PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 03-4280
TIMOTHY DEQUASIE,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Robert C. Chambers, District Judge.
(CR-02-228)
Argued: December 4, 2003
Decided: July 1, 2004
Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.
Reversed and remanded by published opinion. Judge Shedd wrote the
majority opinion, in which Judge Williams joined. Judge Motz wrote
a dissenting opinion.
COUNSEL
ARGUED: Joshua Clarke Hanks, Assistant United States Attorney,
Charleston, West Virginia, for Appellant. Silas Mason Preston,
PRESTON & WEESE, L.C., Lewisburg, West Virginia, for Appellee.
ON BRIEF: Kasey Warner, United States Attorney, Charleston,
West Virginia, for Appellant.
2 UNITED STATES v. DEQUASIE
OPINION
SHEDD, Circuit Judge:
During the late evening and early morning hours of March 18-19,
2002, law enforcement officers executed two search warrants at the
Summerlee, West Virginia, residence of Timothy DeQuasie. The pur-
pose of the first search was to attempt to locate two women, one of
whom was reportedly missing and being held against her will by
DeQuasie in the residence. While law enforcement officers were exe-
cuting the first search warrant, they observed evidence of apparent
drug activity at DeQuasie’s residence, and they therefore obtained a
second warrant to search the residence for drugs and drug-related
materials. During the second search the officers seized (among other
things) a firearm and ammunition.
A federal grand jury subsequently indicted DeQuasie under 18
U.S.C. §§ 922(g)(3) and (g)(9) for illegal firearm possession by an
unlawful user of a controlled substance and by a person who has been
convicted of a misdemeanor crime of domestic violence. Before trial,
DeQuasie moved to suppress the firearm and ammunition on the
ground that those items were seized from his residence in violation of
the Fourth Amendment. The district court agreed and granted the sup-
pression motion, United States v. DeQuasie, 244 F. Supp. 2d 651
(S.D.W. Va. 2003), and the United States now appeals. Because we
find that the good-faith exception to the exclusionary rule set forth in
United States v. Leon, 468 U.S. 897 (1984), makes the evidence
admissible, we reverse the suppression order and remand for further
proceedings.
I
At approximately 5:30 p.m. on March 18, 2002, Shawn Bandy
("Shawn") telephoned Detective-Corporal J.L. Brown of the Fayette
County, West Virginia, Sheriff’s Office and reported that his wife,
Lora Bandy ("Lora"), had been missing for several days.1 Shawn fur-
1
Although Ms. Bandy’s name appears in the record as "Lora" and
"Laura," the district court referred to her as "Lora," and we will do like-
wise.
UNITED STATES v. DEQUASIE 3
ther reported that he had been told by his sister-in-law, Tiffany Mason
("Tiffany"), that Lora was being held against her will at DeQuasie’s
residence, that when Lora would attempt to leave the residence
DeQuasie would give her crack cocaine, and that the effect of the
crack cocaine was to "induce a stupor from which [Lora] was unable
to stay in her right mind." (J.A. 16).
Detective-Corporal Brown relayed this information to his supervi-
sor, Detective-Corporal J.K. Sizemore. Deputy M.A. Webb was then
sent to meet with Shawn and complete a missing person report. Dep-
uty Webb met with, and obtained statements from, Shawn and
Shawn’s mother-in-law, Cynthia Mason ("Cynthia"), and he com-
pleted a missing person report. Shawn and Cynthia told Deputy Webb
that Lora and Tiffany had willingly gone to DeQuasie’s residence, but
DeQuasie was then holding Lora there against her will by using drugs
to keep her in a stupor, the effect of which was to prevent her from
leaving the residence. Shawn and Cynthia also told Deputy Webb that
DeQuasie had threatened to kill any family members who attempted
to get Lora from the residence and that Tiffany had seen a large quan-
tity of drugs and weapons, as well as several scanners, inside the resi-
dence.
Other than the fact that Lora was missing, it appears that all of the
information that Shawn and Cynthia reported was based on what Tif-
fany had told them. Although it is not apparent from the record, the
district court assumed that Tiffany told them this information over the
telephone, see 244 F. Supp. 2d at 652, and the parties do not contend
otherwise. The officers did not speak with Tiffany.2
Sometime during the evening Detective-Corporal Brown drove to
DeQuasie’s residence to obtain a description of the residence for pur-
poses of a search warrant. While there, Detective-Corporal Brown
observed several unidentified people inside the residence, but he did
not approach the residence.
2
The district court stated that "[n]o attempt was made to interview Tif-
fany . . . prior to Detective-Corporal Sizemore’s application for a search
warrant," 244 F. Supp. 2d at 653; however, the record actually appears
to be silent as to whether such an attempt was made.
4 UNITED STATES v. DEQUASIE
Based on this information, Detective-Corporal Sizemore applied to
a magistrate for a warrant to search DeQuasie’s residence for Lora
and Tiffany.3 In his sworn affidavit and application for the warrant,
Detective-Corporal Sizemore detailed (among other things) his expe-
rience and training in law enforcement, the information reported to
Detective-Corporal Brown and Deputy Webb by Shawn and Cynthia,
and Detective-Corporal Brown’s observation of DeQuasie’s resi-
dence. Detective-Corporal Sizemore stated that he believed that Lora
and Tiffany were present at DeQuasie’s residence, that Lora (but not
Tiffany) was being held there against her will, and that "[g]iven the
severity of this situation it appears likely that [Lora’s] life may be in
jeopardy if she continues to stay at this residence." (J.A. 16-17).
Although Detective-Corporal Sizemore had information about drugs
being present and used in DeQuasie’s residence, he did not seek a
warrant to search for drug-related evidence.4
The magistrate issued a warrant for the purpose of searching
DeQuasie’s residence for Lora and Tiffany. At 10:30 p.m., Detective-
Corporal Sizemore and a team of law enforcement officers executed
the search warrant and found Lora and Tiffany, who were unharmed,
at DeQuasie’s residence.5 During this search, Detective-Corporal
Sizemore smelled the "strong odor of marijuana coming from inside"
the residence, and he observed "at the door" of the residence "a small
quantity of green vegetation which appeared to be marijuana." (J.A.
22). In addition, other officers who had patted down DeQuasie dis-
covered two cell phones on him. Based on his observations and the
3
Detective-Corporal Sizemore’s reason for listing Tiffany as a subject
of the warrant does not appear in the record.
4
Detective-Corporal Sizemore also stated in his affidavit that DeQua-
sie is "associated with Giuseppe Wallace," who the United States asserts
in its appellate brief was recently convicted in the Southern District of
West Virginia on charges of drug trafficking. The significance of this
purported association is not readily apparent in the affidavit.
5
It is not clear from the record whether Lora was found inside or out-
side the residence, and the parties’ positions differ on this point. Com-
pare J.A. 37 (United States’ assertion that officers "found Ms. Bandy in
defendant’s residence") with J.A. 64 (DeQuasie’s assertion that Lora met
officers outside the residence). The record is silent on where Tiffany was
found.
UNITED STATES v. DEQUASIE 5
discovery of the two cell phones (which he associated with possible
drug activity), Detective-Corporal Sizemore left officers at DeQua-
sie’s residence and returned to the magistrate’s office and applied for
a second warrant to search the residence for evidence of illegal drug
activity.
In his sworn affidavit and application for this warrant, Detective-
Corporal Sizemore detailed (among other things) his law enforcement
experience and training (including his training and knowledge of ille-
gal drug activities) and his observations of apparent illegal drug activ-
ity during the execution of the first search warrant. Detective-
Corporal Sizemore also referred to statements made by Shawn and
Cynthia to Deputy Webb that Tiffany had told them that "DeQuasie
had approximately $20,000.00 in cash at his residence as well as a
large quantity of drugs including crack cocaine earlier in the day."
(J.A. 22). Detective-Corporal Sizemore noted that while this informa-
tion could not be "judged as to reliability," it, combined with his
observations at DeQuasie’s residence, tended to confirm that DeQua-
sie probably had in his possession a controlled substance. (J.A. 22).
The magistrate issued the second warrant for the purpose of search-
ing DeQuasie’s residence for controlled substances, materials used to
facilitate the use and sale of controlled substances, records pertaining
to the sale of controlled substances, cash and financial information,
and weapons. At 12:05 a.m., Detective-Corporal Sizemore executed
the second warrant. At the beginning of this search, DeQuasie was
advised of his Miranda rights, and he agreed to answer questions.
DeQuasie stated that although he did smoke marijuana, he did not use
cocaine and he did not have any controlled substances in his residence
at that time. DeQuasie also stated that he had previously been con-
victed of domestic battery and that he kept a revolver concealed under
his living room couch. DeQuasie denied having any knowledge of, or
participation in, sales of controlled substances.
The search of DeQuasie’s residence yielded a loaded Smith and
Wesson .32 Long revolver, which was found under the cushion of the
living room couch; ammunition for this revolver; a battery-operated
Pointscale; a stem for a crack pipe; a roach-clip; a plastic bag contain-
ing white powder residue; a section of copper scrub pad (commonly
used to make screens for crack pipes); a package of E-Z Wider rolling
6 UNITED STATES v. DEQUASIE
papers; a cell phone bill in DeQuasie’s name; two cell phones; and
$699 cash, which was concealed under a dresser drawer in DeQua-
sie’s bedroom. After completing the search, Detective-Corporal
Sizemore arrested DeQuasie and charged him with being a prohibited
person in possession of a firearm and with possession of a controlled
substance. A federal grand jury subsequently indicted DeQuasie for
illegal possession of the revolver.
Before trial, DeQuasie moved to suppress the revolver and the
accompanying ammunition. DeQuasie argued that the magistrate
issued the first search warrant without sufficient probable cause
because the officers did not speak with Tiffany or independently ver-
ify statements that Shawn and Cynthia attributed to her; and because
the first search warrant was invalid, the evidence seized during the
second search is "fruit of the poisonous tree" and must be suppressed.
DeQuasie also argued that the evidence is not admissible under the
good-faith exception to the exclusionary rule set forth in United States
v. Leon, 468 U.S. 897 (1984), which provides that suppression of evi-
dence seized pursuant to an invalid search warrant is not appropriate
if the law enforcement officer executing the warrant acted in objec-
tively reasonable good-faith reliance that the warrant as issued by the
judicial officer was valid. The United States argued in response that
the first warrant was supported by probable cause, the second warrant
was therefore properly issued, and consequently, all evidence was
properly seized and admissible. Following oral argument on the
motion, the parties (at the district court’s direction) briefed the poten-
tial applicability of the Leon good-faith exception.
The district court granted the suppression motion and ordered that
all evidence seized during the first and second searches must be
excluded. Considering first the Leon good-faith exception, the district
court concluded that the affidavit for the first warrant is a "bare
bones" affidavit and that a "number of inconsistencies" indicate the
absence of objectively reasonable law enforcement activity; conse-
quently, the district court held that under our decision in United States
v. Wilhelm, 80 F.3d 116 (4th Cir. 1996), the Leon exception does not
apply. 244 F. Supp. 2d at 655-58. The district court then concluded
that because of the "bare bones" nature of the affidavit for the first
warrant, that warrant was issued without probable cause; after noting
that the United States did not argue an independent source for the sec-
UNITED STATES v. DEQUASIE 7
ond warrant, the district court further concluded that the invalidity of
the first warrant compelled exclusion of the fruits of the second war-
rant. Id. at 658-59.
Pursuant to 18 U.S.C. § 3731, the United States has appealed the
district court’s order. The United States argues that the district court
erred with respect to both its probable cause and Leon rulings.
II
Before addressing the merits of the appeal, we must address a pro-
cedural problem created by the United States: that is, its failure to cer-
tify to the district court in a timely manner "that the appeal is not
taken for purpose of delay and that the evidence is a substantial proof
of a fact material in the proceeding." 18 U.S.C. § 3731.6 Section 3731
permits the United States to file an interlocutory appeal from an
adverse suppression ruling (before a defendant has been put in jeop-
ardy and before the verdict or finding on an indictment or informa-
tion) only if it makes that certification to the district court. The
certification requirement of § 3731 operates to ensure that before the
United States interrupts a criminal proceeding (and thereby delays a
defendant from obtaining resolution of the charges against him) by
taking an interlocutory appeal, it has evaluated whether the appeal is
warranted, see United States v. Smith, 263 F.3d 571, 577 (6th Cir.
2001) ("The certification is intended to ensure a ‘conscientious pre-
appeal analysis by the responsible prosecuting official’" (citation
omitted)); United States v. Herman, 544 F.2d 791, 794 (5th Cir. 1977)
("The requirement is not a mere formality; its purpose is to protect the
accused from undue delay"); the certificate itself operates as proof of
the evaluation. See United States v. Juvenile Male No. 1, 86 F.3d
1314, 1326 (4th Cir. 1996) (Wilkinson, J., concurring) (§ 3731 certifi-
6
Although § 3731 does not specify a time limit for the certificate to be
filed, see United States v. Bookhardt, 277 F.3d 558, 562 (D.C. Cir. 2002)
("the statute does not mention a filing deadline for certification at all"),
we have previously assumed that it must be filed within the thirty-day
period in which the United States is permitted to notice an appeal under
this statute. See In re Grand Jury Subpoena, 175 F.3d 332, 337 (4th Cir.
1999).
8 UNITED STATES v. DEQUASIE
cation is an "executive determination" that has been "deemed outside
the scope of judicial review").
This is an issue that was not raised by DeQuasie, and it only
became apparent to us after oral argument. At that time, the United
States had not filed the § 3731 certificate. Because we were aware
that another panel of the Court was in the process of addressing the
same issue in United States v. Hatfield, No. 03-4403 (4th Cir.), a case
which involves the same United States Attorney’s Office that is pur-
suing this appeal, we held this case in abeyance until an opinion was
issued by that panel. Following entry of the Hatfield opinion, see 365
F.3d 332 (4th Cir. 2004), we directed the parties to file supplemental
briefs addressing this issue. In response, the parties have filed their
supplemental briefs, and the United States has filed a § 3731 certifi-
cate in the district court.
A.
In Hatfield, the United States filed a timely appeal from an adverse
suppression ruling, but it did not file the § 3731 certificate until one
week before oral argument, and several months after the appellee had
moved to dismiss the appeal. The United States explained during oral
argument that its failure to file the certificate initially was a "regretful
oversight." 365 F.3d at 337. The appellee contended that the United
States’ failure to file the certificate had prejudiced him because he
was under pretrial release restrictions and because he had to live with
the burden of the impending trial. Id.
The Hatfield panel reaffirmed the settled principle that the certifi-
cation requirement of § 3731 is not jurisdictional, and it noted that
"[i]n the case of a delayed filing, the appellate court may, within its
discretion, hear the case despite the irregularity in the perfection of
the appeal." 365 F.3d at 337.7 The panel then noted that in "weighing
7
The Hatfield panel pointed to Rule 3(a)(2) of the Federal Rules of
Appellate Procedure, which reads: "An appellant’s failure to take any
step other than the timely filing of a notice of appeal does not affect the
validity of the appeal, but it is ground only for the court of appeals to act
as it considers appropriate, including dismissing the appeal." 365 F.3d at
337.
UNITED STATES v. DEQUASIE 9
the equities" appellate courts have utilized several factors to deter-
mine whether an appeal should be permitted to proceed despite the
§ 3731 irregularity: (1) the date the certificate was filed, (2) the rea-
son for the lateness in filing the certificate, (3) whether the United
States engaged in a conscientious pre-appeal analysis, (4) whether the
United States acknowledges the importance of the certification
requirement, (5) any prejudice to the defendant, (6) whether the
appeal concerns issues that require appellate clarification, and (7)
whether the appeal should be heard in the interests of justice. 365
F.3d at 337-38.
The panel then applied these factors to the facts of the case:
Analyzing these factors, although all do not favor the gov-
ernment, we believe the equities of the case favor the United
States. It is not disputed that the government did undertake
the required process to obtain permission from the Solicitor
General to pursue this appeal. The attorney for the govern-
ment also candidly admitted the oversight which led to the
delay in filing the certification. More importantly, the issue
raised on appeal is a novel legal issue and one which will
further delineate the boundaries imposed by the Fourth
Amendment on searches and seizures. Also weighing heav-
ily in favor of entertaining the government’s appeal is the
fact that, unlike other circuits, before today we had not yet
fully explicated the importance of the certification require-
ment, and the grave consequences resulting from the gov-
ernment’s failure to timely file. And finally, whatever
prejudice the defendant suffered from pre-trial release, it
was not substantial enough to outweigh these other factors.
Id. at 338. In light of the foregoing, the panel denied the motion to
dismiss the appeal, but it also took the opportunity "to emphasize the
importance of the certification requirement and to serve notice on the
government that future failures to timely file will not be taken
lightly." Id.
10 UNITED STATES v. DEQUASIE
B.
We have carefully considered the parties’ supplemental briefs and
have weighed the equities of the case, and we now conclude that it
is "appropriate" under Fed. R. App. 3(a)(2) to allow this appeal to
continue despite the procedural irregularity. We note particularly that
DeQuasie does not claim any prejudice resulting directly from the
United States’ failure to certify. See In re Grand Jury Subpoena, 175
F.3d at 337 ("in weighing the equities in this case, we find it disposi-
tive that appellee suffered no prejudice from any delay by appellant
in obtaining a timely certification"); see also Smith, 263 F.3d at 578
("Courts are not likely to dismiss an appeal unless the defendant is
able to show ‘actual substantial prejudice’" (citation omitted)). More-
over, we find that the United States did, in fact, undertake a consid-
ered evaluation of whether it should appeal the district court’s order
before filing this appeal.8 Additionally, (as in Hatfield) this United
States Attorney’s Office has acknowledged its error and, more impor-
tantly, appears now to appreciate the importance of the certification
requirement.9 Finally, because of the importance of the issues
addressed by the district court and the fact that the district court pub-
lished its order, the interests of justice and the need for appellate clari-
fication weigh in favor of us deciding this appeal.10
To be sure, we do not condone the United States’ tardiness in com-
8
The United States has explained in its supplemental brief that before
this appeal was filed, the case was evaluated by the local United States
Attorney’s Office, the Criminal Division of the Department of Justice,
and the Office of the Solicitor General. We note that in a motion to con-
tinue the trial filed by the United States in the district court five days
after the district court’s suppression order, the United States represented
that it "need[ed] additional time wherein to consider filing an appeal of
the Court’s ruling on defendant’s Motion to Suppress Evidence."
9
In what appears to be the only interlocutory appeal filed by this
United States Attorney’s Office since this issue was raised in Hatfield,
the § 3731 certificate appears to have been properly filed. See United
States v. Perez, No. 04-4091 (4th Cir.) (certificate filed in the district
court with the notice of appeal).
10
DeQuasie concedes that the district court’s suppression order is
"fatal" to the United States’ case against him.
UNITED STATES v. DEQUASIE 11
plying with § 3731, and we are particularly troubled by the United
States’ failure to file the certificate promptly after the issue was raised
in Hatfield. We are also mindful of the Hatfield panel’s admonition
that "future failures to timely file will not be taken lightly." 365 F.3d
at 338. However, because this case and Hatfield overlapped time-wise
(the Hatfield notice of appeal was actually filed eight weeks after the
notice of appeal was filed in this case), we do not believe that our
decision to allow this appeal to proceed is inconsistent with Hatfield.11
Having thus decided this preliminary matter, we now proceed to
address the merits of this appeal.
III
The Fourth Amendment guarantees "[t]he right of the people to be
secure in their . . . houses . . . against unreasonable searches and sei-
zures." Under the Fourth Amendment, "except in certain carefully
defined classes of cases, a search of private property without proper
consent is ‘unreasonable’ unless it has been authorized by a valid
search warrant," and "[i]n cases in which the Fourth Amendment
requires that a warrant to search be obtained, ‘probable cause’ is the
standard by which a particular decision to search is tested against the
constitutional mandate of reasonableness." Camara v. Municipal
Court of San Francisco, 387 U.S. 523, 528-29, 534 (1967).12
Probable cause is "a fluid concept — turning on the assessment of
probabilities in particular factual contexts — not readily, or even use-
fully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S.
11
Section 3731 requires the certificate to be filed in the district court.
At least two circuits appear to require that the United States must include
the certificate in the appellate record. See United States v. Becker, 929
F.2d 442, 445 (9th Cir. 1991); Herman, 544 F.2d at 794. While we
decline to specify an absolute rule, we believe the better practice is for
the United States to include the certificate in both the appellate record
and the joint appendix, and also to reference it in its opening brief.
12
The Supreme Court has cautioned that questions of reasonableness
under the Fourth Amendment must be decided on the facts and circum-
stances of each case, and that seldom will one determination be a useful
precedent for another. Ornelas, 517 U.S. at 696, 698.
12 UNITED STATES v. DEQUASIE
213, 232 (1983). It "depends on the totality of the circumstances,"
Maryland v. Pringle, 124 S. Ct. 795, 800 (2003), and exists (in the
context of a search) "where the known facts and circumstances are
sufficient to warrant a man of reasonable prudence in the belief that
contraband or evidence of a crime will be found." Ornelas v. United
States, 517 U.S. 690, 696 (1996). The probable cause standard does
not "require officials to possess an airtight case before taking action.
The pieces of an investigative puzzle will often fail to neatly fit, and
officers must be given leeway to draw reasonable conclusions from
confusing and contradictory information. . . ." Taylor v. Farmer, 13
F.3d 117, 121 (4th Cir. 1993).
It is well settled that probable cause may be founded upon hearsay
and information received from informants. Franks v. Delaware, 438
U.S. 154, 165 (1978). However, there is no bright-line rule as to when
such information may establish probable cause: "Informants’ tips, like
all other clues and evidence coming to a policeman on the scene, may
vary greatly in their value and reliability. One simple rule will not
cover every situation." Adams v. Williams, 407 U.S. 143, 147 (1972);
see also Gates, 462 U.S. at 232 ("Informants’ tips doubtless come in
many shapes and sizes from many different types of persons. . . .
Rigid legal rules are ill-suited to an area of such diversity").13 Gener-
ally, when an effort is made to establish probable cause for the issu-
ance of a search warrant based on hearsay from an informant, "it is
necessary to consider all the circumstances set forth in the affidavit,
including the veracity and basis of knowledge of persons supplying
hearsay information. The degree to which an informant’s story is cor-
roborated may also be an important factor." United States v. Hodge,
354 F.3d 305, 309 (4th Cir. 2004) (citation and internal punctuation
omitted). However, "[t]here is no set requirement that all tips be cor-
roborated by subsequent police investigation in order to be considered
credible. Whether subsequent corroboration is necessary must be
determined in the light of the totality of the circumstances presented
by the particular set of facts." United States v. Blount, 123 F.3d 831,
836 (5th Cir. 1997) (en banc).
13
Adams (as well as some other cases we cite) involves a question of
reasonable suspicion rather than probable cause. We do not suggest that
the reasonable suspicion standard is applicable in this case.
UNITED STATES v. DEQUASIE 13
Although "[t]he Fourth Amendment contains no provision
expressly precluding the use of evidence obtained in violation of its
commands," Leon, 468 U.S. at 906, the Supreme Court adopted the
exclusionary rule "to deter future unlawful police conduct and thereby
effectuate the guarantee of the Fourth Amendment against unreason-
able searches and seizures." United States v. Calandra, 414 U.S. 338,
347 (1974). Generally, the exclusionary rule provides that "evidence
obtained in violation of the Fourth Amendment cannot be used in a
criminal proceeding against the victim of the illegal search and sei-
zure," id., and it "reaches not only primary evidence obtained as a
direct result of an illegal search or seizure, but also evidence later dis-
covered and found to be derivative of an illegality or ‘fruit of the poi-
sonous tree.’" Segura v. United States, 468 U.S. 796, 804 (1984)
(citations omitted).
In Leon, the Supreme Court established the good-faith exception to
the exclusionary rule. Finding that "suppression of evidence obtained
pursuant to a warrant should be ordered only on a case-by-case basis
and only in those unusual cases in which exclusion will further the
purposes of the exclusionary rule," 468 U.S. at 918, the Court held
that "the marginal or nonexistent benefits produced by suppressing
evidence obtained in objectively reasonable reliance on a subse-
quently invalidated search warrant cannot justify the substantial costs
of exclusion." Id. at 922. The Court observed that although searches
authorized by a warrant "will rarely require any deep inquiry into rea-
sonableness, for a warrant issued by a magistrate normally suffices to
establish that a law enforcement officer has acted in good faith in con-
ducting the search . . . it is clear that in some circumstances the officer
will have no reasonable grounds for believing the warrant was prop-
erly issued." Id. at 922-23 (citations and internal punctuation omit-
ted).
The Court identified four circumstances in which the good-faith
exception would not apply: (1) "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;" (2) if "the issuing magistrate wholly aban-
doned his judicial role in the manner condemned in Lo-Ji Sales, Inc.
v. New York, 442 U.S. 319 (1979)";14 (3) if the affidavit supporting
14
In Lo-Ji Sales, a judge accompanied law enforcement officers to an
adult bookstore, inspected materials inside the bookstore, determined
14 UNITED STATES v. DEQUASIE
the warrant is "so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable;" and (4) if under
the circumstances of the case the warrant is "so facially deficient —
i.e., in failing to particularize the place to be searched or the things
to be seized — that the executing officers cannot reasonably presume
it to be valid." Leon, 468 U.S. at 923 (internal punctuation omitted).
IV
Although the evidence that is the primary subject of the suppres-
sion motion — the revolver and ammunition — was seized during the
second search pursuant to the second warrant, the pertinent inquiry
for us involves the first warrant. This is so for two reasons. First,
DeQuasie’s only argument, and the district court’s only basis, for sup-
pressing this evidence is that the invalidity of the first warrant tainted
the second warrant. Second, the United States has not properly argued
that the evidence supporting issuance of the second warrant has a
source that is independent of the first search.15 Therefore, in this pos-
ture, if the first warrant is not supported by probable cause, then the
evidence seized during the second search must be excluded unless the
Leon exception to the exclusionary rule renders this evidence admissi-
ble.
whether each inspected item was obscene, and authorized seizure of
items deemed obscene. The Supreme Court invalidated the search, find-
ing that the judge "did not manifest that neutrality and detachment
demanded of a judicial officer when presented with a warrant application
for a search and seizure" because he "allowed himself to become a mem-
ber, if not the leader, of the search party which was essentially a police
operation." 442 U.S. at 326-27.
15
At oral argument, counsel for the United States (in response to ques-
tioning) asserted for the first time that the second warrant may be inde-
pendently valid because the officers executing the first warrant may have
observed the suspected drug activity (i.e., the odor of marijuana and the
green vegetation) from outside the residence. While there is some evi-
dence in the record that arguably supports this assertion, because of the
United States’ failure to raise this argument below, and the absence of
a factual finding by the district court, we decline to consider it. See
United States v. Moss, 963 F.2d 673, 675-76 (4th Cir. 1992) (declining
to consider newly raised "fact-intensive" Fourth Amendment theory).
UNITED STATES v. DEQUASIE 15
Without deciding whether the first warrant is supported by proba-
ble cause, we will exercise our discretion and proceed directly to con-
sideration of the Leon exception. See Leon, 468 U.S. at 924-25
("courts have considerable discretion in conforming their decision-
making processes to the exigencies of particular cases"). "This is a
less demanding showing than the ‘substantial basis’ threshold
required to prove the existence of probable cause in the first place."
United States v. Bynum, 293 F.3d 192, 195 (4th Cir. 2002). Because
there are no facts in dispute, the applicability of the Leon exception
in this case is purely a legal conclusion, and we review the district
court’s ruling de novo. United States v. Smith, 30 F.3d 568, 571 (4th
Cir. 1994) ("This Court reviews legal conclusions related to search
and seizure issues de novo"). In making this determination, we con-
sider all of the circumstances of the case. Leon, 468 U.S. at 922 n.23.
There is no evidence in the record to suggest that Detective-
Corporal Sizemore "misled" the magistrate by knowingly or reck-
lessly presenting false information, or that the magistrate "wholly
abandoned his judicial role in the manner condemned in Lo-Ji Sales."
Moreover, there is no claim that the first warrant was "so facially
deficient" that the executing officers could not have reasonably pre-
sumed it to be valid. Therefore, the dispositive question is whether (as
the district court found), under all the circumstances, the first affidavit
is "so lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable." We believe that it is not.
A.
The district court grounded its Leon analysis on our decision in
Wilhelm. In that case, a law enforcement officer obtained a search
warrant after an anonymous telephone caller reported having seen
marijuana being sold in the defendant’s house within the previous 48
hours. Despite the fact that the officer did not know the caller’s iden-
tity and did not meet the caller before or after receiving the call, she
stated in her affidavit in support of the warrant that the caller was a
"concerned citizen" and a "mature person with personal connections
with the suspects" who "projected a truthfull [sic] demeanor." The
officer’s only corroborating information was that she had confirmed
directions to the defendant’s house and that the caller’s description of
16 UNITED STATES v. DEQUASIE
the marijuana transactions was consistent with her own knowledge of
marijuana transactions. Wilhelm, 80 F.3d at 117-18.
After finding that the search warrant was issued without probable
cause, we concluded "that the good-faith exception to the exclusion-
ary rule should not apply . . . due to the ‘bare bones’ nature of the
affidavit, and because the state magistrate could not have acted as
other than a ‘rubber stamp’ in approving such an affidavit." Id. at 121.
In doing so, we defined a "bare bones" affidavit as "one that contains
‘wholly conclusory statements, which lack the facts and circum-
stances from which a magistrate can independently determine proba-
ble cause.’" Id. (quoting United States v. Laury, 985 F.2d 1293, 1311
n.23 (5th Cir. 1993)). Accord United States v. Williams, 224 F.3d 530,
533 (6th Cir. 2000) ("a ‘bare bones’ affidavit is similar to, if not the
same as, a conclusory affidavit. It is one which states only the affi-
ant’s belief that probable cause existed") (citation and internal punctu-
ation omitted).16
We explained that the case was "not a case of ‘objectively reason-
able law enforcement activity.’" 80 F.3d at 123. We stated that the
officer "could not reasonably rely on an unknown, unavailable infor-
mant without significant corroboration," and "[b]ecause [the officer]
presented to the magistrate nothing more than this unreasonable reli-
ance, the Supreme Court’s third exception to Leon applies: the affida-
vit . . . did not ‘provide the magistrate with a substantial basis for
determining the existence of probable cause.’" 80 F.3d at 123.17 We
16
In Gates, the Supreme Court noted that a warrant affidavit "must pro-
vide the magistrate with a substantial basis for determining the existence
of probable cause" and must not be "a mere conclusory statement that
gives the magistrate virtually no basis at all for making [such] a judg-
ment." 462 U.S. at 239. The Court then provided two examples of cases
in which it had been presented with "bare bones" affidavits: Nathanson
v. United States, 290 U.S. 41 (1933) (rejecting warrant based on "a mere
affirmation of suspicion and belief without any statement of adequate
supporting facts"), and Aguilar v. Texas, 378 U.S. 108 (1964) (rejecting
warrant where magistrate "necessarily accepted ‘without question’ the
informant’s ‘suspicion,’ ‘belief’ or ‘mere conclusion’"). Gates, 462 U.S.
at 239.
17
We have since recognized that Wilhelm’s "substantial basis" standard
is improper: "‘Substantial basis’ provides the measure for determination
UNITED STATES v. DEQUASIE 17
noted in addition that "[w]hile perhaps not undertaken with deliberate
bad faith, [the officer’s] use of phrases such as ‘concerned citizen,’
‘mature’ and ‘truthful demeanor’ strike this court as attempts to endue
the affidavit with the appearance of genuine substance; this tactic sug-
gests that [the officer] herself knew that probable cause was lacking,
and thus that reliance on the resulting warrant was not reasonable."
Id.18
The district court described this case as being "nearly identical to
the circumstances present in Wilhelm" because "the only information
included in Detective-Corporal Sizemore’s affidavit as to Lora’s
alleged kidnaping, and Mr. DeQuasie’s alleged drug activities, came
from Tiffany," who was unknown to the officers involved and who
had never provided them with information. 244 F. Supp. 2d at 656.
The district court stated that neither the officers nor the magistrate
"had any basis to justify reliance on the statements attributed to Tif-
fany" and that although "corroboration of the information [reported to
the officers] may have been sufficient to save the validity of the
search," the first affidavit "sorely lacks adequate corroboration of
probable cause." Id. at 657. In an apparent analogy to our finding of
"bad faith" on the officer’s part in Wilhelm, the district court also
identified "a number of inconsistencies in Detective-Corporal Sizem-
ore’s statements that indicate the absence of an ‘objectively reason-
able law enforcement activity.’" 244 F. Supp. 2d at 657 (quoting
Wilhelm, 80 F.3d at 116).
of whether probable cause exists in the first instance. If a lack of substan-
tial basis also prevented application of the Leon objective good faith
exception, the exception would be devoid of substance." Bynum, 293
F.3d at 195 (citation omitted). Notably, the district court in Bynum cited
Wilhelm for the "substantial basis" proposition. See 125 F. Supp. 2d 772,
797 (E.D. Va. 2000); see also United States v. Danhauer, 229 F.3d 1002,
1007 n.1 (10th Cir. 2000) ("While one of our sister circuits applies this
language in its good-faith analysis, see United States v. Wilhelm, . . . this
court utilizes the ‘substantial basis’ language solely in the probable cause
context").
18
We stated that "[t]he conclusion that an informant is reliable and
mature based only on brief telephone conversations is dubious" and that
the affidavit did not "disclose any basis for [the officer’s] conclusion that
her tipster was a ‘concerned citizen.’" 80 F.3d at 121.
18 UNITED STATES v. DEQUASIE
As we explain more fully below, the district court’s reliance on
Wilhelm is misplaced for two reasons.19 First, this case does not
involve a "bare bones" affidavit. Second, there is no evidence in this
case of the type of "bad faith" conduct we addressed in Wilhelm. We
address both of these points in order.
B.
The warrant at issue in Wilhelm was supported only by an affidavit
that "depended on information from an unnamed informant, and pro-
vided no indication of that informant’s truthfulness or reliability." 80
F.3d at 120. In contrast, Detective-Corporal Sizemore’s affidavit in
support of the first warrant is markedly different as it is not based on
information from "an unnamed informant," and it does not completely
lack an indication of the informants’ "truthfulness or reliability."
Instead, Detective-Corporal Sizemore specifically identified in his
affidavit the sources of the information provided to law enforcement
(Shawn and Cynthia), he indicated that Deputy Webb had met with
them face-to-face and completed a missing person report, and he
acknowledged that they had received much (but not all) of their infor-
mation from Tiffany. Although the officers did not independently cor-
roborate the information reported by Shawn and Cynthia (to whatever
extent it could have been corroborated), the nature and circumstances
of the report itself provide several indicia of reliability that were
absent in the Wilhelm affidavit.20
19
Unlike Wilhelm, which involved a search of a residence for evidence
of a drug crime, Detective-Corporal Sizemore obtained the first warrant
for the purpose of searching for a missing person. While probable cause
is a necessary predicate to the first search, we believe that the officers’
conduct must be evaluated in the proper context. See State v. Diloreto,
829 A.2d 1123, 1135 (N.J. Super. Ct. App. Div.), certification denied,
837 A.2d 1094 (N.J. 2003) ("The need to investigate a missing person’s
report does not flow from the concern about criminal wrongdoing or
involve the search for evidence of a crime, and the police conduct must
be evaluated in that context").
20
Other than speaking with Tiffany, there was not much the officers
could have done to attempt to corroborate the missing person report. If
the officers had attempted, but failed, to speak with Tiffany (who they
correctly believed to be in DeQuasie’s residence), they would have
UNITED STATES v. DEQUASIE 19
As we stated above, there is no "simple rule" that covers all infor-
mation supplied by informants. However, we have noted that because
an informant who meets face-to-face with an officer provides the offi-
cer with an opportunity to assess his credibility and demeanor and
also exposes himself to accountability for making a false statement,
"courts have had no difficulty distinguishing between cases involving
face-to-face encounters with informants and cases involving anony-
mous tipsters." United States v. Christmas, 222 F.3d 141, 144 (4th
Cir. 2000). Likewise, the Supreme Court has observed that "if an
unquestionably honest citizen comes forward with a report of criminal
activity — which if fabricated would subject him to criminal liability
— . . . rigorous scrutiny of the basis of his knowledge [is] unneces-
sary." Gates, 462 U.S. at 233-34.21 Additionally, we have recognized
that an informant’s personal interest can create "a strong motive to
supply accurate information." United States v. Miller, 925 F.2d 695,
699 (4th Cir. 1991).
expended additional time and would have had no additional information
to support the warrant. That fact aside, we note that although the district
court discounted any significance of the fact that the officers had con-
firmed the presence of people in DeQuasie’s residence on the night in
question, see 244 F. Supp. 2d at 657, it is significant in at least one
respect: had the officers observed the residence and found it to be vacant,
there would not have been a reason to believe that Lora was then being
held against her will inside. While the presence of people in the resi-
dence is a minor, seemingly innocent detail, it nonetheless is not com-
pletely irrelevant. See Gates, 462 U.S. at 243 n.13 ("innocent behavior
frequently will provide the basis for a showing of probable cause").
21
See also Blount, 123 F.3d at 835 ("absent specific reasons for police
to doubt his or her truthfulness, an ordinary citizen, who provides infor-
mation to police at a crime scene or during an ongoing investigation,
may be presumed credible without subsequent corroboration"); Easton v.
City of Boulder, 776 F.2d 1441, 1449 (10th Cir. 1985)("when examining
informant evidence used to support a claim of probable cause for a war-
rant . . . the skepticism and careful scrutiny usually found in cases
involving informants, sometimes anonymous, from the criminal milieu,
is appropriately relaxed if the informant is an identified victim or ordi-
nary citizen witness"). Although in Wilhelm we criticized the magistrate
judge’s comment that "a citizen-informer is presumptively reliable," 80
F.3d at 120, we did so within the specific context of that case, rather than
as a general principle.
20 UNITED STATES v. DEQUASIE
Each of these principles distinguishes this case from Wilhelm.
Unlike the anonymous informant in Wilhelm, Shawn and Cynthia met
face-to-face with Deputy Webb when they reported the information
to him for preparation of the missing person report. In doing so, they
provided Deputy Webb with an opportunity to observe their demea-
nor and assess their credibility, and they also exposed themselves to
potential criminal liability for filing a false report. Moreover, Shawn
and Cynthia (as well as Tiffany) had an obvious personal interest in
Lora’s well-being and a corresponding motive to be truthful, and
there is nothing in the record to suggest that Deputy Webb (or the
other officers) reasonably should have doubted their credibility.22
The affidavit in Wilhelm contained wholly conclusory statements
which lacked the facts and circumstances from which a judicial offi-
cer could have independently determined probable cause. It was truly
a "bare bones" affidavit. For the reasons we have noted, Detective-
Corporal Sizemore’s first affidavit is not. To the extent that the dis-
trict court based its conclusion that the Leon exception is not applica-
ble on this ground, we believe that it erred.
C.
We also believe the district court erred in its analogy to the "bad
faith" circumstances we discussed in Wilhelm. As we noted, the dis-
trict court identified "a number of inconsistencies in Detective-
Corporal Sizemore’s statements that indicate the absence of an
‘objectively reasonable law enforcement activity.’" 244 F. Supp. 2d
at 657 (citation omitted). Actually, the "number of inconsistencies"
the district court identified is two, and we find that these purported
inconsistencies do not support the district court’s conclusion.23
22
Their personal interest stands in stark contrast to many of the poten-
tial interests of informants in drug cases and "other common garden
varieties of crime." See Jaben v. United States, 381 U.S. 214, 224 (1965)
(noting that in a probable cause context the credibility of such informants
"may often be suspect").
23
The district court noted a third "significant inconsistency" that it con-
sidered not to be pertinent because it related to the second warrant:
despite Detective-Corporal Sizemore’s observation of green vegetation
that appeared to be marijuana, no green vegetation was seized during the
second search. 244 F. Supp. 2d at 657 n.2. While we agree that it is not
pertinent to our inquiry, we reject in any event the district court’s conclu-
sion that this fact is necessarily an "inconsistency."
UNITED STATES v. DEQUASIE 21
First, the district court found Detective-Corporal Sizemore’s state-
ment that Lora’s "life may be in jeopardy if she continues to stay at
[DeQuasie’s] residence" to be inconsistent with the fact that officers
did not "take[ ] action" such as knock on the door and ask to speak
with Lora or inquire about her whereabouts when they observed the
residence prior to seeking the warrant. Id. While the officers could
have taken this step before seeking the warrant, the fact that they did
not does not necessarily make Detective-Corporal Sizemore’s state-
ment "inconsistent."
Based on the information presented to the officers, an objective law
enforcement officer very reasonably could have believed, and the dis-
trict court did not find otherwise, that although Lora’s life or well-
being may have been in jeopardy if she continued to stay at DeQua-
sie’s residence, the prudent course was to seek the warrant. While it
is certainly possible that an inquiry to DeQuasie by officers prior to
obtaining the warrant may have resolved this matter, it is equally pos-
sible — and not unreasonable for the officers to have believed — that
such an inquiry may have not only proven to be fruitless, but also may
have increased the danger to Lora or to themselves.24 Especially in
view of the fact that the officers obtained and executed the first war-
rant within a relatively short period of time (five hours) following
Shawn’s original report, we find the district court’s conclusion to be
without foundation.
24
We have noted in the related context of a qualified immunity claim:
There are, of course, many instances where pre-arrest interviews
serve to confirm or dispel suspicion and where properly con-
ducted conversations with suspects will prove an invaluable
investigatory tool. There are also numerous reasons why a rea-
sonable police officer might choose not to interview a suspect
prior to arrest. For example, an officer might legitimately fear
that questioning may alert a suspect that he is a target of an
investigation, enabling him to destroy evidence or flee the juris-
diction before police have established probable cause for his
arrest. The decision of whether or not to interview is inescapably
discretionary. . . .
Torchinsky v. Siwinski, 942 F.2d 257, 263-64 (4th Cir. 1991).
22 UNITED STATES v. DEQUASIE
The second purported "inconsistency" on the part of Detective-
Corporal Sizemore is more attenuated as it actually relates to a state-
ment made by government counsel in the district court proceedings
that is contrary to the evidence in the record. Noting that Tiffany was
a subject of the first warrant and that government counsel had
asserted before the district court that a possible reason Tiffany was
not interviewed prior to the issuance of the warrant was because she
was at DeQuasie’s residence, the district court pointed to a passage
from the United States’ district court legal memorandum that reads
"‘detectives learned that Lora Bandy and Tiffany Mason went to
defendant’s residence, but that only Ms. Mason returned.’" 244 F.
Supp. 2d at 657 (citation omitted) (emphasis added by district court).
The district court apparently considered this passage of the United
States’ legal argument to mean that Tiffany had returned from
DeQuasie’s residence and, consequently, could not be at the residence
at any time thereafter. Thus, under the district court’s view, this state-
ment by counsel demonstrates that Detective-Corporal Sizemore
could not have reasonably believed that Tiffany was actually at
DeQuasie’s residence when he obtained the first warrant.
Notwithstanding counsel’s statement that Tiffany had "returned"
from DeQuasie’s residence, there is no evidence in the record that
Tiffany ever left the residence.25 Indeed, the record on this point actu-
ally shows that Lora and Tiffany had gone to DeQuasie’s residence
and that Tiffany had "contacted" Shawn and Cynthia (presumably by
telephone) and told them about the situation. There is nothing in the
record to establish that Tiffany was anywhere other than at DeQua-
sie’s residence, and as the events played out that evening, Tiffany was
in fact at the residence when the officers executed the first warrant.
We therefore believe that it certainly was not unreasonable for
Detective-Corporal Sizemore to have believed that Tiffany was at the
residence when he sought the warrant.
In any event, were we to consider counsel’s statement that Tiffany
"returned" from DeQuasie’s residence as being supported by the facts
of this case, we do not find that it creates an inconsistency with the
officers’ belief that Tiffany was in DeQuasie’s residence that night.
25
Counsel for the United States stated at oral argument that he had mis-
takenly made this assertion.
UNITED STATES v. DEQUASIE 23
Even if Tiffany had actually "returned" from DeQuasie’s residence at
some point in time, this simply does not establish that she could not,
or did not, go back to the residence that night.26 Indeed, because Tif-
fany was at DeQuasie’s residence when the first warrant was exe-
cuted, she obviously must have gone back there (if, in fact, she had
ever left).
D.
The officers in this case were presented with specific information
from Shawn and Cynthia that Lora was missing and being held
26
Despite finding these purported "inconsistencies," the district court
did not make a factual finding that the officers obtained and executed the
first warrant for any purpose other than to locate Lora and Tiffany or that
they misstated evidence in order to obtain the second warrant. Indeed,
there is no evidence in this record to support such a finding. Yet, that is
precisely the theory advanced by DeQuasie:
We would argue that the most reasonable chain of events was an
officer who heard second or third-hand of a residence which con-
tained a large quantity of drugs, $20,000.00 in cash, many weap-
ons and scanners, and that these reports excited him to the point
that he failed to verify the claims on the chance that the witness
would recant. The officer then went to a Magistrate who he
worked with a lot and obtained a warrant for the alleged captive
despite the lack of support for the claims. When he reached the
residence only to find the object of the first warrant outside and
in no distress, he stretched a bit to obtain a second warrant to get
to his true object, the non-existent drugs and money.
Brief of Appellee, at 14. DeQuasie made similar assertions before the dis-
trict court. See J.A. 64 ("[I]t would appear that the officers may have
been more excited by the possibility that they might find ‘lots of drugs
and money,’ then [sic] their alleged concern for Ms. Bandy"); J.A. 28
("In executing the first Warrant and having been presented with evidence
that Lora Bandy was not being held against her will as alleged, Officer
Sizemore allegedly detected the infamous [odor] of burning marijuana
which he used as a basis of a second Warrant supported by the fact that
the defendant had two cell phones, the mark of a drug dealer"). DeQuasie
also suggests, without evidentiary support, that Shawn fabricated the
information he reported. See Brief of Appellee, at 9 (Shawn’s statement
is "pure hearsay with a possible alternative motive").
24 UNITED STATES v. DEQUASIE
against her will by DeQuasie in his residence, and that DeQuasie had
threatened to kill any family member who attempted to rescue her.
This information was reported in a face-to-face meeting with Deputy
Webb, and it led to his preparation of a missing person report. No rea-
son appears in the record to suggest that the officers had any reason
to doubt the credibility of these family members.
The officers confirmed that there were people in DeQuasie’s resi-
dence, but they did not attempt to conduct a warrantless entry.
Instead, Detective-Corporal Sizemore presented the information the
officers had gathered to a magistrate in order for the magistrate to
make a probable cause determination and issue a warrant. Detective-
Corporal Sizemore set forth the source of the information (including
an acknowledgment of Tiffany as a source), the fact that Deputy
Webb had met face-to-face with the family members, and the factual
circumstances underlying Lora’s alleged captivity. He also stated
under oath that he believed that Lora’s life "may be in jeopardy if she
continues to stay at this residence." Despite having information about
drug activity at the residence, Detective-Corporal Sizemore did not
seek authorization to search for anything other than Lora and Tiffany.
The magistrate authorized the officers to conduct a limited search at
DeQuasie’s residence, and there is no evidence to suggest that they
exceeded the scope of the search.27
Reasonable minds may differ on whether the officers could have
done more investigative work before seeking the first warrant and,
perhaps, whether the first affidavit was sufficient to establish probable
cause for the search. We need not answer either of those questions
today. The issue before us is whether, under all of the specific circum-
stances of this case, a reasonably well-trained officer would have
known that the search for Lora and Tiffany was illegal despite the fact
that the magistrate issued the warrant for that search. This requires us
27
In seeking the second warrant, Detective-Corporal Sizemore stated
that information attributed to Tiffany concerning the presence of "a large
quantity of drugs" and cash in DeQuasie’s residence "cannot be judged
as to reliability." (J.A. 22). Although this candid admission (about a mat-
ter separate from Lora’s well-being) relates to the second warrant, it
demonstrates that Detective-Corporal Sizemore acted forthrightly in
seeking that warrant.
UNITED STATES v. DEQUASIE 25
to determine whether Detective-Corporal Sizemore’s first affidavit is
so lacking in indicia of probable cause as to render official belief in
its existence entirely unreasonable. For all of the reasons we have set
forth above, we conclude that it is not. Therefore, "application of the
extreme sanction of exclusion is inappropriate." Leon, 468 U.S. at
926.
V
Based on the foregoing, we reverse the suppression order and
remand this case to the district court for further proceedings.
REVERSED AND REMANDED
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
With respect, I dissent. Because the Government inexcusably
delayed filing the certification necessary for its interlocutory appeal
in this criminal case, I would dismiss the appeal.
Government appeals in criminal cases have long been regarded as
"something unusual, exceptional, [and] not favored." Carroll v.
United States, 354 U.S. 394, 400 (1957). However, in 18 U.S.C.
§ 3731 (2000), Congress has provided the United States with the right
to file an interlocutory appeal of an order suppressing evidence in a
criminal case "if the United States attorney certifies to the district
court that the appeal is not taken for purpose of delay and that the evi-
dence is a substantial proof of a fact material in the proceeding." Id.
(emphasis added). Here, the Government expressly relied on § 3731
to establish jurisdiction in this court, but failed to comply with that
statute’s clear directive. Not only did the Government fail to file the
requisite § 3731 certification prior to, or concurrent with, its notice of
appeal, but it failed to file the certification for more than a year after-
wards, in the meantime ignoring notice from this court that certifica-
tions must be timely filed. Indeed, the Government waited fourteen
months after filing its notice of appeal to finally comply with the stat-
ute. It did so then only after this court intervened, ordering the parties
to file supplemental briefs on the effect of the Government’s failure
to file the certification.
26 UNITED STATES v. DEQUASIE
The Government’s failure to file a § 3731 certification unquestion-
ably constitutes an irregularity in perfecting an appeal, giving an
appellate court discretion to take any appropriate action. United States
v. Hatfield, 365 F.3d 332, 337 (4th Cir. 2004); see also Fed. R. App.
P. 3(a)(2). Although not a defect depriving an appellate court of juris-
diction, id., noncompliance with § 3731 is viewed with disfavor.
Accordingly, courts have readily dismissed appeals in which the Gov-
ernment has failed to file a prompt certification with the district court.
See, e.g., United States v. Salisbury, 158 F.3d 1204, 1207 (11th Cir.
1998); United States v. Carrillo-Bernal, 58 F.3d 1490, 1493-97 (10th
Cir. 1995); United States v. Hanks, 24 F.3d 1235, 1238 (10th Cir.
1994); United States v. Miller, 952 F.2d 866, 875-76 (5th Cir. 1992).
We recently considered precisely the same late certification issue,
in a case arising from the same United States Attorney’s Office. Hat-
field, 365 F.3d at 337-38. After weighing the equities in Hatfield, we
concluded that the "novel legal issue" presented and the fact that we
had never before "fully explicated the importance of the certification
requirement, and the grave consequences resulting from the
[G]overnment’s failure to timely file," weighed in favor of hearing the
case despite the untimely filing. Id. at 338. However, we unequivo-
cally warned the Government that "future failures to timely file will
not be taken lightly." Id. Despite this admonition, the majority, while
claiming that it does not "condone the United States’ tardiness in
complying with § 3731," ante at 10-11, nevertheless deems it "appro-
priate" to consider the merits of this appeal. Id. at 10-11. Because the
equities in the case at hand favor dismissal, and because words unac-
companied by any meaningful consequences become empty rhetoric,
I must respectfully dissent.
The strongest factor weighing in favor of dismissal is, of course,
the extraordinary and inexcusable lapse of time between the filing of
the notice of appeal and the filing of the certification. The district
court granted DeQuasie’s suppression motion on February 20, 2003,
and the Government noted an appeal of that order on March 19, 2003;
yet, the Government did not file its certification with the district court
until May 4, 2004. Our sister circuits have dismissed appeals when
the Government’s delay was considerably less egregious. See, e.g.,
Salisbury, 158 F.3d at 1207 (certification filed one month after notice
of appeal); Carrillo-Bernal, 58 F.3d at 1491-92 (filed notice of appeal
UNITED STATES v. DEQUASIE 27
on July 19, 1994, and filed certification on August 26, 1994); Hanks,
24 F.3d at 1237 (certification filed two and one-half months after
notice of appeal).
Moreover, in the case at hand, unlike those cases, the record
reveals that the Government had specific actual notice of the certifica-
tion requirement for nearly a year before it finally filed the certificate.
Indeed, during the relevant fourteen-month period in which the Gov-
ernment never made an effort to file its § 3731 certification, it
received express notification of that requirement on numerous occa-
sions. First, in July 2003, ten months before the Government filed the
certification in this case, the defendant in Hatfield (a case, as I noted
above, from the same United States Attorney’s Office) moved to dis-
miss his appeal because of the Government’s failure to file a § 3731
certification in that case. 365 F.3d at 337. Then, in early January
2004, this court issued a supplemental briefing order in Hatfield, spe-
cifically alerting the Government to the consequences of its failure to
file § 3731 certifications. And, in late January, during oral argument
in Hatfield, we yet again drew the Government’s attention to the certi-
fication requirement. Further, the Hatfield opinion, which issued on
April 23, 2004, discussed § 3731 certifications and, as detailed above,
warned the Government of the consequences of its failure to file certi-
fications in the future.
Despite these repeated notifications and admonitions, and the Gov-
ernment’s earnest assurances to us that it recognized the importance
of the certification requirement, the Government still neglected to file
the requisite § 3731 certification in the case at hand. It was only after
we ordered the Government to submit a supplemental brief on the
issue of the lack of a § 3731 certification in this case, that the Govern-
ment finally complied with the requirements of that statute. Even
then, it took the Government more than a week to do so.
The Government does not dispute this chronology. Moreover, it
candidly admits the reason for its inordinate delay: prior to July 2003,
this particular United States Attorney’s office was simply unaware
that any certification requirement existed. I am not sure such institu-
tional oversight can ever qualify as a valid excuse for the total failure
to comply with § 3731. See Salisbury, 158 F.3d at 1207 ("Simple neg-
ligence . . . cannot excuse noncompliance with the express mandate
28 UNITED STATES v. DEQUASIE
of the statute"); see also United States v. Smith, 263 F.3d 571, 578
(6th Cir. 2001) (same). But even if such institutional errors could
excuse the Government’s failure prior to July 2003 — when the Gov-
ernment acknowledges the Hatfield case put it on actual notice as to
this requirement — surely it cannot explain the Government’s contin-
ued failure to file the certificate during the subsequent ten-month
period.
Not only is the governmental delay in filing the certificate here a
good deal longer than that involved in Hatfield, and in the face of
actual notice of the certification requirement not present in Hatfield,
but also this appeal, unlike Hatfield, utterly fails to present "a novel
legal issue." Hatfield, 365 F.3d at 337-38. In Hatfield, we addressed
an important question involving application of the "knock and
announce" rule that needed appellate clarification. Id. at 338-41. Con-
versely, the appeal at hand merely requires application of well-
established principles as to the validity of a warrant and the good faith
exception to the facts of this case. In this fact-bound area of the law,
"[n]o single case such as this one can make any material incremental
contribution to the law of suppression." Carrillo-Bernal, 58 F.3d at
1496.
Nonetheless, the Government contends that we should ignore its
delay and hear the present appeal because DeQuasie suffered no prej-
udice since he was "released from incarceration without objection by
the United States, and the appeal proceeded in a normal fashion." But,
in this context, we cannot possibly define prejudice in such a narrow
fashion. Otherwise, the prejudice factor would almost always weigh
in the Government’s favor, and the Government would be permitted
to ignore the certification requirement with impunity. Cf. Hanks, 24
F.3d at 1238 n.1 (explaining that the certification "requirement would
lose meaning if we excuse late performance on the ground that harm
is incurable at that point"). Moreover, although DeQuasie may not
have been imprisoned during the pendency of his appeal, his liberty
was significantly restricted: DeQuasie was subject to home confine-
ment for seven months after the Government filed its notice of appeal,
and although he is no longer subject to home confinement or elec-
tronic monitoring, he still must comply with other conditions of bond.
Salisbury, 158 F.3d at 1207 ("[P]re-trial release is still a deprivation
UNITED STATES v. DEQUASIE 29
of liberty and the burden of an impending trial weighs heavy on the
mind of the accused."); Hanks, 24 F.3d at 1238.
Further, despite the Government’s current assurances that it has
revised its internal procedures to comply with the certification
requirement, the efficacy of the Government’s new procedures is sub-
ject to debate. After all, back in January, the Government also assured
us that the "internal procedural flaw had been corrected," yet we find
ourselves in the same posture once again. But even if I were to credit
fully the Government’s representations, dismissal would still be war-
ranted because freely crediting such "[p]ost hoc certification[s] . . .
[would] reduce[ ] the § 3731 requirement to a meaningless formality."
Hanks, 24 F.3d at 1239.
The certification requirement serves an important purpose — it
"forces the prosecutor to represent that she [or he] has, in fact, thor-
oughly and conscientiously considered the decision to appeal" prior
to filing the appeal. Salisbury, 158 F.3d at 1207. This purpose is
soundly defeated by the "perfunctory filing of the certificate after the
appeal has been docketed[,] briefed," and argued to this court. Miller,
952 F.2d at 875. For the certification requirement to have any real
meaning, we must be willing to go beyond hollow admonitions and
hold the Government to its statutory obligation. In Hatfield, we
expressly put the Government on notice that we intended to vigor-
ously enforce the certification requirement. This is the appropriate
time to breathe life into our warning and dismiss the Government’s
appeal.
In closing, I want to make it clear that I do not question the integ-
rity or ability of the United States Attorney’s Office, or the particular
prosecutor, involved in this case. Both have performed admirably in
other instances. But in this case the Government inexcusably erred in
failing to act in a timely manner. When a defendant errs in this way
— for example, in failing to timely raise a suppression claim — we
do not hesitate to impose on him the consequences of that error. See,
e.g., United States v. Ruhe, 191 F.3d 376, 385-87 (4th Cir. 1999).
Simple justice requires us to treat the Government in the same fash-
ion.