[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12581 December 21, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00243-CR-UWC-HGD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES WINFORD MCCLURE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(December 21, 2005)
Before ANDERSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
James Winford McClure appeals his convictions for possession with intent to
distribute methamphetamine, 21 U.S.C. § 841(a)(1), and for being a convicted
felon in possession of a firearm, 18 U.S.C. § 922(g). McClure asserts the district
court erred by denying his motion to suppress evidence seized pursuant to a search
warrant he believes lacked probable cause and any indicia of reliability. The
district court did not err, and we affirm.
I. BACKGROUND
“A district court’s ruling on a motion to suppress presents a mixed question
of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999).
We review the district court’s findings of fact under the clearly erroneous standard,
and the district court’s application of the law to those facts de novo. Id. “[A]ll
facts are construed in the light most favorable to the prevailing party.” United
States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000). “The individual
challenging the search has the burdens of proof and persuasion.” United States v.
Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998).
A. Probable Cause in the Affidavit for Search Warrant
The Fourth Amendment provides the right to be free of unreasonable
searches and seizures, and mandates “no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation.” U.S. Const. amend. IV. “Probable cause
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to support a search warrant exists when the totality of the circumstances allow a
conclusion that there is a fair probability of finding contraband or evidence at a
particular location.” United States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir.
1999) (citation omitted). Furthermore, probable cause “is a fluid concept—turning
on the assessment of probabilities in particular factual contexts.” Id. (quotation and
citation omitted). We afford “great deference” to a trial court’s determination of
probable cause. Id.
As we have noted:
Under the Gates1 totality of the circumstances test, the ‘veracity’ and
‘basis of knowledge’ prongs . . . for assessing the usefulness of an
informant’s tips, are not independent. ‘[T]hey are better understood
as relevant considerations in the totality of the circumstances analysis
that traditionally has guided probable cause determinations: a
deficiency in one may be compensated for . . . by a strong showing as
to the other[.]’
Id. at 1352–53. At the outer limits of probable cause determinations, we have held
in addition to independently corroborating an informant’s facts, creating
circumstances where the informant is unlikely to lie can also corroborate the
informant’s tip. See United States v. Foree, 43 F.3d 1572, 1576–77 (11th Cir.
1995) (upholding search warrant where there was a substantial basis for the
magistrate’s finding of probable cause, especially in light of the fact “the CI was
1
Illinois v. Gates, 103 S. Ct. 2317 (1983).
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unlikely to be untruthful, for, if the warrant issued, lies would likely be discovered
in short order and favors falsely curried would dissipate rapidly.”).
Here, the affidavit for the search warrant does not explicitly state any
grounds for believing Informant Henley’s information was reliable, or the
circumstances through which Henley made his disclosure to police. Officer Creel
testified he may have told the issuing judge of the circumstances surrounding
Henley’s disclosure, and, in fact, was “pretty sure” he had. However, it is unclear
that he did, and the affidavit is devoid of any corroborative evidence showing
Henley was unlikely to lie. Thus, to the extent the magistrate was unaware of the
circumstances surrounding Henley’s disclosure of information, it is arguable the
failure to include some indicia of reliability to back Henley’s statements rendered it
insufficient for a probable cause determination, although Henley’s basis for
knowledge does appear to have been firsthand. Even assuming the magistrate
should not have issued the warrant without some indicia of reliability in spite of
the specific and detailed descriptions and Henley’s firsthand knowledge, the
evidence seized is not subject to exclusion as explained below.
B. The Leon Good Faith Exception
“Evidence seized as the result of an illegal search may not be used by the
government in a subsequent criminal prosecution.” United States v. Martin, 297
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F.3d 1308, 1312 (11th Cir. 2002). “The exclusionary rule, as it is known, is ‘a
judicially created remedy designed to safeguard Fourth Amendment rights
generally through its deterrent effect.’” Id. (citation omitted). One exception to the
exclusionary rule is the good faith exception set forth by the Supreme Court in
United States v. Leon, 104 S. Ct. 3405 (1984). Martin, 297 F.3d at 1308.
The Leon exception “stands for the principle that courts generally should not
render inadmissible evidence obtained by police officers acting in reasonable
reliance upon a search warrant that is ultimately found to be unsupported by
probable cause.” Martin, 297 F.3d at 1313. Moreover, we have held we “can look
beyond the four corners of the affidavit and search warrant to determine whether
[the officer] reasonably relied upon the warrant.” Id. at 1318. The Leon exception
applies in all but four circumstances, one of which, as relied upon by McClure,2 is
“where the affidavit supporting the warrant is ‘so lacking in indicia of probable
cause as to render official belief in its existence entirely unreasonable.’” Id. at 1313
(citation omitted). However, “[t]he Leon good faith exception requires suppression
‘only if the officers were dishonest or reckless in preparing their affidavit or could
not have harbored an objectively reasonable belief in the existence of probable
cause.’” Id. (citation omitted). “The purpose of the exclusionary rule is to deter
2
McClure does not argue any of the other three possible exceptions to the Leon rule
apply.
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unlawful police misconduct; therefore, when officers engage in ‘objectively
reasonable law enforcement activity’ and have acted in good faith when obtaining
a search warrant from a judge or magistrate, the Leon good faith exception
applies.” Id.
Going outside the four corners of the affidavit and warrant, Officer Creel
was not dishonest or reckless in his affidavit for procuring a search warrant, and
his belief that probable cause existed was objectively reasonable. See id. at 1318
(holding the court could go outside the four corners of the affidavit and warrant
when determining if the officer reasonably relied on the warrant). First, Creel’s
belief that Henley was unlikely to lie was not unreasonable as the favor Henley
sought by disclosing information to Creel was likely to dissipate rapidly (and
would have) if the information turned out to be false. See Foree, 43 F.3d at
1576–77. Second, Henley’s descriptions were specific and based on firsthand
knowledge and personal observation of drugs, cash, and guns located in McClure’s
residence. Creel’s affidavit explicitly listed dates on which Henley visited
McClure’s residence, and Henley provided Creel with detailed instructions about
where to look for the drugs once inside McClure’s residence. In short, McClure
and his residence were linked in time and place to criminal activity, and, therefore,
whatever deficiencies admittedly plagued Creel’s affidavit, his belief probable
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cause existed was not objectively unreasonable, and he was at most neglectful, but
not dishonest or reckless when he submitted his affidavit to the issuing judge.
While the affidavit may have suffered from some deficiencies, it was not
entirely unreasonable for Creel to believe his affidavit supported a finding of
probable cause, as it tied the defendant to the residence and the criminal activity
with specific dates, and, therefore, sufficient information was contained within to
conclude that a fair probability existed that seizable evidence would be found in
the place to be searched. See Martin, 297 F.3d at 1315 (“despite its deficiencies as
to the specific dates and times and exact links to [the defendant], we find that it
was not entirely unreasonable for [the officer] to believe that what he wrote in the
affidavit would be sufficient to support a finding of probable cause. The affidavit
contained sufficient indicia of probable cause to enable a reasonable officer to
execute the warrant thinking it valid.”); see also Gates, 103 S. Ct. at 2330–31
(recognizing affidavits “are normally drafted by nonlawyers in the midst and haste
of a criminal investigation. Technical requirements of elaborate specificity once
exacted under common law pleading have no proper place in this area.”). Thus, the
affidavit had more than an indicia of probable cause and it was not unreasonable
for Creel to rely on the warrant.
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II. CONCLUSION
While Creel’s affidavit may have been deficient by failing to note the
circumstances providing an indicia of reliability to Henley’s information providing
grounds for probable cause, Creel was not dishonest or reckless, and his belief
probable cause existed was not so objectively unreasonable as to warrant exclusion
of the seized evidence in light of Leon’s good faith exception. The district court
did not err in denying the motion to suppress.
AFFIRMED.
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