United States v. Corey Moore

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4623

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

COREY A. MOORE,

Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:10-cr-00648-AW-1)

Argued: January 26, 2012 Decided: April 24, 2012

Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.

Reversed and remanded by unpublished opinion. Judge Keenan
wrote the majority opinion, in which Judge Wilkinson joined.
Judge Gregory wrote a dissenting opinion.

ARGUED: Jonathan Biran, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellant. Brian Keith McDaniel, BRIAN
K. MCDANIEL & ASSOCIATES, Washington, D.C., for Appellee.
ON BRIEF: Rod J. Rosenstein, United States Attorney, Mara Zusman
Greenberg, Assistant United States Attorney, Jonathan Lenzner,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellant.

Unpublished opinions are not binding precedent in this circuit.
KEENAN, Circuit Judge:

In this interlocutory appeal filed pursuant to 18 U.S.C. §

3731, the government challenges the district court’s order

granting Corey A. Moore’s motion to suppress certain evidence

seized during a search of his home. The district court

concluded, among other things, that the warrant authorizing the

search was so lacking in indicia of probable cause that the

officers could not have relied on the warrant in good faith. We

reverse the district court’s order based on our conclusion that,

as a matter of law, the good faith exception to the exclusionary

rule established in United States v. Leon, 468 U.S. 897 (1984),

is applicable in the present case.

I.

On September 25, 2010, a police officer employed by the

City of Takoma Park, Maryland, observed Corey Moore walking on a

public street. The officer suspected that Moore had committed

an alcohol-related violation because he was carrying a bottle

while walking. When the officer attempted to confront Moore, he

fled. In the pursuit that followed, both the officer and a

bystander witnessed Moore throw a large object into a dumpster.

Moore later was apprehended and taken into custody.

When police officers searched the dumpster, they located

only one item that resembled the object thrown by Moore. This

2
item was a package that was found to contain more than one-half

kilogram of cocaine having an estimated “street” value of

$10,000.00.

Two days later, Takoma Park police officers responded to a

report of an attempted burglary at a residence located at 118

Sherman Avenue (the residence). A citizen had reported hearing

a “thumping noise” outside the residence, and had observed two

men run from the driveway of the home. The residence was

located on the same block in which the officer first encountered

Moore.

After arriving at the scene, the officers inspected the

residence and saw a broken window in the basement. The officers

contacted the owner of the residence, who informed them that he

rented the basement of the residence to Corey Moore. The

homeowner also informed the officers that Moore’s BMW automobile

was parked in front of the residence.

The officers performed a “protective sweep” of the basement

of the residence, but found no one there. Detective Charles

Hoetzel of the Takoma Park Police Department determined that a

grey BMW located across the street from the residence was

registered in Moore’s name.

Hoetzel provided the above information in an affidavit he

submitted to obtain a search warrant for the basement of the

residence, except that the affidavit did not mention that the

3
officers had conducted a protective sweep of the basement. A

Maryland circuit court judge issued the search warrant,

concluding that there was probable cause to believe that

narcotics, firearms, and evidence of drug trafficking would be

located in the basement of the residence. When Takoma Park

police officers executed the search warrant, they found 2.8

kilograms of phencyclidine (PCP), $44,780 in cash, and several

firearms.

A federal grand jury returned a four-count indictment

against Moore. The indictment charged Moore with: (1)

possession with intent to distribute a substance containing a

detectable amount of cocaine, in violation of 21 U.S.C. §

841(a)(1); (2) possession with intent to distribute one kilogram

or more of PCP, in violation of 21 U.S.C. § 841(a)(1); (3)

possession of firearms in furtherance of a drug trafficking

crime, in violation of 18 U.S.C. § 924(c); and (4) being a felon

in possession of a firearm, in violation of 18 U.S.C. §

922(g)(1).

Moore filed a motion to suppress the evidence seized from

his residence, arguing that the search warrant did not establish

probable cause for the search because the warrant did not

contain any information to support an inference that contraband

would be found at the residence. Moore further argued that the

Leon good faith exception was not applicable because the

4
officers allegedly were aware that probable cause had not been

established.

Moore also requested a hearing pursuant to Franks v.

Delaware, 438 U.S. 154 (1978), to challenge the veracity of the

information contained in the warrant. He based his request for

a Franks hearing on the fact that Hoetzel had omitted from the

affidavit the information that two days after arresting Moore,

police officers had entered the basement of the residence and

conducted a protective sweep of the premises, during which no

contraband had been observed. Moore argued that this omission

was material, and effectively would have negated both a finding

of probable cause and the availability of the Leon good faith

exception.

The district court concluded that Moore’s argument

regarding this omission was merely speculative and, therefore,

that Moore had not met his burden of establishing the need for a

Franks hearing. However, the district court granted Moore’s

motion to suppress the evidence seized in the search of his home

on the ground that the search warrant was not supported by

probable cause. The district court further held that the Leon

good faith exception was inapplicable, because the warrant was

so deficient that the officers could not have relied on it in

good faith.

5
 The government filed a motion for reconsideration, which

the district court denied. This appeal followed.

II.

The government argues that the affidavit at issue

established probable cause to believe that evidence of a crime

would be found in Moore’s home. The government contends that a

nexus between Moore’s criminal activity and his residence was

established, because the affidavit included evidence that Moore

had possessed large quantities of cocaine in close proximity to

his residence two days before the officers obtained the warrant.

Additionally, the government asserts that, irrespective whether

the affidavit for the search warrant established probable cause,

the Leon good faith exception to the exclusionary rule is

applicable.

In response, Moore argues that the district court correctly

granted the motion to suppress, because the affidavit failed to

establish probable cause to search the residence based on

Moore’s earlier possession of cocaine away from his home.

According to Moore, his possession of cocaine, without more,

failed to create the necessary nexus between his criminal

activity and his residence. In addition, Moore contends that

the Leon good faith exception is inapplicable because the

affidavit was so lacking in probable cause that the officers

6
could not reasonably have relied upon it, and because the

officers misled the issuing judge by omitting material facts

from the affidavit. We disagree with the result advocated by

Moore.

In an appeal from a district court’s ruling on a motion to

suppress, we review the court’s legal conclusions de novo, and

the court’s factual findings for clear error. United States v.

Buckner, 473 F.3d 551, 553 (4th Cir. 2007). When, as here, no

facts are in dispute, the applicability of the Leon good faith

exception presents a question of law that we review de novo.

United States v. DeQuasie, 373 F.3d 509, 520 (4th Cir. 2004).

In determining whether a search warrant is supported by

probable cause, a judicial officer must consider “the facts and

circumstances as a whole and make a common sense determination

[] whether ‘there is a fair probability that contraband or

evidence of a crime will be found in a particular place.’”

United States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992)

(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). A

reviewing court accords great deference to a judicial officer’s

determination of probable cause. United States v. Clyburn, 24

F.3d 613, 617 (4th Cir. 1994) (citing Gates, 462 U.S. at 236).

We long have held that “the nexus between the place to be

searched and the items to be seized may be established by the

nature of the item and the normal inferences of where one would

7
likely keep such evidence.” United States v. Anderson, 851 F.2d

727, 729 (4th Cir. 1988). Thus, when factually supported, a

sufficient nexus between a defendant’s residence and criminal

activity may be established even when the affidavit in support

of the search warrant does not contain factual information

directly linking the items sought to that residence. United

States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005).

Accordingly, we have declined to require direct evidence that

drugs are located in a residence when other facts and

circumstances sufficiently establish probable cause for the

search. Id. at 214.

Based on the present record, however, we need not determine

whether the search warrant for Moore’s home was supported by

probable cause. Instead, as permitted under Leon, we proceed

directly to consider the issue whether the officers could have

relied in good faith upon the issued search warrant. See Leon,

468 U.S. at 925; United States v. Andrews, 577 F.3d 231, 235

(4th Cir. 2009) (exercising discretion to proceed to good faith

exception); United States v. Legg, 18 F.3d 240, 243 (4th Cir.

1994) (same).

Evidence seized in violation of the Fourth Amendment

generally is subject to suppression under the exclusionary rule.

See Andrews, 577 F.3d at 235 (citing United States v. Calandra,

414 U.S. 338, 347-48 (1974)). However, in its decision in Leon,

8
the Supreme Court has instructed that a court should not

suppress “the fruits of a search conducted under authority of a

warrant, even a ‘subsequently invalidated’ warrant, unless ‘a

reasonably well trained officer would have known that the search

was illegal despite the magistrate’s authorization.’” United

States v. Williams, 548 F.3d 311, 317 (4th Cir. 2008) (quoting

Leon, 468 U.S. at 922 n.23)). Thus, under this good faith

exception, “evidence obtained pursuant to a search warrant

issued by a neutral magistrate does not need to be excluded if

the officer’s reliance on the warrant was ‘objectively

reasonable.’” United States v. Perez, 393 F.3d 457, 461 (4th

Cir. 2004) (citing Leon, 468 U.S. at 922).

An officer’s reliance on a warrant does not qualify as

being “objectively reasonable,” requiring that the seized

evidence be excluded in the following circumstances: (1) when

the affiant based the application for a search warrant on false

information that was supplied either knowingly or recklessly;

(2) when the judicial officer wholly abandoned his role as a

neutral decisionmaker and served simply as a ‘rubber stamp’ for

the police officers; (3) when the affidavit supporting the

search warrant was so lacking in indicia of probable cause that

official belief in its existence was objectively unreasonable;

and (4) when the search warrant was so facially deficient that

the police officers could not reasonably have believed that the

9
warrant was valid. United States v. Wellman, 663 F.3d 224, 228-

29 (4th Cir. 2011) (citing United States v. Doyle, 650 F.3d 460,

467 (4th Cir. 2011)).

In conducting this Leon analysis, we will assume, without

deciding, that the information contained in the affidavit was

insufficient to establish probable cause, and instead consider

whether the police officers’ reliance on the search warrant was

objectively reasonable. See Wellman, 663 F.3d at 228. Moore

argues, in effect, that the present affidavit falls under the

third Leon exclusion. 1 Upon our review, we conclude that the

affidavit was not so lacking in indicia of probable cause that

the officers’ reliance on the warrant was objectively

unreasonable. See Leon, 468 U.S. at 923.

The affidavit stated that Moore had possessed a substantial

amount of cocaine, worth an estimated $10,000, on the same block

where the residence was located. The affidavit also recited

that Moore’s landlord verified that Moore lived in the basement

of the residence. The affidavit further stated that the police

1
Although Moore also contends that the Maryland judge
issuing the search warrant acted as a “rubber stamp” for the
Takoma Park officers, the record does not provide any basis to
support a conclusion that the Maryland judge abandoned his role
as a neutral and detached decisionmaker. Because the basis of
Moore’s argument in this regard is that the search warrant
application contained grossly insufficient information, we
analyze his contention under the third Leon exclusion. See
Wellman, 663 F.3d at 229 (citing Doyle, 650 F.3d at 470).

10
had determined that a grey BMW parked across the street from the

residence was registered in Moore’s name. In addition,

Detective Hoetzel stated in the affidavit that “based upon his

training, experience, and participation in narcotics

investigations” during his seven-year tenure with the City of

Takoma Park Police Department, that drug traffickers tend to

hide contraband, firearms, and evidence of drug transactions “in

a secure location,” to which they can obtain “ready access.”

We conclude that these statements in the affidavit provided

sufficient indicia of probable cause to meet the requirements of

the Leon good faith exception. In particular, Moore’s

possession of a large amount of cocaine in close proximity to

his residence, combined with Detective Hoetzel’s stated

experience that drug traffickers tend to keep contraband and

other evidence of drug transactions in a secure place to which

they retain ready access, established a plausible nexus between

the place to be searched and the presence of contraband items

related to the distribution of narcotics.

We observe that the Supreme Court recently rejected a

similar challenge to a search warrant when the supporting

affidavits contained information of a suspect’s residence, of

his gang membership, and that he committed an assault with a

firearm at a separate location. Messerschmidt v. Millender, 132

S. Ct. 1235, 1242-43 (2012). The warrant was challenged as

11
lacking any facts to support probable cause to search the

suspect’s residence for any firearms and evidence of gang

membership. Id. at 1242, 1246. Although the affidavits

contained no facts directly linking firearms or evidence of gang

activity to the residence, the Court held that the officers

could have reasonably relied upon the warrant to search for such

items. Id. at 1246-49. The holding in Messerschmidt further

supports our conclusion that, in the present case, the affidavit

provided a sufficient nexus between the place to be searched and

criminal activity alleged to meet the requirements of the Leon

good faith exception. Accordingly, we conclude that the

evidence seized in the search of Moore’s residence should not

have been suppressed, because the officers’ reliance on the

warrant was objectively reasonable. See Leon, 468 U.S. at 922;

Perez, 393 F.3d at 461.

Our conclusion is not altered by Moore’s argument quoting

from our decision in United States v. Lalor, 996 F.2d 1578 (4th

Cir. 1993), in which we stated that “residential searches have

been upheld only where some information links the criminal

activity to the defendant’s residence.” Id. at 1583 (citing

Williams, 974 F.2d at 481-82). In Lalor, we were careful to

explain that the affidavit in that case had not established any

relationship between the area where the defendant allegedly

conducted drug transactions and the location of the defendant’s

12
home. Id. at 1583. Importantly, we observed that the record

did not show the distance between the searched premises and the

location of the defendant’s drug activity, and we stated that

this distance could have been significant because “the

magistrate might have been able to draw an inference from the

proximity of the drug sales to Lalor’s residence.” Id.

In contrast to the affidavit at issue in Lalor, the

affidavit before us conclusively established the close proximity

of the place where the defendant’s criminal activity occurred to

the premises to be searched. Moreover, in Lalor, we ultimately

held that despite the absence of a demonstrated nexus between

the location to be searched and the defendant’s criminal

activity, the Leon good faith exception still was applicable.

996 F.2d at 1583. Thus, the decision in Lalor not only fails to

aid Moore’s position, but provides significant support to our

conclusion that the officers executing the search warrant of

Moore’s residence could have relied in good faith upon that

warrant.

Moore argues, nevertheless, that the good faith exception

of Leon is inapplicable because Hoetzel omitted from the

affidavit any reference to the officers’ protective sweep of

Moore’s residence after the report of the attempted burglary.

We note that, in making this argument, Moore does not challenge

the district court’s denial of a Franks hearing, but instead

13
argues that the good faith exception is inapplicable because the

judge issuing the search warrant was “misled regarding the

information in the possession of law enforcement which would

have militated against the probable cause finding.” 2

Although we disagree with the conclusion Moore advances, we

likewise are troubled that Hoetzel’s affidavit omitted the fact

that Takoma Park police officers earlier had entered the

basement of the residence to conduct a protective sweep. The

government has offered no justification why discussion of the

protective sweep was omitted from the affidavit, while all other

aspects of the officers’ response were described in detail.

Nevertheless, on this record, we cannot conclude that Moore’s

challenge to the application of the Leon good faith exception is

meritorious.

When a warrant is challenged on the theory that an officer

omitted material facts in an affidavit, either intending to

mislead the magistrate or in reckless disregard whether the

omission rendered the affidavit misleading, the defendant must

show: (1) that the officer deliberately or recklessly omitted

the information at issue; and (2) that the inclusion of this

information would have been material to the probable cause

2
Moore does not argue in any part of this appeal that the
district court erred in denying his motion for a Franks hearing.
In fact, Moore does not even refer to a Franks hearing in his
brief filed with this Court.

14
determination. See United States v. Colkley, 899 F.2d 297, 301

(4th Cir. 1990); see also Andrews, 577 F.3d at 238-39

(conducting this inquiry on issue whether the Leon good faith

exception applied when officer omitted information from a search

warrant application). We agree with the district court that,

although information about the protective sweep would have been

helpful to the judge reviewing the search warrant application,

Moore’s argument that the information was deliberately omitted

rests on total speculation.

Moore also has failed to show that inclusion of this

information would have been material to the probable cause

determination. A protective sweep is justified when a

reasonably prudent officer would be warranted “in believing that

the area to be swept harbors an individual posing a danger to

those on the . . . scene.” Maryland v. Buie, 494 U.S. 325, 334

(1990). Because the officers had received a report of an

attempted burglary at the residence and had observed a broken

basement window at that location, the officers were justified in

thinking that the basement could have harbored a person who

posed a danger to nearby residents. And, as the district court

succinctly stated, “if [a protective sweep is] done properly,

it’s just a cursory look, not a search but a sweep just to see

who is there.”

15
 We have no basis to conclude, nor does Moore argue, that

the officers conducted an impermissible search of the basement

of the residence in the guise of a protective sweep. Moreover,

we cannot conclude from the present record that if the affidavit

had contained the information that the officers conducted a

protective sweep, and that no contraband was observed in plain

view at that time, this additional information would have been

material to the probable cause determination. Therefore, we

hold that Moore has failed to establish a basis for excluding

application of the Leon good faith exception. See Andrews, 577

F.3d at 239. Accordingly, because we conclude that the

affidavit was not so lacking in indicia of probable cause as to

render official belief in its existence objectively

unreasonable, we hold that the Leon good faith exception is

applicable and the district court erred in granting Moore’s

motion to suppress.

III.

For these reasons, we reverse the district court’s order

granting the motion to suppress, and we remand the case to the

district court for further proceedings.

REVERSED AND REMANDED

16
GREGORY, Circuit Judge, dissenting:

I.

A police officer saw Moore, an African-American male,

walking along the sidewalk of an affluent, suburban neighborhood

and approached him because he appeared to be carrying a

container that the officer suspected to be alcohol. After Moore

fled in response to the officer’s signal to approach, the

officer gave chase. Moore discarded the container into a

dumpster. Although the officer found drugs in the dumpster, the

bag with the drugs inside bore no resemblance to a bottle of

alcohol.

Two days later while investigating an unrelated break-in,

police learned that Moore was renting a basement apartment of a

home near the area where he was seen walking. They then sought

and obtained a search warrant for Moore’s basement residence.

The sole basis for seeking the warrant to search his home was

the fact that a few days earlier, Moore had possessed drugs near

that location. In fact, before encountering Moore on the

sidewalk on the day of his arrest, the police had no information

or observation relating to Moore possessing or distributing

drugs in his neighborhood or any place for that matter. Equally

troubling, the police never told the magistrate that they had

already entered Moore’s apartment and not seen any evidence of

drug possession or trafficking. In fact, in detailing the

17
police response to the unrelated break-in in the affidavit,

Detective Hoetzel affirmatively omitted that police entered the

basement residence and did not see any contraband or indication

of narcotics trafficking. Yet my dear colleagues find that the

defective warrant, lacking any indicia of probable cause and

issued under these misleading circumstances, is entitled to the

protection of the “good faith” exception under United States v.

Leon, 468 U.S. 897 (1984). I respectfully submit that this is

wrong.

II.

The district court correctly concluded that the affidavit

supporting the request for the search warrant of Moore’s

residence did not include sufficient evidence to establish that

Moore was involved in the drug trade or that it was probable

that evidence of narcotics trafficking would be found in his

apartment.

“To establish probable cause that evidence of a crime is

located in a particular place, an affiant must establish a

connection between the evidence of a crime and the place to be

searched.” United States v. Anderson, 851 F.2d 727, 729 (4th

Cir. 1988). In every case where this Court has found a

sufficient nexus between a defendant’s criminal conduct and his

residence, the affidavit supporting the warrant had at least

18
some factual assertion or allowable inference linking the items

sought to the defendant’s residence. And where this Court has

declined to require specific evidence of the existence of drugs

in a residence, it is only where other facts sufficiently

established probable cause for the search. United States v.

Grossman, 400 F.3d 212, 214 (4th Cir. 2005) (“We decline to

require specific evidence of the existence of drugs in a

residence where other facts sufficiently establish probable

cause for the search.”) (emphasis added).

Here, there was virtually no investigation of Moore or

assertion in the affidavit which supported the conclusion that

probable cause for the warrant existed. As the district court

aptly noted and in stark contrast to the investigatory facts

included in facially sufficient affidavits, there was nothing in

the affidavit in this case to support a permissible inference

that Moore was in fact a drug dealer and that the tools of that

trade would be found in his home. The affidavit did not include

any information evidencing Moore’s selling narcotics to

cooperating witnesses or informants, any surveillance by law

enforcement of any illegal or suspicious activity on the part of

Moore in the days or weeks leading up to his initial encounter

with law enforcement, any reference to Title III wiretap

recordings evidencing drug activity on the part of Moore, any

reference to the prior criminal history of Moore, any tip

19
information from a reliable confidential source alleging Moore’s

participation in drug trafficking, or any other information

except the assertion that Moore had discarded one half kilogram

of powder cocaine two days prior to the request. The sole fact

that Moore possessed narcotics on a nearby street cannot

establish probable cause that evidence of narcotics trafficking

would be found in his home.

The district court was correct in finding that the normal

indicia of investigative fruit were absent and that the

affidavit was lacking in probable cause to believe that any

contraband would be present in Moore’s residence.

III.

The only remaining issue is whether the “good faith”

exception under Leon applies. Under the good faith exception,

evidence obtained from an invalid search warrant will not be

suppressed if the officer’s reliance on the warrant was

“objectively reasonable.” United States v. Perez, 393 F.3d 457,

461 (4th Cir. 2004) (citing Leon, 468 U.S. at 922). Leon

identifies four circumstances in which an officer’s reliance on

a warrant would not qualify as “objectively reasonable:” (1)

when the magistrate 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

20
the truth; (2) when the magistrate has acted as a rubber stamp

for the officer and so wholly abandoned his detached and neutral

judicial role; (3) when a supporting affidavit is so lacking in

indicia of probable cause as to render official belief in its

existence entirely unreasonable; and (4) when a warrant is so

facially deficient 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. Id.

The district court did not err in holding that the good

faith exception is unavailable here. The combination of the

first and third circumstances identified by Leon –- that the

judge was misled by information in the affidavit and that the

supporting affidavit was “so lacking in indicia of probable

cause as to render official belief in its existence entirely

unreasonable,” Leon, 468 U.S. at 923 –- compels the application

of the exclusionary rule in this case. As detailed above, this

affidavit fell far short of providing probable cause for a

search warrant as it was devoid of any basis from which the

magistrate could infer that evidence of drug activity would be

found in the basement residence. Moreover, contrary to the

majority’s contention, ante at 15, the fact that officers

previously entered the residence, performed a protective sweep,

and observed no contraband, is absolutely material to the

reviewing judge’s probable cause determination when, as here,

21
the officers’ response to the attempted break-in was described

in detail in the affidavit –- suggesting this was not merely a

negligent omission -- and nothing approaching the information

necessary for probable cause is provided in the affidavit.

The Leon Court crafted the good faith exception to avoid a

deterrent effect on “objectively reasonable law enforcement

activity.” Id. at 919. This is not a case of “objectively

reasonable law enforcement activity.” Not only did Detective

Hoetzel fail to provide information of any kind that would in

itself have provided probable cause, he affirmatively omitted

the fact that law enforcement had previously entered the

basement residence and did not see any illegal contraband in the

location. The omission of this prior entrance in the recounting

of the attempted break-in in the affidavit is not only

misleading, it also suggests that the officer’s reliance on the

resulting warrant was not reasonable. Clearly, this does not

support a finding of good faith.

IV.

The right to privacy in one’s home is a most important

interest protected by the Fourth Amendment. The majority’s

application of the good faith exception to this warrant ratifies

police use of insufficient and misleading affidavits to justify

22
searching someone’s home. For the reasons set forth above, I

respectfully dissent.

23