (quoting Leon, 468 U.S. at 923, 104 S.Ct. at 3420). As to the search warrant for George's residence, the magistrate conceded that "George makes no persuasive argument that there was any false statement in the affidavit for [that] search warrant." Id. at 141. Nevertheless, the magistrate stated that the county magistrate "was misled by the representation that both search warrants were being sought to obtain evidence as to the Rice case, when ... the primary purpose was to seek incriminating evidence in the Gaudet case." Id. at 142.

The United States filed objections to the magistrate's proposed findings and recommendations. See id. at 146-60. The government objected to the magistrate's finding that the warrants were not supported by probable cause and that the challenged evidence...

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