United States v. Bynum ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.
TERRELL LAMONT BYNUM, a/k/a Boo,  No. 00-4773
a/k/a Boo-Man; SUMEKA PLUMMER;
IRIS JOHNSON,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-00-197)
Argued: October 31, 2001
Decided: June 14, 2002
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Reversed by published opinion. Judge Motz wrote the majority opin-
ion, in which Judge King joined. Judge King wrote a separate concur-
ring opinion. Judge Michael wrote a dissenting opinion.
COUNSEL
ARGUED: Brian Ronald Hood, Assistant United States Attorney,
Richmond, Virginia, for Appellant. Reginald Moore Barley, Rich-
mond, Virginia, for Appellee Johnson; JeRoyd Wiley Greene, III,
ROBINSON & GREENE, Richmond, Virginia, for Appellee Bynum;
2 UNITED STATES v. BYNUM
Susan Ann Kessler, WHITE, BLACKBURN & CONTE, P.C., Rich-
mond, Virginia, for Appellee Plummer. ON BRIEF: Helen F. Fahey,
United States Attorney, Richmond, Virginia, for Appellant.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
The Government appeals the district court’s order suppressing cer-
tain physical evidence seized pursuant to a search warrant. Finding
that the good faith exception adopted by the Supreme Court in United
States v. Leon, 468 U.S. 897 (1984), renders this evidence admissible
even if the search warrant lacked probable cause, we reverse.
I.
On February 10, 2000, Richmond Police Department Detective
John O’Connor received information from a confidential informant
that a black male known as "Boo-Man" possessed a large quantity of
heroin and was dealing heroin in the end apartment (next to that of
a Sequell Sedrick) on Walcott Place, in Richmond, Virginia. The
informant advised O’Connor that "Boo-Man" had "quite a bit of her-
oin, that he had some in his crotch, [and] that he kept it in his Cadil-
lac." The informant "described the Cadillac," and related that Boo-
Man "made trips . . . out of the area frequently, back and forth to the
apartment delivering drugs." The informant further told Detective
O’Connor that Boo-Man and his group were "beefing with another
group . . . over a dispute at a dance hall."
Later that evening, Detective O’Connor applied for a warrant, mak-
ing an affidavit as to these facts and further stating that for the previ-
ous eight years this confidential informant had provided the
Richmond Police Department with accurate information, which law
enforcement officers had corroborated through "DMV, and Criminal
History Checks, Search warrants and arrests," and that the informa-
tion had led to the "seizure of large quantities of drugs, and guns" and
several convictions. On the basis of this affidavit, a state magistrate
issued a search warrant for the apartment at 2234 Walcott Place.
UNITED STATES v. BYNUM 3
Detective O’Connor and other police officers conducted the search
for several hours, beginning at 10:40 p.m. on February 10. The search
yielded 196 gross grams of heroin, some marijuana, drug parapherna-
lia, a scale, bullets, and $10,750 in cash. The lessee of the apartment,
Iris Johnson, was absent during the search, but two other residents of
the apartment, Sumeka Plummer and Terrell Bynum (who the police
learned was Boo-Man), were present. However, the police arrested no
one that evening.
On May 25, 2000, Drug Enforcement Administration (DEA) agent
Kenneth Peterson sought another warrant to search 2234 Walcott
Place. The affidavit, after two generic paragraphs identifying Agent
Peterson as a DEA task force officer with training and experience in
narcotics investigations, stated in relevant part:
3. This affidavit is made in support of a SEARCH WAR-
RANT for the residence of Terrell BYNUM, located at
2234 Walcott Place, Richmond, VA. This location has
been utilized by BYNUM in furtherance of drug traf-
ficking crimes and is within the Eastern District of Vir-
ginia and the jurisdiction of the Court.
4. BYNUM is described by the Virginia Department of
Motor Vehicles as a male with a date of birth of
01/01/79 and social security number XXX-XX-XXXX.
BYNUM has a criminal record in Virginia and is a con-
victed felon.
5. Information and intelligence provided in this investiga-
tion by a Confidential Source (CS) has been proven reli-
able and information provided to law enforcement has
been verified. The CS has identified BYNUM as a large
quantity dealer of heroin.
6. On February 10, 2000, a search warrant conducted at
2234 Walcott Place, Richmond, VA by DEA and the
Richmond Police Department resulted in the seizure of
approximately 196 gross grams of heroin. $10,750 in
U.S. Currency was also seized from within the resi-
4 UNITED STATES v. BYNUM
dence. Additionally, a digital scale, razor blade and
packaging material were seized from the residence.
7. Within the past 72 hours, the CS has observed a large
quantity of heroin within the residence at 2234 Walcott
Place, Richmond, VA. The CS observed BYNUM
packaging heroin for distribution and delivering a por-
tion of the narcotics to three associates. A substantial
amount of heroin remained within the residence after
the delivery.
An Assistant United States Attorney reviewed and signed the affi-
davit, his signature indicating his approval of it. On the basis of this
affidavit, a United States Magistrate Judge issued a search warrant.
Government agents, including Agent Peterson, executed a search pur-
suant to the warrant on the evening of May 25, 2000. This search
yielded a small amount of marijuana, a loaded .40 caliber Beretta
semi-automatic pistol, and unspent .380 caliber and 9mm caliber
ammunition. Brief of Appellant at 7.
Shortly thereafter, a grand jury indicted Bynum, Plummer, and
Johnson for multiple drug and firearm offenses. Bynum, Plummer,
and Johnson moved to suppress the physical evidence that law
enforcement authorities had seized pursuant to the February and May
search warrants. The district court issued an order denying the sup-
pression motion with respect to the February warrant, but granting it
as to the May warrant. United States v. Bynum, 125 F. Supp. 2d 772
(E.D. Va. 2000). The Government appeals the latter ruling; Bynum,
Plummer, and Johnson do not cross appeal. Accordingly, the sole
issue presented to us is whether the district court erred in suppressing
evidence obtained pursuant to the May search warrant.
II.
In granting the motion to suppress on the basis of the Fourth
Amendment exclusionary rule, the district court found (1) that no
probable cause supported the warrant and (2) that the Leon good faith
exception did not "save[ ] the yield of the May 25 search from sup-
pression." Id. at 797-99. The Government contends that the court
erred with respect to both rulings. Assuming without deciding that no
UNITED STATES v. BYNUM 5
probable cause supported the warrant, we will proceed "immediately
to a consideration of the officers’ good faith." Leon, 468 U.S. at 925
(recognizing the appropriateness of such an approach in some cases);
accord United States v. Legg, 18 F.3d 240, 243 (4th Cir. 1994).
Leon teaches that a court should not suppress the fruits of a search
conducted under the 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 autho-
rization." Leon, 468 U.S. at 922 n.23. The Court explained that an
officer could not be found to have acted with "objective reasonable-
ness," excluding application of this "good faith exception," in any of
the following circumstances:
(1) "the magistrate . . . 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) the magistrate acted as a rubber stamp for the officers
and so "wholly abandoned" his detached and neutral
"judicial role";
(3) "an affidavit [is] so lacking in indicia of probable
cause as to render official belief in its existence
entirely unreasonable"; or
(4) "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 reason-
ably presume it to be valid."
Id. at 923 (internal quotation marks omitted).
In holding that the third circumstance described by the Leon Court
barred application of the good faith exception in this case, the district
court misidentified when this circumstance occurs. Thus, the court
stated that "[t]he good faith exception . . . does not apply" when the
affidavit fails to provide "a substantial basis for determining the exis-
6 UNITED STATES v. BYNUM
tence of probable cause." Bynum, 125 F. Supp. 2d at 797. "Substantial
basis" provides the measure for determination of whether probable
cause exists in the first instance. See United States v. Harris, 403 U.S.
573, 581 (1971). If a lack of a substantial basis also prevented appli-
cation of the Leon objective good faith exception, the exception
would be devoid of substance. In fact, Leon states that the third cir-
cumstance prevents a finding of objective good faith only when an
officer’s affidavit is "so lacking in indicia of probable cause as to ren-
der official belief in its existence entirely unreasonable." Leon, 468
U.S. at 923 (citation omitted). This is a less demanding showing than
the "substantial basis" threshold required to prove the existence of
probable cause in the first place.
With the correct standard in mind, we believe it is clear that even
if Agent Peterson’s affidavit does not provide a substantial basis for
determining the existence of probable cause, see Illinois v. Gates, 462
U.S. 213, 238 (1983) (requiring a magistrate judge assessing probable
cause for the issuance of a search warrant to determine "whether
given all the circumstances set forth in the affidavit[,] . . . including
the veracity and basis of knowledge of persons supplying hearsay
information, there is a fair probability that contraband or evidence of
a crime will be found in a particular place" (citations omitted)), it is
not "so lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable." Leon, 468 U.S. at 923 (citation
omitted).
In his affidavit, Agent Peterson (1) recited that Bynum resided at
the apartment that he sought to search and had used the apartment in
drug trafficking crimes, (2) stated Bynum’s birth date and social
security number, (3) identified Bynum as a convicted felon with a
criminal record in Virginia, (4) explained that a February 10 search
of the same apartment had yielded 196 grams of heroin, drug para-
phernalia and $10,750 in cash, and (5) related that a confidential
informant who had "proven reliable" and whose information "ha[d]
been verified," provided "[i]nformation and intelligence . . . in this
investigation," including identification of Bynum as a "large quantity
heroin dealer" and observation that "[w]ithin the past 72 hours"
Bynum had possessed "a large quantity of heroin" in the apartment.
Although in his affidavit, Agent Peterson did not expressly inform
the magistrate judge that the confidential source was the same source
UNITED STATES v. BYNUM 7
who provided information for the February 10 search, from the affida-
vit the magistrate judge could reasonably have inferred a link between
the confidential source and the February search. Paragraphs 3 and 4
of the affidavit establish that the warrant is requested to search 2234
Walcott Place, the residence of Terrell Bynum, a convicted felon,
who has been using his home to traffic in illegal drugs. In paragraph
5 the affidavit states that a confidential source "in this investigation"
has supplied reliable information to law enforcement officers, which
"has been verified." The affidavit then proceeds chronologically to
detail, in the remainder of paragraph 5, what information the infor-
mant previously has provided during the investigation, i.e., that
Bynum is "a large quantity dealer of heroin," and then, in paragraph
6, how law enforcement has verified that information, i.e., by recover-
ing 196 gross grams of heroin from the same site — 2234 Walcott
Place — in the February search. The magistrate judge could, there-
fore, reasonably infer from reading paragraphs 5 and 6 seriatim, and
in conjunction, that they are to be linked — to establish the veracity
and reliability of the informant.
The district court, however, noting the absence of any explicit link
or any other specific information as to the confidential source’s prior
proved reliability, found that the Leon good faith exception did not
"save[ ] the yield of the May 25 search from suppression." Bynum,
125 F. Supp. 2d at 797. The court reasoned that the affidavit con-
tained only "conclusory averments" of "three month old information"
based on "the bare bones statement of an informant whose prove-
nance was not in an affidavit which contained no underlying facts
about the basis for the informant’s information" and so "[t]o apply the
good faith exception here would allow the exception to swallow . . .
the exclusionary rule." Bynum, 125 F. Supp. 2d at 799. In so holding,
the district court relied heavily on United States v. Wilhelm, 80 F.3d
116 (4th Cir. 1996), where we held that the good faith Leon exception
did not apply, and asserted that "[t]he affidavit here is less substantial
than the one described in Wilhelm to be ‘bare bones’ and thus defi-
cient." Id. at 798. We disagree; we believe that, in fact, the substantial
differences between the facts in Wilhelm and those in the case at hand
conclusively demonstrate why the Leon exception does apply here.
In Wilhelm, after receiving an anonymous telephone tip that an
informant had seen marijuana being sold in the defendant’s home
8 UNITED STATES v. BYNUM
within the past 48 hours, an officer applied for a search warrant. Wil-
helm, 80 F.3d at 117-18. The officer did not meet the informant
before or after receiving the tip and did not know the informant. Id.
at 118. In support of the warrant, the officer described the informant
as a "concerned citizen" and a "mature person with personal connec-
tions with the suspects [who] has projected a truthfull [sic] demeanor
to this applicant." Id. The officer’s only corroborating information
was that she had confirmed directions to the residence and that the
description of the marijuana and of the sale transactions was consis-
tent with her knowledge of marijuana packaging and sales. Id. We
held that the Leon good faith exception did not apply because the offi-
cer "could not reasonably rely on an unknown, unavailable informant
without significant corroboration," id. at 123, and the magistrate thus
acted only as a "rubber stamp" in approving a "bare bones" affidavit.
Id. at 121. We further noted that "[w]hile perhaps not undertaken with
deliberate bad faith, [the officer]’s use of phrases such as ‘concerned
citizen,’ ‘mature’ and ‘truthful demeanor’" struck us "as attempts to
endue the affidavit with the appearance of genuine substance." Id. at
123; cf. United States v. Baxter, 889 F.2d 731, 733-34 (6th Cir. 1989)
(refusing to apply good faith exception to "bare bones" affidavit in
which officer misrepresented "anonymous" informant as "confiden-
tial" informant).
Here, unlike Wilhelm, the officer relied not on an unknown infor-
mant but one whom he knew and who had provided reliable informa-
tion in the past that law enforcement officers had "verified." The
Supreme Court has repeatedly recognized that a proven, reliable
informant is entitled to far more credence than an unknown, anony-
mous tipster. See, e.g., Florida v. J.L., 529 U.S. 266, 270 (2000);
Adams v. Williams, 407 U.S. 143, 146-147 (1972). Although certainly
it would have been preferable if Agent Peterson had expressly stated
in his affidavit the basis for his statement as to his informant’s reli-
ability, he did at least swear to the magistrate that he was relying on
a known and proven confidential source, not a never-known, never-
verified tipster as in Wilhelm. See Wilhelm, 80 F.3d at 120 (noting
that "[u]pholding this warrant would ratify police use of an unknown,
unproven informant — with little or no corroboration"). Thus, Agent
Peterson’s affidavit does not send up the same sort of red flags as did
that in Wilhelm. Cf. United States v. Blackwood, 913 F.2d 139 (4th
Cir. 1990) (approving as providing probable cause affiant’s use of
UNITED STATES v. BYNUM 9
unnamed "reliable and confidential informant" who had previously
provided "true and accurate information" to purchase cocaine).
Moreover, as noted above, in the case at hand the magistrate judge
reasonably could have inferred from the affidavit that law enforce-
ment officers had verified prior information obtained from this same
confidential source by a fruitful search of the same search site
(Bynum’s residence) just three and a half months earlier. The
Supreme Court has expressly recognized that affidavits in support of
search warrants should not be subject to "[t]echnical requirements of
elaborate specificity," and that a magistrate has the "authority . . . to
draw such reasonable inferences as he will from the material supplied
to him by applicants for a warrant." Gates, 462 U.S. at 235, 240.
Furthermore, the affidavit provided explicit corroboration of possi-
ble illegal drug activity at the search site, which far exceeds that in
the affidavit at issue in Wilhelm. Critically, Agent Peterson’s affidavit
stated that Bynum was a convicted felon with a criminal record in
Virginia, who resided at the proposed search site, a site where officers
had seized a large amount of heroin and United States currency less
than four months earlier. An officer’s report in his affidavit of "the
target’s prior criminal activity or record is clearly material to the
probable cause determination," United States v. Taylor, 985 F.2d 3,
6 (1st Cir. 1993) (citation omitted), see also United States v. Sumpter,
669 F.2d 1215, 1222 (8th Cir. 1982) ("[A]n individual’s prior crimi-
nal activities and record [cited in a search warrant application] have
a bearing on the probable cause determination."), and law enforce-
ment "reports" as to a defendant’s "previous drug smuggling activi-
ties" can corroborate a confidential informant’s "veracity." United
States v. Foree, 43 F.3d 1572, 1576 (11th Cir. 1995); see also United
States v. Miller, 925 F.2d 695, 699-700 (4th Cir. 1991) (holding infor-
mant’s tip corroborated, in part, because the officer "knew that [the
defendant] had been involved in illegal narcotics in the past" based
on his prior arrest of defendant for cocaine possession approximately
one year earlier). In contrast, the only corroboration offered by the
affiant in Wilhelm to bolster the anonymous tipster’s information was
accurate directions to the defendant’s house, which, as we noted, were
available to "[a]lmost anyone," Wilhelm, 80 F.3d at 121, and which
did not reveal anything about the defendant’s criminal activities.
10 UNITED STATES v. BYNUM
Nor, again unlike Wilhelm, is there an indication in this case of any
sort of bad faith by the officer who prepared the affidavit. The affiant
in Wilhelm craftily choose his words in an attempt to clothe a totally
anonymous source with "genuine substance." Id. at 123. In contrast,
as the district court recognized, "[t]here is nothing here to suggest
that" Agent Peterson in any way "was dishonest." J.A. at 361 (Tran-
script of Suppression Hearing at 331). Cf. Leon, 468 U.S. at 926
(good faith exception not applicable if "the officers were dishonest").
On the contrary, that Agent Peterson consulted with the prosecutor
prior to applying for the search warrant provides additional evidence
of his objective good faith, like the law enforcement officer in Leon,
468 U.S. at 902, and unlike the officer in Wilhelm. See Massachusetts
v. Sheppard, 468 U.S. 981, 989 (1984); United States v. George, 971
F.2d 1113, 1124 (4th Cir. 1992). Given all of these circumstances, we
are satisfied that Agent Peterson’s "reliance on the magistrate’s deter-
mination of probable cause was objectively reasonable." Leon, 468
U.S. at 926.
In reaching its contrary conclusion, the district court may have
found relevant Agent Peterson’s failure to state expressly in his affi-
davit that the confidential informant on whom he relied had also pro-
vided the information for the fruitful February search of the same
apartment. See Bynum, 125 F. Supp. 2d at 793-97. The Government
argued and the district court seemed to accept that Agent Peterson
knew when he applied for the warrant that he "was using information
from the same informant" who had "produced information in the past
which led to the successful search on February 10th." J.A. 354 (Tran-
script of Suppression Hearing at 326). The district court also seemed
to accept that if this linkage had been set forth in Agent Peterson’s
affidavit, it would have been sufficient to establish probable cause.
See Bynum, 125 F. Supp. 2d at 793-97. But, of course, as noted above,
Agent Peterson’s affidavit did not expressly include this information.
If the district court relied on the absence of this information in
refusing to apply Leon’s good faith exception, that reliance was error.
When, as here, the affidavit itself provides information not "so lack-
ing in indicia of probable cause as to render official belief in its exis-
tence entirely unreasonable," Leon, 468 U.S. at 923, a court should
not refuse to apply the Leon good faith exception just because the
officer fails to include in that affidavit all of the information known
UNITED STATES v. BYNUM 11
to him supporting a finding of probable cause. Cf. Leon, 468 U.S. at
923 (holding that good faith exception does not apply when "magis-
trate was misled by . . . information that the affiant knew was false
or would have known was false except for his reckless disregard of
the truth") (emphasis added)); United States v. Vigeant, 176 F.3d 565,
573 (1st Cir. 1999) (holding Leon good faith exception inapplicable
when affiant recklessly omitted numerous material facts undermining
affidavit’s persuasiveness, including indicia of confidential infor-
mant’s unreliability); United States v. Reilly, 76 F.3d 1271, 1280 (2d
Cir. 1996) (holding that Leon good faith exception "does not protect
searches by officers who fail to provide all potentially adverse infor-
mation to the issuing judge, and for that reason, it does not apply
here").
This is not to say that absent an affidavit with the required "indicia
of probable cause," Leon, 468 U.S. at 923, we would conclude that
additional facts, which the government proved were known to the
affiant police officer, but not revealed to the magistrate prior to issu-
ance of the search warrant, could be considered in the Leon analysis.
Courts have divided on this question. Compare United States v. Hove,
848 F.2d 137, 140 (9th Cir. 1988) (holding when affidavit itself is
totally lacking in indicia of probable cause, the Leon good faith reli-
ance inquiry does not extend to facts known to officers but not
included in affidavit); State v. Klosterman, 683 N.E.2d 100, 103-05
(Ohio Ct. App. 1996) (same); and Jones v. Commonwealth, 472
S.E.2d 649, 653-55 (Va. Ct. App. 1996) (same), with United States
v. Marion, 238 F.3d 965, 969 (8th Cir. 2001) (holding that when
assessing good faith under Leon a court looks at the "totality of the
circumstances" including information demonstrating probable cause
known to the affiant, but not included in his affidavit (internal quota-
tion marks and citation omitted)); United States v. Taxacher, 902 F.2d
867, 871-73 (11th Cir. 1990) (same); United States v. Word, No. IP
99-106-CR, 2000 WL 724041, at *13-*15 (S.D. Ind. May 31, 2000),
aff’d, No. 00-2688, 2001 WL 13133 (7th Cir. Jan. 2, 2001) (same);
and State v. Edmonson, 598 N.W.2d 450, 460-62 (Neb. 1999) (same).
Our dissenting colleague, Judge Michael, makes a persuasive case
that such information should not be considered in determining
whether the officer displayed the objective reasonableness described
in Leon. To so hold would certainly seem, as Judge Michael well
12 UNITED STATES v. BYNUM
explains, to undercut Fourth Amendment protections, and be at odds
with the very purpose of the Leon good faith exception. On the other
hand, to refuse to consider such information in making the Leon
inquiry creates an anomaly. Even though Leon itself renders admissi-
ble evidence obtained pursuant to a warrant supported by an affidavit
that lacks probable cause, Judge Michael’s interpretation of Leon
would bar admission of evidence obtained pursuant to a warrant sup-
ported by the affidavit of an officer, who, in fact, possesses probable
cause, but inadvertently omits some information from his affidavit.
Today, we need not resolve this difficult question. Wholly apart
from the information known to Agent Peterson but not included in his
affidavit, that affidavit contained sufficient indicia of probable cause
so as not to render reliance on it totally unreasonable. Accordingly,
we hold that the Leon good faith exception applies and the district
court should not have suppressed the evidence obtained during the
May 25, 2000 search.
III.
For these reasons, the judgment of the district court is
REVERSED.
KING, Circuit Judge, concurring:
I am pleased to concur in Judge Motz’s excellent analysis and
application of the good faith exception enumerated by the Supreme
Court in United States v. Leon. I write separately, however, because
I believe this search warrant to be properly supported and to have
been properly issued.
First of all, we must recognize that Agent Peterson and his col-
leagues did most everything right. They assessed their evidence; they
prepared their affidavit and paperwork for the search warrant applica-
tion; they took their information and papers to an Assistant United
States Attorney for review and critique; they obtained the approval of
the prosecutor for what they were about to do; they placed their affi-
davit before the sitting United States Magistrate Judge in Richmond
UNITED STATES v. BYNUM 13
for an independent judicial assessment; they obtained the duly issued
search warrant from the Magistrate Judge; and then, as Judge Motz
properly concludes, they executed the warrant in good faith. See Mas-
sachusetts v. Sheppard, 468 U.S. 981, 989 (1984) ("The officers in
this case took every step that could reasonably be expected of them.").
Accordingly, as Judge Motz says, Agent Peterson and the officers
executing the warrant were fully entitled to rely on its validity.
Turning to the sufficiency of the warrant, we must look to the total-
ity of the circumstances to assess whether a search warrant affidavit
supports a finding of probable cause. See Illinois v. Gates, 462 U.S.
213, 238 (1983); United States v. Gillenwaters, 890 F.2d 679, 682
(4th Cir. 1989). In this instance, the search warrant was issued by a
capable and experienced Magistrate Judge, and even if doubt existed,
we should find it to be valid. United States v. McQuisten, 795 F.2d
858, 861 (9th Cir. 1986) ("In doubtful cases, preference should be
given to the validity of the warrant."). Under the applicable principles,
the Magistrate Judge need only possess a "substantial basis for con-
cluding that a search would uncover evidence of wrongdoing." Gates,
462 U.S. at 236 (citation and quotation omitted). And we have consis-
tently held that we owe great deference to the magistrate’s assessment
of the facts in making a determination of probable cause. See, e.g.,
United States v. Williams, 974 F.2d 480, 481 (4th Cir. 1994) (citing,
inter alia, United States v. Blackwood, 913 F.2d 139, 142 (4th Cir.
1990)). In fact, to establish probable cause, the information presented
to the magistrate "need only ‘warrant a man of reasonable caution’ to
believe that evidence of a crime will be found." Williams, 974 F.2d
at 481 (quoting Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality
opinion)).
I fully agree with Judge Motz that this case presents an entirely dif-
ferent factual situation from that in United States v. Wilhelm, 80 F.3d
116 (4th Cir. 1996). As she properly posits, "a proven, reliable infor-
mant is entitled to far more credence than an unknown, anonymous
tipster," ante at 8, and "the affidavit provided explicit corroboration
. . . far exceed[ing] that in the affidavit at issue in Wilhelm." Ante at
9. The Magistrate Judge, based on Agent Peterson’s affidavit, pos-
sessed a substantial basis for concluding that the search of Bynum’s
residence in Richmond would uncover evidence of drug trafficking.*
*The affidavit of Agent Peterson, dated May 25, 2000, gave the Mag-
istrate Judge the following pertinent information: (1) Bynum lived at
14 UNITED STATES v. BYNUM
In assessing the issue of probable cause, he had before him several
pertinent facts weighing in its favor: (1) this was a known and reliable
confidential source; (2) Bynum was a felon and a drug dealer, who
had three months earlier used this very residence in furtherance of his
drug trafficking crimes; (3) a search of this residence three months
earlier had uncovered illegal narcotics; (4) a large quantity of heroin
was observed by the source being packaged and sold no more than
three days earlier; and (5) Bynum controlled the premises to be
searched. While the veracity, reliability and basis of knowledge of a
confidential source are relevant, they are "simply factors to be consid-
ered" in examining the circumstances and in considering "the total
information available." United States v. Miller, 925 F.2d 695, 699
(4th Cir. 1991) (discussing existence of probable cause to arrest).
In sum, Agent Peterson’s affidavit, as presented to the Magistrate
Judge, contained substantial and pertinent information from which
probable cause could be found. When evaluated in context — in the
totality of the circumstances — this affidavit made a compelling case
that there was drug activity afoot in the Richmond residence of a
known drug trafficker.
Because I believe this warrant to have been validly issued, I would
find it unnecessary to reach the good faith issue. All that said, I am
pleased to concur with Judge Motz on that point.
MICHAEL, Circuit Judge, dissenting:
The majority assumes without deciding that Agent Peterson’s affi-
davit failed to establish probable cause for the May 25, 2000, search
of an apartment at 2234 Walcott Place in Richmond. The majority
(and thus controlled) the premises to be searched; (2) Bynum had previ-
ously used the residence in furtherance of drug trafficking crimes; (3)
Bynum was a convicted felon; (4) a prior search on February 10, 2000,
yielded massive evidence of drug crimes; (5) a confidential source,
proven reliable in the past, identified Bynum as a heroin dealer; and (6)
within the previous 72 hours, the source had observed a large quantity
of heroin inside Bynum’s residence, and he had observed Bynum pack-
aging and delivering some of the drugs.
UNITED STATES v. BYNUM 15
then holds that the evidence from that search can nonetheless be
admitted under the good faith exception established by United States
v. Leon, 468 U.S. 897 (1984), because Agent Peterson’s affidavit was
not "so lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable." Id. at 923 (internal quotation
marks and citation omitted). I respectfully disagree. The warrant here
must stand or fall on the veracity of the confidential informant, and
neither the bare bones assertions of the informant’s reliability in para-
graph 5 of the agent’s affidavit nor the corroboration provided in
paragraphs 3, 4, and 6 come close to establishing the informant’s
veracity. As a result, I would affirm the district court’s order sup-
pressing the evidence from the May 25 search because Agent Peter-
son should have "known that the search was illegal despite the
magistrate’s authorization." Id. at 922 n.23. Indeed, a reasonably
well-trained officer would never have submitted Agent Peterson’s
affidavit to the magistrate judge in the first place. See Malley v.
Briggs, 475 U.S. 335, 345, 346 n.9 (1986). Because I think Agent
Peterson’s affidavit was too insubstantial to merit application of the
good faith exception, I must also discuss an alternative argument
advanced by the government. According to the government, the
exception applies in this case because Agent Peterson knew, but did
not tell the magistrate, that his confidential source was the same infor-
mant referred to in another officer’s affidavit that had supported a
warrant for an earlier search of the same apartment on February 10,
2000. I conclude that what Agent Peterson knew but failed to tell the
magistrate is irrelevant to Peterson’s good faith because Leon requires
an officer to have an objectively reasonable belief that his affidavit
gave the magistrate a substantial basis for finding probable cause.
Whether this belief is reasonable can depend only on the facts
presented to the magistrate.
I.
In deciding whether Agent Peterson’s affidavit was so lacking in
indicia of probable cause that no reasonable officer would have sub-
mitted it to a magistrate, we must view the affidavit in the light of the
totality-of-the-circumstances test for probable cause established by
the Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983). Under
Gates "[t]he task of the issuing magistrate is simply to make a practi-
cal, common-sense decision whether, given all the circumstances set
16 UNITED STATES v. BYNUM
forth in the affidavit before him, including the ‘veracity’ and ‘basis
of knowledge’ of persons supplying hearsay information, there is a
fair probability that contraband or evidence of a crime will be found
in a particular place." Id. at 238. The task of a reviewing court is to
"ensure that the magistrate had a substantial basis for concluding that
probable cause existed." Id. at 238-39 (internal quotation marks, ellip-
sis, and citation omitted). Although Gates abandoned the two-pronged
test set forth in Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli
v. United States, 393 U.S. 410 (1969), it was not a repudiation of all
that had gone before. Specifically, the Gates Court continued to insist
that a magistrate’s probable cause determination must be based on
evidence that is both substantial and independent. "Sufficient infor-
mation must be presented to the magistrate to allow that official to
determine probable cause; his action cannot be a mere ratification of
the bare conclusions of others." Gates, 462 U.S. at 239 (emphasis
added). When an affidavit fails to provide the magistrate with a sub-
stantial and independent basis for concluding that probable cause
exists, any warrant issued on the basis of that affidavit cannot be
relied upon in good faith.
Paragraph 7 of Agent Peterson’s affidavit, ante at 4, states that the
confidential informant had been inside Bynum’s apartment at 2234
Walcott Place within the last 72 hours and had observed Bynum pre-
paring "a large quantity of heroin" for distribution. If credible, this
information shows that the informant had a sufficient basis of knowl-
edge to establish probable cause for the May 25 search. Conversely,
if the information in paragraph 7 is not credible, the affidavit falls so
far short of establishing probable cause that no reasonable officer
would have submitted it to a magistrate. Thus, the critical question in
this case is whether an objectively reasonable officer would have
believed that Agent Peterson’s affidavit provided the magistrate with
a substantial and independent basis for concluding that the confiden-
tial informant was credible. The government argues that the credibil-
ity of the informant in Agent Peterson’s affidavit is supported by (a)
the agent’s claims about the informant’s reliability in paragraph 5 and
(b) the corroboration of the informant’s tip in paragraphs 3, 4, and 6.
Neither provided the magistrate with a substantial and independent
UNITED STATES v. BYNUM 17
basis for crediting the informant’s claims that are reported in para-
graph 7.1
A.
The first sentence in paragraph 5 attempts to establish the confiden-
tial informant’s veracity by pointing to his track record. It states:
Information and intelligence provided in this investigation
by a Confidential Source (CS) has been proven reliable and
information provided to law enforcement has been verified.
1
I deal briefly with one point raised by the majority that was not
pressed by the government. The majority suggests that even though
Agent Peterson failed to "expressly inform the magistrate judge that the
confidential source was the same source who provided information for
the February 10 search," ante at 6-7, Peterson reasonably relied on the
search warrant in part because the magistrate "could reasonably have
inferred a link between the confidential source [referred to in paragraphs
5 and 7 of Agent Peterson’s affidavit] and the February search [described
in paragraph 6 of the affidavit]," id. I agree with the majority that the
good faith exception would apply in this case if the affidavit fairly
implied that the informant mentioned in paragraphs 5 and 7 provided the
information that supported the warrant for the February 10 search. I can-
not agree, however, that a magistrate could reasonably draw the infer-
ence suggested by the majority. Because the link between Agent
Peterson’s confidential informant and the February 10 search would pro-
vide such powerful evidence of the informant’s veracity, a reasonable
magistrate would expect the affidavit to set out this information explic-
itly. See United States v. Bynum, 125 F. Supp. 2d 772, 793 (E.D. Va.
2000) (stating that the absence of any linkage in the affidavit between the
confidential source and the February 10 search was significant because
the affiant would have "provided this obvious indicia of the informant’s
reliability and veracity, if it existed"). Paragraphs 5 and 7 of Agent Peter-
son’s affidavit do refer explicitly to information provided by the infor-
mant, see ante at 3-4, but paragraph 6 (dealing with the February 10
search) says nothing about the informant or about how the earlier search
warrant was obtained. Under these circumstances, the only reasonable
inference for a magistrate to draw would be that Agent Peterson’s infor-
mant had nothing to do with the February 10 search.
18 UNITED STATES v. BYNUM
The bar for establishing an informant’s veracity through references
to his track record is not high. For example, courts have uniformly
held that an informant’s veracity is adequately established when the
affiant asserts that the informant has supplied information leading to
arrests and convictions. See, e.g., United States v. King, 227 F.3d 732,
742 (6th Cir. 2000); United States v. Shepherd, 714 F.2d 316, 317
(4th Cir. 1983). At the opposite end of the spectrum, it is equally clear
that a bare bones, conclusory assertion that the informant is credible
or his information reliable is not sufficient because it "gives the mag-
istrate virtually no basis at all for making a judgment regarding proba-
ble cause." Gates, 462 U.S. at 239. We held in United States v.
Wilhelm, 80 F.3d 116 (4th Cir. 1996), that Leon’s good faith excep-
tion does not apply when a warrant is issued on the basis of a bare
bones affidavit. Id. at 121. Here, Agent Peterson’s affidavit says only
that the informant had provided information that had proven reliable
and had been verified. It does not say whether the information led to
arrests or convictions, how important the information was in prior
investigations, or whether the information pertained to the same sorts
of crimes. In short, Agent Peterson’s characterization of the informant
as having provided reliable and verified information is unacceptably
conclusory because it still "‘leaves the nature of [the informant’s past]
performance undisclosed, so that the judicial officer making the prob-
able cause determination has no basis for judging whether the [affi-
ant’s] characterization of [the informant’s past] performance is
justified.’" United States v. Foree, 43 F.3d 1572, 1576 (11th Cir.
1995) (quoting 1 Wayne R. LaFave, Search and Seizure § 3.3(b) at
636 (2d ed. 1987)). Many courts have properly held that a bare asser-
tion that an informant has provided reliable information in the past
carries little or no weight in the probable cause determination. See,
e.g., United States v. Brack, 188 F.3d 748, 755 (7th Cir. 1999) (hold-
ing that an affidavit stating that the affiants "ha[d] received reliable
information from a credible person" was so conclusory that the tip
would be treated as though it had been "obtained from an informant
of ‘unknown reliability’"); Foree, 43 F.3d at 1575-76 (holding that an
affidavit stating that "[i]nformation previously provided by the [confi-
dential informant] ha[d] been corroborated by the affiant" and that the
informant "ha[d] been found to be truthful and accurate in other nar-
cotics trafficking intelligence" was entitled to only "slight weight").
The same reasoning should apply here. Agent Peterson’s conclusory
assertion that the informant had provided reliable and verified infor-
UNITED STATES v. BYNUM 19
mation should count for nothing (or next to nothing) in the probable
cause calculus. Any other conclusion ignores the requirement that the
inferences from the facts supporting probable cause should be drawn
not by the officer or the confidential informant, but by a "neutral and
detached magistrate." Aguilar, 378 U.S. at 115 (internal quotation
marks and citation omitted).
This point is not undercut by the majority’s statement that, under
applicable Supreme Court precedent, "a proven, reliable informant is
entitled to far more credence than an unknown, anonymous tipster."
Ante at 8. I agree that an officer will often have better reason to trust
an informant he knows than an anonymous voice on the other end of
a telephone line. The cases cited by the majority, however, do not
speak to the question of whether a magistrate must treat a known con-
fidential informant whose veracity is supported only by bare bones
assertions as more credible than an anonymous informant. Neither
Florida v. J.L., 529 U.S. 266, 269-70 (2000), nor Adams v. Williams,
407 U.S. 143, 146-47 (1972), has any real bearing on this question
because both of these cases dealt only with the distinct question of
whether an informant’s tip established the reasonable suspicion
required for a police officer to make a Terry stop. When, as in this
case, the veracity of a known confidential informant is supported only
by the affiant’s conclusory assertions, the magistrate can give "far
more credence" to a known informant’s tip than to an anonymous tip
only by improperly relying on the affiant’s judgments about the infor-
mant’s reliability rather than by making an independent evaluation. In
short, the difference between a "proven, reliable informant" and an
"unknown, anonymous tipster" is only significant from the magis-
trate’s perspective when the affiant informs the magistrate of his
grounds for believing the known informant to be reliable. That did not
happen here.
Agent Peterson’s assertion in paragraph 5 that his informant had
provided reliable and verified information in the past is a bare conclu-
sion that should have been given little or no weight by the magistrate.
No reasonable officer would have thought this assertion provided the
magistrate with a substantial and independent basis for crediting the
informant’s tip. Consequently, Agent Peterson could rely on the May
25 warrant in good faith only if he could reasonably believe that his
20 UNITED STATES v. BYNUM
affidavit’s corroborating evidence provided the magistrate with a sub-
stantial basis for concluding that the informant was truthful.
B.
The corroborating information in Agent Peterson’s affidavit
appears in paragraphs 3, 4, and 6. Ante at 3-4. Together, these para-
graphs suggest that Bynum had been convicted of an unspecified fel-
ony and that he had been dealing significant quantities of heroin from
his apartment at 2234 Walcott Place as recently as three and one-half
months before Agent Peterson submitted his application for the May
25 search warrant. Whether this degree of corroboration is enough to
merit application of the good faith exception is the hardest question
in this case. The case law appears to recognize at least two different
ways in which corroborating evidence can help to establish an infor-
mant’s veracity. As I will explain below, a first method (discussed in
the Supreme Court’s cases on the corroboration of informants’ tips)
allows police officers to establish an informant’s veracity by confirm-
ing the truth of a portion of the informant’s tip. Courts also appear to
recognize a second method of corroboration. Under this method, any
evidence known to the police that tends to establish probable cause
also tends to establish the truthfulness of the informant’s tip. In my
opinion, the corroborating evidence in Agent Peterson’s affidavit does
not adequately support the informant’s veracity in either of these
ways. As a result, I would hold that Leon does not apply on these
facts because no reasonable officer would have thought that the cor-
roborating evidence in paragraphs 3, 4, and 6 provided the magistrate
with a substantial basis for crediting the veracity of the tip.
The Supreme Court has explained that partial corroboration of a tip
helps to establish an informant’s veracity because if "an informant is
right about some things, he is more probably right about other facts."
Gates, 462 U.S. at 244 (quoting Spinelli, 393 U.S. at 427 (White, J.,
concurring)). In other words, the theory is that when police can verify
that an informant has spoken truthfully about one thing, they can (in
some circumstances) reasonably infer that the informant has also spo-
ken truthfully in his unverified allegations of criminal activity. Here,
the only information from the informant that the police were able to
corroborate prior to the May 25 search is the claim in paragraph 5 of
the affidavit that the informant "ha[d] identified Bynum as a large
UNITED STATES v. BYNUM 21
quantity dealer of heroin." This claim is substantially corroborated by
the evidence in paragraphs 3, 4, and (especially) 6. The question
under Leon is whether a reasonable officer would have believed that
the informant’s truthfulness in claiming that Bynum was a large quan-
tity heroin dealer provided the magistrate with a substantial basis for
crediting the informant’s further claims, set out in paragraph 7, that
he had been inside Bynum’s apartment within the last 72 hours and
had observed Bynum preparing heroin for distribution.
Answering this question requires some standard for deciding when
an informant’s truthfulness about one fact makes it reasonable to
assume that he has also been truthful about other facts. The Supreme
Court’s cases on corroboration indicate that confirmation of the infor-
mant’s truthfulness about just any set of facts will not do. Instead, the
Court has asked whether the informant’s knowledge of the facts veri-
fied by the police indicates that he was also in a position to know
about the criminal activity allegedly being carried out by the subject
of the tip. In Florida v. J.L., for example, an anonymous caller told
police that a young black male wearing a plaid shirt at a certain bus
stop was carrying a gun. The police went to the bus stop and saw a
young black male who was wearing a plaid shirt; one policeman
frisked the young man after ordering him to put his hands up on the
bus stop. J.L., 529 U.S. at 268. The Court held that the tipster’s truth-
fulness about the suspect’s physical appearance and location did not
establish the reasonable suspicion required for a Terry stop because
"it [did] not show that the tipster ha[d] knowledge of concealed crimi-
nal activity. The reasonable suspicion here at issue requires that a tip
be reliable in its assertion of illegality, not just in its tendency to iden-
tify a determinate person." Id. at 272. In Alabama v. White, 496 U.S.
325 (1990), police received an anonymous tip that a woman would be
leaving a particular apartment at a particular time in a brown Plym-
outh station wagon and that she would be going to a motel carrying
an ounce of cocaine in a brown attache case. Id. at 327. The police
went to the apartment building, saw a car matching the caller’s
description, watched a woman as she left the building and entered the
car, and followed her on the route to the motel, stopping the car just
short of the motel. Id. The Court upheld the stop, emphasizing that the
police stopped the car only after verifying "significant aspects" of the
informant’s tip. Id. at 332. In explaining the value of police corrobo-
ration of the tip, the Court distinguished between "‘easily obtained
22 UNITED STATES v. BYNUM
facts and conditions existing at the time of the tip’" and "‘future
actions of third parties ordinarily not easily predicted.’" Id. (quoting
Gates, 462 U.S. at 245). It said that the tip’s predictions of future
actions were more important in establishing the credibility of the tip
because they "demonstrated inside information — a special familiar-
ity with [the defendant’s] affairs. . . . Because only a small number
of people are generally privy to an individual’s itinerary, it is reason-
able for police to believe that a person with access to such informa-
tion is likely to also have access to reliable information about that
individual’s illegal activities." Id. (emphasis added). We used similar
reasoning in Wilhelm. There, the government sought to establish the
veracity of an anonymous informant by arguing that the police had
verified the informant’s directions to the defendant’s house and that
the informant’s descriptions of marijuana transactions were consistent
with police knowledge of how marijuana is packaged and sold. We
found this corroboration insufficient to establish the informant’s
veracity because "[a]lmost anyone can give directions to a particular
house without knowing anything of substance about what goes on
inside that house, and anyone who occasionally watches the evening
news can make generalizations about what marijuana looks like and
how it is packaged and sold." Wilhelm, 80 F.3d at 121. In short, we
reasoned that the corroboration was inadequate because it did not
show that the informant was in a position to know anything about the
defendant’s criminal activities. Thus, both Wilhelm and the Supreme
Court’s cases on corroboration suggest that partial corroboration of an
informant’s tip supports the reliability of the tip’s unverified allega-
tions of criminal activity to the extent that the corroboration shows
that the informant has inside information about the subject of the tip.
Under this analysis the proper question to ask about Agent Peter-
son’s affidavit is whether the fact that the informant correctly identi-
fied Bynum as a heroin dealer makes it reasonable to credit his
claims, set out in paragraph 7 of the agent’s affidavit, that he (the
informant) had been inside Bynum’s apartment and that he had per-
sonally observed Bynum preparing heroin for distribution. I submit
that it does not. A person could easily know Bynum’s general reputa-
tion as a heroin dealer without having the sort of relationship with
Bynum that would make the person privy to the details of Bynum’s
drug trafficking activities. Cf. Barber v. State, 406 A.2d 668, 678
(Md. Ct. Spec. App. 1979) (finding police corroboration of infor-
UNITED STATES v. BYNUM 23
mant’s information regarding defendant’s address, telephone number,
and prior arrest for marijuana possession was inadequate because
"many people circulating in the criminal underworld were in posses-
sion of all the information verified by the police officer"). In fact, the
informant’s knowledge of Bynum’s reputation does not corroborate
the unverified aspects of the informant’s tip to any significant degree
because it does not show that the informant had ever been inside
Bynum’s apartment or even that he knew Bynum personally. Accord-
ingly, I conclude that the first method of corroboration does not help
the government’s case. A reasonable officer would not have thought
the informant’s knowledge that Bynum was a heroin dealer provided
the magistrate with a substantial basis for crediting the informant’s
claims that he had personally observed Bynum preparing heroin for
distribution.
This point, however, does not settle the corroboration issue because
our cases appear to recognize a second method of corroboration dis-
tinct from that discussed in Gates, White, and J.L. For example, in
United States v. Lalor, 996 F.2d 1578, 1581 (4th Cir. 1993), we
described a suspect’s recent arrest for cocaine possession as corrobo-
rating evidence that buttressed the veracity of reports from two confi-
dential informants even though neither informant had told police
about the recent arrest. Because the suspect’s recent arrest did not
confirm the truth of anything the informants had told police, this
aspect of Lalor’s reasoning cannot be based on the theory that an
informant who knows certain facts is probably also right about other
facts. We apparently reasoned in Lalor that information about the sus-
pect’s recent arrest for cocaine possession supported the veracity of
the informants’ claims that the suspect was dealing cocaine simply
because it was consistent with those claims and made them more
likely to be true. Under this second method of corroboration, any fact
that tends to establish the existence of probable cause will also count
as corroboration that supports the informant’s veracity because it
tends to make the truth of the informant’s incriminating accusations
more likely.2 It is this second sense of corroboration that the majority
2
It might be questioned whether this second method of corroboration
is consistent with the reasoning of the Supreme Court cases on corrobo-
ration of informants’ tips. Those cases explain that confirming one aspect
24 UNITED STATES v. BYNUM
apparently relies upon in concluding that the corroboration in this
case was far superior to that in Wilhelm. See ante at 8-9. In other
words, the majority’s argument is that the informant’s claims in para-
graph 7 that he had recently observed Bynum preparing heroin for
distribution are directly corroborated by the facts that Bynum was a
convicted felon and that he lived in an apartment from which police
had seized significant evidence of heroin trafficking less than four
months earlier. In short, the majority contends that a reasonable offi-
cer could have believed that the corroboration provided by Bynum’s
prior criminal history gave the magistrate a substantial basis for cred-
iting the informant’s tip. Although I acknowledge that the question is
a close one, I disagree.
As the majority points out, ante at 9, courts have consistently
observed that a suspect’s prior criminal activity can help to corrobo-
rate an informant’s tip. This is not surprising. As a matter of common
of an informant’s tip helps to demonstrate that the informant was both
"honest" and "well informed." White, 496 U.S. at 332. See also 2
LaFave, supra, § 3.3(f) at 167 ("‘When independent police observations
have verified part of the story told by an informant, that corroboration
lends credence to the remaining unverified portion of the story by dem-
onstrating that the informant has, to the extent tested, spoken truly. . . .
Present good performance shows him to be probably ‘credible’ just as
surely as does past good performance.’") (quoting Stanley v. State, 313
A.2d 847, 860-61 (Md. Ct. Spec. App. 1974)). In contrast, the theory of
corroboration recognized in Lalor tells the magistrate nothing whatso-
ever about the honesty of the individual informant because any tip (even
an anonymous phone call made to the police by a pathological liar) will
be corroborated to the extent that the police have information that tends
to establish probable cause. Nevertheless, the second method of corrobo-
ration is routinely employed by courts and seems justified because there
is an obvious sense in which an informant’s allegation of criminal activ-
ity is far more likely to be true when the police have other information
independently suggesting that the subject of the tip is engaged in crimi-
nal activity. Cf. United States v. Miller, 925 F.2d 695, 699 (4th Cir.
1991) (emphasizing that neither Supreme Court nor Fourth Circuit prece-
dents "create[ ] a requirement that police officers acting on an infor-
mant’s tip must corroborate that tip in some specific way such as
conducting an independent investigation").
UNITED STATES v. BYNUM 25
sense, an informant’s allegation that a convicted drug dealer is selling
heroin sounds more credible than an allegation that a local choir
director has become a crack dealer. Nevertheless, courts usually rely
on a suspect’s prior criminal history as only one among several fac-
tors supporting the reliability of the informant’s tip. See, e.g., United
States v. Burke, 999 F.2d 596, 598-99 (1st Cir. 1993) (holding that an
informant’s tip was reliable based on informant’s track record, prior
seizure of marijuana plants at defendant’s house, and police investiga-
tion confirming unusually high electricity consumption); Lalor, 996
F.2d at 1581 (holding that reliability of informants’ tips was sup-
ported by police confirmation of details in the tips and by defendant’s
recent arrest for cocaine possession); United States v. Miller, 925 F.2d
695, 699-700 (4th Cir. 1991) (holding that a tip’s reliability was sup-
ported by officer’s corroboration of informant’s predictions of defen-
dant’s future behavior as well as officer’s knowledge of defendant’s
prior criminal activity).3 What is unusual in this case is that the cor-
3
A possible exception is United States v. Taylor, 985 F.2d 3, 6 (1st Cir.
1993), where the court held that an affidavit recounting an informant’s
first hand observation that the defendant was growing marijuana plants
on her property was sufficient to establish probable cause. In Taylor the
affidavit made only the conclusory assertion that the informant "ha[d]
provided reliable information . . . in the past," id. at 5, and the tip was
corroborated mainly by evidence in police records that, nearly five years
earlier, the defendant had admitted to cultivating marijuana on the same
property and had pled guilty to two counts of marijuana trafficking, id.
at 6. The Taylor court also emphasized, however, that the magistrate was
entitled to rely on the affiant’s judgment that the informant had accu-
rately described what a marijuana growing operation looks like. Id. Thus,
even Taylor did not rely solely on past criminal activity to corroborate
the informant’s tip. Nevertheless, I acknowledge that Taylor offers
strong support for the majority’s position because it finds an adequate
basis for probable cause in an affidavit that is arguably weaker than
Agent Peterson’s. We are not bound to follow Taylor, of course, and I
believe that case was wrongly decided. Evidence of criminal activity
nearly five years in the past should not count as sufficient corroboration
to establish the truthfulness of a tip supported only by a bare, conclusory
assertion of the informant’s reliability. Nor should the informant’s realis-
tic description of a marijuana growing operation be enough to change the
result. Cf. Wilhelm, 80 F.3d at 121 (observing that "anyone who occa-
sionally watches the evening news can make generalizations about what
marijuana looks like and how it is packaged and sold").
26 UNITED STATES v. BYNUM
roboration is based entirely on Bynum’s criminal past. The affidavit
points to no evidence aside from the informant’s tip suggesting that
Bynum was presently dealing heroin from his apartment. As a result,
this case asks us to decide whether it is reasonable to credit an infor-
mant’s tip solely because the tip is consistent with prior criminal
activity by the subject of the tip.
At least in the circumstances of this case, I believe that the implica-
tions of a positive answer are unacceptable. As I see it, the veracity
of the informant in this case is supported solely by Agent Peterson’s
bare bones assertion of the informant’s reliability and by the consis-
tency of the tip with Bynum’s prior criminal history. I have already
explained that the bare bones assertions in paragraph 5 of the affidavit
do not elevate the credibility of Agent Peterson’s informant above
that of an anonymous informant. See supra at 17-20; Brack, 188 F.3d
at 755 (explaining that a tip from an informant whose veracity was
supported only by conclusory assertions should be treated as though
it had been obtained from "an informant of ‘unknown reliability’").
It follows that if a reasonable officer could regard Agent Peterson’s
informant as truthful solely on the basis of the corroboration provided
by Bynum’s criminal history, a reasonable officer could also regard
that criminal history as sufficient to establish the truthfulness of a
completely anonymous tip. This would mean that once police have
evidence that a person has previously engaged in criminal activity in
his home, the police can (for at least the next three and one-half
months) gain entry to his home whenever any anonymous informant
is willing to claim that the person is up to his old tricks.4 A reasonable
officer could not believe that such a result can be squared with the
Fourth Amendment. Cf. United States v. Harris, 403 U.S. 573, 596
(1971) (Harlan, J., dissenting) ("Surely, it cannot be seriously sug-
gested that, once an individual has been convicted of bootlegging, any
anonymous phone caller who states that he has just personally wit-
nessed another illicit sale (up to four years later) by that individual
provides federal agents with probable cause to search the suspect’s
4
I trust the majority would agree that there must be some point at
which a suspect’s prior criminal activity is simply too remote in time to
justify an inference that an unproven informant’s allegation of present
criminal activity is trustworthy. Obviously, the majority does not believe
that point has been reached in this case.
UNITED STATES v. BYNUM 27
home."); Parish v. State, 939 S.W.2d 201, 204 (Tex. Ct. App. 1997)
("An anonymous tip, without the observation [by police] of any other
activity indicating criminal conduct, does not provide probable cause
to search the person’s home or personal effects solely because that
individual has a criminal record."); State v. Mickle, 765 P.2d 331, 334
(Wash. Ct. App. 1989) (holding that police knowledge that defendant
had "grown marijuana in the past" was inadequate corroboration
because "it verifie[d] only knowledge of the suspect and his past
activities, not that criminal activity [was] presently occurring").
While I would not go so far as to say that the veracity of an
untested informant’s tip can never be corroborated solely by a sus-
pect’s criminal history, the circumstances in which police should be
allowed to search a home on this basis should be rare. A contrary
holding gives police no incentive to seek independent confirmation of
an informant’s claim that a suspect is currently engaged in criminal
activity. At the very least, police should be able to rely solely on prior
criminal history to establish the veracity of a confidential informant
only when that criminal history is quite recent. Here, it would be
unreasonable to contend that just because police found evidence of
heroin trafficking in Bynum’s apartment during a search on February
10, there was a fair probability that evidence of heroin trafficking
would still be found there three and one-half months later. It is no
more reasonable to contend that just because evidence of heroin traf-
ficking was found in Bynum’s apartment on February 10, an infor-
mant who accused Bynum of heroin trafficking three and one-half
months later was probably telling the truth. I therefore conclude that
Bynum’s prior criminal history did not provide sufficient corrobora-
tion of the informant’s veracity to make Agent Peterson’s decision to
submit his affidavit objectively reasonable.
In sum, the corroboration in paragraphs 3, 4, and 6 of Agent Peter-
son’s affidavit was insufficient to merit application of the good faith
exception on either theory of corroboration. The problem under the
first theory is that even if the police could be said to have confirmed
the informant’s claim that Bynum was a large quantity heroin dealer,
the informant’s knowledge of that fact has little weight because it
does not demonstrate that the informant was in a position to have the
kind of inside information attributed to him in paragraph 7. The prob-
lem under the second theory is that, in circumstances like this case,
28 UNITED STATES v. BYNUM
allowing a tip to be corroborated solely by evidence of a suspect’s
prior criminal activity will gut the protections of the Fourth Amend-
ment for persons with criminal histories. "Once a crook, always a
crook" may be an epigram that is useful at times, but it should not be
given the place in our Fourth Amendment law that the majority
accords it today.
C.
For the foregoing reasons, I conclude that a reasonable officer
would not have submitted Agent Peterson’s affidavit to a magistrate
because a reasonable officer would have recognized that the affidavit
did not provide the magistrate with a substantial and independent
basis for crediting the informant’s claims reported in paragraph 7 of
the affidavit. Consequently, Agent Peterson’s affidavit was "so lack-
ing in indicia of probable cause as to render official belief in its exis-
tence entirely unreasonable," and Leon’s good faith exception should
not apply. Leon, 468 U.S. at 923.
II.
Because I disagree with the majority’s conclusion that the informa-
tion in Agent Peterson’s affidavit was substantial enough to warrant
application of the good faith exception, I must deal with a question
that the majority did not have to reach: namely, whether an officer’s
good faith can be established on the basis of information known to the
officer but never presented to a magistrate. Relying on United States
v. Weeks, 160 F.3d 1210, 1212-13 (8th Cir. 1998), the government
argues that even if Agent Peterson’s affidavit was not substantial
enough to pass muster under Leon, the good faith exception still
applies because Agent Peterson knew, but inadvertently failed to tell
the magistrate, that his confidential source was the same informant
whose tip had supported the warrant for the earlier, February 10
search of Bynum’s apartment.
It is important to set the government’s position in context. Agent
Peterson’s actual affidavit said only that the confidential informant
had provided reliable information that had been verified. If we credit
the government’s claims about what Agent Peterson knew but did not
tell the magistrate, Agent Peterson’s affidavit could have said, among
UNITED STATES v. BYNUM 29
other things, that the informant had worked for the Richmond Police
Department for eight years, that the informant’s tips had led to multi-
ple convictions in state and federal courts, and (most significantly)
that the informant had supplied the tip that established probable cause
for the earlier search of Bynum’s apartment. See United States v.
Bynum, 125 F. Supp. 2d 772, 786 (E.D. Va. 2000) (recounting informa-
tion in the affidavit supporting the warrant for the February 10
search). If all of this is true, the affidavit Agent Peterson could have
submitted to the magistrate would have established probable cause;
but I do not see how Agent Peterson’s failure to inform the magistrate
of his basis for trusting his informant helps to establish the agent’s
good faith. Indeed, when the gap between what an officer knew and
what he told the magistrate is so pronounced, it is hard to believe that
the officer inadvertently omitted information about the informant’s
reliability in the way that a person might forget to put eggs on his gro-
cery list. There are, in my opinion, only two plausible explanations
for Agent Peterson’s decision to tell the magistrate so little about the
informant’s reliability when the agent allegedly could have said so
much. The first (and perhaps the more likely) possibility is that Agent
Peterson omitted all the facts supporting the informant’s veracity
because he expected the magistrate simply to ratify his bare conclu-
sion that the informant was reliable. The second is that Agent Peter-
son did not know the facts the government now claims he knew.
Neither possibility supports the government’s argument that Agent
Peterson displayed the objective good faith required by Leon.
As the majority observes, ante at 11, courts have split on the diffi-
cult question of whether information known to an officer but never
presented to a magistrate can be used to establish the officer’s good
faith. The government urges us to hold that it can, but I think the
Supreme Court’s explanations of the good faith exception in Leon and
Malley show that the government is wrong. The problem with the
government’s position stems from its basic premise that objective
good faith is determined by the reasonableness of the officer’s belief
in the existence of probable cause. An officer’s reasonable belief that
he has probable cause for a search may be a necessary condition of
objective good faith, but it is not a sufficient condition. Leon also
requires courts to ask whether the officer had an objectively reason-
able belief that his affidavit gave the magistrate a substantial basis for
finding probable cause. The point is underscored by Leon’s language
30 UNITED STATES v. BYNUM
describing the third circumstance that bars application of the good
faith exception: "Nor would an officer manifest objective good faith
in relying on a warrant based on an affidavit so lacking in indicia of
probable cause as to render official belief in its existence entirely
unreasonable." Leon, 468 U.S. at 923 (emphasis added) (internal quo-
tation marks and citation omitted). See also Malley, 475 U.S. at 345
(stating that courts should determine the objective reasonableness of
an officer’s reliance on a warrant by asking "whether a reasonably
well-trained officer . . . would have known that his affidavit failed to
establish probable cause" (emphasis added)). I do not understand how
information known to the affiant but not presented to the magistrate
can be used to decide whether an affidavit is "so lacking in indicia of
probable cause as to render official belief in its existence entirely
unreasonable." Leon and Malley’s emphasis on the officer’s affidavit
suggests that an officer has a duty to ask not only whether he knows
enough to establish probable cause, but also whether he has given the
magistrate at least a substantial basis for finding probable cause.
The same point is implied by Leon’s general principle that the
exclusionary rule should apply when "a reasonably well trained offi-
cer would have known that the search was illegal despite the magis-
trate’s authorization." Leon, 468 U.S. at 922 n.23. Under Gates,
whether a search is illegal depends on whether "the magistrate had a
substantial basis for concluding that probable cause existed." Gates,
462 U.S. at 238 (internal quotation marks, ellipsis, and citation omit-
ted). Thus, an officer displays objective good faith only when he has
a reasonable belief that the magistrate had a substantial basis for find-
ing probable cause. Because the reasonableness of the magistrate’s
probable cause determination is solely a function of the information
presented to the magistrate, see Whiteley v. Warden, 401 U.S. 560,
565 n.8 (1971), information not presented to the magistrate cannot be
relevant to the question "whether a reasonably well trained officer
would have known that the search was illegal despite the magistrate’s
authorization." Leon, 468 U.S. at 922 n.23. Here, Agent Peterson’s
alleged knowledge about the identity of the informant could not sup-
port an objectively reasonable belief that the magistrate had a substan-
tial and independent basis for concluding that there was probable
cause for the May 25 search of Bynum’s apartment. It follows that the
facts allegedly known to Agent Peterson but omitted from his affida-
vit are irrelevant to the good faith analysis.
UNITED STATES v. BYNUM 31
The government’s reading of Leon’s third disqualifying circum-
stance as covering only cases where the officer lacked an objectively
reasonable belief in the existence of probable cause significantly
reduces the scope of the third circumstance. In essence, the govern-
ment suggests that a bare bones affidavit is only bad if the affiant had
no objectively reasonable basis for his conclusory assertions. This
cannot be correct. The first problem with a bare bones affidavit is not
that the affiant’s claims of probable cause might be unfounded, but
that the conclusory character of those claims prevents the magistrate
from properly performing his constitutional role. See, e.g., Gates, 462
U.S. at 239 (suggesting that the problem with bare bones affidavits is
that they "give[ ] the magistrate virtually no basis at all for making
a judgment regarding probable cause"); United States v. Barrington,
806 F.2d 529, 532 (5th Cir. 1986) (explaining that an officer could
not reasonably rely on a bare bones affidavit because "he had no good
faith reason to believe the magistrate had made a probable cause
determination"). The government fails to recognize that an officer’s
decision to submit a bare bones affidavit is objectively unreasonable
simply because it asks the magistrate to ratify the officer’s bare con-
clusions. Regardless of the officer’s grounds for judging the infor-
mant to be truthful, the decision not to share those grounds with the
magistrate should not be protected by the good faith exception
because it is not "objectively reasonable law enforcement activity."
Wilhelm, 80 F.3d at 123 (internal quotation marks omitted).
In sum, the government cannot establish an officer’s objective
good faith under Leon by producing evidence of facts known to the
officer but not disclosed to the magistrate. This is because Leon
requires that the officer be able to entertain a reasonable belief that
the magistrate had a substantial basis for finding probable cause.
Whether that belief is reasonable can depend only upon the facts pres-
ented to the magistrate. Thus, even in the most benign of circum-
stances (for example, when an officer has inadvertently omitted from
his affidavit a crucial detail that would have established the relation-
ship between the suspected criminal activity and the place to be
searched), what the officer knew but did not tell the magistrate is
irrelevant. See People v. Deitchman, 695 P.2d 1146, 1166 (Colo.
1985) (Quinn, J., concurring) (explaining that to admit evidence on
the ground that the affiant had inadvertently omitted from his affidavit
evidence that the defendant lived at the address to be searched would
32 UNITED STATES v. BYNUM
substitute "subjective good faith" for Leon’s objective good faith stan-
dard). Here, the circumstances are less than benign. If Agent Peterson
actually knew all the facts supporting the informant’s reliability that
the government claims he knew, his failure to include any of these
facts in his affidavit signals a disturbing level of confidence that the
magistrate would approve anything that was put in front of him. It is
difficult to believe that any officer who understood the warrant pro-
cess to require independent testing of evidence by a neutral and
detached judicial officer would simply forget to include this kind of
information. Accordingly, I would hold that Agent Peterson’s alleged
knowledge about the identity of the informant cannot be used to put
flesh on his bare bones affidavit.
III.
In dissenting from Leon nearly twenty years ago, Justice Brennan
predicted that the long run effect of that decision would be "to under-
mine the integrity of the warrant process." Leon, 468 U.S. at 958
(Brennan, J., dissenting). The facts of this case suggest that Justice
Brennan’s fears were well founded. If the government’s unverified
claims about the identity of Agent Peterson’s confidential informant
are true, the agent could have submitted an affidavit that would have
conclusively established probable cause for the search of Bynum’s
apartment under even the most exacting standards. Instead, he submit-
ted an affidavit containing only bare bones, conclusory assertions of
the informant’s reliability. Agent Peterson also failed to provide the
magistrate with any corroborating evidence that could establish the
informant’s reliability as a source of information about Bynum’s
criminal activities. That Agent Peterson thought his affidavit worthy
of submission to a magistrate suggests that he viewed the warrant pro-
cess as no more than a mere formality. That a warrant was issued on
the basis of the affidavit suggests, unfortunately, that he may have
been right. That the evidence seized under that invalid warrant will
now be used against the defendants under Leon tells police officers
in no uncertain terms that "if they can secure a warrant . . . all police
conduct pursuant to that warrant will be protected from further judi-
cial review." Id. at 957 (Brennan, J., dissenting). I respectfully dis-
sent.