United States v. Hicks

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4758

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

EDD A. HICKS,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:08-cr-00039-JRS-1)

Submitted: July 16, 2010 Decided: September 9, 2010

Before DAVIS and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Charles D. Lewis, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Jessica A. Brumberg, Assistant
United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Edd A. Hicks conditionally pleaded guilty under

Federal Rule of Criminal Procedure 11(a)(2) to one count of

knowingly, intentionally, and unlawfully possessing with the

intent to distribute five grams or more of cocaine base, in

violation of 21 U.S.C. § 841 (2006). In entering the

conditional guilty plea, Hicks reserved his right to appeal the

denial of his suppression motion, which challenged the efficacy

of an “all persons” search warrant for an apartment. The

district court found that probable cause supported the warrant

and that, in the alternative, the good faith exception announced

in United States v. Leon, 468 U.S. 897 (1984), applied. On

appeal, Hicks argues that the district court erred in both

rulings. We affirm.

In addressing the denial of a motion to suppress

evidence, we review the district court’s findings of historical

fact for clear error, “giving due weight to inferences drawn

from those facts by resident judges and local law enforcement

officers.” Ornelas v. United States, 517 U.S. 690, 699 (1996).

We review de novo the ultimate legal conclusion. Id. And,

“[b]ecause the district court denied the motion to suppress, we

construe the evidence in the light most favorable to the

Government.” United States v. Perkins, 363 F.3d 317, 320 (4th

Cir. 2004).

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The Fourth Amendment ensures that citizens are “secure

in their persons . . . against unreasonable searches and

seizures.” U.S. Const. amend. IV. “[R]easonableness requires

probable cause and a warrant unless one of the exceptions to the

warrant requirement applies.” Doe v. Broderick, 225 F.3d 440,

451 (4th Cir. 2000); see Katz v. United States, 389 U.S. 347,

357 (1967). The magistrate issuing the search warrant must

“make a practical, common-sense decision whether, given all the

circumstances set forth in the affidavit . . . there is a fair

probability that contraband or evidence of a crime will be found

in a particular place.” Illinois v. Gates, 462 U.S. 213, 238

(1983). “The probable-cause standard is incapable of precise

definition or quantification into percentages because it deals

with probabilities and depends on the totality of the

circumstances.” Maryland v. Pringle, 540 U.S. 366, 371 (2003).

For that reason, in reviewing the sufficiency of a supporting

affidavit, this Court avoids applying “‘hypertechnical’ scrutiny

. . . lest police officers be encouraged to forgo the warrant

application process altogether.” United States v. Robinson, 275

F.3d 371, 380 (4th Cir. 2001) (quoting Gates, 462 U.S. at 236).

The search warrant in this case was an “all persons”

warrant, that is, it authorized a search not just of the

apartment but of all persons in the apartment as well. In Owens

ex rel. Owens v. Lott, 372 F.3d 267 (4th Cir. 2004), we adopted

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the majority view that “an ‘all persons’ warrant can pass

constitutional muster if the affidavit and information provided

to the magistrate supply enough detailed information to

establish probable cause to believe that all persons on the

premises at the time of the search are involved in the criminal

activity.” Id. at 276. We explained that “all persons”

warrants presented a “probable cause issue[] rather than [a]

particularity problem[].” Id. Accordingly, “as long as ‘there

is good reason to suspect or believe that anyone present at the

anticipated scene will probably be a participant’ in the

criminal activity occurring there, ‘presence becomes the

descriptive fact satisfying the aim of the Fourth Amendment.’”

Id. (quoting State v. De Simone, 288 A.2d 849, 851 (N.J. 1972)).

The facts in this case established that, on December

28, 2006, Officers Ralph Mills and Wayne Graves and Sergeant

Greer Gould of the Richmond Police Department’s Focus Mission

Team * were patrolling the 2200 block of Parkwood Avenue. At

around 10:15 pm, Officer Mills observed an individual riding a

bicycle without his helmet. The officers attempted to stop the

individual, but he fled on the bicycle. The officers turned

their car around to pursue the bicyclist and lost sight of him

for approximately one minute when he turned down the alley

*
The Focus Mission Team is primarily responsible for
street-level narcotics dealing and illegal firearms.

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behind the 2300 block of Parkwood Avenue. While the officers

circled back and started driving down the alley, Officer Mills

saw an individual standing with a bicycle on the upstairs porch

of an apartment building in the alley. The officers were

uncertain if it was the same individual or bicycle they had been

pursuing. When this individual saw the officers, he immediately

entered the apartment and closed the door.

Officer Mills remained in the alley to watch the back

door, while Sergeant Gould and Officer Graves walked to the

front door of the apartment. As Officer Mills waited in the

alley, three individuals exited the back door onto the porch and

headed toward the back stairs. When they saw Officer Mills,

they froze in place; one of the three then turned his back to

Officer Mills and began manipulating something in his fingers

over a couch on the porch. The three next reentered the

apartment. Sergeant Gould subsequently radioed Officer Mills to

inform him that the apartment’s owner had granted consent to

enter the apartment. Officer Mills ascended the back stairs and

examined the couch, where he found what appeared to be crushed

crack cocaine scattered in plain view. Officer Mills seized the

items and informed Sergeant Gould of the discovery.

Thereafter, Officer Mills left the scene and prepared

a search warrant affidavit while Sergeant Gould, Officer Graves,

and several additional officers secured the apartment. Based on

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the affidavit, which recounted the facts above, the magistrate

judge authorized a warrant permitting a search of “the entire

residence located in 2325 Parkwood Avenue Apartment C and all

persons located therein.” During the subsequent search of the

apartment and “all persons” there, the officers recovered, inter

alia, 9.291 grams of cocaine base on Edd Hicks.

We elect to exercise our discretion to proceed

directly to whether the Leon good faith exception applies

without first deciding whether the warrant was supported by

probable cause. See United States v. Legg, 18 F.3d 240, 243

(4th Cir. 1994). “Generally, evidence seized in violation of

the Fourth Amendment is subject to suppression under the

exclusionary rule,” United States v. Andrews, 577 F.3d 231, 235

(4th Cir. 2009), the purpose of which is “to deter future

unlawful police conduct,” United States v. Calandra, 414 U.S.

338, 347 (1974). The deterrence objective, however, “is not

achieved through the suppression of evidence obtained by ‘an

officer acting with objective good faith’ within the scope of a

search warrant issued by a magistrate.” Perez, 393 F.3d at 461

(quoting Leon, 468 U.S. at 920); see United States v. Mowatt,

513 F.3d 395, 404 (4th Cir. 2008). Thus, the Leon Court

instructed that “a court should not suppress the fruits of a

search conducted under the authority of a warrant, even a

‘subsequently invalidated’ warrant, unless ‘a reasonably well

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trained officer would have known that the search was illegal

despite the magistrate’s authorization.’” United States v.

Bynum, 293 F.3d 192, 195 (4th Cir. 2002) (quoting Leon, 468 U.S.

at 922 n. 23).

The Leon Court cautioned that an officer’s reliance on

a warrant would not qualify as “objectively reasonable,”

however, in four circumstances: where (1) probable cause is

based on statements in an affidavit that are knowingly or

recklessly false; (2) the magistrate fails to perform a neutral

and detached function and instead merely rubber stamps the

warrant; (3) the affidavit is so lacking in indicia of probable

cause as to render official belief in its existence entirely

unreasonable; or (4) the warrant was so facially deficient that

the executing officer could not reasonably have assumed it was

valid. United States v. Gary, 528 F.3d 324, 329 (4th Cir. 2008)

(internal quotation marks omitted) (citing Leon, 468 U.S. at

914-15).

Having reviewed the record, we conclude that none of

the four circumstances listed in Leon are applicable in this

case and, moreover, as in United States v. Lalor, 996 F.2d 1578,

1582 (4th Cir. 1993), “two judicial officers have determined

that the affidavit provided probable cause to search.” Id. at

1583. Accordingly, even assuming the district court erred in

finding that the “all persons” warrant was supported by probable

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cause, the district court correctly determined that the evidence

was still admissible under the Leon good faith exception.

For the foregoing reasons, we affirm the district

court's judgment. We dispense with oral argument because the

facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

AFFIRMED