United States v. Hicks , 395 F. App'x 80 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4758
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDD A. HICKS,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:08-cr-00039-JRS-1)
Submitted: July 16, 2010 Decided: September 9, 2010
Before DAVIS and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Charles D. Lewis, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Jessica A. Brumberg, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edd A. Hicks conditionally pleaded guilty under
Federal Rule of Criminal Procedure 11(a)(2) to one count of
knowingly, intentionally, and unlawfully possessing with the
intent to distribute five grams or more of cocaine base, in
violation of 21 U.S.C. § 841 (2006). In entering the
conditional guilty plea, Hicks reserved his right to appeal the
denial of his suppression motion, which challenged the efficacy
of an “all persons” search warrant for an apartment. The
district court found that probable cause supported the warrant
and that, in the alternative, the good faith exception announced
in United States v. Leon, 468 U.S. 897 (1984), applied. On
appeal, Hicks argues that the district court erred in both
rulings. We affirm.
In addressing the denial of a motion to suppress
evidence, we review the district court’s findings of historical
fact for clear error, “giving due weight to inferences drawn
from those facts by resident judges and local law enforcement
officers.” Ornelas v. United States, 517 U.S. 690, 699 (1996).
We review de novo the ultimate legal conclusion. Id. And,
“[b]ecause the district court denied the motion to suppress, we
construe the evidence in the light most favorable to the
Government.” United States v. Perkins, 363 F.3d 317, 320 (4th
Cir. 2004).
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The Fourth Amendment ensures that citizens are “secure
in their persons . . . against unreasonable searches and
seizures.” U.S. Const. amend. IV. “[R]easonableness requires
probable cause and a warrant unless one of the exceptions to the
warrant requirement applies.” Doe v. Broderick, 225 F.3d 440,
451 (4th Cir. 2000); see Katz v. United States, 389 U.S. 347,
357 (1967). The magistrate issuing the search warrant must
“make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit . . . there is a fair
probability that contraband or evidence of a crime will be found
in a particular place.” Illinois v. Gates, 462 U.S. 213, 238
(1983). “The probable-cause standard is incapable of precise
definition or quantification into percentages because it deals
with probabilities and depends on the totality of the
circumstances.” Maryland v. Pringle, 540 U.S. 366, 371 (2003).
For that reason, in reviewing the sufficiency of a supporting
affidavit, this Court avoids applying “‘hypertechnical’ scrutiny
. . . lest police officers be encouraged to forgo the warrant
application process altogether.” United States v. Robinson, 275
F.3d 371, 380 (4th Cir. 2001) (quoting Gates, 462 U.S. at 236).
The search warrant in this case was an “all persons”
warrant, that is, it authorized a search not just of the
apartment but of all persons in the apartment as well. In Owens
ex rel. Owens v. Lott, 372 F.3d 267 (4th Cir. 2004), we adopted
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the majority view that “an ‘all persons’ warrant can pass
constitutional muster if the affidavit and information provided
to the magistrate supply enough detailed information to
establish probable cause to believe that all persons on the
premises at the time of the search are involved in the criminal
activity.” Id. at 276. We explained that “all persons”
warrants presented a “probable cause issue[] rather than [a]
particularity problem[].” Id. Accordingly, “as long as ‘there
is good reason to suspect or believe that anyone present at the
anticipated scene will probably be a participant’ in the
criminal activity occurring there, ‘presence becomes the
descriptive fact satisfying the aim of the Fourth Amendment.’”
Id. (quoting State v. De Simone, 288 A.2d 849, 851 (N.J. 1972)).
The facts in this case established that, on December
28, 2006, Officers Ralph Mills and Wayne Graves and Sergeant
Greer Gould of the Richmond Police Department’s Focus Mission
Team * were patrolling the 2200 block of Parkwood Avenue. At
around 10:15 pm, Officer Mills observed an individual riding a
bicycle without his helmet. The officers attempted to stop the
individual, but he fled on the bicycle. The officers turned
their car around to pursue the bicyclist and lost sight of him
for approximately one minute when he turned down the alley
*
The Focus Mission Team is primarily responsible for
street-level narcotics dealing and illegal firearms.
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behind the 2300 block of Parkwood Avenue. While the officers
circled back and started driving down the alley, Officer Mills
saw an individual standing with a bicycle on the upstairs porch
of an apartment building in the alley. The officers were
uncertain if it was the same individual or bicycle they had been
pursuing. When this individual saw the officers, he immediately
entered the apartment and closed the door.
Officer Mills remained in the alley to watch the back
door, while Sergeant Gould and Officer Graves walked to the
front door of the apartment. As Officer Mills waited in the
alley, three individuals exited the back door onto the porch and
headed toward the back stairs. When they saw Officer Mills,
they froze in place; one of the three then turned his back to
Officer Mills and began manipulating something in his fingers
over a couch on the porch. The three next reentered the
apartment. Sergeant Gould subsequently radioed Officer Mills to
inform him that the apartment’s owner had granted consent to
enter the apartment. Officer Mills ascended the back stairs and
examined the couch, where he found what appeared to be crushed
crack cocaine scattered in plain view. Officer Mills seized the
items and informed Sergeant Gould of the discovery.
Thereafter, Officer Mills left the scene and prepared
a search warrant affidavit while Sergeant Gould, Officer Graves,
and several additional officers secured the apartment. Based on
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the affidavit, which recounted the facts above, the magistrate
judge authorized a warrant permitting a search of “the entire
residence located in 2325 Parkwood Avenue Apartment C and all
persons located therein.” During the subsequent search of the
apartment and “all persons” there, the officers recovered, inter
alia, 9.291 grams of cocaine base on Edd Hicks.
We elect to exercise our discretion to proceed
directly to whether the Leon good faith exception applies
without first deciding whether the warrant was supported by
probable cause. See United States v. Legg, 18 F.3d 240, 243
(4th Cir. 1994). “Generally, evidence seized in violation of
the Fourth Amendment is subject to suppression under the
exclusionary rule,” United States v. Andrews, 577 F.3d 231, 235
(4th Cir. 2009), the purpose of which is “to deter future
unlawful police conduct,” United States v. Calandra, 414 U.S.
338, 347 (1974). The deterrence objective, however, “is not
achieved through the suppression of evidence obtained by ‘an
officer acting with objective good faith’ within the scope of a
search warrant issued by a magistrate.” Perez, 393 F.3d at 461
(quoting Leon, 468 U.S. at 920); see United States v. Mowatt,
513 F.3d 395, 404 (4th Cir. 2008). Thus, the Leon Court
instructed 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
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trained officer would have known that the search was illegal
despite the magistrate’s authorization.’” United States v.
Bynum, 293 F.3d 192, 195 (4th Cir. 2002) (quoting Leon, 468 U.S.
at 922 n. 23).
The Leon Court cautioned that an officer’s reliance on
a warrant would not qualify as “objectively reasonable,”
however, in four circumstances: where (1) probable cause is
based on statements in an affidavit that are knowingly or
recklessly false; (2) the magistrate fails to perform a neutral
and detached function and instead merely rubber stamps the
warrant; (3) the affidavit is so lacking in indicia of probable
cause as to render official belief in its existence entirely
unreasonable; or (4) the warrant was so facially deficient that
the executing officer could not reasonably have assumed it was
valid. United States v. Gary, 528 F.3d 324, 329 (4th Cir. 2008)
(internal quotation marks omitted) (citing Leon, 468 U.S. at
914-15).
Having reviewed the record, we conclude that none of
the four circumstances listed in Leon are applicable in this
case and, moreover, as in United States v. Lalor, 996 F.2d 1578,
1582 (4th Cir. 1993), “two judicial officers have determined
that the affidavit provided probable cause to search.” Id. at
1583. Accordingly, even assuming the district court erred in
finding that the “all persons” warrant was supported by probable
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cause, the district court correctly determined that the evidence
was still admissible under the Leon good faith exception.
For the foregoing reasons, we affirm the district
court's judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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