United States v. Burrell ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-13017 SEP 27, 2011
Non-Argument Calendar JOHN LEY
CLERK
________________________
D. C. Docket No. 2:09-cr-00358-SLB-RRA-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALONZO LANARD BURRELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(September 27, 2011)
Before EDMONDSON, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Alonzo Lanard Burrell appeals his conviction for being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal, Burrell argues that
the district court erred in applying the good faith exception to deny his motion to
suppress, because the warrant was so lacking in probable cause as to make official
belief in its existence entirely unreasonable. After thorough review, we affirm.
We review a district court's denial of a motion to suppress under a mixed
standard, reviewing the court’s findings of fact for clear error, and its application
of the law to those facts de novo. United States v. Tate, 586 F.3d 936, 942 (11th
Cir. 2009), cert. denied, 131 S. Ct. 634 (2010). When considering a ruling on a
motion to suppress, “all facts are construed in the light most favorable to the
prevailing party below.” United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir.
2000). We may affirm the denial of a motion to suppress on any ground supported
by the record. United States v. Caraballo, 595 F.3d 1214, 1222 (11th Cir. 2010).
We review de novo the legal issue of whether the good faith exception to the
exclusionary rule applies to a search warrant found to be unsupported by probable
cause. United States v. Martin, 297 F.3d 1308, 1312 (11th Cir. 2002). The
underlying facts upon which the district court’s good faith determination is based
are reviewed for clear error. Id.
The Fourth Amendment provides for the right to be free from unreasonable
searches and seizures, and mandates that “no Warrants shall issue but upon
probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV.
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“[P]robable cause to search a residence exists when there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” Tate, 586
F.3d at 942-43 (quotation omitted). However, pursuant to United States v. Leon,
468 U.S. 897, 922 (1984), courts generally should not render inadmissable
evidence obtained by police officers acting in reasonable reliance upon a search
warrant that is later found to be unsupported by probable cause. This exception
applies in all but four limited situations, only one of which is relevant to this
appeal: where the affidavit supporting the warrant is so lacking in indicia of
probable cause as to render official belief in its existence entirely unreasonable.
Martin, 297 F.3d at 1313.
Here, the district court correctly found that the search warrant and
supporting affidavit failed to establish probable cause that evidence of a crime
would be found in the residence searched. Nevertheless, the district court also
correctly found that the good faith exception to the exclusionary rule applies. The
affidavit stated that the suspect in a robbery lived at the address sought to be
searched, that the suspect had been identified in photo-lineups by each of the
victims, and that the suspect was able to flee the scene of the crime and return to
her home prior to being taken into custody. As the district court noted, these facts
lend themselves to finding that the search warrant was not so lacking in indicia of
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probable cause. Moreover, given the totality of the circumstances as they were
known to the detective at the time he presented the warrant to the issuing judge, his
belief that probable cause existed was not entirely unreasonable because he knew
that Burrell’s girlfriend, and co-suspect, had been located at her residence within
“[a]pproximately 30 minutes” of the robbery.
Neither does the extra-circuit authority cited by Burrell for support that an
affiant should not be able to blame an issuing judge for a deficient warrant when
the affiant was responsible for the deficiencies in the warrant, justify a different
conclusion. In United States v. Zimmerman, the Third Circuit held that an
affidavit was not saved by the good faith exception because it was “clearly
insufficient.” 277 F.3d 426, 437 (3d Cir. 2002). The affiant had supported the
request for a search warrant for child pornography with information that evidence
had been on a suspect’s computer six months before the warrant was sought, but
the affidavit did not indicate that pornography was ever in the suspect’s home. The
court was particularly concerned with the affidavit because the affiant had
“crafted” it “to portray Zimmerman in the worst possible light.” Id. Here,
although the affidavit did not specifically indicate the freshness of the information
contained therein, the statement concerning Burrell’s girlfriend fleeing and
returning home provided an indicia of probable cause, even though it did not
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constitute probable cause itself. Moreover, the affidavit was not an attempt by the
detective to portray Burrell, or his girlfriend, in any light other than as suspects in a
robbery investigation. Therefore, the concerns with the affidavit and the motives
of the affiant in Zimmerman are not present in this case.
For these reasons, the district court did not err in denying Burrell’s motion to
suppress because even though the search warrant and affidavit did not establish
probable cause that evidence of the robbery was in the home of Burrell’s girlfriend,
the warrant and affidavit were not so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable and, thus, the good faith
exception to the exclusionary rule applies. Accordingly, we affirm the district
court.
AFFIRMED.
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