[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 9, 2003
No. 02-13686 THOMAS K. KAHN
CLERK
D. C. Docket No. 01-00062-CR-8-T
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERSCHEL LAVON ROBINSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Florida
(July 9, 2003)
Before DUBINA, BLACK and HULL, Circuit Judges.
BLACK, Circuit Judge:
Defendant-Appellant Herschel Lavon Robinson appeals his conviction for
possession with intent to distribute 500 grams or more of cocaine. Robinson
contends the district court erred in denying his motion to suppress evidence
recovered from a search of his residence with a warrant issued without probable
cause. We conclude, however, that the district court did not err in denying the
motion to suppress, because evidence from the search warrant was properly
admitted pursuant to the “good faith” exception to the exclusionary rule.
Therefore, we affirm.1
I.
A federal grand jury returned an indictment charging Robinson with one
count of conspiracy to manufacture 50 grams or more of cocaine base and to
possess with intent to distribute 500 grams or more of cocaine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A)(iii)(II), and 846; and one count of possession with
intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(ii)(II), and 18 U.S.C. § 2.
Prior to trial, Robinson filed a motion to suppress evidence recovered
during a search of his residence that resulted in the charged offenses. Robinson
1
Robinson also asserts on appeal that the district court erred in admitting evidence of prior
searches of Robinson’s residence pursuant to Fed. R. Evid. 404(b). We have considered Robinson’s
argument and affirm on this issue without further discussion. See 11th Cir. R. 36-1.
2
argued the affidavit filed in support of the warrant for the search did not establish
probable cause for its issuance because the affidavit contained stale information.
He also contended this information was neither updated nor substantiated by
evidence retrieved from more recent “trash pulls” from a multi-family trash
receptacle.
St. Petersburg Police Detective Paul Cooke declared in his affidavit that, on
November 7, 2000, a confidential source (CS) informed him the CS had observed
Robinson cooking, packaging, and distributing powder cocaine in Robinson’s
residence. The affidavit also stated that, on March 12, 2000, Detective Fred Busch
of the Pinellas County Sheriff’s Office debriefed a different CS, who also stated
Robinson was known to cook cocaine in his residence, was a “big source of supply
for crack cocaine,” and was “known to have up to kilo quantities at a time.”
Detective Cooke declared he independently verified this information and he
discovered Robinson had several prior convictions for the sale and possession of
cocaine. Detective Cooke further declared that, on January 11 and January 25,
2001, he conducted two “trash pulls” from a multi-family trash receptacle located
on the public right-of-way at the rear of Robinson’s residence, and recovered mail
addressed to Robinson, latex gloves, and a large ziplock baggie with a “white
powdery substance.” Detective Cooke stated in his affidavit that the gloves and
3
baggie, which he delivered to the Pinellas County Forensic Laboratory, tested
positive for trace amounts of cocaine.
The district court conducted a hearing at which Robinson argued the
affidavit supporting the search warrant, issued by a Florida Circuit Court on
January 29, 2001, did not support a finding of probable cause. Robinson also
argued that the good faith exception set forth in United States v. Leon, 468 U.S.
897, 104 S. Ct. 3405 (1984), was not applicable because Detective Cooke had
been a member of the search team and should have recognized that his affidavit
was so lacking in indicia of probable cause as to make his belief in the existence
of probable cause unreasonable. Robinson asserted the district court could only
look at the “four corners of the affidavit.”
The Government responded the warrant was supported by probable cause,
or, in the alternative, Detective Cooke reasonably relied in good faith on the
issuance of the warrant in conducting the search. The Government also informed
the district court that, if it wished to hear evidence outside of the “four corners of
the affidavit,” Detective Cooke was in the courtroom and could testify that during
both trash pulls, he retrieved evidence from individual trash bags containing items
indicating the trash had come from Robinson’s residence.
4
The district court denied the motion to suppress. It determined the affidavit
was insufficient to establish probable cause because: (1) the information provided
in March and November 2000 was stale; (2) Detective Cooke failed to show how
he independently verified the information; and (3) the trash pulls in January 2001
were conducted from a multi-family trash receptacle. The district court went on to
conclude, however, that Detective Cooke’s reliance on the issuance of the warrant
was objectively reasonable because his affidavit was not so lacking in indicia of
probable cause that it would render his belief in its existence unreasonable. The
case proceeded to trial and the jury found Robinson guilty of possession with
intent to distribute 500 or more grams of cocaine.2
III.
Robinson contends on appeal the district court erred in concluding, pursuant
to the good faith exception in Leon, that Detective Cooke’s execution of a search
warrant issued without probable cause was objectively reasonable.3 We review de
novo whether the Leon good faith exception to the exclusionary rule applies to a
search, but “the underlying facts upon which that determination is based are
2
The jury was unable to reach a verdict on the conspiracy count.
3
We conclude evidence from the search was properly admitted under the Leon good faith
exception, and we therefore do not decide whether the district court erred in finding no probable
cause. See Leon, 468 U.S. at 905; 104 S. Ct. at 3411.
5
binding on appeal unless clearly erroneous.” United States v. Martin, 297 F.3d
1308, 1312 (11th Cir.), cert. denied, 123 S. Ct. 667 (2002) (quotation and citation
omitted).
The Supreme Court’s decision in Leon “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.” Id. at 1313.4 Under this good faith exception to
the exclusionary rule, suppression is necessary “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. (quotation and citation
omitted).
Under Leon, “searches pursuant to a warrant will rarely require any deep
inquiry into reasonableness, for a warrant issued by a magistrate normally suffices
to establish that a law enforcement officer has acted in good faith in conducting
the search.” Leon, 468 U.S. at 922, 104 S. Ct. at 3420 (quotation and citation
omitted). Nevertheless, “it is clear that in some circumstances the officer will
have no reasonable grounds for believing that the warrant was properly issued.”
4
Under the exclusionary rule, evidence seized as a result of an illegal search generally may
not be used by the government in a subsequent criminal prosecution. See Weeks v. United States,
232 U.S. 383, 34 S. Ct. 341 (1914).
6
Id. at 922-23, 64 S. Ct. at 3420. Leon’s good faith exception, therefore, does not
apply to the following situations: (1) where the magistrate or 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 the truth;
(2) where the issuing magistrate wholly abandoned his judicial role; (3) where the
affidavit supporting the warrant is so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable; and (4) where,
depending upon the circumstances of the particular case, a warrant is so facially
deficient—i.e., 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.
Martin, 297 F.3d at 1313.
A.
Robinson argued in the district court the good faith exception did not apply
based on the third situation, i.e., Detective Cooke’s affidavit was so lacking in
indicia of probable cause as to render official belief in its existence entirely
unreasonable.5 In Martin, we indicated that, in order to determine whether an
5
Robinson has not argued any of the other three situations enumerated in Leon applies in this
case.
7
affidavit lacked sufficient indicia of probable cause, we must look only at the face
of the affidavit. See id.
Here, the affidavit included: (1) statements from two different confidential
sources indicating Robinson had cocaine at his residence that he was “cooking,”
packaging, and distributing; (2) Detective Cooke had independently verified this
information; and (3) Detective Cooke had discovered Robinson had several prior
convictions for the sale and possession of cocaine. The affidavit also provided
that Detective Cooke conducted two trash pulls from a multi-family trash
receptacle in January 2001 and recovered mail addressed to Robinson, as well as
latex gloves and a ziplock baggie containing trace amounts of cocaine.
Notwithstanding the district court’s determination that these facts did not support
a finding of probable cause, we cannot conclude the affidavit was so lacking in
indicia of probable cause as to render official belief in its existence entirely
unreasonable. Therefore, the third situation enumerated in Leon does not apply.
B.
Robinson also argues that, even if none of the four situations enumerated in
Leon applies, the Government nevertheless failed to carry its burden in
demonstrating the applicability of the good faith exception. Relying on our
opinion in Martin, which was issued subsequent to the district court’s denial of
8
Robinson’s motion to suppress, he contends the Government must present
evidence beyond the four corners of the affidavit to demonstrate that Detective
Cooke reasonably relied on the search warrant. According to Robinson, the
Government failed to satisfy that burden in this case. But neither Martin nor any
other relevant precedent of which we are aware supports Robinson’s argument.
The question posed in Martin was “whether the court, in deciding whether
the execution of the search warrant was reasonable, may consider information
known to [the officer] that was not presented in the initial search warrant
application or affidavit.” Id. at 1318 (emphasis added). Martin held the court
“can look beyond the four corners of the affidavit” to answer that question. Id.
(emphasis added). Martin did not hold, however, that the court must consider
evidence beyond the four corners of the affidavit in order to find good faith
reliance.6 And although we have indicated the Government bears the burden of
demonstrating the applicability of the Leon good faith exception, see United States
6
The closest Martin comes to supporting Robinson’s argument is a statement observing that
a previous decision of this Court, United States v. Taxacher, 902 F.2d 867 (11th Cir. 1990),
“suggests that facts outside the affidavit should be considered.” Martin, 297 F.3d at 1319 (citing
Taxacher, 902 F.2d at 873). Although this Court in Taxacher reviewed “all the circumstances”
relevant to good faith—including those not referenced in a police officer’s affidavit—before
concluding the good faith exception applied, Taxacher, 902 F.2d at 873, Taxacher did not hold the
government must present extrinsic evidence of an officer’s good faith. Martin and Taxacher simply
instruct that facts outside the affidavit may be considered when presented by either the government
or the defendant, and the court should consider those facts when presented with them. But this is a
different proposition than stating facts outside the affidavit must be presented.
9
v. Travers, 233 F.3d 1327, 1331 n.2 (11th Cir. 2000), we discern no reason why
that burden cannot be met by reference to facts stated within the affidavit. That
the Government did not present extrinsic evidence of Detective Cooke’s good
faith in this case does not itself vitiate a finding of good faith reliance on the
warrant.7
We conclude the information in Detective Cooke’s affidavit supported a
finding of good faith reliance on the warrant. Detective Cooke relied on
information from two confidential sources and independently corroborated that
Robinson was involved in drug activities. Moreover, there is nothing in the record
to suggest Detective Cooke’s reliance on the warrant was objectively
unreasonable. Assuming such evidence existed, Robinson would have been free
to present it, but he did not. Therefore, the district court did not err in concluding
the Leon good faith exception was applicable and in denying Robinson’s motion
to suppress.
AFFIRMED.
7
It appears the Government could have presented such evidence in this case, in that Detective
Cooke was apparently prepared to testify at the suppression hearing that drug paraphernalia
recovered during the trash pulls were found in the same garbage bags as mail addressed to Robinson.
But Robinson’s counsel argued during the suppression hearing that the district court was confined
to looking within the four corners of the affidavit. In any event, we reiterate that the Government
was entitled to present this evidence just as Robinson was entitled to present any
evidence—assuming such evidence existed—tending to show Detective Cooke’s reliance on the
affidavit was unreasonable.
10