United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 8, 2008 Decided July 11, 2008
No. 06-3091
UNITED STATES OF AMERICA,
APPELLEE
v.
EMMETT SPENCER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00046-01)
Beverly G. Dyer, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A.J. Kramer, Federal Public Defender.
Matthew E. Price, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese III,
Assistant U.S. Attorney.
2
Before: TATEL, BROWN, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: This is a Fourth
Amendment exclusionary rule case. After finding Emmett
Spencer in his car with drugs, the police obtained a search
warrant from a D.C. Superior Court judge in order to search
Spencer’s house. The officers executed the warrant and
seized heroin, firearms, ammunition, and cash. After he was
indicted in U.S. District Court for various federal drug and
gun offenses, Spencer moved to suppress the evidence found
in his house. He contended that the search warrant was not
supported by probable cause; that the police affidavit
supporting the warrant omitted material facts; and that
probable cause for the search warrant had dissipated between
the time the warrant was obtained and the time it was
executed. The District Court rejected Spencer’s arguments.
We affirm. See United States v. Leon, 468 U.S. 897 (1984).
I
While patrolling a “high drug area,” two D.C. police
officers saw Emmett Spencer walk back and forth several
times between a restaurant and his parked car. Warrant at 2,
Joint Appendix (“J.A.”) 14. The officers ran a check of the
license plate on Spencer’s car and learned that the car and the
license plate did not match. Spencer drove away; the officers
followed and eventually pulled him over. As one officer
approached the car, he saw a female passenger in the back
appear to tuck something into the seat. The officer asked
Spencer and the passenger to step out of the vehicle. The
officer noticed that Spencer was holding cash crumpled in his
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hand; the officer also saw on the backseat an empty medium-
sized ziplock bag with a red apple print on it. When the
officer searched the vehicle, he found in the backseat another
medium ziplock bag with a red apple print – but this one
contained 70 smaller ziplock bags of heroin, packaged in
bundles of 10. He also found other bags elsewhere in the car,
one under the backseat and one in the glove compartment,
both of which contained heroin (the bag in the glove
compartment also had a red apple print on it). In addition, he
discovered two more of the same kinds of bags with red apple
prints in Spencer’s front pockets, although those bags
contained no drugs. The officer arrested Spencer and the
passenger. They were charged with possession with intent to
distribute heroin. See D.C. CODE § 48-904.01(a)(1).
A police investigator, relying on information from the
arresting officer, then sought a search warrant for Spencer’s
house and submitted a supporting affidavit to a D.C. Superior
Court judge. The affidavit described the facts and also noted
that Spencer had a prior conviction for possessing with intent
to distribute cocaine and a pending case against him for
possessing heroin. Based on the affidavit, the judge found
probable cause to believe that Spencer’s house contained
heroin and other evidence of drug dealing. The judge issued a
warrant for the police to search the house. The warrant
required execution within 10 days.
Three days later, a different D.C. Superior Court judge
held a preliminary hearing on the initial D.C. drug charge
against Spencer (that is, the charge based only on what had
been found in the car). The judge dismissed the drug charge
against Spencer for lack of probable cause, concluding that
probable cause to arrest for possession with intent to
distribute existed only with respect to the female passenger in
the car.
4
One week after the preliminary hearing, the police
executed the search warrant at Spencer’s house. There, they
discovered and seized heroin, firearms, ammunition, and cash.
Based on the evidence found in the house, the
Government obtained a four-count federal indictment
charging Spencer with possessing a firearm as a felon,
possessing ammunition as a felon, possessing with intent to
distribute heroin, and possessing a firearm in furtherance of a
drug-trafficking offense. See 18 U.S.C. § 922(g)(1); 21
U.S.C. § 841(a)(1), (b)(1)(C); 18 U.S.C. § 924(c)(1). Spencer
moved to suppress the evidence seized from his house. The
District Court denied the motion. Pursuant to an agreement
with the Government, Spencer then entered a conditional
guilty plea, reserving his right to appeal the Fourth
Amendment issue. See FED. R. CRIM. P. 11(c)(1)(C). The
court sentenced Spencer to 37 months in prison followed by
three years of supervised release.
II
On appeal, Spencer raises three distinct arguments. First,
he argues that the police affidavit supporting the warrant did
not establish probable cause to believe that drugs would be
found in his house. Second, he argues that the affidavit
omitted three material facts. Third, he argues that even
assuming the search warrant was initially valid, probable
cause dissipated between the time the warrant was obtained
and the time it was executed because the underlying D.C.
drug charge was dismissed in the interim.
As a general matter, Spencer’s contentions run headlong
into Supreme Court precedents establishing deferential
judicial review in cases where the police conducted a search
5
with a warrant. We briefly review those principles before
turning to Spencer’s specific arguments.
The Fourth Amendment provides: “The right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things
to be seized.” The Supreme Court has applied the
exclusionary rule to certain Fourth Amendment violations.
But as the Supreme Court has stated, “the Fourth Amendment
has never been interpreted to proscribe the introduction of
illegally seized evidence in all proceedings or against all
persons.” United States v. Leon, 468 U.S. 897, 906 (1984)
(internal quotation marks omitted). The “substantial social
costs exacted by the exclusionary rule for the vindication of
Fourth Amendment rights have long been a source of
concern,” and “[p]articularly when law enforcement officers
have acted in objective good faith or their transgressions have
been minor, the magnitude of the benefit conferred on such
guilty defendants offends basic concepts of the criminal
justice system.” Id. at 907-08.
Those principles carry particular force when, as here, the
police obtained a warrant before executing a search. To begin
with, we give “great deference” to the issuing judge’s
probable-cause determination. Illinois v. Gates, 462 U.S. 213,
236 (1982) (internal quotation marks omitted). Even if we
disagree with the judge’s probable-cause determination after
giving it “great deference,” that disagreement alone does not
justify exclusion of evidence. That is because the
“exclusionary rule was adopted to deter unlawful searches by
police, not to punish the errors of magistrates and judges.”
Massachusetts v. Sheppard, 468 U.S. 981, 990 (1984)
6
(internal quotation marks omitted). And a police officer is
ordinarily entitled to rely on the magistrate’s conclusion: “In
the ordinary case, an officer cannot be expected to question
the magistrate’s probable-cause determination . . . .” Leon,
468 U.S. at 921. So long as the officer relied in objective
good faith on the issuing judge’s determination, reviewing
courts may not apply the exclusionary rule. Id. at 922-23. As
a result, the “degree of police deference to the magistrate
which is perceived by courts as reasonable under Leon
exceeds significantly that ‘great deference’ owed the
magistrate by reviewing courts under Gates.” 1 WAYNE R.
LAFAVE, SEARCH AND SEIZURE § 1.3(f), at 97-98 (4th ed.
2004) (footnote omitted). The basic rule, in short, is that “the
police, having turned the probable cause decision over to
another person, . . . are generally entitled to presume that the
magistrate knows what he is doing.” Id. at 97 (footnote
omitted).
There are a few narrow exceptions to the Leon principle,
however, two of which Spencer invokes here. Suppression
remains appropriate if the affidavit supporting the warrant
was “so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable.” Leon,
468 U.S. at 923 (internal quotation marks omitted). And
suppression also remains “an appropriate remedy if the
magistrate or judge in issuing a warrant 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.” Id. (citing Franks v. Delaware, 438 U.S. 154
(1978)). This latter exception also has been held to apply
under certain circumstances to material omissions, see United
States v. Johnson, 696 F.2d 115, 118 n.21 (D.C. Cir. 1982) –
“material” meaning that their “inclusion in the affidavit would
defeat probable cause.” United States v. Colkley, 899 F.2d
297, 301 (4th Cir. 1990).
7
According to the Supreme Court, “[w]hen officers have
acted pursuant to a warrant, the prosecution should ordinarily
be able to establish objective good faith without a substantial
expenditure of judicial time.” Leon, 468 U.S. at 924. That
observation is true here, as Spencer’s arguments plainly do
not fall within the Leon exceptions.
First, as to Spencer’s argument about the sufficiency of
the police affidavit, we must determine whether the affidavit
was “so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable.” Id. at
923 (internal quotation marks omitted). We think not. The
70 small bags of heroin found in the backseat of Spencer’s
car, the bag of heroin found in the glove compartment, and
the bags found on Spencer’s person together suggested that
Spencer was engaged in drug dealing. See Maryland v.
Pringle, 540 U.S. 366, 372-73 (2003). We have held that
observations of drug dealing outside the home provide
probable cause for a warrant to search the drug dealer’s home.
See United States v. Thomas, 989 F.2d 1252, 1255 (D.C. Cir.
1993). In general, “observations of illegal activity occurring
away from the suspect’s residence, can support a finding of
probable cause to issue a search warrant for the residence, if
there is a reasonable basis to infer from the nature of the
illegal activity observed, that relevant evidence will be found
in the residence.” Id.; see also United States v. Johnson, 437
F.3d 69, 71-72 (2006). Common experience suggests that
drug dealers must mix and measure the merchandise, protect
it from competitors, and conceal evidence of their trade –
such as drugs, drug paraphernalia, weapons, written records,
and cash – in secure locations. For the vast majority of drug
dealers, the most convenient location to secure items is the
home. After all, drug dealers don’t tend to work out of office
buildings. And no training is required to reach this
commonsense conclusion.
8
Based on these facts, we agree with the issuing judge that
there was probable cause to justify the search of the house.
But even if we didn’t agree, the key point for purposes of our
Leon review is that we see no plausible basis for finding the
affidavit “so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable.” Leon,
468 U.S. at 923 (internal quotation marks omitted).
Second, Spencer argues that the affidavit supporting the
warrant misled the issuing judge because it omitted three
material facts about his arrest. According to Spencer, these
omitted facts would have suggested that the female passenger,
and not Spencer, was the drug dealer: (i) the larger ziplock
bag containing 70 smaller ziplock bags of heroin was in the
backseat next to the female passenger, not next to Spencer;
(ii) the female passenger entered Spencer’s car shortly before
police stopped the car; and (iii) the ziplock bag in the glove
compartment contained only a small amount of heroin.
Spencer acknowledges that the affidavit itself did not contain
any misstatements; rather, the issue is whether these were
material omissions from the affidavit.
As to the location of the 70 bags of heroin, we do not
believe that the affidavit contained an omission; the affidavit
specifically said the bags were “recovered in the rear seat”
and that the female passenger appeared to be tucking
something into the “rear seat area.” Warrant at 2, J.A. 14.
As to the fact that the female passenger had just entered
Spencer’s car, we do not see the materiality of the omission.
That fact would not negate the probable cause to believe that
Spencer was selling drugs either with or to the passenger. See
Pringle, 540 U.S. at 373 (“[A] car passenger . . . will often be
engaged in a common enterprise with the driver, and have the
9
same interest in concealing the fruits or the evidence of their
wrongdoing.”) (internal quotation marks omitted).
Finally, the fact that the amount of heroin in the glove
compartment was relatively small was immaterial given the
amount of heroin throughout the rest of the car.
According to Spencer, the female passenger was the drug
dealer, and these three “omitted” facts together would have
tipped the balance in convincing the issuing judge that
Spencer was just a buyer and that a search of his house
therefore was not justified. Spencer might have a point if the
issuing judge had to believe beyond a reasonable doubt or by
a preponderance that Spencer was a drug dealer. But the
standard is probable cause, and we cannot say that the
“omitted” facts individually or together negate the “fair
probability” that Spencer was a dealer, not just a buyer.
Gates, 462 U.S. at 238.
Third, Spencer argues that even if the officers reasonably
believed that the search warrant was initially valid and based
on probable cause, the probable cause dissipated when a
different D.C. judge dismissed the initial D.C. drug charge
against Spencer. We disagree. It is true that when officers
learn of new facts that negate probable cause, they may not
rely on an earlier-issued warrant but instead must return to the
magistrate – for example, if the police learn that “contraband
is no longer located at the place to be searched.” United
States v. Grubbs, 547 U.S. 90, 95 n.2 (2006). But the
dismissal here is not such a “fact.” Rather, it was a legal
conclusion reached by a different judge in a different matter;
such legal disagreement is hardly surprising given that
reasonable minds “frequently may differ on the question” of
probable cause. Leon, 468 U.S. at 914. Assuming it were a
fact, it was not material because it would not negate probable
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cause. In addition, as Spencer’s counsel correctly
acknowledged at oral argument, the dismissal of the D.C.
charge against Spencer would not carry estoppel effect in a
separate search-warrant proceeding. Cf. Zurcher v. Stanford
Daily, 436 U.S. 547, 558-59 (1978).
***
We affirm the judgment of conviction.*
So ordered.
*
In criminal appeals, this Court often receives excellent
briefing and oral argument from both the Government and the
Federal Public Defender’s office. The briefing and oral argument
in this case were particularly thorough and well-done; we thank
counsel for their efforts.