UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5254
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL JAMES THOMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:06-cr-00034)
Submitted: January 31, 2008 Decided: February 8, 2008
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Michael A.
DeFranco, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael James Thompson pleaded guilty to a violation of
18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000), felon in possession of a
firearm. Thompson’s plea agreement was conditioned upon his right
to appeal the district court’s decision denying his motion for
suppression of evidence. The firearm serving as the basis for the
conviction was found at Thompson’s leased residence while officers
were searching for a weapon used in a murder unrelated to the
federal offense or Thompson. On appeal, Thompson contends that the
district court erred in finding that probable cause existed to
support issuance of the warrant and that a Fed. R. Crim. P. 41
error invalidated the search. Finding no error, we affirm.
I.
On June 5, 2005, Sesaley Hunter was killed in a drive-by
shooting in Durham, North Carolina. Durham Police Investigator
Steven Vaughan received information from two confidential
informants (CI 1 and CI 2) regarding details of the shootings and
location of the firearm used in the murder. Detective Vaughan
applied for a search warrant and attached his affidavit in support
of probable cause to issue the warrant. The affidavit states that
on July 26, 2005, Vaughan interviewed CI 1, who described the
weapon involved in the murder as a large weapon that looked like a
rifle with wooden parts and that the weapon was located in the
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front passenger area of the vehicle used in the murder.
Eyewitnesses to the crime reported that a right side passenger
fired the shots and that the sound of shots was very loud, louder
than the sound of a handgun.
The affidavit states that on August 3, 2005, Vaughan
interviewed CI 2 regarding the Sesaley Hunter murder. CI 2 had
detailed knowledge of the murder weapon. CI 2 showed Vaughan the
residence where the weapon had been hidden and gave instructions on
how to locate the weapon and other firearms and controlled
substances. CI 2 stated that the murder weapon was located “under
the house by accessing the crawl space door at the rear of the
residence” and would be found “under old lawn equipment and wrapped
in a white cloth.” (J.A. 22). CI 2 described the murder weapon as
a “long gun.” (Id.). CI 2 stated that he or she had seen the
stored murder weapon, additional weapons, and drugs in the house.
CI 2 also described the location of additional firearms and illegal
controlled substances in the single bedroom of the residence. The
affidavit stated that CI 2 “had provided reliable information in
the past on numerous occasions.” (J.A. 22). Finally, the
affidavit included Vaughan’s statement that, “based on [his]
training and experience[,] firearms are relatively expensive and/or
not easy to come by, [and] persons who possess firearms because of
the expense involved tend to keep them for extended periods of
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time.” (Id.). The magistrate signed the application for the
warrant on the same day, August 16, 2005.
The search was executed on August 17, 2005. Thompson was
the only person present in the residence at the time of the search.
Officers secured the residence by throwing “flash bang” grenades
through the windows, detained and handcuffed Thompson, and
conducted the search. During the search, the officers found a Colt
.38 caliber special revolver under a seat cushion in the living
room. The gun was unrelated to the murder.
Detective Vaughan testified at the evidentiary hearing on
the motion to suppress that he attempted to serve a copy of the
search warrant on Thompson the day he was arrested; however,
Thompson had already posted bond before he was served. Thompson
did not receive a copy of the warrant or inventory prior to his
incarceration. Vaughan testified that he and Thompson planned to
meet the next day regarding Thompson’s cooperation in the murder
investigation. Vaughan intended to deliver a copy of the search
warrant and inventory at their meeting, but Thompson did not show
up for the meeting. Vaughan waited for thirty minutes and left the
location. Thompson later called Vaughan and said that he no longer
wanted to cooperate in the murder investigation. Vaughan stated
that he had no other way to contact Thompson and he did not want to
leave the items posted at Thompson’s residence because the
affidavit contained sensitive information that could undermine the
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investigation if it fell into to the wrong hands. Vaughan
testified that he made “more than a half dozen” unsuccessful
attempts to serve Thompson at the residence.
On August 22, 2005, Vaughan appeared before a Durham
magistrate and executed the return on the search warrant. Vaughan
signed the return stating under oath that he left a copy of the
inventory with “the person named below.” Vaughan and the
Government admitted that, contrary to his statement, Vaughan had
not left a copy of the search warrant or inventory with Thompson.
Vaughan actually served a copy of the search warrant and inventory
on Thompson six months later, in February 2006, when the United
States Attorney’s Office adopted the case for federal prosecution.
Thompson maintained residence at the searched apartment for the two
months subsequent to the search.
The district court held a hearing on Thompson’s pro se
motion to suppress evidence. The court found that there was
probable cause to support the warrant, and that even if there was
not, the good faith exception to the warrant requirement applied.
At the first hearing, defense counsel raised the issue of whether
Fed. R. Crim. P. 41 was violated, thereby invalidating the search
warrant. Counsel later filed a motion raising non-constitutional
and constitutional issues regarding the failure to comply with Rule
41. The court held a supplemental hearing on the issue of whether
there were federal officers involved in the search. The district
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court, in a memorandum opinion and order, held that the officers
executing the warrant were local, and not federal, officers.1
Because there was no federal involvement in the execution of the
search warrant, the district court found that Rule 41 did not
apply. The district court also ruled that Thompson’s argument that
the failure to timely serve the warrant violated Fifth Amendment
due process rights failed.
II.
Thompson argues that the search warrant was not supported
by probable cause. He contends that the CI tips were not
sufficiently corroborated and that a tip on its own may not be
sufficient. Specifically, Thompson alleges that the information
from CI 2 was not timely because the informant did not state the
last time that he or she saw the evidence in the house. He asserts
that based on the “vague information” from the CIs, the police were
required to conduct an independent investigation to establish
probable cause. The Government argues that there is no need for
independent corroboration by law enforcement because there was a
fair probability that the evidence would be found. Therefore,
probable cause existed.
1
Federal officers were present at Thompson’s residence during
the search, but they were there on unrelated business and had no
part in the execution of the warrant.
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This court reviews the district court’s factual findings
underlying a motion to suppress for clear error, and the district
court’s legal determinations de novo. Ornelas v. United States,
517 U.S. 690, 699 (1996); United States v. Rusher, 966 F.2d 868,
873 (4th Cir. 1992). The evidence is construed in the light most
favorable to the prevailing party below. United States v. Seidman,
156 F.3d 542, 547 (4th Cir. 1998).
In reviewing the propriety of issuing a search warrant,
the relevant inquiry is whether, under the totality of the
circumstances, the issuing judge had a substantial basis for
concluding that there was probable cause to issue the warrant.
Illinois v. Gates, 462 U.S. 213, 238 (1983). The facts presented
to the issuing judge need only convince a person of reasonable
caution that contraband or evidence of a crime will be found at the
place to be searched. Texas v. Brown, 460 U.S. 730, 742 (1983).
Appellate courts accord great deference to the district court’s
findings of probable cause in relation to warrants. Gates, 462
U.S. at 236.
Thompson argues on appeal both that the search warrant
was not supported by probable cause and the evidence is not
admissible under the good faith exception to the exclusionary rule.
When a party challenges both the probable cause determination and
the application of the good faith rule, this court will ordinarily
address the good faith determination first, unless the case
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involves the resolution of a novel question of law necessary to
provide guidance to police officers and magistrate judges. See
United States v. Legg, 18 F.3d 240, 243 (4th Cir. 1994).
If a warrant is found to be defective, the evidence
obtained from the warrant should be suppressed “only on a
case-by-case basis and only in those unusual cases in which
exclusion will further the purposes of the exclusionary rule.”
United States v. Leon, 468 U.S. 897, 918 (1984). The Supreme Court
reasoned, “[i]n the ordinary case, an officer cannot be expected to
question the magistrate’s probable-cause determination or his
judgment that the form of the warrant is technically sufficient.”
Id. at 921.
Evidence seized pursuant to a defective warrant will not
be suppressed unless: (1) the affidavit contains knowing or
reckless falsity; (2) the magistrate acts as a rubber stamp for the
police; (3) the affidavit does not provide the magistrate with a
substantial basis for determining the existence of probable cause;
or (4) the warrant is so facially deficient that an officer could
not reasonably rely on it. United States v. Wilhelm, 80 F.3d 116,
121 (4th Cir. 1996); United States v. Hyppolite, 65 F.3d 1151, 1156
(4th Cir. 1995). The crucial element determining probable cause is
“whether it is reasonable to believe that the items to be seized
will be found in the place to be searched.” United States v.
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Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993). Information must link
criminal activity to the place to be searched. Id. at 1583.
Thompson contends that the good faith exception should
not apply in this case because the issuing magistrate merely rubber
stamped the application and the supporting affidavits were so
lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable. Here, CI 2’s past
reliability was known to the officer. See United States v. Miller,
925 F.2d 695, 699 (4th Cir. 1991). The informant met with
Detective Vaughan, showed him the location of the residence, and
was known to be a credible informant. The affidavit contained
numerous details about the location and presence of the murder
weapon and contraband items. CI 2 stated that he or she had
personally observed the murder weapon and illegal narcotics at
Thompson’s residence and specifically where they could be found.
As in Lalor, the informant provided very specific facts about the
items present and their location. See Lalor, 996 F.2d at 1581.
Although the affidavit did not indicate on what date CI
2 had last seen the evidence or knew of its presence on the
property, Vaughan averred that based on his experience and
training, firearms are not quickly disposed of due to their value.
In upholding a search warrant that was not supported by a statement
that a potential murder weapon was known to be stored in a
residence, but found during a search, this court has observed that
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it is reasonable to assume that individuals store weapons in their
homes. See United States v. Anderson, 851 F.2d 727, 729 (4th Cir.
1988).
We conclude, viewing the totality of the circumstances,
see Gates, 462 U.S. at 230, 232, that there was a “fair
probability” that the murder weapon and evidence would be found at
Thompson’s residence. Id. at 238. Thus the warrant was valid and
supported by probable cause. Even if the warrant were not
supported by probable cause, there is no evidence that the
magistrate merely rubber stamped the warrant application or that
the warrant was so facially deficient that an officer could not
reasonably rely upon it. See Leon, 468 U.S. at 923.
III.
Rule 41(f)(3) of the Federal Rules of Criminal Procedure
requires an officer who has executed a search warrant to either
“give a copy of the warrant and a receipt for the property taken to
the person from whom . . . the property was taken” or “leave a copy
of the warrant and receipt at the place where the officer took the
property.” “[B]y its own terms, Rule 41 applies only to federal
search warrants involving ‘a federal law enforcement officer.’”
United States v. Clyburn, 24 F.3d 613, 616 (4th Cir. 1994) (quoting
Fed. R. Crim. P. 41). Thompson claims that the officers executing
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the search warrant violated his Fifth Amendment due process rights
and failed to comply with Fed. R. Crim. P. 41(f)(3).
This court has held that “[t]here are two categories of
Rule 41 violations: those involving constitutional violations, and
all others.” United States v. Simons, 206 F.3d 392, 403 (4th Cir.
2000). Ministerial violations of Rule 41, such as failing to leave
either a copy of the search warrant or a receipt of items seized,2
are non-constitutional. Id.; see also United States v. Hurwitz,
459 F.3d 463, 472 (4th Cir. 2006) (holding that Fourth Amendment
does not require officers to leave copy of search warrant with
property owner following warrant’s execution). Such
non-constitutional violations justify suppression only where the
defendant is prejudiced by the violation or there is evidence that
the violation was deliberate. Hurwitz, 459 F.3d at 472 n.6.
In this case, there was no evidence that Detective
Vaughan deliberately failed to leave the search warrant at
Thompson’s residence. Instead, the evidence showed that he
attempted several times to deliver the warrant and inventory to
Thompson. The Government conceded that Vaughan did not leave a
copy of the warrant and inventory with Thompson and that Vaughan’s
checked box on the return was inaccurate. Furthermore, there is no
indication that Thompson was prejudiced by the lack of a copy of
2
These requirements currently appear in Fed. R. Crim. P.
41(f)(3). At the time this Court issued Simons, these requirements
appeared in Fed. R. Crim. P. 41(d).
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the warrant or that Vaughan’s failure was intentional or
deliberate. Cf. United States v. Pangburn, 983 F.2d 449, 455 (2d
Cir. 1993) (finding no prejudice where search and seizure would not
have been different if officers had complied with Rule 41
requirements). Accordingly, we find that the district court
properly denied Thompson’s motion to suppress on this basis.
IV.
We affirm Thompson’s conviction. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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