UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4957
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN A. BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:10-cr-00275-JRS-1)
Submitted: April 23, 2012 Decided: May 31, 2012
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Caroline S. Platt, Appellate
Attorney, Richmond, Virginia, for Appellant. Neil H. MacBride,
United States Attorney, Richard D. Cooke, Assistant United
States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin A. Brown entered a conditional guilty plea, Fed.
R. Crim. P. 11(a)(2), to one count of possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1)
(2006). Brown preserved his right to appeal the district
court’s order denying his motion to suppress evidence found
during a search of a hotel room, as well as his subsequent
incriminating statement. We affirm.
When considering the denial of a motion to suppress,
we review a district court’s legal conclusions de novo, and its
factual findings for clear error. United States v. Guijon-
Ortiz, 660 F.3d 757, 762 (4th Cir. 2011). The evidence is
construed in the light most favorable to the Government, the
prevailing party below. United States v. Perkins, 363 F.3d 317,
320 (4th Cir. 2004). We exercise our discretion to affirm for
any reason appearing in the record. Because we find the
evidence was admissible pursuant to the good-faith exception to
the exclusionary rule articulated in United States v. Leon, 468
U.S. 897 (1984) (“good-faith exception”), we need not address
Brown’s challenge to the search warrant. United States v.
Andrews, 577 F.3d 231, 235 (4th Cir. 2009).
Pursuant to the good-faith exception, when an officer
acts “with objective good faith within the scope of a search
warrant issued by a magistrate,” suppression of the evidence
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obtained in the search does not serve the exclusionary rule’s
deterrence objective, as the officer has attempted to comport
with the law. United States v. Perez, 393 F.3d 457, 461 (4th
Cir. 2004) (internal quotation marks omitted). Therefore,
“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.” Id.
(internal quotation marks omitted). “Usually, a warrant issued
by a magistrate suffices to establish that a law enforcement
officer has acted in good faith in conducting the search.”
United States v. Doyle, 650 F.3d 460, 467 (4th Cir. 2011)
(internal quotation marks and alteration omitted).
However, an officer’s reliance on a warrant is not
objectively reasonable if: (1) the magistrate was misled by
information in an affidavit that the affiant knew or would have
known was false but for his reckless disregard of the truth; (2)
the magistrate abandoned the role of a detached and neutral
decision maker; (3) the affidavit supporting the warrant is so
lacking in indicia of probable cause as to render the officer’s
belief in its existence totally unreasonable; or (4) the warrant
is so facially deficient, by 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. at 467-
70.
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On appeal, Brown focuses on the third scenario.
(Appellant’s Br. at 14-16). To support his contention, Brown
suggests that the facts of his case are similar to those we
considered in United States v. Wilhelm, 80 F.3d 116 (4th Cir.
1996), where we found unreasonable an officer’s reliance on a
warrant due to the “bare bones nature of the affidavit.” Id. at
121 (internal quotation marks omitted). A “bare bones”
affidavit is “one that contains wholly conclusory statements,
which lack the facts and circumstances from which a magistrate
can independently determine probable cause.” United States v.
DeQuasie, 373 F.3d 509, 521 (4th Cir. 2004) (internal quotation
marks omitted).
Because we may look outside the four corners of a
supporting affidavit in determining whether an officer’s
reliance on the resulting warrant was objectively reasonable, we
find Brown’s reliance on Wilhelm unavailing. United States v.
McKenzie-Gude, 671 F.3d 452, 459 (4th Cir. 2011). We may
consider information conveyed to the magistrate but not
contained in the affidavit as well as uncontroverted facts known
to the officer but inadvertently not presented to the
magistrate. Id. at 460-61.
Here, the information in the affidavit supporting the
warrant, considered in conjunction with the information the
affiant officer disclosed to the issuing magistrate but did not
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include in his affidavit, was more than sufficient to justify an
objectively reasonable officer’s belief in the existence of
probable cause. First, an informant’s tip indicated that Brown
was selling cocaine base from the hotel room in question. The
tip was partially corroborated by the affiant officer’s
independent investigation and was provided in person by a source
who had proven reliable in previous investigations, thus
supporting a reasonable belief in the tip’s veracity. See
Perez, 393 F.3d at 462; United States v. Bynum, 293 F.3d 192,
197 (4th Cir. 2002); Wilhelm, 80 F.3d at 122; United States v.
Lalor, 996 F.2d 1578, 1581 (4th Cir. 1993). Unlike in Wilhelm,
here there is no indication that the officer attempted to imbue
the informant’s tip with unmerited credibility. Wilhelm, 80
F.3d at 123.
Moreover, the officer indicated that he had observed
Brown engaging in conduct consistent with the sale of narcotics
while Brown was frequenting the hotel room in question.
Although the conduct described was not plainly criminal in
nature, even objectively innocent activity may become suspicious
in light of an initial tip, and an officer is entitled to rely
on his experience regarding conduct consistent with criminal
activity when judging the existence of probable cause. See
Illinois v. Gates, 462 U.S. 213, 232, 245 n.13 (1983); United
States v. Robinson, 275 F.3d 371, 381 (4th Cir. 2001). When
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these investigative observations are considered in conjunction
with the informant’s tip, it is clear that the facts here
provide much more corroborating information than those we
considered in Wilhelm, and we cannot say that reliance on the
warrant was objectively unreasonable. Cf. Perez, 393 F.3d at
462-63.
Accordingly, we affirm the district court’s denial of
Brown’s motion to suppress. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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