U.S. v. Taxacher, 88-8596

• Decision Date: 04 June 1990
• Docket Number: No. 88-8596,88-8596
• Citation: 902 F.2d 867
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dennis L. TAXACHER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 867

902 F.2d 867

59 USLW 2026

UNITED STATES of America, Plaintiff-Appellee, v. Dennis L. TAXACHER, Defendant-Appellant.

No. 88-8596.

United States Court of Appeals, Eleventh Circuit.

June 4, 1990.

James K. Jenkins, Atlanta, Ga., for defendant-appellant.

Arthur W. Leach, Asst. U.S. Atty., Savannah, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before VANCE ^* and ANDERSON, Circuit Judges, and LYNNE, ^** Senior District Judge.

ANDERSON, Circuit Judge:

Dennis L. Taxacher pled guilty to one count of violating the Travel Act, 18 U.S.C. Sec. 1952. He received a 41-month sentence. On appeal, Taxacher claims that the district court improperly denied his motions to suppress. In addition, he argues that the sentencing court erred by refusing to reduce his base offense level under the Federal Sentencing Guidelines ("Guidelines"). We find both of these claims without merit, and, accordingly, affirm.

I. BACKGROUND

On November 7, 1987, Taxacher was stopped for speeding while driving south on U.S. Interstate 95 in McIntosh County, Georgia. After stopping Taxacher, Georgia State Patrol Trooper Barry A. Riner requested that he step out of the automobile and produce his driver's license and vehicle registration. Taxacher produced a Pennsylvania driver's license and a rental agreement for the automobile. Riner noticed that, under the terms of the rental agreement, the automobile should have been returned three weeks earlier on October 17, 1987. Taxacher said that he had received an extension on the car and showed Riner a receipt for a deposit of $500.00 made on November 2, 1987. The receipt did not state the purpose of the deposit or whether the rental agreement had been extended.

His suspicion aroused, Riner began asking Taxacher questions about the origin, destination, and purpose of his travel. Taxacher grew increasingly nervous during the questioning. He initially stated that he was travelling to Fort Pierce, Florida to visit his parents. Upon further questioning, Taxacher explained that he had flown from Pennsylvania to Fort Lauderdale, Florida, where he rented the automobile. After renting the car, Taxacher drove to his parents' home in Fort Pierce to visit with them. Taxacher said that he then drove back to Pennsylvania to winterize his parents' home. Taxacher also stated that at the time of his arrest, he was driving back to Fort Lauderdale to return the rental automobile before flying back to Pennsylvania.

Riner believed that Taxacher's answers were inconsistent and asked him for permission to search the automobile. Although Taxacher orally agreed to the search, he refused to sign a written consent-to-search form. After consenting to the search, Taxacher attempted to lead Riner to the passenger compartment of the automobile. Riner looked through the passenger area of the vehicle, then asked Taxacher to open the trunk. Taxacher complied with the request, but did not allow Riner complete access to the contents of the trunk. Instead, Taxacher stood between Riner and the trunk in such a manner that Riner could view but not actually touch the contents. Riner observed a hang-up clothes bag, satchel, and two plastic bags in the trunk. When Riner asked him what the satchel contained, Taxacher "really and truly looked like he was going to faint." R. 2:19. After Riner asked if he could examine the contents of the satchel and reached toward it, Taxacher slammed the trunk and told him that no further search would be made without a search warrant. Riner then directed Taxacher to follow him to the McIntosh County Sheriff's Office to post a cash bond for the speeding violation.

En route to the sheriff's office, Riner contacted the office and requested that a magistrate be made available so that he could apply for a search warrant. Just before arriving at the sheriff's office, Riner was informed that Taxacher's Virginia driver's license had been suspended and not reinstated. Taxacher was detained for the speeding violation and driving with a suspended license.

Riner, who had not before filled out an application for a search warrant, telephoned the local district attorney for advice. Riner then completed a search warrant application. In his affidavit accompanying the warrant application, Riner stated that (1) the defendant appeared overly nervous; (2) the rental agreement indicated that the car was past due; (3) the defendant gave inconsistent stories about his travel plans; and (4) the defendant initially consented to a search of the vehicle, then withdrew consent when the trooper asked to look into a specific satchel. Riner did not mention either the receipt for the deposit of $500 or Taxacher's statement that he had extended the rental agreement. ¹

Based on Riner's affidavit, the magistrate for McIntosh County issued a search warrant authorizing the search of "all contents and baggage" in the vehicle driven by Taxacher. The contraband to be searched for was listed as "marijuana, cocaine, and any other items which are illegal to possess under the Ga. Controlled Substances Act. And, any money that may be used or may have been used in connection with drugs."

Riner searched Taxacher's car and the contents therein, discovering $186,626.00 in cash in the satchel. Riner then notified Georgia Bureau of Investigation Agent James A. Evans of this finding. After arriving at the sheriff's office, Evans searched the automobile before seizing it, and then placed Taxacher under arrest for violation of the Travel Act. Later that day, after he had been informed of his Miranda rights, Taxacher signed a waiver of these rights and voluntarily agreed to make a statement. During the interrogation by Evans that followed, Taxacher made incriminating statements. Taxacher was charged with one count of money laundering and two counts of violating the Travel Act.

Taxacher subsequently filed motions to suppress both the evidence discovered during the search of his car and the statements he made after the search. The district court found the warrant invalid because Riner did not have sufficient probable cause to search and detain Taxacher's vehicle. The court found that the magistrate had issued the search warrant in reliance on the four factors set forth by Riner in his affidavit, none of which, alone, constituted sufficient probable cause. However, despite the warrant's invalidity, the court denied the motions to suppress the illegally obtained evidence, holding that the good faith exception to the exclusionary rule applied. Taxacher then pled guilty to one count of violating the Travel Act, reserving his right to appeal the denial of the motions. See Fed.R.Crim.P. 11(a)(2).

At the sentencing hearing, the government recommended that Taxacher's sentencing offense level be reduced by four points because he was a "minimal participant." The probation department recommended a reduction of two levels because Taxacher was a "minor participant." Despite these recommendations, the sentencing court found that the appellant was not entitled to a reduction and required him to submit further evidence of his role as a "minimal" or "minor" participant. Taxacher chose not to put on additional evidence. The sentencing court refused to reduce the offense level and sentenced Taxacher to 41 months.

II. GOOD FAITH

The government does not contest the district court's ruling that there was insufficient probable cause to justify the search of Taxacher's car. Thus, we must assume that the search warrant was issued and executed in violation of the Fourth Amendment. The issue before us now is whether the district court correctly applied the good faith exception to the exclusionary rule, rendering the improperly obtained evidence admissable. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We affirm.

In Leon, the Supreme Court recognized a good faith exception to the exclusionary rule for searches conducted pursuant to warrants. Observing that the purpose of the exclusionary rule is to deter unlawful police conduct, the Court found that this purpose would not be served, and the rule should not be applied, when officers engage in "objectively reasonable law enforcement activity." 468 U.S. at 918-19, 104 S.Ct. at 3418. In particular, the Court held that the suppression of evidence would have no deterrent effect "when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope." Id. at 920, 104 S.Ct. at 3419 (footnote omitted). ²

Although it stated that searches conducted pursuant to warrants will rarely require suppression, the Leon Court did list four situations in which suppression would still be appropriate. Id. at 923, 104 S.Ct. at 3421. These situations are (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," (2) "where the issuing magistrate wholly abandoned his judicial role," (3) where the "warrant [is] based on an affidavit 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,' " and (4) where "a warrant [is] so facially deficient ... that the executing officers cannot reasonably presume it to be valid." Id. (citations omitted).

Appellant argues that the first and third limitations listed above preclude the application of the good faith exception in this case. The first limitation is negated by the district court's finding that Riner acted neither recklessly nor dishonestly in submitting his affidavit. This finding is subject to review on appeal under the clearly erroneous standard. United States v. Cancela, 812 F.2d 1340, 1343 (11th Cir.1987). Our review of the record persuades us that there is ample evidence to support the district court's finding. The finding is not clearly...