United States v. Reed

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 30, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,

v. No. 05-5226
(N. D. Oklahoma)
O RLA N DO REED , (D.Ct. No. CR-05-60-TCK)

Defendant - Appellant.

OR D ER AND JUDGM ENT *

Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Orlando Reed appeals from the district court’s denial of his motion to

dismiss the second superseding indictment because it was not signed by the grand

jury foreperson and the foreperson’s name does not appear on it. He also

*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R.
32.1 (eff. Jan. 1, 2007).
challenges the district court’s denial of his motion to suppress evidence.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Background

On January 13, 2005, Officer Pat Dunlap, a twenty-two-year veteran of the

City of Tulsa Police Department and a nine-year veteran of its Special

Investigations D ivision, went to a Federal Express facility in Tulsa, Oklahoma, to

examine the exterior of incoming packages for evidence of criminal courier

activity. 1 W hile there, he intercepted a Federal Express envelope sent from

“Robert Jones” in California, a known drug source state, to “Orlando Reed” in

Tulsa, Oklahoma. Dunlap knew Jones and Reed were career criminals in Tulsa.

He was also aware Reed had a criminal history involving drugs, forgery and

fraud; in particular, he knew Reed had been convicted in 1998 for credit card

offenses. The envelope also had other characteristics Dunlap looked for when

examining packages for evidence of criminal courier activity: the envelope was

from a person to a person, it had a handwritten label, its shipping charge was paid

with cash and it was sent priority overnight.

Based on these factors, Dunlap took the envelope into custody and

subjected it to a canine sniff. His drug dog (“Duc”), who is trained to detect

marijuana, cocaine, methamphetamine and heroin, did not alert. Nevertheless,

1
Dunlap has Federal Express’s permission to examine packages and regularly does
so.

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Dunlap retained custody of the envelope while he sought a w arrant to search its

contents. In his affidavit in support of the warrant, Dunlap explained his

experience as a police officer as well as his training and experience in narcotics

identification, investigation and interdiction. 2 He also stated the following:

On 1-13-05 at 0700 hours your Affiant arrived at Federal Express
located at 1510 South M emorial Drive. Your Affiant has permission
from Federal Express and routinely look[s] over packages at []
Federal Express locations.

On 1-13-05 your Affiant found a Federal Express envelope with
several criminal courier characteristics. The envelope was from a
Robert Jones; 126 N. Riley Ave.; M arina Del Rey, CA. 90292. The
recipient of the package is an Orlando Reed; 8926 East 17 th Place,
Tulsa, OK. 74112. Your Affiant states that the envelope was sent
priority overnight and the shipping charge ($20.25) w as paid with
cash. From your Affiant’s training and experience drug traffickers
often send controlled drugs, stolen property, counterfeit credit cards
and other contraband through the mail using standard or priority
overnight service and pay with cash.

Your Affiant states that the airbill was hand w ritten from a person to a
person. From your Affiant[’]s training and experience packages
containing controlled drugs or contraband often have the airbill written
out by hand and are to a person.

Your Affiant also states that the package was sent from the State of
California. Your Affiant states that on 4-16-04 he intercepted a Federal
Express package from California w ith similar criminal courier
characteristics that resulted in the seizure of six counterfeit credit cards
and one arrest.

On 4-16-04 your Affiant ran his K-9 partner “Duc” over the package.

2
Dunlap had received training in narcotics identification and investigation at the
Tulsa Police Academy and had successfully completed two Sky-Narc and three A-One
schools that focused on drug interdiction via mail, bus and air.

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 Duc is a drug detector dog trained to alert to marijuana, cocaine,
methamphetamine and heroin. Your Affiant states that Duc did not
alert to an odor of a con[t]rolled drug in the package[.]

Your A ffiant states that the recipient of the package is Orlando Reed.
M r. Reed is a career criminal and has been arrested for robbery,
assault, larceny, stolen vehicle, and dangerous drugs. Your Affiant
further states that Orlando Reed had been arrested five times for
forgery and eight times for fraud.

Your Affiant states that from past experience packages with the same
criminal courier characteristics as drug packages have contained stolen
property, counterfeit credit cards, counterfeit identification, LSD,
prescri[p]tion medicine, mushroom s and steroids.

(Appellee’s App. of Exs. at 5.)

Based on this affidavit alone, Dunlap obtained a search warrant and opened

the Federal Express envelope. Inside he discovered a sealed white envelope with

“Orlando Reed” on it. The white envelope contained five credit cards bearing the

name “James Carter.” B elieving the cards w ere counterfeit, Dunlap took them to

the United States Secret Service, which verified Dunlap’s suspicions. W hile the

cards contained valid account numbers, the accounts did not belong to either Reed

or James Carter. Dunlap repackaged the cards into the Federal Express envelope

and, posing as a Federal Express employee, delivered the envelope to the 8926

East 17th Place address. Reed’s sister accepted delivery of the envelope and took

it inside the residence.

In the meantime, Dunlap had obtained an anticipatory search warrant

allowing him to search the residence if the Federal Express envelope was

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accepted and taken into the residence upon its delivery. Once the envelope had

been delivered and accepted, Dunlap executed the anticipatory search warrant.

He discovered the Federal Express envelope with the counterfeit credit cards in

the southwest bedroom of the residence. He also found a wallet lying on the bed

in that bedroom. The wallet contained Reed’s Oklahoma driver’s license, a Texas

driver’s license with Reed’s picture but the name “James Carter” on it, and five

other credit cards suspected to be counterfeit. Dunlap also found mail addressed

to Orlando Reed, including a Tenth Circuit opinion affirming his revocation

conviction in 2000.

On April 6, 2005, Orlando Reed was indicted with one count of use of a

counterfeit access device with the intent to defraud (Count 1). This offense was

based on his use of four of the counterfeit credit cards found in his wallet. He

had used these cards to purchase items totaling $12,036.12 from various

merchants. On M ay 4, 2005, the government filed a superseding indictment

which added an aggravated identity theft count (Count 2). On June 9, 2005, the

government filed a second superseding indictment which added a third count,

mail fraud, based on Reed’s use of a common carrier (Federal Express) to obtain

five counterfeit credit cards with the intent to use the cards to make fraudulent

purchases (Count 3).

On June 14, 2005, Reed filed a motion to dismiss the second superseding

indictment because it was not signed by the jury foreperson and the foreperson’s

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name does not appear on it. Three days later, he filed a motion to suppress,

arguing the search warrant for the Federal Express envelope w as invalid because

it was not supported by probable cause. Because the search warrant for his

residence was issued based on the evidence illegally seized from the Federal

Express envelope, he claimed the anticipatory search warrant was also invalid.

Thus, he argued the five credit cards seized from the Federal Express envelope, as

well as the evidence seized from his residence, should be suppressed.

On A ugust 4, 2005, the district court held an evidentiary hearing on these

motions. At that hearing, the district court denied R eed’s motion to dismiss. It

explained that pursuant to the Judicial Conference of the United States and the E-

Government Act of 2002, documents containing identifying information about

jurors or potential jurors are not included in the public case file. However, the

court informed Reed an original second superseding indictment manually signed

by the grand jury foreperson was retained under seal in the clerk’s office. The

court stated that if Reed wished to see the original second superseding indictment,

it would order that a copy be provided to him or make the original indictment

available for viewing at the clerk’s office. After hearing testimony from Dunlap,

the court also denied Reed’s motion to suppress. W hile the court found the

search warrant for the Federal Express package was not supported by probable

cause, it concluded Dunlap relied on the search warrant in good faith and

therefore suppressing the evidence would not further the purpose of the

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exclusionary rule.

On August 17, 2005, Reed entered a conditional guilty plea to Counts 1 and

3 of the second superseding indictment, reserving the right to appeal the denials

of his motion to dismiss and motion to suppress. 3 On November 15, 2005, Reed

was sentenced to twenty-four months imprisonment on each count, to run

concurrently. This timely appeal followed.

II. Discussion

Reed challenges the district court’s denials of his motion to dismiss and

motion to suppress. Because he claims the absence of the grand jury foreperson’s

signature or name on the second superseding indictment deprived the district

court of jurisdiction over this case, we begin our discussion with the district

court’s denial of Reed’s motion to dismiss.

A. M otion to D ismiss

The original second superseding indictment was signed by the prosecutor

and jury foreperson and placed under seal. The copy of the indictment placed in

the public file, however, bears only the prosecutor’s signature. In the space

designated for the grand jury foreperson’s signature, the following notation

appears: “S/Grand Jury Foreperson.” (R. Vol. I, Doc. 8 at 6.) Reed contends the

3
At the change of plea hearing, Reed testified he purchased the counterfeit credit
cards found in his wallet from Michael Campbell in California for $2,500. He also
purchased the five counterfeit credit cards found in the Federal Express envelope from
Michael Campbell. The sender’s name on the envelope (“Robert Jones”) was fictitious.

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lack of the foreperson’s signature or name on the public copy violates Rule 6(c)

of the Federal Rules of Criminal Procedure and his Sixth Amendment right to a

public trial and renders the indictment a nullity depriving the district court of

jurisdiction over his prosecution. W hile it is laudable that the government wants

to protect the identities of grand jurors, Reed asserts their identities need to be

made public because the grand jury serves as a buffer against overzealous

prosecutors. 4

Rule 6(c) of the Federal Rules of C riminal Procedure states:

(c) Foreperson and Deputy Foreperson. The court will appoint one
juror as the foreperson and another as the deputy foreperson. In the
foreperson’s absence, the deputy foreperson will act as the foreperson.
The foreperson may administer oaths and affirmations and will sign all
indictments. The foreperson--or another juror designated by the
foreperson--will record the number of jurors concurring in every
indictment and will file the record with the clerk, but the record may
not be made public unless the court so orders.

Rule 6(c) was not violated in this case because the original second superseding

indictment was signed by the grand jury foreperson. Rule 6(c) does not require

the foreperson’s signature or identity to appear in the public file. Additionally,

“[a]s Rule 6(c) illustrates, the responsibilities of a federal grand jury foreman are

essentially clerical in nature: administering oaths, maintaining records, and

4
Reed also argues that because the grand jury meets in secret, there is no way of
knowing the indictment was presented to the grand jury and voted on without the
foreperson’s signature. This concern is not implicated here because the original
indictment is signed by the foreperson, albeit under seal.

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signing indictments.” Hobby v. United States, 468 U.S. 339, 344-45 (1984).

“[T]he foreman’s duty to sign the indictment is a formality[;] the absence of the

foreman’s signature is a mere technical irregularity that is not necessarily fatal to

the indictment. Id. at 345 (citing Frisbie v. United States, 157 U.S. 160, 163-165

(1895) (while having the foreperson sign the indictment is the preferred practice,

because the grand jury returns into court the charges it has approved, the lack of

the foreperson’s signature is not fatal)).

Nor does the fact the grand jury foreperson’s identity is not made public

violate the Sixth Amendment right to a public trial. The Sixth Amendment states

that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial . . . . and to be informed of the nature and cause of the

accusation.” U.S. C ONST . amend. VI. The second superseding indictment

informed Reed of the nature and cause of the charges against him. These charges

appear in the public file. W hile the Sixth Amendment right to a public trial has

been extended outside the actual presentation of evidence at trial, see, e.g., Waller

v. Georgia, 467 U.S. 39, 47 (1984) (pretrial suppression hearing); Press-Enter.

Co. v. Superior Court of Cal., Riverside County, 464 U.S. 501, 505-08 (1984)

(voir dire proceedings), w e have uncovered no cases, and Reed cites to none, in

which the Sixth A mendment right to a public trial has been extended to require

the grand jury foreperson’s identity or signature be made public. The district

court properly denied Reed’s motion to dismiss.

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B. M otion to Suppress

Reed argues the district court erred in denying his motion to suppress.

W hile he agrees with the district court that the search warrant for the Federal

Express envelope violated the Fourth Amendment because it was not supported by

probable cause, he claims it erred in applying the good-faith exception to the

exclusionary rule. Given the deference afforded to a magistrate’s determination

of probable cause, the government claims there was substantial evidence

supporting the state court judge’s decision to issue a w arrant for the envelope. In

the alternative, it argues the evidence obtained as a result of the warrant should

not be excluded because Officer Dunlap acted in good faith reliance on it.

“In reviewing the denial of a motion to suppress, we accept the factual

findings of the district court unless they are clearly erroneous.” United States v.

West, 219 F.3d 1171, 1176 (10th Cir. 2000). In conducting our review, we

consider the evidence in the light most favorable to the government. United

States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir. 2000). “However, we review

de novo the ultimate determination of the reasonableness of the search under the

Fourth Amendment.” United States v. Bustillos-M unoz, 235 F.3d 505, 511 (10th

Cir. 2000). The applicability of the good-faith exception to the exclusionary rule

is also reviewed de novo. United States v. Nolan, 199 F.3d 1180, 1184 (10th Cir.

1999).

“The question whether the exclusionary rule’s remedy is appropriate in a

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particular context has long been regarded as an issue separate from the question

whether the Fourth Amendment rights of the party seeking to invoke the rule w ere

violated by police conduct.” Arizona v. Evans, 514 U.S. 1, 10 (1995) (quotations

omitted). Thus, we can, and often do, turn directly to whether the good-faith

exception to the exclusionary rule applies without first considering the validity of

the warrant under the Fourth Amendment. United States v. M cKneely, 6 F.3d

1447, 1453 (10th Cir. 1993); see also, e.g., Nolan, 199 F.3d at 1184; United

States v. Corral-Corral, 899 F.2d 927, 931-32 (10th Cir. 1990). However, this is

not an appropriate case to do so. Important Fourth Amendment issues are present

and resolution of them is necessary to guide future action by law enforcement

officers and magistrates. United States v. Leon, 468 U.S. 897, 925 (1984); United

States v. Rowland, 145 F.3d 1194, 1206 n.8 (10th Cir. 1998). Additionally,

resolution of the Fourth Amendment issues assists our analysis of whether Officer

Dunlap’s reliance on the warrant was reasonable for purposes of the good-faith

analysis. Id. Therefore, we will first address the validity of the search warrant.

1. Validity of Search Warrant

The Fourth Amendment requires search warrants to be supported by

probable cause. U.S. C ONST . amend. IV. Probable cause to search exists “when

the facts . . . would [lead] a man of reasonable caution to believe that evidence of

a crime will be found at the place to be searched.” United States v. Harris, 369

F.3d 1157, 1165 (10th Cir. 2004) (quotations omitted), cert. denied, 543 U.S. 915

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(2004). It requires “more than mere suspicion but less evidence than is necessary

to convict.” Danhauer, 229 F.3d at 1005 (quotations omitted). It also

“undoubtedly requires a nexus between suspected criminal activity and the place

to be searched.” Id. at 1006 (quotations omitted). However, “only the

probability, and not a prima facie showing, of criminal activity is the standard of

probable cause.” Illinois v. Gates, 462 U.S. 213, 235 (1983) (quotations omitted).

“An affidavit in support of a search warrant must contain facts sufficient to

lead a prudent person to believe that a search would uncover contraband or

evidence of criminal activity.” Danhauer, 229 F.3d at 1006. “The task of the

issuing magistrate is simply to make a practical, common-sense decision whether,

given all the circumstances set forth in the affidavit before him, including the

veracity and basis of knowledge of persons supplying hearsay information, there

is a fair probability that contraband or evidence of a crime will be found in a

particular place.” Gates, 462 U.S. at 238 (quotations omitted); see also United

States v. Glover, 104 F.3d 1570, 1578 (10th Cir. 1997) (in determining whether

an affidavit supports a finding of probable cause, we review the affidavit as a

whole and look to the totality of the information contained therein). In making

such determination, the magistrate “may draw reasonable inferences from the

material provided in the warrant application.” Rowland, 145 F.3d at 1205.

A reviewing court should accord great deference to a magistrate’s

determination of probable cause; its duty is “simply to ensure that the magistrate

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had a substantial basis for . . . conclud[ing] that probable cause existed.” Gates,

462 U.S. at 236, 238-39 (quotations omitted). This deference is appropriate to

further the Fourth Amendment’s strong preference for w arrants. M assachusetts v.

Upton, 466 U.S. 727, 733 (1984); see also United States v. Ventresca, 380 U.S.

102, 105-06 (1965) (“An evaluation of the constitutionality of a search warrant

should begin with the rule that the informed and deliberate determinations of

magistrates empow ered to issue warrants . . . are to be preferred over the hurried

action of office[r]s . . . .”) (quotations omitted). Because of this strong preference

for warrants, “in a doubtful or marginal case a search under a warrant may be

sustainable where without one it would fall.” Ventresca, 380 U.S. at 106.

The deference accorded a magistrate’s probable cause determination,

however, is not boundless. Leon, 468 U.S. at 914. W e will not defer to a

magistrate judge’s probable cause determination where there is no substantial

basis for concluding that the affidavit in support of the warrant established

probable cause. Id. at 915; Danhauer, 229 F.3d at 1006. Specifically, we will

not defer to a magistrate’s probable cause determination if it is a mere ratification

of the bare conclusions or “hunches” of others or where it involves an improper

analysis of the totality of the circumstances. Leon, 468 U.S. at 915; Upton, 466

U.S. at 734; Gates, 462 U.S. at 239.

Officer Dunlap’s affidavit provided the state court with the following facts

in support of probable cause: (1) the package was sent priority overnight, (2) it

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was sent from a person to a person, (3) the shipping charge was paid in cash, (4)

the airbill was handwritten, (5) the package was sent from California, (6) Officer

Dunlap intercepted a previous package containing these same characteristics on

April 16, 2004, which resulted in the seizure of six counterfeit credit cards and

one arrest, (7) Dunlap’s drug dog did not alert to the April 16, 2004 package, (8)

the recipient of the package (Reed) was a known career criminal, whose previous

arrests included robbery, assault, larceny, stolen vehicle, dangerous drugs, forgery

and fraud, and (9) Dunlap’s past experience demonstrated that packages with the

same criminal courier characteristics have contained illegal items and/or drugs. 5

W e agree with the district court that the above facts, taken in their totality, do not

establish probable cause.

The first four factors are insufficient to establish probable cause. As the

district court noted, the purpose of Federal Express is to ensure quick delivery of

a package, including overnight service. The fact the shipping charge was paid in

cash is not extraordinary, especially considering its amount. 6 W hile Officer

5
At the motion to suppress hearing, Dunlap testified he knew the package’s sender
(Robert Jones) was a career criminal at the time he intercepted the package. However, he
failed to include this fact in his affidavit. He stated California was a drug source state but
this fact was also omitted from the affidavit. He further testified that he was aware at the
time he sought the search warrant that Reed had been convicted in 1998 for credit card
offenses. Nevertheless, he refers solely to Reed’s past arrests in the affidavit. Reed has
not alleged these omissions render the warrant defective.
6
The box “cash/check” was marked on the Federal Express envelope. (Appellee’s
Add. of Exs. at 2.) In his affidavit, Dunlap stated the shipping charge had been paid in
cash. At the motion to suppress hearing, Dunlap testified he believed the shipping charge

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Dunlap testified only three to four percent of all airbills he sees are handwritten,

the fact one is handwritten does not demonstrate a fair probability that the

package bearing that airbill contains contraband. As the district court stated:

“[W ]e all have experience with a lot of handwritten FedEx. If you’re in a hurry,

that’s what you do.” (R. Vol. IV at 35.) Lastly, the fact the envelope was sent

from California is irrelevant under the circumstances of this case. Even assuming

the state court judge was aware California was a drug source state (a statement

not included in the affidavit), Dunlap’s drug dog did not alert to the envelope.

W hat would be relevant is evidence that California is a source state for stolen

property, counterfeit credit cards, counterfeit identification, prescription

medicines or steroids; however, no such evidence was presented in the affidavit

(or at the motion to suppress hearing).

Given that the first four factors are insufficient to establish probable cause,

the fact a package bearing these same characteristics was discovered in April

2004 to be carrying counterfeit credit cards does not inform the probable cause

analysis. 7 The fact the drug dog did not alert to the April 2004 package is

was paid in cash but admitted it could have been paid with a check. The district court
implicitly found Dunlap did not intend to mislead the state court in stating the shipping
charge had been paid in cash. Reed has not alleged that Dunlap deliberately or recklessly
misled the state court in making this statement.
7
The April 16, 2004 package was sent to Marcus Smith. It is unclear from the
record before us whether its sender was Robert Jones. It appears, however, that when
Dunlap stated that the April 16, 2004 package contained the same criminal courier
characteristics as the envelope sent to Reed in January 2005, he was referring to the fact it

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irrelevant in the absence of information in the affidavit stating the dog did not

alert to the envelope in this case. Indeed, Dunlap admitted the reference to the

fact the drug dog did not alert to the April 2004 package was a typographical

error; he meant to state the drug dog did not alert to this envelope. 8

The fact Reed was a career criminal with numerous arrests does not

establish probable cause that a package sent to him contains contraband.

“Probable cause to search a person’s residence does not arise based solely upon

probable cause that the person is guilty of a crime. Instead, there must be

additional evidence linking the person’s home to the suspected criminal activity.”

Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998); see also United States v. Tuter,

240 F.3d 1292, 1297 (10th Cir. 2001) (fact that defendant had fifteen-year old

criminal history and his w ife illegally possessed firearms a year ago is

insufficient to corroborate informant’s claim that defendant was making pipe

bombs in his garage). The same is true of a guilty person’s mail and other

packages. The only investigation Dunlap conducted in order to link criminal

activity to the envelope was to subject the envelope to a canine sniff and to

investigate Reed and Jones’ criminal records. The canine sniff failed to establish

too was sent from a person to a person, priority overnight, contained a handwritten airbill,
was paid in cash and was sent from a California address.
8
Again, Reed has not alleged this error was deliberate or reckless and has not
contested Dunlap’s testimony that the error was typographical in nature. Corral-Corral,
899 F.2d at 933 (an affiant’s negligence or innocent mistake resulting in false statements
in the affidavit is insufficient to establish knowing or reckless falsity).

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the requisite link. Dunlap’s criminal history investigations also failed to provide

the needed connection. Although Reed had past arrests for fraud and forgery,

nothing in his criminal history established that these offenses w ere committed via

the mail or that he had previously obtained false credit cards via the mail. Nor

was he currently under investigation. Thus, there was insufficient evidence

linking the envelope to Reed’s criminal history or any current criminal activity.

Finally, Dunlap’s past experience, while not to be downplayed, 9 is not

enough to save the warrant in the absence of an adequate nexus between the

envelope and criminal activity. 10

Our sequential analysis of the factors relied upon to establish probable

cause should not be taken as a “divide-and-conquer” approach. United States v.

Arvizu, 534 U.S. 266, 274 (2002) (rejecting “divide-and-conquer” approach to

9
See United States v. Cook, 949 F.2d 289, 292-93 (10th Cir. 1991) (“A magistrate
is entitled to rely on the expert opinions of officers when supporting factual information is
supplied in the affidavit.”); Corral-Corral, 899 F.2d at 937 (“Courts frequently have
relied on the expert opinion of officers in determining where contraband might be kept.”).
10
At the motion to suppress hearing, Dunlap stated that over the past ten years, he
sought search warrants for approximately 100 packages and approximately ninety-eight
percent of those packages had contraband in them. Of the ninety-eight percent which had
contraband in them, ninety-eight percent of them contained drugs. The other two percent
had steroids, counterfeit identification or counterfeit credit cards. When asked
specifically how many packages he remembered containing counterfeit credit cards in
“recent years,” he responded “three,” including the April 2004 package. (Vol. IV at 12.)
Given the infrequency of Dunlap’s experience with packages containing contraband other
than drugs, little weight could be assigned to his statement that from past experience,
packages with the same criminal courier characteristics as drug packages have contained
stolen property, counterfeit credit cards, counterfeit identification, prescription medicines,
and steroids.

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determining whether reasonable suspicion existed). W e fully appreciate the

synergy of disparate elements considered collectively and recognize our

obligation to be guided by the totality of the circumstances. W hether considered

individually or as an integrated whole, the facts presented do not amount to

probable cause. Nevertheless, as w e explain next, the evidence seized pursuant to

the warrant need not be suppressed because the good-faith exception to the

exclusionary rule applies.

2. Good-Faith Exception

“[T]he Fourth Amendment contains no provision expressly precluding the

use of evidence obtained in violation of its commands.” Evans, 514 U.S. at 10.

However, the Supreme Court has created such a remedy, i.e., the exclusionary

rule, w hich prohibits the government from using evidence against an accused if

such evidence was obtained through an illegal search or seizure. See Weeks v.

United States, 232 U.S. 383 (1914) (barring use of evidence obtained in violation

of Fourth Amendment in federal prosecution); M app v. Ohio, 367 U.S. 643 (1961)

(extending exclusionary rule to state prosecutions). Thus, the exclusionary rule

“operates as a judicially created remedy designed to safeguard Fourth Amendment

rights [] through its deterrent effect, rather than [as] a personal constitutional

right of the party aggrieved.” Leon, 468 U.S. at 906 (quotations omitted). It is

“designed to deter police misconduct rather than to punish the errors of judges

and magistrates.” Id. at 916. “As with any remedial device, [its] application has

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been restricted to those instances w here its remedial objectives are thought most

efficaciously served.” Evans, 514 U.S. at 11. Consequently, “[w]here the

exclusionary rule does not result in appreciable deterrence, . . . its use is

unwarranted.” Id. (quotations omitted).

Applying these principles, the Supreme Court created an exception to the

exclusionary rule in Leon. There, the Supreme Court held that evidence seized

pursuant to a warrant issued by a neutral and detached magistrate later found

invalid may still be admissible if the executing officer acted in objective good

faith and with reasonable reliance on the warrant. Leon, 468 U.S. at 905, 922-23.

It concluded excluding the evidence under such circumstances would not further

the purposes of the exclusionary rule:

[In general,] when an officer acting with objective good faith has
obtained a search warrant from a judge or magistrate and acted
within its scope, . . . there is no police illegality and thus nothing to
deter. It is the magistrate’s responsibility to determine whether the
officer’s allegations establish probable cause and, if so, to issue a
warrant comporting in form with the requirements of the Fourth
Amendment. In 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. Once
the warrant issues, there is literally nothing more the policeman can
do in seeking to comply with the law. Penalizing the officer for the
magistrate’s error, rather than his own, cannot logically contribute to
the deterrence of Fourth Amendment violations.

Id. at 920-21 (citation and quotations omitted).

In determining whether we should apply Leon’s good-faith exception, “the

good faith inquiry is confined to the objectively ascertainable question of whether

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a reasonably well-trained officer would have known the search was illegal despite

the issuing judge’s authorization.” Corral-Corral, 899 F.2d at 932 (quotations

omitted). To answer this question, we must consider all of the circumstances and

“assume [] the executing officers . . . have a reasonable knowledge of what the

law prohibits.” Id. (quotations omitted). However, an officer’s “knowledge and

understanding . . . and [his] appreciation for constitutional intricacies are not to

be judged by the standards applicable to lawyers.” United States v. Cardall, 773

F.2d 1128, 1133 (10th Cir. 1985). W e also review the warrant and affidavit to

determine whether they are “devoid of factual support.” United States v. Tisdale,

248 F.3d 964, 972 (10th Cir. 2001) (quotations omitted); see also Danhauer, 229

F.3d at 1006. The government has the burden to show that its officers’ reliance

on the warrant was objectively reasonable. Corral-Corral, 899 F.2d at 932.

Although evidence seized pursuant to a warrant should only be suppressed

in “unusual cases,” the Leon Court recognized four situations in which an officer

would not have reasonable grounds for believing a warrant was properly issued:

(1) the issuing judge was misled by information in an affidavit that the affiant

knew was false or would have known was false except for his reckless disregard

of the truth; (2) the issuing judge wholly abandoned his judicial role and failed to

perform his neutral and detached role; (3) the affidavit issued to support the

warrant is so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable; and (4) the warrant is so facially deficient that

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the executing officers cannot reasonably presume it to be valid. Leon, 468 U.S. at

918, 923; Corral-Corral, 899 F.2d at 933. In such situations, the good-faith

exception to the exclusionary rule does not apply and suppression is the

appropriate remedy. Danhauer, 229 F.3d at 1007.

Reed relies on the third situation, i.e., he alleges the supporting affidavit

was so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable. H e argues the affidavit was devoid of any facts

connecting the Federal Express envelope with criminal activity other than the fact

the named recipient had an extensive criminal record. Reed asserts Dunlap

should have known Reed’s criminal history was not enough to establish probable

cause to search Federal Express packages sent to him. Indeed, he claims an

individual’s criminal history is insufficient to establish even reasonable suspicion

to detain an individual. See United States v. Laughrin, 438 F.3d 1245, 1248 (10th

Cir. 2006) (stating knowledge of a person’s prior criminal record is alone

insufficient to establish reasonable suspicion to stop the person’s vehicle).

The government claims the good-faith exception applies. It asserts Dunlap

was truthful in laying out the reasons he had for seeking the warrant, including

the fact the drug dog did not alert. Under such circumstances, the government

claims suppressing the evidence would not further the purposes of the

exclusionary rule because the rule was not meant to discourage police officers

from truthfully obtaining warrants from a magistrate but rather to encourage them

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to get w arrants so the determination of probable cause is made by a magistrate.

The government also argues Dunlap’s affidavit was not so lacking in indicia of

probable cause as to render official belief in its existence entirely unreasonable.

It asserts it was not devoid of factual support as it “clearly connects Reed, the

career criminal intended recipient of the Federal Express [envelope], who has

arrests and convictions for fraud and forgery[,] with a package from California

that shares all the characteristics of a previous [Federal Express] package

intercepted one year before that contained counterfeit credit cards.” (Appellee’s

Br. at 22.) W hile admitting the affidavit is “weak,” the government argues it

establishes a minimally sufficient nexus between the illegal activity and the place

to be searched and therefore Dunlap reasonably relied upon it. (Id.) W e agree.

Although Dunlap’s affidavit does not establish a sufficient nexus between

the envelope and suspected criminal activity to amount to probable cause, it was

not a “bare bones” affidavit or “devoid of factual support.” The affidavit

informed the state court the envelope had characteristics which in Dunlap’s

training and experience were associated with criminal courier activity,

specifically, the transfer of contraband. W hile these characteristics may seem

innocuous to an average person, to an experienced officer with training in drug

interdiction, they point to criminal courier activity. The affidavit also linked the

envelope to Reed, as he was its intended recipient. It further informed the judge

that Reed had a criminal history involving drugs, fraud and forgery. Therefore,

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Reed’s criminal history matched the suspected criminal activity.

The affidavit also notified the judge that nine months earlier a package

bearing similar characteristics was found to contain counterfeit credit cards.

Additionally, it attempted to inform him that the drug dog did not alert to the

envelope but mistakenly stated the dog did not alert to the April 2004 package.

Although the dog did not alert to the envelope, it was not unreasonable for

Dunlap to still believe it contained contraband other than those drugs his dog is

trained to detect, given that a similar package nine months earlier had contained

counterfeit credit cards. Also relevant to the good-faith analysis is the fact

Dunlap had sought and obtained a search warrant based on similar facts nine

months earlier (the April 2004 package). The issuing judge clearly erred by

failing to make a critical analysis of the facts presented but that error does not

render Dunlap’s reliance on the warrant unreasonable. Under these

circumstances, applying the exclusionary rule would not further its intended

purpose— deterrence of police misconduct. It would merely correct an errant

judge.

Reed relies on United States v. Gonzales, 399 F.3d 1225 (10th Cir. 2005).

There, police officers arrested Gonzales for driving under the influence of alcohol

after rolling the vehicle he w as driving. Police officers conducted an inventory

search of the vehicle, finding a Glock 10mm magazine containing live rounds but

no matching weapon. Subsequently, they discovered Gonzales was a convicted

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felon and the vehicle was registered to Honorior Contreras, who had a

relationship with Gonzales’ mother and resided with Gonzales. Two days after

the accident, a police detective applied for a warrant to search Gonzales’

residence for firearms and ammunition. In the supporting affidavit, the detective

identified 321 E. Church as the place to be searched and described Gonzales’ car

accident and the results of the inventory search. He also stated he had two years

of law enforcement experience and he “knows from [p]olice training and

experience that firearm[s] are often kept at the residence as well as in vehicles.”

Id. at 1228 (quotations omitted). However, the affidavit did not specify that 321

E. Church was Gonzales’ residence or that there was any other connection

betw een that location and Gonzales, the vehicle or the suspected criminal activity.

It also failed to state w ho owned the vehicle. After obtaining approval from his

supervising officer and an assistant district attorney, the detective submitted the

affidavit to a magistrate, w ho issued the warrant. Execution of the warrant led to

the discovery of weapons and weapon-related paraphernalia.

After being indicted for being a felon in possession of ammunition and

firearms, Gonzales moved to suppress the evidence arguing the warrant was not

supported by probable cause and the deficiency was such that the warrant could

not be relied upon in good faith. The district court agreed and we affirmed.

Because the government conceded the affidavit lacked probable cause due to its

failure to establish any connection between the place to be searched and Gonzales

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or the suspected criminal activity, we turned directly to the good faith analysis, in

particular, whether the affidavit was so lacking in indicia of probable cause as to

render official belief in its existence entirely unreasonable. W e concluded good

faith may exist when a minimal nexus exists between the place to be searched and

the suspected criminal activity. Id. at 1231. Nevertheless, we found such

minimal nexus lacking. Id. Specifically, we found the affidavit completely failed

to explain why the detective believed firearms and ammunition would be found at

321 E. Church and his generally stated experience that “firearm[s] are often kept

at the residence” was not supported by any facts establishing the residence

belonged to or w as otherw ise linked to Gonzales. Id. (quotation omitted). W e

stated:

For good faith to exist, there must be some factual basis connecting
the place to be searched to the defendant or suspected criminal
activity. W hen this connection is wholly absent, the affidavit and
resulting warrant are “so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable.”
Exclusion is appropriate in such circumstances because “reasonably
well-trained” officers, exercising their own professional judgment,
will be able to recognize the deficiency. Here, the w arrant was “so
lacking,” and the officer’s reliance upon it was not objectively
reasonable.

Id. (citation omitted).

Gonzales is distinguishable. In Gonzales, the affidavit contained no

information linking the place to be searched (321 E. Church) to either the

defendant or the suspected criminal activity (possession of firearms and

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amm unition). Indeed, the affidavit failed to specify that 321 E. Church was

Gonzales’ residence. The affidavit in this case linked Reed to the envelope as

Reed was its intended recipient. It also contained information linking the

suspected criminal activity (transfer of contraband) to the envelope. The

envelope contained characteristics which in Dunlap’s training and experience

were associated with criminal courier activity. A previous package containing

those same characteristics was found to contain counterfeit credit cards. And

Reed’s criminal history was consistent with and supported the suspected criminal

activity. Admittedly, this case stretches Leon’s good faith exception to its elastic

limit, but a minimal (barely) nexus existed between the place to be searched,

Reed and the suspected criminal activity.

A FFIR ME D.

Entered by the C ourt:

Terrence L. O ’Brien
United States Circuit Judge

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