FILED
United States Court of Appeals
Tenth Circuit
May 10, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-3212
JERMALL CAMPBELL, a/k/a “L,”
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 6:07-CR-10142-JTM-1)
Paul S. McCausland, Young, Bogle, McCausland, Wells & Blanchard, P.A.,
Wichita, Kansas for Defendant-Appellant.
James A. Brown, Assistant United States Attorney (and Lanny D. Welch, United
States Attorney, with him on the brief), Topeka, Kansas for Plaintiff-Appellee.
Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.
BALDOCK, Circuit Judge.
A jury convicted Defendant Jermall Campbell of possessing ammunition as a
convicted felon in violation of 18 U.S.C. § 922(g)(1). Law enforcement seized the
ammunition during a warrant search of Defendant’s Wichita, Kansas home.
Defendant challenged the search with a motion to suppress and a request for a
hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). After conducting an
evidentiary hearing, the district court denied Defendant’s motion to suppress,
concluding (1) probable cause existed to support the warrant, (2) the officers
involved in the preparation of the affidavit supporting the warrant did not
deliberately mislead or act with reckless indifference to the truth, and, otherwise, (3)
law enforcement relied in objective good faith upon the warrant. 1 Defendant appeals.
1
Defendant also moved to dismiss the Section 922(g)(1) charge on the grounds
that the statute exceeded Congress’s Commerce Clause authority because the
intrastate possession of ammunition does not impact interstate commerce and cannot
support criminalizing simple possession. The district court summarily dismissed this
argument. While we review “challenges to the constitutionality of a statute de
novo,” we also are bound by the holdings of previous panels unless and until they
overruled by a rehearing of this Court en banc or the Supreme Court. Yes On Term
Limits, Inc. v. Savage, 550 F.3d 1023, 1027 (10th Cir. 2008); see also In re Smith,
10 F.3d 723, 724 (10th Cir. 1993). In United States v. Patton, 451 F.3d 615, 620,
623, 636 (10th Cir. 2006), we acknowledged the apparent alteration in the Supreme
Court’s Commerce Clause jurisprudence in light of Gonzales v. Raich, 545 U.S. 1
(2005), United States v. Morrison, 529 U.S. 598 (2000), and United States v. Lopez,
514 U.S. 549 (1995). Nonetheless, we followed the older Supreme Court precedent
directly on point, Scarborough v. United States, 431 U.S. 563 (1977), “which held
that Congress intended a felon-in-possession statute to prohibit possession of any
firearm that moved in interstate commerce” and “assumed that Congress could
constitutionally regulate the possession of firearms solely because they had
previously moved across state lines.” Patton, 451 F.3d at 634. Thus, we concluded
Congress does have the authority under the Commerce Clause to prohibit felons’
intrastate possession of bulletproof vests that had once traveled in interstate
commerce. Id. at 620, 636; see also United States v. McCane, 573 F.3d 1037, 1047
(10th Cir. 2009) (rejecting the argument that Section 922(g) surpasses Congress’s
authority under the Commerce Clause); United States v. Urbano, 563 F.3d 1150,
1154 (10th Cir. 2009) (same). Because we are bound by Scarborough and Patton’s
holdings, we reject Defendant’s Commerce Clause challenge to Section 922(g)(1)’s
(continued...)
2
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district’s denial
of Defendant’s motion to suppress.
I.
The crux of this case is the affidavit supporting the warrant which authorized
the search of Defendant’s home in May 2007. Ron Goodwyn serves as a narcotics
detective with the Sedwick County Sheriff’s Office and as a Task Force Officer
assigned to work with the Drug Enforcement Administration and the Gang Task
Force, which was composed of federal, state and local law enforcement officers. As
part of his work as Task Force Officer, he prepared the 120-page affidavit which
describes the evidence of the Crip street gang and its subsets’ activities in Wichita
gathered by law enforcement over the last decade. Detective Goodwyn explained
that as a result of his participation in this investigation, he learned that members of
the Crips generally conduct their illegal activities with other known members of the
Crips and individuals closely associated with the gang. He further explained that the
Crips have a history of using violence to maintain control over the drug trade in
Wichita. Based upon his experience and training, he also averred that like
individuals engaged in legal business enterprises, Crip gang members maintain
records such as address books, letters, outstanding accounts registers, profits
1
(...continued)
prohibition of felons’ intrastate possession of ammunition that once traveled in
interstate commerce.
3
generated and other indicia of their enterprise. Specifically, Detective Goodwyn
identified as Crip gang members thirty-three individuals “through investigative
methods such as reviewing of police reports, information gathered by the [WPD]
gang officers, interviews of gang members and associates, surveillance, phone
records, and undercover operations utilizing confidential informants.” Detective
Goodwyn asserted he had probable cause to believe these individuals were engaged
in “on going and continued patterns of violations” of numerous laws, including but
not limited to, conspiracy to distribute narcotics, continuing criminal enterprise,
maintaining drug involved premises, felon in possession of a firearm, money
laundering, and violent crimes in aid of racketeering. The affidavit identified fifteen
different residences to be searched for evidence such as firearms, ammunition,
telephone records, gang paraphernalia, and other indicia of gang activity.
In addition, Detective Goodwyn described the information law enforcement
received from three cooperating witnesses known as CW #1, CW #2, and CW #3.
All three witnesses are “documented” members of the Crips or one of its subsets
operating in Wichita and claim to possess personal knowledge of the history and
activity of these gangs. The affidavit then provided ninety-seven pages of specific
examples of alleged Crip street gang association and criminal activity. As to
Defendant in particular, the affidavit provided the following:
• Defendant lives at 2331 N. Green.
• Defendant is associated with the Neighborhood Crips street gang.
• On July [31], 1997, while executing a search warrant on 1320 N.
4
Indiana, which was the residence of Curtis Profit, an alleged
Neighborhood Crips gang member, [D]efendant was inside the
residence at the time.
• On October 4, 2000, [D]efendant was stopped in a vehicle at 19th and
Green Streets and a plastic baggie containing a small amount of cocaine
was located in the vehicle. Defendant was convicted of possession of
paraphernalia in municipal court.
• On October 24, 2000, officers responded to a call of shots fired at
1247 N. Platt, the residence of James Jones. Officers found shell
casings in the street and discovered that the Jones’ residence had been
shot at. Defendant was inside the residence. The victims were
allegedly uncooperative with officers.
• On November 24, 2000, Tanisha Webb reported that several black
males entered her house at 2504 E. 8th Street and began shooting.
Three victims were hit by gunfire, two of whom were allegedly
members of the Folk street gang. Marteaus Carter and James Jones
were arrested and convicted of aggravated battery for the shooting,
which was allegedly in retaliation for the shooting of Lucas Wade on
November 23, 2000. While officers were searching for Marteaus Carter
after the shooting, they stopped a vehicle associated with him, which
was driven by [D]efendant.
• On March 2, 2001 [D]efendant was stopped in a vehicle at 17th and
Minnesota Streets and arrested for a traffic warrant. Officers located
a baggie of crack cocaine under the passenger seat where Derrick
Waite, allegedly associated with the Neighborhood Crips, was seated. 2
• On October 10, 2001, [D]efendant was gambling at 1906 E. 24th
Street when he, Carlos Adair, allegedly a Neighborhood Crip, and
Tyrone Adair were robbed at gunpoint of six hundred dollars. This
residence was rented by Tommy Williamson, also allegedly a
Neighborhood Crip, at the time. Williamson lived at another address,
1716 N. Bluff. At around 1900 to 1930 hours, someone shot at the
house at 1906 E. 24th Street. At 2025 hours, the house was set on fire.
At 2040 hours, someone shot at Tommie Williamson’s other house at
1716 N. Bluff. At 2340 hours, Terry Carter a.k.a. Terry Gasper, a
2
“The Goodwyn Affidavit states that this incident occurred in 1991, but this
is an obvious typographical error when viewed in the time line the affidavit sets
forth.” United States v. Campbell, Memorandum and Order Denying Motion to
Suppress and Dismiss, No. 07-CR-10104-MLB, 2007 WL 2155657, at *2 n.5 (D.
Kan. July 25, 2007) (Doc. #27) (unpublished).
5
Blood, was shot while visiting his girlfriend at 1642 N. Estelle. A 9mm
shell casing was recovered which matched the 9mm used at 1716 N.
Bluff. At 2358 hours, Andre Walker, a Blood, was approached by
defendant, Gregory Epps, Carlos Adair and Tyrone Adair. As Walker
drove away, his vehicle was shot at several times and he was struck in
the back. On October 11, 2001, [D]efendant was arrested at 1332 N.
Spruce and a 12 gauge shotgun was found in the residence. He was
charged with aggravated battery for the shooting of Andre Walker,
arson for the fire at 1906 E. 24th Street, and possession of a firearm by
a felon for the shotgun. He pled guilty to arson and criminal possession
of a firearm.
• On June 19, 2003, officers stopped a vehicle driven by [D]efendant at
9th and Green Streets. Lonnie Wade, an alleged Neighborhood Crip,
was in the vehicle.
• On July 2, 2006, David Barney was shot and killed while walking in
the area of 100 N. Spruce. Confidential Witness # 3 (“CW # 3”) stated
that [D]efendant shot and killed David Barney and that CW # 3 was
present when it occurred.
United States v. Campbell, Memorandum and Order Denying Motion to Suppress and
Dismiss, No. 07-CR-10104-MLB, 2007 WL 2155657, at *1–*2 (D. Kan. July 25,
2007) (Doc. #27) (unpublished) (“Order”).
According to the affidavit, CW #3 is a “documented member” of the
Neighborhood Crips (NHC), a subset gang of the Crips, who has personal knowledge
of its activities based upon his conversations with NHC members and associates,
observations of NHC members and associates, and his own participation in some of
NHC’s criminal activities. The affidavit averred that “[m]uch of the information
provided by CW #3 has been verified and deemed reliable through independent
investigation such as police reports, recorded conversations, letters, interviews,
telephone records, surveillance, undercover narcotics purchases and evidence
6
recovered in the execution of search warrants.” Record on Appeal (ROA), vol.1,
pt.2, at 303. In addition, the affidavit revealed that at the time CW #3 was in
custody awaiting trial for possession of a firearm by a felon and indicated his desire
to receive a reduced sentence in exchange for his cooperation.
Detective Goodwyn concluded that based on the facts he described, his
experience, and training, he had probable cause to believe firearms, ammunition,
telephone records, gang paraphernalia, and other evidence of gang activity would be
found in Defendant’s residence and that:
[T]hese items will link members of the Crips and its sets, identified in
this affidavit, and other known and unknown co-conspirators, to the
distribution of narcotics, the collection of narcotics proceeds, the illegal
possession and sale of firearms, and the laundering of monetary
instruments. In addition, I have probable cause to believe that
[Defendant’s] residence . . . will contain valuable evidence of other
criminal activities associated with the Crips and its sets, and that this
evidence will establish membership and/or association within the
criminal enterprise known as the Crips in violation of 18 U.S.C. § 1962
[Racketeer Influenced Corrupt Organizations Act (RICO)].
ROA, vol.1, pt.2, at 403.
After the federal magistrate signed the search warrant for Defendant’s
residence, Detective Goodwyn and other law enforcement officers executed the
search on May 1, 2007. During their search of Defendant’s residence, officers
retrieved .25 and .22 caliber ammunition, cartridge rounds, miscellaneous
documents, and cell phones, among other items. Subsequently, a Fifth Superseding
Indictment charged Defendant and nineteen other individuals with RICO violations.
7
Specifically, Count 5 charged Defendant with possessing ammunition as a felon in
violation of 18 U.S.C. § 922(g)(1).
Prior to trial, Defendant moved to suppress the evidence obtained during the
search of his home and requested a hearing pursuant to Franks v. Delaware, 438 U.S.
154 (1978). Defendant contended the affidavit supporting the warrant did not
provide probable cause and the good-faith exception to the exclusionary rule did not
apply because the affidavit (1) deliberately or recklessly omitted material facts and,
(2) lacked sufficient indicia of probable cause as it (a) failed to establish a nexus
between the items sought and his residence, (b) presented stale information, and (c)
relied on an unreliable confidential informant.
The district court conducted an evidentiary hearing on Defendant’s motion.
The court heard testimony from Detectives Reid, Chisolm, and Fatkin, all of whom
had some involvement in the WPD’s Barney homicide investigation. Detectives
Relph and Goodwyn, both of whom were assigned to the Gang Task Force, also
testified. At the conclusion of the hearing, Defendant additionally orally argued the
WPD’s behavior in preparing the affidavit constituted systemic negligence,
precluding the application of the good-faith exception, because the affiant, Detective
Goodwyn, had no personal knowledge of Defendant, relied entirely on others for his
information, and, as a result, omitted material information.
The district court ultimately denied Defendant’s motion in its entirety
explaining:
8
[T]he court finds that nothing seriously undermines good faith on the
part of law enforcement. Further, there was nothing that would indicate
deliberately misleading information, or information provided to the
magistrate with reckless indifference to the truth.
United States v. Campbell, Order Denying Motion to Suppress and Request for a
Franks Hearing as to Jermall Campell, No. 07-CR-10142-JTM, at *4 (D. Kan. Feb.
13, 2009) (Doc. #1037). The district court also incorporated by reference District
Court Judge Belot’s analysis and conclusion that the affidavit provided a substantial
basis for the magistrate to determine probable cause existed and that, in any case, the
officers who executed the search relied in good faith upon the warrant. 1 Judge Belot
explained:
The Goodwyn Affidavit supporting the search warrant was not so
lacking in indicia of probable cause that the executing officer should
have known that the search may have been illegal despite the
magistrate’s authorization. The executing officer could reasonably have
believed that the evidence of [D]efendant’s gang association,
1
In United States v. Campbell, No. 07-CR-10104-MLB, 2007 WL 2155657 (D.
Kan. July 25, 2007) (unpublished), the Government charged Defendant with
possessing ammunition as a felon in violation of 18 U.S.C. § 922(g)(1). Law
enforcement discovered the ammunition that constituted the basis of that charge in
Defendant’s home pursuant to the same 2007 search warrant and affidavit presently
at issue. Prior to trial, Judge Belot denied Defendant’s motion to suppress. But
Judge Belot ultimately granted the Government’s motion to dismiss the case without
prejudice. The Government later indicted Defendant again for the same offense and
that case is now before us on appeal. The district court explained that out of an
abundance of caution it refused to conclude collateral estoppel required it conform
its ruling to that of Judge Belot’s, but incorporated by reference Judge Belot’s
analysis. We therefore cite Judge Belot’s order denying Defendant’s motion to
suppress the evidence seized pursuant to the 2007 warrant and affidavit here only
because the district court provided Judge Belot’s analysis as the explanation for its
holding.
9
[D]efendant’s criminal history, and the fruits of investigation into CW
#3’s allegations, along with officers’ knowledge concerning the types
of evidence generally maintained in the home by members of gangs,
sufficiently linked criminal activity with [D]efendant’s residence. The
affidavit here is not so lacking in indicia of probable cause that the
executing officers should have known the search was illegal despite the
issuing judge’s authorization.
Campbell, Order, No. 07-CR-10104-MLB, 2007 WL 2155657, at *1 (July 25, 2007).
II.
Defendant appeals the adequacy of the probable cause supporting the search
of his home on many grounds. He also argues Leon’s good-faith exception to the
exclusionary rule does not apply because the affidavit (1) deliberately or recklessly
contained false information and omitted material facts, (2) so lacked indicia of
probable cause as to render official belief in the existence of probable cause
unreasonable, and (3) compiled information in a systemically negligent manner. We
follow the lead of wise panels before us and bypass the troublesome issue of whether
probable cause supported the search warrant for Defendant’s home because we
conclude the executing officers acted in good-faith reliance upon the warrant. See
United States v. Quezada-Enriquez, 567 F.3d 1228, 1230 (10th Cir. 2009) (“We do
not address the thorny issue of whether the search warrant for Quezada-Enriquez’s
house was supported by probable cause because we conclude that officers executed
the search in good faith.”); United States v. Potts, 586 F.3d 823, 832 (10th Cir. 2009)
(“We have previously taken this approach of assuming a deficiency without deciding
the issue and applying Leon.”).
10
A.
When we review a district court’s denial of a motion to suppress, we “view the
evidence in the light most favorable to the [G]overnment and uphold the district
court’s factual findings unless clearly erroneous.” United States v. Roach, 582 F.3d
1192, 1200 (10th Cir. 2009). “‘The credibility of witnesses, the weight to be given
evidence, and the reasonable inferences drawn from the evidence fall within the
province of the district court.’” United States v. McKissick, 204 F.3d 1282, 1296
(10th Cir. 2000) (quoting United States v. Long, 176 F.3d 1304, 1307 (10th Cir.
1999)). Whether the good-faith exception applies is a question of law, however,
which we review de novo. Roach, 582 F.3d at 1200.
If a warrant is not supported by probable cause, the evidence seized pursuant
to the warrant “need not be suppressed if the executing officer acted with an
objective good-faith belief that the warrant was properly issued by a neutral
magistrate.” United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000) (citing
Leon, 468 U.S. at 922). When an officer searches pursuant to a warrant, Leon
generally requires we presume the officer acted in good-faith reliance upon the
warrant. United States v. Harrison, 566 F.3d 1254, 1256 (10th Cir. 2009); United
States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985). “It is only when [an
officer’s] reliance was wholly unwarranted that good faith is absent.” Cardall, 773
F.2d at 1133. But this presumption is not absolute. Harrison, 556 F.3d at 1256. As
we have reiterated many times, a warrant subsequently determined to lack probable
11
cause demands suppression of the resulting evidence in at least four situations:
(1) when “the issuing magistrate was misled by an affidavit containing false
information or information that the affiant would have known was false if not for his
‘reckless disregard of the truth’”; (2) “when the ‘issuing magistrate wholly
abandon[s her] judicial role’”; (3) “when the affidavit in support of the warrant is ‘so
lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable’”; and, (4) “when a warrant is so facially deficient that the
executing officer could not reasonably believe it was valid.” Danhauer, 229 F.3d at
1007 (quoting Leon, 468 U.S. at 923). Recently, the Supreme Court in United States
v. Herring, 129 S. Ct. 695 (2009), appears to have described another situation in
which Leon would not apply—when the warrant’s flaw results from recurring or
systemic police negligence. The Court explained “the exclusionary rule serves to
deter deliberate, reckless, or grossly negligent conduct, or in some circumstances
recurring or systemic negligence.” Herring, 129 S. Ct. at 702. But when police error
is the result of negligence, “rather than systemic error or reckless disregard of
constitutional requirements,” the exclusionary rule does not serve its purpose and,
therefore, does not apply. Id. at 704.
B.
We first address Defendant’s argument that the issuing magistrate was misled
by the deliberate or reckless omission of material facts from the affidavit. Defendant
claims the following facts were deliberately or recklessly omitted from the affidavit:
12
• An eyewitness to the Barney murder identified to the WPD two people she called
P and J as the perpetrators of the Barney murder.
• Another individual informed the WPD that Barney’s life had been threatened by a
drug dealer, someone other than Defendant, the night before Barney was murdered.
• CW #1 told WPD that CW# 3, a known gang member, took the Barney murder
weapon to CW #1, another known gang member, the morning after the murder.
• CW #1 told WPD the gun used to murder Barney belonged to Elton Profit, Jr.,
a.k.a. “PJ” another gang member.
• Defendant had only lived at the place searched for a short period of time. He lived
at a different residence at the time of the murder and had been in prison during the
interim period between the murder and the search.
See Aplt. Opening Br. at 21–22.
1.
First, Defendant contends the omissions resulted because Detective Goodwyn
admittedly had no personal knowledge of the information presented in the affidavit
concerning Defendant. Detective Goodwyn testified at the Franks hearing he relied
entirely on the information provided by other law enforcement officers. ROA, vol.3,
pt.1, at 149, 150. He stated he did not personally review any specific gang
information to confirm that Defendant was in fact a gang member. Id. at 151.
Detective Goodwyn also testified that before signing the affidavit he did not read the
debriefings of either CW #1 or CW #3. Id. at 152. Furthermore, he never reviewed
the WPD’s file on the Barney murder. Id. at 149–150, 152.
Defendant also relies on the testimony of Detective Relph, a detective with the
WPD assigned to the Gang Task Force, who debriefed CW #1 and CW #3. He
testified everyone on the Task Force was assigned specific targets and that Defendant
was his assigned target. Id. at 140. Detective Relph assisted in the preparation of
13
the affidavit and, specifically, had been asked to verify the affidavit’s sections
describing CW #1 and CW #3’s statements. Id. at 126–27. Detective Relph testified
that CW #3 stated that he drove Defendant to Barney, witnessed Defendant shoot
Barney, and then drove Defendant away from the scene. Id. at 138. Detective Relph
stated he was not asked to review the WPD Barney murder file as part of the
affidavit’s preparation, nor did he do so of his own accord. Id. at 127. Detective
Relph explained he spoke with Detective Fatkin, the lead WPD detective on the
Barney homicide. Id. at 127. Detective Relph admitted that he knew at some point
in time prior to the affidavit’s submission to the magistrate that Detective Fatkin was
looking for two people, known as “P” and “J”, in connection with the Barney murder.
Id. at 128. Detective Relph testified CW #1 told him that the gun that shot Barney
belonged to Elton Profit, Jr., who was later determined to use “Papa Joe” and “PJ”
as aliases. Id. at 125. Detective Relph also stated that CW #1 told him that Lonnie
Wade and his brother, CW #3, brought that gun to him after the murder. Id. at 133.
Detective Relph stated that it was known among the task force that CW #1 had stated
that the gun that shot Barney belonged to Elton Profit, Jr. also known as “PJ.” Id.
at 125, 126. But, Detective Relph testified he did not tell Detective Goodwyn that
individuals known as “P” and “J” had been identified as suspects in the Barney
murder. Id. at 129. He explained he did not relay this information “[b]ecause we
had never identified P and J and the thought that P and J may be PJ, it may be but
then again, it may not be.” Id. at 129. And, whether Detective Relph relayed to
14
Detective Goodwyn that CW #1 stated Lonnie Wade and his brother, CW #3, brought
him the Barney murder weapon is not evident from hearing testimony. 2
Detective Fatkin, the lead WPD detective on the Barney murder investigation,
also testified at the hearing. Terrika Holt told him she witnessed the Barney murder.
Id. at 94. Detective Fatkin explained that she told him she saw two males—one
drove the vehicle and the other shot Barney. Id. at 94. She said that she had ridden
in a car with these same two men before the murder and believed them to be
2
At the hearing, Defendant’s counsel directed Detective Relph to review the
WPD’s debriefing summary of the CW #3’s interviews. Defendant’s counsel asked:
Q. Now go down 11 lines from the top, please. And there’s a sentence
that starts [CW #3] stated he assumed that L got rid of the gun. Is that
what [CW #3] told you?
A. Yes.
Q. Was that consistent with what [CW #1] told you about who got rid
of the gun?
A. No, sir.
Q. Did [CW #1] tell you that Lonnie [Wade] and [CW #3] brought the
gun to him?
A. Yes.
Q. Did you provide these debriefings to Detective Goodwyn when he
was preparing his warrant application?
A. During that period of time, you know, we were having debriefings,
did I – I can’t tell you the exact date that we have – that we would have
talked about what [CW #3] had said.
Q. All right. Do you recall if you sat down with him and went over
these paragraphs about what is in the summary concerning [CW #3]?
A. Did I go over this with Detective Goodwyn?
Q. Yes.
A. No, sir.
ROA, vol.3, pt.1, at 133–34. According to the presentence report, one of
Defendant’s street aliases is “L.”
15
brothers. Id. at 92, 94. According to Detective Fatkin, she repeated what she had
seen and described the two assailants to an individual named Lavirgil Jones shortly
after the murder because she did not know the two men’s names. Id. at 92.
Detective Fatkin testified Holt told him that Jones told her, based on her description
of the two men, that she had seen “P” and “J.” Id.
Defendant argues this testimony reveals the police acted at least with reckless
indifference to the truth. Defendant asserts the officers Detective Goodwyn relied
upon failed to report the entire results of the Barney murder investigation and other
material facts described above to Detective Goodwyn as a result of their reckless
indifference to the truth. He maintains that the magistrate was consequently misled
by the collective efforts of the law enforcement officers who collaborated in
preparing the affidavit.
2.
We exclude evidence discovered pursuant to a search warrant when (1) a
defendant proves by a preponderance of the evidence “the affiant knowingly or
recklessly included false statements in or omitted material information from an
affidavit in support of a search warrant and (2) . . . after excising such false
statements and considering such material omissions . . . [we conclude] the corrected
affidavit does not support a finding of probable cause.” United States v.
Garcia-Zambrano, 530 F.3d 1249, 1254 (10th Cir. 2008) (citing Franks, 438 U.S. at
155–56); see also McKissick, 204 F.3d at 1297 (explaining that the opponent to a
16
search warrant bears the burden of proving by a preponderance of the evidence that
the affidavit supporting the warrant contained deliberate or reckless false information
or material omissions). Notably, we hold the Government “accountable ‘for
statements made not only by the affiant but also for statements made by other
government employees which were deliberately or recklessly false or misleading
insofar as such statements were relied upon by the affiant in making the affidavit.’”
Garcia-Zambrano, 530 F.3d at 1258 n.6 (quoting United States v. Kennedy, 131 F.3d
1371, 1376 (10th Cir. 1997)); see also Leon, 468 U.S. at 923 n.24 (admonishing that
in applying the good-faith exception “[i]t is necessary to consider the objective
reasonableness, not only of the officers who eventually executed a warrant, but also
of the officers who originally obtained it or who provided information material to the
probable-cause determination”); McKissick, 204 F.3d at 1297 (“The standards of
deliberate falsehood and reckless disregard set forth in Franks apply to material
omissions, as well as affirmative falsehoods.”). But negligence or innocent mistakes
are insufficient to justify the exclusion of evidence. United States v. Artez, 389 F.3d
1106, 1116 (10th Cir. 2004)). As the Supreme Court first explained in Franks v.
Delaware, 438 U.S. 152, 170 (1978), the rule of exclusion does not extend “beyond
instances of deliberate misstatements, and those of reckless disregard, leav[ing] a
broad field where the magistrate is the sole protection of a citizen’s Fourth
Amendment rights, namely, in instances where police have been merely negligent in
checking or recording the facts relevant to a probable-cause determination.”
17
On appeal, we review the district court’s ultimate determination that the
corrected affidavit supports a finding of probable cause de novo “but accept the
district court’s factual findings unless clearly erroneous.” Garcia-Zambrano, 530
F.3d at 1254 (citing United States v. Avery, 295 F.3d 1158, 1167 (10th Cir. 2002)).
In particular, we review only for clear error the district court’s determinations
“regarding the truth or falsity of statements in the affidavit and regarding the
intentional or reckless character of such falsehoods.” Id. “We will not reweigh the
evidence presented to the district court, second guess the district court’s credibility
assessments, or question ‘reasonable inferences’ the district court drew from the
evidence.” Avery, 295 F.3d at 1167. The Supreme Court has explained that where
“the district court’s account of the evidence is plausible in light of the record viewed
in its entirety” we may not reverse it, even if we are convinced that we would have
made a different decision as the trier of fact. Anderson v. City of Bessemer City,
470 U.S. 564, 574 (1985). “Where there are two permissible views of the evidence,
the factfinder’s choice between them cannot be clearly erroneous.” Id.
3.
After hearing testimony from five witnesses and receiving twenty-four
exhibits, the district court denied Defendant’s motion to suppress, explaining that
“there was nothing that would indicate deliberately misleading information, or
information provided to the magistrate with reckless indifference to the truth.” Our
review of the record reveals this is not a clearly erroneous view of the facts. We
18
caution that the police may not insulate one officer’s deliberate or reckless
misstatement or material omission simply by relaying it through an officer-affiant
personally ignorant of its falsity or existence. See Franks, 438 U.S. at 163 n.6
(“[T]he Court took as its premise that police could not insulate one officer’s
deliberate misstatement merely by relaying it through an officer-affiant personally
ignorant of its falsity.”); see also Kennedy, 131 F.3d at 1258 (explaining that “the
government is held accountable for statements made not only by the affiant but also
for statements made by other government employees which were deliberately
misleading insofar as such statements were relied upon by the affiant in making the
affidavit”). The district court in this case, however, could have permissibly
concluded that the less than seamless communication among members of the Gang
Task Force and the WPD resulted from negligence rather than reckless indifference
to the truth or a deliberate intent to deceive the magistrate. The case is not, as
Defendant seems to suggest, that no one verified the information contained in
Detective Goodwyn’s affidavit. Instead, different members of the Gang Task Force
were assigned targets. Part of that assignment included verifying all of the
information contained in the affidavit about that target. Detective Relph testified at
the evidentiary hearing that Defendant was his assigned target and that he verified
the information in the affidavit relating to Defendant. Defendant’s suggestion that
no one involved in the preparation of the affidavit consulted the Barney homicide
detectives is simply incorrect. Detective Relph testified that he spoke with Detective
19
Fatkin, the lead detective on the Barney homicide case. ROA, vol.3, pt.1, at 127.
Other than the existence of the omissions themselves, we conclude Defendant has not
revealed or provided any evidence in the record of an intent to mislead or
recklessness on the part of the officers. Consequently, Defendant has failed to meet
his burden of proof.
Moreover, we are not convinced that the omitted facts Defendant recites would
have altered the magistrate’s probable-cause determination. See Garcia-Zambrano,
530 F.3d at 1254 (explaining that we exclude evidence procured pursuant to a
affidavit containing false statements or material omissions only once we conclude
that “after excising such false statements and considering such material omissions
. . . the corrected affidavit does not support a finding of probable cause”). First, we
must keep in mind that the question is not whether the affidavit established probable
cause to believe that evidence of the Barney murder would be found in Defendant’s
home. Rather, the question is whether the affidavit presented probable cause to
believe evidence of the criminal activities of, and Defendant’s membership in, the
criminal enterprise known as the Crips and its subsets in violation of RICO would
be found in Defendant’s home. ROA, vol.1, pt. 2, at 403. Therefore, that a witness
identified two men as Barney’s assailants whom she had been told were named “P”
and “J” but in fact could not name herself or that another witness heard a man other
than Defendant threaten Barney the night before his murder is not nearly as
significant as Defendant argues. In addition, that CW #3, a gang member, brought
20
the Barney murder weapon, which allegedly belonged to another gang member, to
CW #1, also a gang member, after the murder is not inconsistent with CW #3’s
statement that he saw Defendant shoot Barney and then drove Defendant away from
the scene. If anything, taking those two pieces of information together suggests this
murder was part of the Crips’ criminal activity and Defendant was involved. Second,
regarding the other omissions Defendant mentions, Judge Belot aptly explained:
[T]he fact that [D]efendant was incarcerated for a period of time the
Goodwyn Affidavit covers would’ve been obvious to the issuing
magistrate judge as the Goodwyn Affidavit alerted the magistrate judge
of [D]efendant’s guilty plea to arson and criminal possession of a
firearm. The convictions surely are obvious in their implication for
imprisonment. Finally, the fact that [D]efendant had lived in his
residence for a ‘short period of time’ does not change the fact that the
evidence for which the search warrant was issued is likely to be kept in
the home, wherever the home may be.
Campbell, Order, No. 07-CR-10104-MLB, 2007 WL 2155657 at *7 (July 25, 2007).
For these reasons, we cannot say the district court clearly erred in concluding the
police did not deliberately or recklessly omit material facts.
C.
Defendant argues the affidavit so lacked indicia of probable cause that the
executing officers’ belief in its existence was entirely unreasonable, precluding the
application of Leon’s good-faith exception, because it failed to establish he was
involved in any criminal activity or establish a nexus between the evidence sought
and his home, presented solely stale evidence, and improperly relied on a
confidential informant. As we have explained, we generally presume officers
21
executed a search warrant in objective good faith. United States v. Henderson, 595
F.3d 1198, 1201 (10th Cir. 2010). This presumption, however, does not apply when
the warrant was “‘based on an affidavit so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable.’” Id. (quoting Leon, 468
U.S. at 923). Officers’ reliance is only “‘entirely unreasonable’” when the affidavit
is “‘devoid of factual support.’” Id. at 1201–02 (quoting Cardall, 773 F.2d at 1133)).
1.
To support his argument the affidavit fails to establish his involvement in
criminal activity or establish a nexus between the evidence sought and his home,
Defendant argues the only specific reference to his being associated with a gang, the
Neighborhood Crips (NHC) in particular, is in a parenthetical on the page that lists
the affidavit’s targets: “(3) Jermall L. Campbell, b/m, DOB 12/23/1981 (NHC).”
The affidavit stated the WPD had identified Defendant and thirty-three other
individuals as gang members “through investigative methods such as reviewing of
police reports, information gathered by the [WPD] gang officers, interviews of gang
members and associates, surveillance, phone records, and undercover operations
utilizing confidential informants” without stating which specific method or facts led
the WPD to believe Defendant is a member of the NHC. ROA, vol.1, pt.2, at 295.
Defendant asserts the rest of the affidavit’s references to him do not demonstrate he
was associated with the NHC. He claims most of the affidavit’s references to him
do not report criminal activity perpetrated by him. The few that do, he maintains
22
concern minor drug offenses. Although Defendant concedes three of the affidavit’s
eight references to him mention drugs, he argues those three do not demonstrate he
possessed drugs or engaged in their distribution. Moreover, he asserts nothing in the
affidavit suggests that his arson and firearms possession convictions were Crips
related. As to CW #3’s statement that Defendant shot Barney, Defendant contends
the statement is unsubstantiated and, regardless, the affidavit does not indicate CW
#3 claimed the murder was gang related. Even assuming some of his past acts were
demonstrably gang related, Defendant argues evidence of past gang membership, by
itself, does not support a reasonable suspicion of a crime.
In addition, Defendant argues the affidavit provided no basis to infer police
would find evidence of criminal conduct at his home. Defendant notes the police had
information that CW #3 delivered the Barney murder weapon to CW #1 just after the
murder in July 2006. As a result, Defendant claims, police could not reasonably
expect to find at his home the only specific physical evidence of the murder
mentioned in the affidavit. Furthermore, Defendant asserts the affidavit notably
lacked any observations of drug trafficking or other criminal activity outside or
inside Defendant’s home.
Officers’ reliance on a magistrate’s issuance of a warrant is only “‘entirely
unreasonable’” when the affidavit is “‘devoid of factual support.’” Henderson, 595
F.3d at 1201–02 (quoting Cardall, 773 F.2d at 1133). An affidavit is not devoid of
factual support “if it ‘establishe[s] a minimally sufficient nexus between the illegal
23
activity and the place to be searched.’” Id. at 1202 (quoting United States v.
Gonzales, 399 F.3d 1225, 1230–31 (10th Cir. 2005)). This minimal nexus
requirement does not require that “hard evidence or ‘personal knowledge of illegal
activity’ link a Defendant’s suspected unlawful activity to his home.” United States
v. Biglow, 562 F.3d 1272, 1279 (10th Cir. 2009). On the contrary, an affidavit
establishes a sufficient nexus when it “‘describes circumstances which would warrant
a person of reasonable caution’ in the belief that ‘the articles sought’ are at a
particular place.” Id. (quoting United States v. $149,442.43 in U.S. Currency, 965
F.2d 868, 874 (10th Cir. 1992)). “[F]actors relevant to our nexus analysis include”
but are not limited to “(1) the type of crime at issue, (2) the extent of a suspect’s
opportunity for concealment, (3) the nature of the evidence sought, and (4) all
reasonable inferences as to where a criminal would likely keep such evidence.” Id.
Furthermore, magistrates may permissibly rely on law enforcement officers’ opinions
regarding where contraband or evidence may be kept. Id. And, as we have said
before, “it is merely common sense that a drug supplier will keep evidence of his
crimes at his home.” United States v. Sanchez, 555 F.3d 910, 914 (10th Cir. 2009)
(“[W]hen police officers have probable cause to believe that a suspect is involved in
drug distribution, there is also probable cause to believe that additional evidence of
drug-trafficking crimes (such as drug paraphernalia or sales records) will be found
in his residence.”).
As we stated at the outset, we make no conclusion as to whether the affidavit
24
established a sufficient nexus to support probable cause in this case. Rather, we
bypass that inquiry and conclude the good-faith exception applies. In United States
v. Roach, 582 F.3d 1192, 1202, 1203 (10th Cir. 2009), we concluded an affidavit did
not articulate facts sufficient to establish actual probable cause to believe a defendant
lived at the location searched because the affidavit only stated: “‘[O]fficers have
verified that the individuals listed below live at the following addresses, through
investigations, which included checking for utilities information, driver’s license
records, real estate records, [WPD] records, tax records, social security records, U.S.
Postal Service records, interviews and/or surveillance’” without revealing “which of
these methods was, in fact, used by police to connect [the defendant] to the premises
[searched].” 3 Nonetheless, we applied the good-faith exception, explaining the
affidavit established a “minimal nexus” because the affidavit declared the police had
verified the defendant lived at the premises searched through one of the various
means listed, thereby providing adequate indicia of probable cause. Id. at 1204.
Likewise, Detective Goodwyn stated in his affidavit the WPD had verified
Defendant’s gang membership through at least one of the specific investigatory
methods listed. Detective Goodwyn’s affidavit also provides other statements
3
In Roach, we considered a probable cause challenge to a search authorized
by the same warrant and supporting affidavit at the heart of this case. Of course,
Roach addressed the constitutionality of an entirely different search of another
individual’s home. We therefore do not suggest we are bound by Roach’s
conclusions as to the legal consequences of the specific facts presented in that case.
We cite it solely for its relevant and precedential legal reasoning.
25
besides the parenthetical and general statement regarding the WPD’s verification of
Defendant’s gang membership to support its conclusion that probable cause existed
to believe evidence of Crips’ membership and criminal activity would be found in
his home. The affidavit documents eight incidents of Defendant’s criminal activity,
association with known gang members, or connection with drugs, and, in one
instance, participation in murder. Thus, “[t]he executing officer could reasonably
have believed that the evidence of [D]efendant’s gang association, [D]efendant’s
criminal history, and the fruits of investigation into CW #3’s allegations, along with
officers’ knowledge concerning the types of evidence generally maintained in the
home by members of gangs, sufficiently linked criminal activity with [D]efendant’s
residence.” Campbell, No. 07-CR-10104-MLB, 2007 WL 2155657, at *8 (July 25,
2007). In light of all the facts presented in the affidavit and the reasonable
inferences therefrom, we too cannot say the affidavit is devoid of factual support
and, consequently, lacked indicia of probable cause such that the executing officers
should have known that the search was illegal despite the magistrate’s authorization.
Therefore, the officers executing the warrant reasonably relied on the magistrate’s
authorization.
2.
Defendant also argues the affidavit lacks indicia of probable cause sufficient
to justify the executing officers’ reliance because it presents only stale information.
He contends the affidavit reports an unrelated series of incidents taken from police
26
reports four to ten years old. Defendant additionally notes he served a prison
sentence from September 15, 2006 to January 3, 2007 and his family had only
resided at the target residence for a few months, making it unlikely police would find
any contraband or evidence of prior criminal activity at the residence.
In rejecting Defendant’s argument that the affidavit presented stale
information, the district court incorporated Judge Belot’s explanation that:
The Goodwyn Affidavit alleges ongoing gang association, and
establishes [D]efendant’s participation in street gang activity over a
period of years. The search warrant sought, among other things, the
type of information (i.e., records of transactions, gang paraphernalia)
that are maintained in a residence over a lengthy period of time. The
Goodwyn Affidavit also, however, alleges [D]efendant’s involvement
in the recent murder of David Barney in July 2006, which ties
[D]efendant to recent criminal activity.
Campbell, Order, No. 07-CR-10104-MLB, 2007 WL 2155657, at *5 (July 25, 2007)
(citations omitted).
Information’s staleness “depends upon ‘the nature of the criminal activity, the
length of the activity, and the nature of the property to be seized.’” United States v.
Ricarrdi, 405 F.3d 852, 860–61 (10th Cir. 2005) (quoting United States v. Snow, 919
F.2d 1458, 1460 (10th Cir. 1990)). “‘[O]ngoing and continuous activity makes the
passage of time less critical when judging the staleness of information upon which
a search warrant is based,’ . . . because evidence of a longstanding pattern of
repeated activity makes it less likely that the activity has ceased within a short time
frame.” Roach, 582 F.3d at 1201 (quoting United States v. Mathis, 357 F.3d 1200,
27
1207 (10th Cir. 2004)). In addition, “otherwise stale information may be refreshed
by more recent events.” United States v. Cantu, 405 F.3d 1173, 1178 (10th Cir.
2005). We need not decide whether the affidavit’s information on Defendant was so
stale as to not support probable cause because we conclude the affidavit provided
sufficiently recent information to support the executing officers’ reliance on the
magistrate’s authorization. In Roach, we concluded Detective Goodwyn’s affidavit
presented stale information as to a different defendant because the most recent
evidence of gang-related criminal activity by that defendant occurred approximately
five years prior to the search. Roach, 582 F.3d at 1202. Regardless, we noted that
the defendant’s “past course of criminal conduct [which the affidavit recounted] was
unusually long,” spanning nearly ten years. Id. at 1204. We explained in light of
that fact and:
[T]he dearth of cases in our circuit holding that particular information
was so stale as to vitiate probable cause, an officer with reasonable
knowledge of the law might have concluded, until today, that [the
defendant’s] decade-long involvement in gang-related crimes logically
meant that he would continue to be involved in such crimes and to
retain evidence of them at his residence. Moreover, the affidavit
demonstrated that many of his past associates continued to be involved
in such crimes, which adds at least some weight to such a conclusion.
. . . We conclude that the officers’ reliance was in good faith despite
the staleness of the evidence.
Id. (citations omitted). Similarly, Detective Goodwyn’s affidavit recounts alleged
gang-related activity and other criminal activity by Defendant spanning nearly nine
years. The affidavit also alleged Defendant’s involvement in a murder less than a
28
year before the magistrate issued the warrant. The officers searched Defendant’s
home pursuant to this warrant in May 2007; we did not issue Roach and its guidance
on what constitutes stale information until 2009. Given these facts and the reasoning
of Roach, even assuming the affidavit’s information was so stale as to not establish
probable cause with regard to Defendant, we conclude the affidavit’s information
nonetheless provided sufficient indicia of probable cause to justify the officers good-
faith reliance.
3.
Defendant lastly contends the affidavit lacked indicia of probable cause
because the affidavit fails to establish CW #3’s veracity, reliability or basis of
knowledge and that this failure is fatal to the application of the good-faith exception
because CW #3’s accusation provided the most recent allegation of criminal activity
by Defendant. Defendant also asserts CW #3’s admitted involvement in the Barney
shooting and desire for a lower sentence in a separate criminal case provide obvious
motives to fabricate. Moreover, the affidavit did not disclose CW #3’s complicity
in disposing of the murder weapon, which Defendant argues cuts against his
reliability and veracity.
Veracity, reliability, and basis of knowledge are extremely relevant factors in
deciding whether a tip can support probable cause. Quezada-Enriquez, 567 F.3d at
1233 (citing Illinois v. Gates, 462 U.S. 213, 230 (1983)). Generally, “[w]e evaluate
whether these factors as revealed by the facts in the affidavit create ‘a fair
29
probability that contraband or evidence of a crime will be found in a particular place’
on consideration of the totality of circumstances.” Id. (quoting Gates, 462 U.S. at
238). As a result, “a deficiency in one factor may be compensated for by a strong
showing of another.” Id.
In Quezada-Enriquez, we were presented with the question of whether a
confidential informant’s tip that he had seen the defendant with a gun that the
defendant kept in his vehicle and home supported probable cause. The informant
told an Alcohol, Tobacco, Firearms and Explosives (ATF) agent “that [the defendant]
was an undocumented immigrant of Mexican nationality; described [the defendant]’s
age and physical appearance; identified the make, model, and license of his vehicle
. . .; and provided the address of his residence.” Id. at 1230–31. The affidavit
supporting the search warrant of the defendant’s home averred “this informant was
‘a credible and reliable ATF documented confidential informant (CI), who is not
working off criminal or other charges and who’s [sic] information in the past has led
to the seizure of various quantities of illegal narcotic substances, amounts of U.S.
currency, firearms and ammunition.’” Id. at 1231. The affidavit provided no other
information about the informant or his information. We explained that “although not
explained in particular detail in the affidavit, this informant apparently had a track
record of reliability and some indication of veracity.” Id. at 1234. The affidavit
stated that the informant “was receiving no benefit for providing information and had
provided accurate information about criminal activity on past occasions.” Id.
30
Therefore, regardless of the fact that the affidavit did not describe the informant’s
basis of knowledge or if the police corroborated the tip, we concluded the affidavit
was not so lacking in indicia of probable cause as to render the executing officers’
reliance on the warrant unreasonable. Id. at 1235.
In the case at hand, in contrast to Quezada-Enriquez, the affidavit did set forth
CW #3’s basis of knowledge. The affidavit states he admitted to being present when
Defendant shot Barney. “[A] firsthand observation is entitled to greater weight than
secondhand information.” Quezada-Enriquez, 567 F.3d at 1233. Furthermore, the
affidavit also states CW #3 is a documented NHC street gang member, which
Defendant does not dispute, and has “personal knowledge” of the facts in his
statements to the WPD based upon his direct conversations with members and
associates of the NHC, his observations of members and associates of the NHC, and
his admitted participation in some of the NHC’s criminal activities which he
describes. It fully discloses the fact CW #3 desired a lower sentence in a separate
criminal case in exchange for his cooperation, but had not yet been provided a
benefit for his cooperation. And, though the affidavit did not provide specifically
how law enforcement verified or deemed reliable CW #3’s statement that Defendant
killed Barney, it did represent that much of CW #3’s “information has been verified
and deemed reliable through independent investigation such as police reports,
recorded conversations, letters, interviews, telephone records, surveillance,
undercover narcotics purchases and evidence recovered in the execution of search
31
warrants.” ROA, vol.1, pt.2, at 303. The affidavit thus provided some information
about CW #3’s reliability, veracity, and basis of knowledge.
Additionally, we must again point out that we are not presented with whether
the affidavit provided indicia of probable cause to believe evidence of the Barney
murder would be found at Defendant’s residence. Instead, we must determine
whether the affidavit as a whole provides indicia of probable cause to believe
evidence of Defendant’s participation in the Crips criminal enterprise would be
found in his home. The affidavit did not rely solely on CW #3’s statement that
Defendant shot Barney to establish probable cause to believe evidence of Crips’
criminal activity would be found in Defendant’s home. Were the facts otherwise we
might have to grapple with the troublesome reality that the affidavit does not provide
any specific evidence of CW #3’s reliability or veracity, preventing the magistrate
from independently determining whether his accusation supports probable cause and,
thus, perhaps, failing to provide sufficient indicia of probable cause to justify
officers’ good-faith reliance upon the warrant. But as the case stands, CW #3’s
statement that he witnessed Defendant shoot Barney in conjunction with the
affidavit’s statements that much of CW #3’s information had been verified through
traditional investigative techniques and the affidavit’s other facts indicating
Defendant’s involvement in gang activity over nearly nine years reveal the affidavit
was not devoid of factual support. We therefore conclude the affidavit provided
sufficient indicia of probable cause to justify the executing officers’ good-faith
32
reliance upon the magistrate’s issuance of the search warrant.
D.
Defendant also maintains the affidavit’s flaws resulted from law enforcement’s
systemic negligence, thereby precluding the application of Leon’s good-faith
exception to the exclusionary rule. No one officer undertook the task of verifying
the evidence offered in support of the search warrant application or determining
whether material information had been omitted. Admittedly, Detective Goodwyn did
not have personal knowledge of any of the affidavit’s assertions involving
Defendant. He relied on other law enforcement officers to supply him information.
Defendant asserts no one asked the lead WPD detective on the Barney murder about
his investigation. As a result, the affidavit did not inform the magistrate that two
WPD officers knew an eyewitness had identified two other suspects as the Barney
assailants or that an individual reported a man other than Defendant threatened
Barney the night before he was murdered. Defendant asserts this constitutes
systemic negligence on the part of the Gang Task Force and the WPD. We disagree.
Defendant has demonstrated at most a single instance of an arguably negligent
breakdown in communication among the WPD. He has not demonstrated what the
Supreme Court appears to have indicated is required—“recurring or systemic
negligence.” Herring, 129 S. Ct. at 702, 704 (explaining that “the exclusionary rule
serves to deter deliberate, reckless, or grossly negligent conduct, or in some
circumstances recurring or systemic negligence,” but when police error is the result
33
of negligence, “rather than systemic error or reckless disregard of constitutional
requirements,” the exclusionary rule does not serve its purpose and, therefore, does
not apply) (emphasis added). Moreover, the case is not, as Defendant seems to
suggest, that no one in the Task Force or WPD had the task of verifying the
information contained in Goodwyn’s affidavit. Instead, hearing testimony revealed
different members of the Gang Task Force were assigned targets. Part of that
assignment included verifying all of the information contained in the affidavit about
that target. Detective Relph testified that Defendant was his assigned target and that
he verified the information in the affidavit relating to Defendant. Contrary to
Defendant’s suggestions, it is also not the case that no one involved in the
preparation of the affidavit consulted the Barney homicide detectives. Detective
Relph testified that although he did not review the Barney murder file, he spoke with
Detective Fatkin, the lead detective on the Barney homicide case. ROA, v.3, pt.1,
at 127. Detective Relph explained that as a result of his conversation with Detective
Fatkin he was aware of an eyewitness’s identification of two individuals she thought
were named “P” and “J” as the Barney assailants. Id. at 142. However, Detective
Relph testified he believed the eyewitness’s report, relayed to him by Detective
Fatkin, that one young man drove the get-away vehicle and another shot Barney was
consistent with CW #3’s statement that he drove Defendant to and from the scene
and that Defendant shot Barney and with CW #1’s statement that CW #3 brought him
the Barney murder weapon. Id. at 143. Furthermore, nothing in the testimony even
34
suggests the Task Force or WPD had a policy or practice of failing to verify
information contained in other affidavits. We therefore find nothing in the record
suggests the kind of recurring or systemic negligent conduct by law enforcement
occurred that precludes the application of the good-faith exception to the
exclusionary rule.
The judgment of the district court is hereby AFFIRMED.
35