United States v. Kenneth Rush , 808 F.3d 1007 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4695
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH RUSH,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:14-cr-00059-1)
Argued: September 17, 2015 Decided: December 21, 2015
Before WYNN, FLOYD, and THACKER, Circuit Judges.
Reversed and remanded by published opinion. Judge Wynn wrote the
opinion, in which Judge Floyd and Judge Thacker joined.
ARGUED: Rhett Hunter Johnson, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. John J.
Frail, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee. ON BRIEF: Christian M. Capece, Federal
Public Defender, Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. R. Booth
Goodwin II, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, West Virginia, for Appellee.
WYNN, Circuit Judge:
A law enforcement officer knowingly lied to Defendant
Kenneth Rush by claiming that he had a warrant to search the
apartment where Defendant was staying when no warrant in fact
existed. The district court held that the officer’s false
statement stripped Defendant of his Fourth Amendment right to
object to the search, but declined to suppress evidence obtained
from the search. On appeal, Defendant argues that the evidence
should have been suppressed. We agree and therefore reverse the
district court and remand.
I.
On the morning of May 23, 2012, Marquita Wills called the
Charleston, West Virginia, Metropolitan Drug Enforcement Network
Team (MDENT) to request that they remove Defendant from her
apartment. Ms. Wills suspected that Defendant, who had been
staying with her for the previous two nights, was dealing drugs
from her apartment. Lieutenant A.C. Napier and Sergeant William
Winkler of the Charleston Police Department immediately arranged
to meet Ms. Wills at a local business. There, Ms. Wills gave
them the key to her apartment and signed a consent form
authorizing the police to search it. Ms. Wills told them that
she was afraid of Defendant because his family had a history of
violence, but she did not indicate that he had committed any
crimes against her or threatened her.
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Sergeant Winkler and Lieutenant Napier went directly to Ms.
Wills’s apartment, where they were joined by Detective Ryan
Higginbotham, Detective Keven Allen, Detective Tagayun, and
Officer John Halstead. They opened the apartment door with the
key and entered with their weapons drawn, yelling “police” to
announce their presence. Detectives Allen and Higginbotham
found Defendant asleep in the bed in the master bedroom. They
handcuffed Defendant, brought him into the living room, and sat
him on the couch. After ensuring that no one else was in the
apartment, they removed the handcuffs.
At some point in this series of events, Defendant asked,
“Can you tell me what’s going on? Why are you all here?” J.A.
75. Sergeant Winkler responded that the officers had a warrant
to search the apartment, even though he knew that was not true.
Sergeant Winkler testified at the suppression hearing that he
lied about having a search warrant to protect Ms. Wills.
After informing Defendant that they had a search warrant,
the officers searched the apartment and found crack cocaine and
digital scales. Defendant was cooperative throughout the
search. When questioned by Detective Allen, he admitted that
the drugs belonged to him and that he had sold crack cocaine
from Ms. Wills’s apartment. Defendant also gave the police
information about the supplier who sold him the drugs and signed
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a statement, written by Lieutenant Napier, recording his answers
to Detective Allen’s questions.
After completing the search and questioning Defendant, the
officers left, without arresting Defendant or removing him from
Ms. Wills’s apartment. At the officers’ request, Defendant
voluntarily visited the MDENT office later that day to answer
additional questions about his supplier. After Defendant
answered their questions, the officers again did not arrest him;
instead, they simply allowed him to leave.
Defendant was ultimately arrested and charged with one
count of knowingly and intentionally possessing with intent to
distribute twenty-eight grams or more of cocaine base in
violation of 21 U.S.C. § 841(a)(1). Defendant moved in limine
to suppress the evidence obtained from the warrantless search of
Ms. Wills’s apartment.
Despite finding a constitutional violation, the district
court denied the motion to suppress. As the district court
noted, by “inaccurately claiming that the search was supported
by a warrant, . . . law enforcement materially impaired
[Defendant]’s right, under [Georgia v.] Randolph, [547 U.S. 103(2006),] to object when law enforcement entered the home.”
United States v. Rush, No. 2:13-00151, 2014 WL 989198, at *4
(S.D. W. Va. Mar. 13, 2014). Nevertheless, the court held that
the officers did not intentionally impair Defendant’s rights,
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but instead lied about the warrant “in a justifiable effort to
protect Ms. Wills.” Id. at *7. The court also determined that
suppressing the evidence would have little deterrent effect on
police misconduct because there was “a vanishingly low
likelihood of future recurrences” of the same behavior. Id.Following the denial of his motion to suppress, Defendant
agreed to plead guilty to one count of possessing with intent to
distribute an unspecified quantity of crack cocaine. Defendant
pled guilty and was sentenced to twelve months and one day in
prison, followed by three years of supervised release. In the
plea agreement, Defendant reserved the right to appeal the
district court’s decision on his motion to suppress. Defendant
then timely filed a notice of appeal.
When reviewing a ruling on a suppression motion, we review
the district court’s legal determinations de novo and factual
findings for clear error. United States v. Davis, 690 F.3d 226,
233 (4th Cir. 2012). And if the motion has been denied, we
review the evidence in the light most favorable to the
government. Id.II.
No one contests the fact that Defendant’s Fourth Amendment
rights were violated. 1 The parties disagree only about whether
1
As the district court recognized, even though Ms. Wills
consented to the search of her apartment, Defendant had a right
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the resulting evidence should have been suppressed. Defendant
argues that the district court erred in finding that Sergeant
Winkler acted in good faith to protect Ms. Wills. Defendant
asserts that the good-faith exception to the exclusionary rule
is inapplicable because Sergeant Winkler deliberately lied about
the existence of a search warrant and could not have had an
objectively reasonable belief that such a lie was lawful. We
agree.
The Fourth Amendment provides that “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated.” U.S. Const. amend. IV. The Fourth Amendment does
not “expressly preclud[e] the use of evidence obtained in
violation of its commands.” United States v. Leon, 468 U.S.
897, 906 (1984). However, courts have developed a “prudential”
doctrine that—under certain circumstances—prohibits evidence
obtained through an unconstitutional search from being used
against the subject of the search in a criminal trial. Pa. Bd.
of Prob. & Parole v. Scott, 524 U.S. 357, 363 (1998).
The exclusionary rule “is ‘not a personal constitutional
right,’ nor is it designed to ‘redress the injury’ occasioned by
to object to the search because he was a present co-occupant of
the apartment. See Randolph, 547 U.S. at 106. The officers
unconstitutionally denied Defendant the opportunity to object to
the search by falsely stating that they had a warrant. See
Bumper v. North Carolina, 391 U.S. 543, 548–50 (1968).
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an unconstitutional search.” Davis v. United States, 131 S. Ct.
2419, 2426 (2011) (quoting Stone v. Powell, 428 U.S. 465, 486
(1976)). Instead, the rule’s purpose “is to deter future Fourth
Amendment violations.” Id.Exclusion is appropriate when the deterrence benefits of
suppression outweigh the “substantial social costs” of excluding
the evidence. Leon, 468 U.S. at 907. As the Supreme Court has
explained:
When the police exhibit “deliberate,” “reckless,” or
“grossly negligent” disregard for Fourth Amendment
rights, the deterrent value of exclusion is strong and
tends to outweigh the resulting costs. But when the
police act with an objectively “reasonable good-faith
belief” that their conduct is lawful, or when their
conduct involves only simple, “isolated” negligence,
the “‘deterrence rationale loses much of its force,’”
and exclusion cannot “pay its way.”
Davis, 131 S. Ct. at 2427–28 (internal citations omitted)
(quoting Herring v. United States, 555 U.S. 135, 137, 144
(2009), and Leon, 468 U.S. at 908 n.6, 909, 919).
The Supreme Court has applied the good-faith exception to
certain cases of “isolated” negligence. Herring, 555 U.S. at
137. In Herring, the police officers who conducted the search
were incorrectly informed by the police department in a
neighboring county that there was an outstanding warrant for the
defendant’s arrest. Id. at 137–38. Since the Fourth Amendment
violation arose out of “isolated negligence attenuated from the
arrest,” id. at 137, the Supreme Court held that suppressing the
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evidence would have only a marginal deterrent effect on police
behavior and thus was not warranted, id. at 147.
Additionally, the Supreme Court has applied the good-faith
exception “when the police act with an objectively ‘reasonable
good-faith belief’ that their conduct is lawful.” Davis, 131 S.
Ct. at 2427 (quoting Leon, 468 U.S. at 909). For instance, in
Leon, police officers conducted a search pursuant to a facially
valid search warrant. 468 U.S. at 902. The district court
later ruled that the search warrant was unsupported by probable
cause and thus invalid. Id. at 903. Although the search
violated the Fourth Amendment, the Supreme Court declined to
suppress the evidence because the officers’ reliance on the
warrant was objectively reasonable. Id. at 926; see also
Massachusetts v. Sheppard, 468 U.S. 981, 990–91 (1984).
Similarly, the Supreme Court applied the good-faith
exception when police officers reasonably relied upon records
indicating that there was an outstanding arrest warrant for the
defendant, even when the records were later found to be
inaccurate. Arizona v. Evans, 514 U.S. 1, 15–16 (1995). The
erroneous information was part of a database maintained by
employees of the Clerk of Court. Id. at 4. The Supreme Court
held that the evidence should not be suppressed because “the
exclusionary rule was historically designed as a means of
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deterring police misconduct, not mistakes by court employees.”
Id. at 14.
The present case bears no resemblance to the previous
applications of the good-faith exception. Here, the search was
unconstitutional due to the intentional decision of Sergeant
Winkler to tell Defendant that there was a search warrant, even
though he knew that his statement was untrue. This is not a
case of negligence, or reasonable reliance on faulty
information. See Herring, 555 U.S. at 137; Evans, 514 U.S. at15–16. Rather, it is a case of a deliberate lie.
The good-faith exception, therefore, would apply in this
case only if the officers held an objectively reasonable belief
that it was lawful to conduct the search after lying about the
existence of a warrant. See Davis, 131 S. Ct. at 2427–29. In
other words, we must determine objectively “whether a reasonably
well trained officer would have known that the search was
illegal.” Herring, 555 U.S. at 145 (quoting Leon, 468 U.S. at922 n.23).
Here, there can be no doubt that a reasonable officer would
know that deliberately lying about the existence of a warrant
would violate Defendant’s Fourth Amendment rights. Indeed,
courts have long taken a negative view of law enforcement
misleading the public about having valid warrants. In the
seminal opinion Bumper v. North Carolina, 391 U.S. 543, 546–47
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(1968), for example, the police falsely told the defendant’s
grandmother that they had a warrant to search her home, and
believing them, she did not object to the search. The Court
noted that “[w]hen a law enforcement officer claims authority to
search a home under a warrant, he announces in effect that the
occupant has no right to resist the search.” Id. at 550. As
such, any “consent” given after the officer has asserted that he
possesses a warrant is not valid. Id. at 548. The Bumper Court
held that the officers violated the Fourth Amendment and that
the evidence should have been suppressed. Id. at 550; see also,
e.g., United States v. Saafir, 754 F.3d 262, 266 (4th Cir. 2014)
(“A search or seizure is unreasonable and therefore
unconstitutional if it is premised on a law enforcement
officer’s misstatement of his or her authority.”); Trulock v.
Freeh, 275 F.3d 391, 402 (4th Cir. 2001) (holding that consent
given by a suspect who was falsely told that the FBI had a
search warrant was invalid).
Further, we find instructive the Sixth Circuit’s decision
in United States v. Shaw, 707 F.3d 666 (6th Cir. 2013). In
Shaw, officers had an arrest warrant for a suspect residing at
3171 Hendricks Avenue in Memphis, Tennessee. Id. at 667. When
the officers arrived at the address, they found two houses
labeled 3170 Hendricks Avenue and none with the 3171 address.
Id. The officers approached one of the homes (which was
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actually 3170 Hendricks Avenue) and told the woman who answered
the door that they had a warrant “for this address.” Id. The
woman then allowed the officers to search the home, which led to
the discovery of illegal drugs and the arrest of one of the
occupants. Id. Although the officers had a “fifty-fifty chance
of being right,” id. at 668, they ultimately were incorrect and
“obtained entry into the wrong house based on a false pretense,”
id. at 669. The Sixth Circuit held that the officers violated
the Fourth Amendment and excluded the evidence obtained through
the search. Id. at 669–70. The Sixth Circuit underscored that
“so long as there is an exclusionary rule, it seems safe to say
that it will apply to officers who enter and remain in a house
based on false pretenses.” Id. at 670.
At the time of the search at issue here, Sergeant Winkler
had over sixteen years of experience with the Charleston Police
Department. Sergeant Winkler knew with certainty that he did
not possess a search warrant, but deliberately chose to tell
Defendant otherwise. An objectively reasonable officer with
Sergeant Winkler’s level of experience would have known that
consent to search is not valid if given after the police falsely
claim to have a search warrant. See Herring, 555 U.S. at 145(noting that “a particular officer’s knowledge and experience”
may inform the analysis of whether the officer’s action was
objectively reasonable). Sergeant Winkler’s action was
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deliberate, contrary to long-standing precedent, and objectively
unreasonable. In other words, it is precisely the type of
action that the exclusionary rule seeks to deter.
The government nevertheless argues that the officers acted
in good faith because they did not intend to violate Defendant’s
rights by claiming that they had a warrant; they sought only to
protect Ms. Wills. Even if this were true—and the officers’
behavior suggests it was not 2—the subjective intent of the
officers is of no import to our analysis. Herring, 555 U.S. at
145. Further, the Supreme Court has made clear that the good-
faith exception applies only if the officers had an objectively
reasonable belief that their conduct was lawful, and not merely
preferable or more expedient than complying with the Fourth
Amendment. Davis, 131 S. Ct. at 2427.
III.
Excluding the evidence obtained through a deliberate lie
on the part of law enforcement, as in this case, may well deter
police officers from so violating the Fourth Amendment in the
2
After searching Ms. Wills’s apartment, the officers left
Defendant there and chose not to arrest him either there or
later that day at the MDENT office. Clearly, then, they did not
see Defendant as a threat to Ms. Wills, nor did they face any
exigency that could possibly justify their decision to search
the apartment under false pretenses and without a warrant. See
United States v. Yengel, 711 F.3d 392, 399 (4th Cir. 2013)
(rejecting officers’ justifications for a search when they were
inconsistent with the officers’ behavior at the time of the
search).
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future. We emphatically agree with the Sixth Circuit’s
statement that “so long as there is an exclusionary rule, it
seems safe to say that it will apply to officers who enter and
remain in a house based on false pretenses.” Shaw, 707 F.3d at
670. Accordingly, we reverse and remand.
REVERSED AND REMANDED
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