United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 97-1428
United States of America, *
*
Appellee, *
* Appeal from the United
States
v. * District Court for the
* Southern District of Iowa.
Salvadore Ramon Sulanke, *
* NOT FOR PUBLICATION
Appellant.
*
Submitted: June 12, 1997
Filed: July 28, 1997
Before MURPHY, HEANEY and NORRIS,1 Circuit Judges.
NORRIS, Circuit Judge.
Salvadore Sulanke appeals his convictions for one
count of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g), and one count of
knowingly possessing a firearm that was not registered in
the National Firearms Registry in violation of 26 U.S.C.
§ 5861(d). Sulanke argues that the District Court erred
in failing
1
The Honorable William A. Norris, United States Circuit Judge for the Ninth
Circuit, sitting by designation.
to suppress evidence that was seized pursuant to a search
warrant that was not supported by probable cause. We
affirm.
Two search warrants were issued on the day Sulanke
was arrested. The first warrant authorized a search of
the warehouse at 108 Main Street for stolen property.
The second warrant, obtained based on observations made
by law enforcement officers while executing the first
warrant, authorized a further search for firearms. This
subsequent search revealed the shotgun that formed the
basis of Sulanke’s convictions. Sulanke attacks the
legality of the first warrant and argues that the shotgun
should have been suppressed as “fruit of the poisonous
tree.”
Deputy Wilkens arrested Sulanke in the vicinity of
the Thiessen farm while responding to a report of a
burglary in progress there. Wilkens may well have had
probable cause to believe that Sulanke was involved in
that burglary. However, the question is whether there
was probable cause to believe that Sulanke was involved
in the prior October 13, 1993 burglary at the Thiessen
farm and, further, that Sulanke was storing the fruits of
that burglary at the 108 Main Street warehouse.
In his affidavit, Wilkens swore that he found Sulanke
near the Thiessen farm shortly after the second burglary
was reported, and that Sulanke matched the description of
the suspect in that burglary. However, Sulanke’s
presence near the farm around the time of the second
burglary is not probative of his involvement in the prior
burglary. A search of Sulanke’s car revealed gloves, a
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flashlight, tools, and various car parts. Tools and car
parts had been reported stolen in the prior burglary.
However, there was no indication that the tools and car
parts in Sulanke’s car had been stolen from the Thiessen
farm during the prior burglary. Wilkens further swore
that he suspected Sulanke had lied about entering the
Thiessen machine shed, and that the same shed had been
entered by the perpetrator of the prior burglary.
Finally, Wilkens’ affidavit reflected his knowledge that
Sulanke had an extensive criminal history,
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including convictions for burglary and receiving stolen
property, and that Sulanke was not forthcoming about the
fact that he resided in the 108 Main Street warehouse.
It is questionable whether these facts established
probable cause to believe that Sulanke was storing the
fruits of the 1993 burglary in his residence at 108 Main
Street. We need not resolve that issue, however, because
the exclusionary rule does not apply if the facts
supported an objectively reasonable, good-faith belief in
the officers that they had probable cause. United States
v. Leon, 468 U.S. 897 (1984). Suppression is
inappropriate unless the affidavit was “so lacking in
probable cause as to render official belief in its
existence entirely unreasonable.” Id. at 923. The court
below held that the officers’ belief that they had
probable cause was not “entirely unreasonable.”
Reviewing that decision de novo, see United States v.
Rugh, 968 F.2d 750, 753 (8th Cir. 1992), we agree with
the District Court that there were sufficient indicia of
probable cause in the affidavit to satisfy Leon.
The judgment of the District Court is AFFIRMED.
HEANEY, Circuit Judge, dissenting.
I respectfully dissent. Clearly there were
insufficient facts to establish probable cause to believe
that Sulanke was storing the fruits of the 1993 robbery
in his residence at 108 Main Street; thus, I agree with
the majority on that score.
My difference is with their conclusion that Deputy
4
Wilken’s affidavit, given more than four months after the
1993 robbery reflects an objective reasonable good faith
belief that he had probable cause to search defendant’s
home. It must be remembered that Deputy Wilkens prepared
the affidavit, presented it to the magistrate, and then
undertook the search. Objective reasonable good faith is
difficult to assert under those circumstances. The only
evidence before the district court that Deputy
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Wilkens acted in good faith was his own testimony to such
belief.
The majority also implied that Burt Tecklenburg, the
officer that accompanied Wilkens to make the search,
acted in good faith. There is no evidence in this
record, however, to support Tecklenburg’s good faith; he
simply was with Wilkens when the warrant was executed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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