NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 2 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30128
Plaintiff-Appellee, D.C. No.
3:16-cr-00052-TMB-1
v.
JOHN LESUEUR, JR., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Argued and Submitted June 13, 2018
Anchorage, Alaska
Before: THOMAS, CALLAHAN, and BEA, Circuit Judges.
After the district court denied Appellant John Lesueur, Jr.’s motion to
suppress evidence found at his home following a warrantless police entry, Lesueur
pleaded guilty to a single count of being a felon in possession of a firearm. He
now challenges the denial of his motion to suppress and argues that the
subsequently obtained warrant was not supported by probable cause. Because we
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
agree with the district court that the state magistrate did not clearly err in issuing
the search warrant, we affirm.1 See United States v. Grant, 682 F.3d 827, 832 (9th
Cir. 2012) (reviewing for clear error decision to issue search warrant and giving
“great deference” to an issuing judge’s probable cause finding).
Even assuming, without deciding, that the warrantless entry violated the
Fourth Amendment, we are unpersuaded by Lesueur’s argument that the
subsequently obtained warrant lacked probable cause because it contained certain
facts discovered during the allegedly illegal entry. “The mere inclusion of tainted
evidence in an affidavit does not, by itself, taint the warrant or the evidence seized
pursuant to the warrant.” United States v. Vasey, 834 F.2d 782, 788 (9th Cir.
1987). Rather, “[a] reviewing court should excise the tainted evidence and
determine whether the remaining, untainted evidence would provide a neutral
magistrate with probable cause to issue a warrant.” Id. “An affidavit in support of
a search warrant demonstrates probable cause if, under the totality of the
circumstances, it reveals a fair probability that contraband or evidence of a crime
will be found in a particular place.” United States v. Celestine, 324 F.3d 1095,
1102 (9th Cir. 2003) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)).
Here, the affidavit supporting the search warrant contained only two facts
1
Because the parties are familiar with the facts and procedural history of this
case, we do not recount them here.
2
discovered as a result of the warrantless entry: (1) that Lesueur “appeared from the
bedroom area” after officers entered the home; and (2) that an officer “observed
the victim’s cell phone, a handgun and a DVR/camera system in the residence.”
As the district court observed, striking these two portions of the supporting
affidavit does not negate the state magistrate’s determination that the existence of
firearms in the home was fairly probable. Remaining portions of the affidavit gave
the following details, none of which were discovered as a result of the illegal entry:
(1) on the day of the illegal entry, a third party reported to police that Lesueur’s
wife (“E.L.”) was being held against her will by Lesueur; (2) after police
interviewed E.L., she stated that Lesueur had used a pistol to force her to perform
sex acts on him, at several times placing a gun to her head; and (3) E.L. told police
that she purchased a .40 caliber pistol for Lesueur at his request because his felony
conviction prevented him from purchasing one himself. These facts alone were
enough to support the state magistrate’s probable cause determination. Thus, the
absence of the two facts deriving from the illegal entry would not have affected the
magistrate’s decision to issue the search warrant.
Because the search warrant was supported by probable cause, the district
court did not err when it denied the motion to suppress. The judgment of
conviction is
AFFIRMED.
3