PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-4886
KARIM L. MOWATT,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge;
Alexander Williams, Jr., District Judge.
(8:06-cr-00003-DKC)
Argued: December 7, 2007
Decided: January 25, 2008
Before MICHAEL and TRAXLER, Circuit Judges, and
James P. JONES, Chief United States District Judge
for the Western District of Virginia, sitting by designation.
Reversed and remanded by published opinion. Judge Traxler wrote
the opinion, in which Judge Michael and Judge Jones joined.
COUNSEL
ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Stacy Dawson
Belf, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON
2 UNITED STATES v. MOWATT
BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, for Appellee.
OPINION
TRAXLER, Circuit Judge:
Karim L. Mowatt appeals his convictions for four drug and weap-
ons offenses, arguing that the primary evidence against him was
obtained as the result of an illegal warrantless search of his apartment.
We reverse and remand for further proceedings.
I.
On the evening of November 17, 2005, at approximately 9:19 p.m.,
Officers Russell Chick, Scott Hall, and Armando Parker of the Bla-
densburg (Maryland) Police Department were dispatched to investi-
gate a report from a private security guard that loud music and the
smell of marijuana were emanating from a tenth-floor apartment in a
high-crime area. Once on the building’s tenth floor, the officers iden-
tified the apartment that was the source of the loud music and mari-
juana odor.1 They decided to knock on the apartment’s closed door.
Hearing no response, they began pounding on the door, at which time
they heard "movement on the inside of the apartment confirming that
somebody was walking around." J.A. 34. They also heard an aerosol
can discharging. The music was then turned down and someone asked
who was there, to which the officers responded, "It’s the police. Open
the door. We need to investigate something." J.A. 35 (internal quota-
tion marks omitted). After "there was some back and forth" between
the person inside (Mowatt) and the officers, Mowatt refused to open
the door. J.A. 60. The police then "became demanding," repeatedly
"order[ing]" him to open it. J.A. 61.
In response to the officers’ repeated demands, Mowatt finally
1
Officer Chick testified that he smelled a combination of burning and
fresh marijuana.
UNITED STATES v. MOWATT 3
opened the door approximately 12 to 13 inches, but the officers con-
tinued to insist that he let them into the apartment. Mowatt asked if
the officers had a warrant, and they admitted that they did not.
Because Mowatt had opened the door slightly, the officers were able
to see him, and they began to suspect from the way he was standing
that he was holding something in his right hand behind his back. They
ordered him several times to show his hands, and, although Mowatt
gradually opened the door slightly more, he did not show his hands.
Rather, he adamantly insisted that the officers leave since they did not
have a warrant. Concerned about his and his fellow officers’ safety,
Officer Parker grabbed for Mowatt’s right shoulder, prompting
Mowatt to "smack[ ] Officer Parker’s hand away." J.A. 40. At that
point, the officers forced their way into the apartment and wrestled
Mowatt to the floor. They later determined he had not been holding
anything behind his back.
The officers handcuffed Mowatt, moved him into the living room,
and sat him in a chair. Officer Chick then proceeded to make a quick
sweep of the apartment to ensure that no one else was inside. While
doing so, he discovered a loaded .357 revolver on the bedroom floor.
As he alerted the other officers, Chick heard what sounded like a
struggle in the living room. When Chick emerged from the bedroom,
he saw Mowatt, still handcuffed, wrestling with Officer Parker. The
two slammed into a refrigerator in the kitchen as they struggled and
fell to the ground, allowing the officers to once again subdue Mowatt.
Because Mowatt was injured during the struggle, the officers decided
to call for medical assistance.
Once the paramedics arrived, the officers noticed that the refrigera-
tor had been knocked open during the tussle. Inside was a small open
plastic bag containing several hundred pink pills. Based on his train-
ing and experience, Officer Chick concluded that the pills were meth-
ylenedioxymethamphetamine (ecstasy).
The officers decided at that point to call their supervisor and seek
a search warrant. While they did so, they transported Mowatt for pro-
cessing and additional medical treatment. The affidavit submitted in
support of the warrant contained many of the facts concerning how
they had come to enter the apartment—although not the fact that they
had originally identified themselves and demanded that Mowatt open
4 UNITED STATES v. MOWATT
the door—and what transpired after their entry, including their dis-
covery of the revolver and the pills. Upon executing the resulting war-
rant, the police recovered the revolver with six rounds of ammunition,
the bag containing hundreds of ecstasy pills, as well as several other
items, including two semiautomatic assault rifles with several rounds
of ammunition, a body armor vest, and almost $20,000 in currency.2
Mowatt was subsequently indicted for one count each of posses-
sion with intent to distribute ecstasy, see 21 U.S.C.A. § 841(a)(1)
(West 1999); being a felon in possession of a firearm, see 18
U.S.C.A. § 922(g)(1) (West 2000); possession of a firearm in connec-
tion with drug trafficking, see 18 U.S.C.A. § 924(c) (West 2000); and
being a violent felon in possession of body armor, see 18 U.S.C.A.
§ 931 (West Supp. 2007).
Mowatt moved to suppress all evidence seized from the apartment,
alleging that it was fruit of an unconstitutional warrantless search.
Although conceding that warrantless entry is generally justified when
exigent circumstances exist, Mowatt argued that the government
could not rely on the likelihood that he would destroy the evidence
of marijuana possession when he realized that the police were at his
door because that exigency was of the officers’ own creation. Mowatt
maintained that the officers should have first obtained a warrant if
they wanted to require him to open his apartment door to allow an
investigation of a possible drug crime. He contended that the warrant
that the officers eventually obtained was merely fruit of the previous
illegal search.
The district court held a hearing on the motion, in which Officer
Chick testified. In light of Officer Chick’s testimony, the government
maintained that the officers’ initial decision to knock on Mowatt’s
door and require him to open it was reasonable in that they were sim-
ply attempting to resolve a fairly routine noise complaint. The gov-
ernment suggested that "it’s reasonable to at least have face-to-face
contact in the setting of a doorway of an apartment" in order to dis-
pose of the noise problem because "there’s a lesser expectation of pri-
2
The officers also recovered substantial amounts of marijuana and a
digital scale with marijuana residue. The district court excluded that evi-
dence as irrelevant.
UNITED STATES v. MOWATT 5
vacy in the doorway" than there is with regard to "full b[lown] police
activity within a residence." J.A. 91. The government argued that
once the officers began to suspect that Mowatt was holding a weapon
behind his back and he refused to show his hands, they were justified
in attempting to grab him. The government asserted that the officers
likely had probable cause to arrest Mowatt for marijuana possession
and they at least had reasonable suspicion and a right to ensure that
Mowatt did not have a weapon. The government alternatively main-
tained that even if the initial entry into the apartment was illegal, the
evidence recovered via the search warrant was admissible because the
officers relied in good faith on the warrant’s issuance.
The district court denied Mowatt’s motion. The court ruled that the
officers had probable cause to arrest Mowatt for marijuana possession
and for assault (for striking Officer Parker). The court further decided
that once Mowatt realized the officers were present, the risk of
destruction of the evidence of marijuana possession constituted exi-
gent circumstances justifying the officers’ warrantless entry into the
apartment. The court reasoned that it was not necessary for the offi-
cers to obtain a warrant prior to approaching Mowatt’s apartment
because their purpose in knocking on the apartment door was only to
resolve the noise complaint, not to investigate a possible drug crime.
The court also determined that the officers acted in good faith as evi-
denced by the fact that they did not seize any items prior to calling
their supervisor and obtaining a warrant and that their concern prior
to entering the apartment had been only to resolve the noise complaint
and not to investigate the smell of marijuana.
After a jury trial in which the evidence at issue was admitted,
Mowatt was convicted on all counts and sentenced to 197 months’
imprisonment.
II.
Mowatt argues that the district court erred in denying his suppres-
sion motion. In considering a district court’s decision regarding a
motion to suppress, we review legal conclusions de novo and factual
findings for clear error. See United States v. Seidman, 156 F.3d 542,
547 (4th Cir. 1998). We also review for clear error a finding that exi-
6 UNITED STATES v. MOWATT
gent circumstances were present. United States v. Turner, 650 F.2d
526, 528 (4th Cir. 1981).
It is well established that, even when officers have probable cause
to believe that contraband is present in a home, a warrantless search
of the home is unlawful unless exigent circumstances exist at the time
of entry. See Payton v. New York, 445 U.S. 573, 589 (1980). The gov-
ernment bears the burden of demonstrating exigent circumstances that
overcome their presumptively unreasonable entry. See Welsh v. Wis-
consin, 466 U.S. 740, 749-50 (1984); Vale v. Louisiana, 399 U.S. 30,
34 (1970). And exigency is determined at the moment the search
occurs. See United States v. Reed, 935 F.2d 641, 643 (4th Cir. 1991)
(per curiam). This court has enumerated five factors that district
courts should consider in determining whether an exigency existed at
the time a search commenced:
(1) the degree of urgency involved and the amount of time
necessary to obtain a warrant; (2) the officers’ reasonable
belief that the contraband is about to be removed or
destroyed; (3) the possibility of danger to police guarding
the site; (4) information indicating the possessors of the con-
traband are aware that police are on their trail; and (5) the
ready destructibility of the contraband.
Turner, 650 F.2d at 528.
Mowatt argues that the officers violated his Fourth Amendment
rights by requiring him to open his door (even slightly) so that they
could see him face-to-face. He contends that it was only this initial
intrusion that enabled the officers to see him holding his arm in what
they considered to be a suspicious manner, which, in turn, initiated a
chain of events culminating in the discovery of the revolver and the
ecstasy and issuance of the search warrant. He therefore argues that
all items recovered during execution of the warrant were the result of
the "exploitation of [the initial] illegality" and must be suppressed as
such. Wong Sun v. United States, 371 U.S. 471, 488 (1963) (internal
quotation marks omitted).
The government advances several arguments in response: (1) that
requiring Mowatt to open his door so that they could see him face-to-
UNITED STATES v. MOWATT 7
face did not constitute a search, (2) that even if it did constitute a
search, the warrantless search was justified by exigent circumstances,
and (3) that even if the initial intrusion was a warrantless search not
justified by exigent circumstances, the evidence seized pursuant to the
search warrant that the officers eventually obtained was admissible
under the Leon good-faith exception. We address these arguments
seriatim.
A.
The government’s first argument, that the officers’ requiring
Mowatt to open his door so that they could see him did not constitute
a search, is easily resolved.3 It is well established that a search occurs
for Fourth Amendment purposes "when officers gain visual or physi-
cal access to a . . . room after an occupant opens the door not volun-
tarily, but in response to a demand under color of authority." United
States v. Conner, 127 F.3d 663, 666 (8th Cir. 1997). Under such cir-
cumstances, the fact that "the officers gained visual access to the inte-
rior of a dwelling without physically entering it is irrelevant to the
question [of] whether a search was effected."4 United States v. Win-
sor, 846 F.2d 1569, 1572 (9th Cir. 1988) (en banc).
3
The government also suggested at oral argument that the district court
could have found that Mowatt voluntarily opened his door. However, the
record is clear that Mowatt initially refused to open his door and that he
only opened it slightly after the officers had identified themselves and
demanded that he open it.
4
The cases that the government contends support the opposite conclu-
sion, United States v. Cephas, 254 F.3d 488 (4th Cir. 2001), United
States v. Taylor, 90 F.3d 903 (4th Cir. 1996), and United States v. Gwinn,
219 F.3d 326 (4th Cir. 2000), are easily distinguishable. Cephas held
only that no search occurred when the police simply knocked on a door
and the occupant opened it, not in response to a demand under color of
police authority. See Cephas, 254 F.3d at 494. Nor did the police demand
visual access to the residence in Taylor, wherein the officer merely
observed the interior of the residence "‘from a public vantage point
where he ha[d] a right to be.’" Taylor, 90 F.3d at 908 (internal quotation
marks omitted). Finally, in Gwinn, we held only that exigent circum-
stances existed for an officer to briefly re-enter a home to retrieve shoes
and a shirt for an arrestee in light of the substantial risk that the arrestee
would be injured if he did not have shoes and the limited degree of intru-
sion involved. See Gwinn, 219 F.3d at 333. We did not hold that the re-
entry was not a search.
8 UNITED STATES v. MOWATT
B.
We next turn to the question of whether exigent circumstances jus-
tified the officers’ requiring Mowatt to open his apartment door.5 We
hold that they did not.
Johnson v. United States, 333 U.S. 10 (1948), governs our deci-
sion. In Johnson, police officers obtained information from an infor-
mant that people were smoking opium in a hotel. When the officers
went to the hotel to investigate, they immediately recognized the
smell of opium, and then traced the odor to a particular room. Not
knowing who occupied the room, the officers knocked and identified
themselves as police. After a slight delay, there was "some shuffling
or noise" in the room and then the defendant opened the door. Id. at
12 (internal quotation marks omitted). The lead officer told the defen-
dant that he wanted to talk to her about the opium smell, and the
defendant let the officers into the room. The officers proceeded to
arrest the person who opened the door and searched the room, uncov-
ering incriminating opium and smoking apparatus. A district court
refused to suppress the evidence, and the Ninth Circuit affirmed.
The Supreme Court reversed. The Court concluded that the offi-
cers’ entry into the room had been "demanded under color of office"
and was therefore not by the defendant’s consent. Id. at 13. It also
determined that "[a]t the time entry was demanded the officers were
possessed of evidence which a magistrate might have found to be
probable cause for issuing a search warrant." Id. The Court thus held
that the warrantless search was unconstitutional, noting that "[n]o rea-
son is offered for not obtaining a search warrant except the inconve-
nience to the officers and some slight delay necessary to prepare
papers and present the evidence to a magistrate. These are never very
convincing reasons." Id. at 15. The Court further added that, at the
time the officers announced themselves and demanded entry, there
was no exigency justifying dispensing with the warrant requirement.
See id. In particular, the Court noted: "No evidence or contraband was
threatened with removal or destruction, except perhaps the fumes
which we suppose in time would disappear. But they were not capable
5
Mowatt does not dispute that the officers had probable cause to
believe that marijuana was present in the apartment.
UNITED STATES v. MOWATT 9
at any time of being reduced to possession for presentation to court."
Id.
We see no basis for distinguishing Johnson from the case at bar.
The officers here likewise offered no justification for not seeking a
warrant prior to knocking on the door, other than the slight delay or
inconvenience that obtaining a warrant might have caused, reasons
Johnson held were not sufficient. See id. Thus, although the officers
had every right to knock on Mowatt’s door to try to talk to him about
the complaint, see United States v. Cephas, 254 F.3d 488, 494 (4th
Cir. 2001), without a warrant, they could not require him to open it.6
See Conner, 127 F.3d at 666.
We note that the government posited at oral argument that Johnson
is distinguishable from the present case because in Johnson the offi-
cers ordered that the hotel door be opened so that they could effect
an arrest whereas here the officers did not intend to arrest Mowatt.
Nothing in Johnson, however, suggests that the result there depended
on the subjective intentions of the officers at the time they gained
access to the hotel or even indicates that the Court determined what
those intentions were. To have authority to make a warrantless search,
the officers needed exigent circumstances, and Johnson tells us that
they were not present in this case.7
Relying on United States v. Grissett, 925 F.2d 776 (4th Cir. 1991)
(per curiam), the government maintains that exigent circumstances
justified a warrantless entry because, once the police announced their
6
Additionally, as a practical matter, it was not necessary for Mowatt
to open his door in order for the officers to tell him to turn down his
music. Mowatt turned down the music before he ever opened the door,
and he and the officers were able to communicate through the closed
door, in any event.
7
The government also contended at oral argument that the dangerous-
ness of the area weighed in favor of a determination of exigency. How-
ever, the government acknowledged before the district court that
although the apartment complex had "a history that might make an offi-
cer appropriately concerned for their safety under certain circumstances,
there’s no indication that these officers had safety concerns about
responding to a smell of marijuana or loud music call." J.A. 86.
10 UNITED STATES v. MOWATT
presence and Mowatt sprayed an aerosol can and temporarily refused
to even crack open the door, they had reason to believe that he might
destroy the evidence of the crime of marijuana possession. In Grissett,
uniformed police officers received a call that a man in a hotel lobby
had a gun. When the officers arrived, they patted the individual down
and determined he did have a revolver and ammunition. When the
man could not produce identification, he told them that a person in a
particular room of the hotel could verify his identity. The officers
knocked on the door of the room and identified themselves. Grissett
opened the door. When an officer asked if he could speak to the per-
son in whose name the room was registered, Grissett stepped out into
the hall. As he did so, he left the door ajar, allowing the officers to
see three other individuals in the room and to smell marijuana wafting
out of the room. The officers then entered the room and found mari-
juana and crack cocaine in plain view.
Reviewing the denial of a motion to suppress the evidence as fruit
of an unconstitutional warrantless entry into the room, we held that
exigent circumstances justified the warrantless entry because the
police had reason to believe that those inside the room would attempt
to dispose of the evidence before they could obtain a warrant and
search the room. See id. at 778. We rejected the notion that the exi-
gency was "of the officers’ own making" because "they were unaware
that drugs were located in the room" prior to knocking on the door
and thus "could not have known in advance that their conduct would
precipitate an emergency involving the probable destruction of evi-
dence." Id.
Grissett is distinguishable from the case at bar for an obvious rea-
son: The officers in the present case were aware of the marijuana in
the apartment before they decided to alert Mowatt of their presence.
Unlike in Grissett, and as in Johnson, the officers here had the option
of leaving the probable cause determination to a magistrate. They
needed only to seek a warrant before confronting the apartment’s
occupants. By not doing so, they set up the wholly foreseeable risk
that the occupants, upon being notified of the officers’ presence,
would seek to destroy the evidence of their crimes.8 See United States
8
The government contended at oral argument that exigent circum-
stances actually preceded the officers’ knocking on Mowatt’s door
UNITED STATES v. MOWATT 11
v. McCraw, 920 F.2d 224, 230 (4th Cir. 1990) (holding that no exi-
gency justified officers’ warrantless entry and stating that "[a]ny risk
of the destruction of evidence . . . was precipitated by the agents[ ]
themselves when they knocked on the door"); United States v. Col-
lazo, 732 F.2d 1200, 1204 (4th Cir. 1984) ("The government will not
be allowed to plead its own lack of preparation to create an exigency
justifying warrantless entry."); see also United States v. Coles, 437
because Mowatt’s smoking the marijuana was itself destruction of evi-
dence. However, that position is clearly foreclosed by Johnson, in which
illegal drugs were also being smoked, but in which the Supreme Court
held there were no exigent circumstances justifying a warrantless entry.
Nor is Cephas, on which the government relies, controlling. In
Cephas, an officer had received a face-to-face tip from a citizen who
claimed to have just come from an apartment where Cephas was smok-
ing marijuana with a 14-year-old girl. The officer proceeded to the apart-
ment and knocked on the door. When Cephas opened the door, the
officer saw a young girl inside and smelled a strong odor of marijuana.
Cephas tried to shut the door on the officer when he asked to come in,
and the officer then pushed his way into the apartment. The warrantless
entry into the apartment, in turn, led to the discovery of evidence of
criminal activity. In reviewing a district court’s suppression of the evi-
dence as fruit of an unconstitutional warrantless search, we held that
Cephas’s original opening of the door had been consensual and that the
officer had probable cause to believe that the felony of furnishing illegal
drugs to an infant was ongoing. See Cephas, 254 F.3d at 494-95. We
stated that in light of Cephas’s knowledge that the officer was at his
doorstep, the risk of destruction of the marijuana would have justified the
warrantless entry. See id. at 495. Because of this risk and the officer’s
reasonable belief that Cephas and perhaps others were in the apartment
"plying a 14 year old girl with marijuana," we held that exigent circum-
stances authorized the officer’s entry into the apartment. Id. at 495.
Although we stated that the mere risk of destruction of the marijuana
would be sufficient on its own to justify the warrantless entry, critically,
the officer there had probable cause to believe that the marijuana was
evidence not only of simple marijuana possession but of the ongoing fel-
ony of furnishing illegal drugs to an infant. In any event, because our
conclusion that the warrantless entry was justified was also supported by
the need to protect the girl inside the apartment, any statement that
destruction of the evidence was sufficient by itself to justify the warrant-
less entry is merely nonbinding dicta.
12 UNITED STATES v. MOWATT
F.3d 361, 370 (3d Cir. 2006) ("[I]n order to determine whether the
police impermissibly manufacture or create exigent circumstances, we
must look to the reasonableness and propriety of their actions and
investigative tactics preceding their warrantless entry." (emphasis in
original)); United States v. Gould, 364 F.3d 578, 590 (5th Cir. 2004)
(en banc) (similar); United States v. McGregor, 31 F.3d 1067, 1069
(11th Cir. 1994) (similar); United States v. Duchi, 906 F.2d 1278,
1284-85 (8th Cir. 1990) (similar); United States v. Paul, 808 F.2d
645, 647 (7th Cir. 1986) (similar). Having created the "exigency"
themselves for no apparent reason, the officers were foreclosed from
relying on it to dispense with the warrant requirement.9
C.
Finally, we turn to the government’s contention that even assuming
that the officers’ initial visual access into Mowatt’s apartment was
gained illegally, the district court properly refused to suppress the evi-
dence at issue in light of the fact that it was not seized until the offi-
cers obtained a warrant. We disagree.
1.
The exclusionary rule generally renders inadmissible evidence
recovered during an unlawful search. See Weeks v. United States, 232
U.S. 383, 398 (1914). It also prohibits the admission of evidence that
is acquired as a direct or indirect result of an illegal search unless the
connection between the illegal search and the evidence has "‘become
so attenuated as to dissipate the taint.’" Wong Sun, 371 U.S. at 491
(quoting Nardone v. United States, 308 U.S. 338, 341 (1939)). The
exclusionary rule does have limits, however, one of which was cre-
ated in recognition that
the interest of society in deterring unlawful police conduct
and the public interest in having juries receive all probative
9
"Exigency" is in quotation marks here to emphasize that it is awkward
that the government takes the position that the officers were not inter-
ested in investigating any drug crime and also attempts to justify their
warrantless entry by claiming that the possibility that evidence of such
a crime might be destroyed justified the warrantless search.
UNITED STATES v. MOWATT 13
evidence of a crime are properly balanced by putting the
police in the same, not a worse, position tha[n] they would
have been in if no police error or misconduct had occurred.
When the challenged evidence has an independent source,
exclusion of such evidence would put the police in a worse
position than they would have been in absent any error or
violation.
Nix v. Williams, 467 U.S. 431, 443 (1984) (emphasis in original, cita-
tions omitted). Thus, under the "independent source" doctrine, when
the police discover a particular fact by illegal means but later acquire
knowledge of that same fact by independent, legitimate means, evi-
dence of that fact is not excludable as fruit of the police misconduct.
See Murray v. United States, 487 U.S. 533, 537-41 (1988).
The Court in Murray specifically applied the independent source
doctrine to a case in which execution of a search warrant was pre-
ceded by an illegal search of the same premises. Under that scenario,
the Supreme Court held, the evidence recovered in the later search is
not admissible unless the government establishes that "no information
gained from the illegal [search] affected either the law enforcement
officers’ decision to seek a warrant or the magistrate’s decision to
grant it." Id. at 540; see United States v. Dessesaure, 429 F.3d 359,
369 (1st Cir. 2005) (similar); United States v. Herrold, 962 F.2d 1131,
1140 (3d Cir. 1992) (similar).
Here, even assuming that no information gained from the illegal
search affected the magistrate’s decision to issue the warrant, the gov-
ernment has never maintained that the officers would have sought a
warrant absent their prior illegal discovery of the revolver and the
ecstasy. Nor does any evidence even suggest that they would have
sought a warrant had they known only about the marijuana. Indeed,
the district court specifically found that the officers’ concern prior to
entering the apartment had only been to resolve the noise complaint
and not to investigate the marijuana smell. Thus, the government has
not established that the search warrant was an independent source of
the items seized.
2.
Although not arguing that the warrant was a source independent of
the initial, illegal search, the government does maintain that the offi-
14 UNITED STATES v. MOWATT
cers reasonably relied on the warrant’s validity, and thus that the Leon
good-faith exception to the exclusionary rule applies. See United
States v. Leon, 468 U.S. 897 (1984). As we have explained, the exclu-
sionary rule generally renders inadmissible evidence recovered during
an unlawful search. See Weeks, 232 U.S. at 398. It acts as "a judicially
created remedy designed to safeguard Fourth Amendment rights gen-
erally through its deterrent effect." United States v. Calandra, 414
U.S. 338, 348 (1974). In Leon, however, the Court observed that there
is no deterrent value in penalizing an officer who reasonably relies on
a magistrate’s probable cause determination by executing the search
authorized by the warrant. See Leon, 468 U.S. at 921-22. That is
because it is the magistrate’s responsibility to determine whether
probable cause exists, and officers cannot be expected to second-
guess that determination in close cases. See id. at 921. For that reason,
Leon modified the exclusionary rule "so as not to bar the use in the
prosecution’s case-in-chief of evidence obtained by officers acting in
reasonable reliance on a search warrant issued by a detached and neu-
tral magistrate but ultimately found to be unsupported by probable
cause." Id. at 900.
The government argues that here the warrant application "included
[the officers’] entire exchange with Mowatt" as well as all other perti-
nent facts. Brief of Appellee at 23. The government thus maintains
that the magistrate approved the officers’ prior actions and that the
officers relied in good faith on that determination in executing the
warrant. Therefore, the government contends, the Leon exception
should allow admission of the evidence obtained pursuant to the war-
rant. We disagree.
The Leon exception does not apply here because Leon only prohib-
its penalizing officers for their good-faith reliance on magistrates’
probable cause determinations. Here, the exclusionary rule operates to
penalize the officers for their violation of Mowatt’s rights that pre-
ceded the magistrate’s involvement. See United States v. Vasey, 834
F.2d 782, 789 (9th Cir. 1987) (holding that Leon exception did not
apply when warrant was based on information obtained in illegal war-
rantless search because "[t]he constitutional error was made by the
officer . . ., not by the magistrate"). Even if the magistrate here had
somehow reviewed the facts underlying the officers’ original entry
UNITED STATES v. MOWATT 15
10
into Mowatt’s apartment—which he did not —and determined that
there had been no constitutional violation, that would make no differ-
ence as the government cannot show that the decision to seek the
warrant—and thus involve the magistrate—was not prompted by the
original illegal search. See United States v. McGough, 412 F.3d 1232,
1240 (11th Cir. 2005) (holding that Leon exception did not apply
when it was "the officers’ unlawful entry . . . that led to [the] request
for a search warrant"). The evidence seized pursuant to the warrant
therefore must be suppressed.
III.
For all the foregoing reasons, we conclude that the district court
erred in denying Mowatt’s suppression motion. We therefore vacate
Mowatt’s convictions and remand to the district court for further pro-
ceedings.11
REVERSED AND REMANDED
10
Notwithstanding the government’s contention that the warrant appli-
cation "included their entire exchange with Mowatt," the application
does not include the facts that the officers identified themselves as police
or demanded that the door be opened. As far as the application reflects,
Mowatt’s decision to open his door could have been wholly voluntary.
11
Mowatt also challenges the admission of certain evidence at trial.
Although we have grave concerns about the admissibility of the chal-
lenged evidence, because we vacate the judgment on the basis of the sup-
pression issue, we do not address the evidentiary questions.