UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4751
JOSEPH ALLEN JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-98-262)
Argued: January 23, 2001
Decided: February 15, 2001
Before NIEMEYER and MOTZ, Circuit Judges, and
David A. FABER, United States District Court for the
Southern District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Erin C. Murphy, SCHULMAN, TREEM, KAMINKOW,
GILDEN & RAVENELL, Baltimore, Maryland, for Appellant. Philip
S. Jackson, Assistant United States Attorney, Baltimore, Maryland,
for Appellee. ON BRIEF: Michael E. Kaminkow, SCHULMAN,
TREEM, KAMINKOW, GILDEN & RAVENELL, Baltimore, Mary-
land, for Appellant. Lynne A. Battaglia, United States Attorney, Balti-
more, Maryland, for Appellee.
2 UNITED STATES v. JOHNSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This case presents the sole question of whether officers executing
a search warrant acted reasonably in relying on that warrant. We
agree with the district court that they did reasonably rely on the war-
rant; accordingly, we affirm.
I.
During 1997, the Drug Enforcement Administration and local law
enforcement officers conducted an investigation of narcotics traffick-
ing in Baltimore County Maryland, which centered around Jason
Bobbitt. During that investigation, Judge Barbara Howe, of the Cir-
cuit Court for Baltimore County, issued fifteen wiretap orders for var-
ious telephones and pagers associated with Bobbitt and one of his
suppliers, William Christopher Beggs. Monitoring calls to and from
these numbers led police to believe that a person named "Joe" resid-
ing at 1818 Rambling Ridge Road was involved in a drug transaction
with Beggs and may have had evidence or contraband at that address.
On December 9, 1997, Judge Howe signed a search warrant for apart-
ment T-2 at 1818 Rambling Ridge Road in Baltimore.
An eleven page affidavit signed by local law enforcement officers
supported the application for the search warrant. The affidavit first set
out facts learned during the investigation establishing that Bobbit was
a narcotics dealer and that Beggs was one of Bobbitt’s suppliers. The
affidavit next detailed three recorded conversations between Beggs
and a man named "Joe." In all three calls "Joe" used a telephone reg-
istered by the telephone company to apartment T-2 at 1818 Rambling
Ridge Road.
In the first call, Beggs called "Joe" soon after returning from New
York City, where the police had monitored him. The officers stated
UNITED STATES v. JOHNSON 3
in the affidavit that they knew "based on their training, knowledge
and experience, that Beggs picked up a substantial quantity of cocaine
on this trip." According to the affidavit, "Joe" told Beggs in the
recorded call that he wanted to "hook up." Beggs and Joe therefore
agreed to meet at a place called "Dizzy Izzy’s" at 1:00 PM. The offi-
cers stated that they knew "based on their training, knowledge and
experience" that through this expression "Joe is telling Beggs that he
wants to meet him to get a supply of cocaine."
The affidavit next stated that, in a second recorded call, Beggs cal-
led "Joe" and stated that "Joe" did not attend their meeting. "Joe" told
Beggs that he "got hung up shopping with his girl." However, "Joe"
told Beggs that "he still want[ed] to get together." Beggs asked
"when?" "Joe" responded, "Now." Beggs then said, "One." At that
point, "Joe" "agree[d]" and Beggs said that "he [wa]s on his way."
The officers stated that, from this conversation, they knew, "based on
their training, experience and case knowledge" that Beggs was "deliv-
ering a quantity of cocaine to Joe" and "that Beggs [wa]s a kilogram
dealer of cocaine and that when they refer[red] to ‘one’ that they
[we]re referring to a kilogram of cocaine."
The affidavit then stated that, in a third recorded call, Beggs tele-
phoned the same number and asked to speak to "Joe." The person who
answered the telephone indicated that "Joe" was not there. Beggs
responded that he was "right in front of ‘1818’."
In addition to this factual information, the affidavit also established
over six pages the extensive narcotics training and experience of the
three investigating officers. This section of the affidavit explained
many common habits and practices of narcotics traffickers.
On December 9, 1997, when law enforcement officers executed the
warrant on 1818 Rambling Ridge Road, they recovered cocaine, a
handgun, over $ 30,000 in United States currency and personal papers
reflecting Johnson’s residency in the apartment. The government
charged Johnson with a single count of conspiracy to distribute con-
trolled substances in violation of 21 U.S.C. § 846 (1994).
Johnson filed a pretrial motion to suppress the evidence seized
from the apartment at 1818 Rambling Ridge Road. The district court
4 UNITED STATES v. JOHNSON
found that, although the affidavit in support of the warrant did not
provide probable cause for the search, the officers executing the
search had acted in reasonable good faith. Accordingly, the district
court found that the good faith exception to the exclusionary rule con-
trolled and it refused to suppress the evidence. Subsequently, Johnson
pled guilty, preserving the right to appeal the denial of his suppression
motion.
II.
The fruits of a search executed under a warrant approved by a
detached and neutral magistrate, even if not supported by probable
cause, will not be suppressed if the officers executing the warrant pro-
ceeded in reasonable reliance upon the warrant. See United States v.
Leon, 468 U.S. 897, 922 (1984). Thus, the denial of Johnson’s sup-
pression motion was proper — even if the warrant was defective —
if the officers proceeded in objective good faith as set out by the
Supreme Court in Leon.
The crux of the good faith exception is whether the executing offi-
cers’ reliance upon the warrant was objectively reasonable. Leon, 468
U.S. at 921-22. Although the Leon Court stated that "searches pursu-
ant to a warrant will rarely require any deep inquiry into reasonable-
ness," id. at 922, the Court provided four situations in which reliance
upon a warrant would not be reasonable. Leon teaches that reliance
on a warrant is not reasonable where (1) the issuing magistrate or
judge "was misled by information in an affidavit that the affiant knew
was false, or would have known was false except for his reckless dis-
regard for the truth," (2) the issuing magistrate or judge "wholly aban-
doned his judicial role," (3) the warrant is based on an affidavit "so
lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable," or (4) the warrant "is so facially
deficient" that the executing officers could not reasonably presume it
valid. Id. at 922.
As this court has recognized, the Supreme Court also established
in Leon that an officer may not reasonably rely upon a warrant
obtained on the basis of a "bare bones" affidavit. See United States
v. Wilhelm, 80 F.3d 116, 121-122 (4th Cir. 1996); Leon, 468 U.S. at
915, 922 n.24. A "bare bones" affidavit is one that contains "wholly
UNITED STATES v. JOHNSON 5
conclusory statements, which lack the facts and the circumstances
from which a magistrate can independently determine probable
cause." Wilhelm, 80 F.3d at 121 (citing United States v. Laury, 985
F.2d 1293, 1311 n.23 (5th Cir. 1993)).
In his brief, Johnson maintains that the good faith exception was
not triggered in this case because law enforcement officers searched
his apartment pursuant to a warrant based on a "bare bones" affidavit.
At oral argument, defense counsel retreated from the contention that
the affidavit was "bare bones," and argued instead that the good faith
exception did not apply under the third Leon exception, because the
affidavit was "so lacking in indicia of probable cause" that reliance
upon it by the officers was objectively unreasonable. We consider
both contentions.
A.
The affidavit in this case cannot be characterized as "bare bones."
A "bare bones" affidavit is one in which an affiant merely recites the
conclusions of others — usually a confidential informant — without
corroboration or independent investigation of the facts alleged. See,
e.g., Wilhelm, 80 F.3d at 117-118; Laury, 985 F.2d at 1312. We see
no reason to find that an affidavit, like that at issue here containing
extensive facts learned through a long police investigation and related
on the personal knowledge of the affiants, constitutes a "bare bones"
affidavit.
It cannot be said that the affidavit challenged here is so "wholly
conclusory" that a neutral magistrate could not "independently deter-
mine probable cause." The affidavit contained eleven pages of infor-
mation upon which Judge Howe could independently determine
whether probable cause existed. The officers provided a detailed fac-
tual basis for their conclusion that evidence could be found at 1818
Rambling Ridge Road. They clearly set forth evidence of recorded
conversations and controlled buys that indicated Beggs was a known
drug trafficker. They then set out the facts of three recorded telephone
conversations between Beggs and a person named "Joe" using a tele-
phone at 1818 Rambling Ridge Road. In those conversations Beggs
and "Joe" twice attempted to meet. Moreover, Beggs and "Joe" used
language in those conversations — set out in detail in the affidavit —
6 UNITED STATES v. JOHNSON
that the officers believed to be code words for a narcotics transaction.
The officers provided the judge with the details of their training and
experience, upon which they relied to determine that the language
used in those conversations was code for a narcotics sale.
Johnson, in his brief, asserts that this affidavit is "bare bones"
because the officers concluded, without sufficient factual support in
the affidavit, that the "code" words — innocent conversation on its
face — represented a drug transaction. However, a "bare bones" affi-
davit is not one with weak inferences, but rather one without facts
from which a judge can determine probable cause. In determining
whether this affidavit was "bare bones," our inquiry is only into
whether the officers provided Judge Howe with sufficient factual sup-
port from which she could independently conclude whether probable
cause existed. This affidavit contained substantial factual support. The
officers presented pages of information detailing the evidence they
had collected, their training and experience, and the conclusions they
drew between the two. From this, it was for the judge to conclude the
existence vel non of probable cause.
B.
We next consider Johnson’s contention that the good faith excep-
tion should not be applied here because the search warrant was based
on an affidavit "so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable." In many ways,
determination of this question involves an inquiry similar to our con-
sideration of a "bare bones" affidavit.1
Again, it was not unreasonable for the officers to rely upon a war-
rant supported by this affidavit. The affidavit provided substantial fac-
tual support, based on a long investigation and recorded evidence, for
the officers’ belief that evidence of criminal activity might be found
at 1818 Rambling Ridge Road. At a minimum, the affidavit estab-
1
A "bare bones" affidavit is usually insufficient because it falls into
Leon’s third exception, as "not providing the magistrate with a substan-
tial basis for determining the existence of probable cause." See Wilhelm,
80 F.3d at 123 (finding "bare bones" affidavit insufficient for this rea-
son).
UNITED STATES v. JOHNSON 7
lished that "Joe," using a telephone at 1818 Rambling Ridge Road,
twice arranged to meet a known narcotics trafficker. During these
conversations, Beggs and "Joe" used language that the officers
believed to be code to arrange a narcotics transaction. The officers
provided Judge Howe with the substance of those conversations, and
the training and experience leading them to this conclusion.
In United States v. Cancelmo, the Second Circuit also considered
a search warrant issued on an affidavit setting out the substance of
recorded conversations between narcotics traffickers using "narcotics
code." See United States v. Cancelmo, 64 F.3d 804 (2d Cir. 1995). In
the Cancelmo affidavit, officers set out the details of several recorded
conversations between a known drug trafficker and another person.
Id. at 805-806. The conversations were, on their face, innocent; how-
ever, the officers stated in the affidavit that their experience led them
to believe that these conversations actually concerned narcotics trans-
actions. Id. at 806. Cancelmo complained that the officers executing
the search warrant were not entitled to the good faith exception
because the affidavit did not contain objective facts linking him to
criminal activity, and was therefore both "bare bones" and lacking
"any indicia of probable cause." Id. at 807. The court found that the
legal question of whether an affidavit of this type established probable
cause was "a close one." Id. at 808. However, specifically because the
legal question was close, the court found that it was not unreasonable
for the officers to rely upon the magistrate’s decision that probable
cause did exist in issuing the warrant. Id. at 808.
For the same reasons as those discussed in Cancelmo, the affidavit
in this case similarly is not "so lacking in indicia of probable cause"
as to make reliance upon it unreasonable. Indeed, here too, it is a
close question whether the affidavit was sufficient to establish proba-
ble cause. See United States v. Hyppolite, 65 F.3d 1151, 1157-58 (4th
Cir. 1995) (holding that, when law is unclear as to whether a factor
relied upon in affidavit can establish probable cause, officers are enti-
tled to good faith exception even if such factor should not have been
considered). It was not for the police officers, untrained in the law,
to know whether the magistrate correctly concluded that the officers’
inferences that these facially innocent conversations actually con-
cerned narcotics was enough to establish probable cause.2 It was
2
Moreover, we are not limited to the face of the affidavit in our good
faith inquiry. When determining the objective reasonableness of the offi-
8 UNITED STATES v. JOHNSON
therefore reasonable for the officers to believe that this warrant was
valid.
Ultimately, this case presents us with the same concern the
Supreme Court expressed in Leon. "[T]he exclusionary rule is
designed to deter police misconduct rather than to punish the errors
of judges and magistrates." Leon, 468 U.S. at 916. "[A]n officer can-
not be expected to question the magistrate’s probable-cause determi-
nation or his judgment that the form of the warrant is technically
sufficient. ‘Once the warrant issues, there is literally nothing more the
policeman can do in seeking to comply with the law.’" Id. at 921.
Johnson essentially complains that the affidavit upon which his war-
rant was based did not contain enough information to make out proba-
ble cause. Under the good faith exception, however, whether probable
cause existed was for Judge Howe to determine. Once the judge deter-
mined probable cause existed, the officers needed only to be sure that
their reliance upon the warrant was reasonable. Here their reliance
was certainly reasonable, and the good faith exception applies.
Having found that the district court properly applied the good faith
exception, we need not consider whether the court erred in ruling that
the affidavit was issued without probable cause. See Edwards, 798
F.2d at 690 (declining to decide whether warrant was issued on a
showing of probable cause when good faith exception found to
apply). Accordingly, denial of the suppression motion was proper and
the judgment of the district court is
AFFIRMED.
cers, we are to look at all the facts presented to the magistrate. See
United States v. Legg, 18 F.3d 240, 243-44 (4th Cir. 1994). Here, Judge
Howe had issued the previous wiretapping orders and knew many details
of this investigation outside the four corners of the warrant. The officers
knew that Judge Howe possessed this information when they presented
their affidavit. This bolsters the reasonableness of the officers’ presump-
tion that the warrant was valid and constitutional.