United States v. Travis Barnes , 895 F.3d 1194 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30203
Plaintiff-Appellee,
D.C. No.
v. 1:15-cr-02061-
LRS-1
TRAVIS SHANE BARNES,
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Submitted February 9, 2018 *
Seattle, Washington
Filed July 19, 2018
Before: Ronald M. Gould, Richard A. Paez,
and Morgan Christen, Circuit Judges.
Opinion by Judge Paez
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. BARNES
SUMMARY **
Criminal Law
The panel affirmed a conviction for being a felon in
possession of a firearm, in a case in which the defendant
argued that the district court erred (1) by denying his motion
to suppress evidence based on an allegedly invalid arrest
warrant and (2) by precluding the defendant from presenting
a necessity defense.
The panel held that the district court’s finding that the
municipal judge who signed the defendant’s arrest warrant
must have reviewed the underlying citation as part of her
“ordinary course of business” was clearly erroneous, where
there is no record evidence that the municipal court judge
either received or read a copy of the citation prior to her
finding of probable cause. The panel therefore concluded
that the warrant for the defendant’s arrest for the underlying
trip permit violation was inexcusably infirm and that the
defendant therefore satisfied his burden of showing judicial
abandonment by a preponderance of the evidence.
The panel held that the good faith exception to the
exclusionary rule applies unless a defendant can show that
the issuing judge abandoned his or her role and that the law
enforcement officer knew or should have known of such
abandonment. The panel concluded that although the
defendant met his burden of showing judicial abandonment,
the evidence cannot be suppressed because the officers
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. BARNES 3
executing the infirm warrant were unaware—and had no
reason to be aware—of any judicial misconduct.
The panel held that the district court did not err in
denying the defendant’s request to present a necessity
defense to the jury.
COUNSEL
Nicolas V. Vieth, Vieth Law Offices Chtd., Coeur d’Alene,
Idaho, for Defendant-Appellant.
Thomas J. Hanlon, Assistant United States Attorney; Joseph
H. Harrington, United States Attorney; United States
Attorney’s Office, Yakima, Washington; for Plaintiff-
Appellee.
OPINION
PAEZ, Circuit Judge:
Travis Barnes appeals his conviction under 18 U.S.C.
§ 922 for being a felon in possession of a firearm. He argues
that the district court erred in two respects: first, by denying
his motion to suppress evidence based on an allegedly
invalid arrest warrant; and second, by precluding him from
presenting a necessity defense at trial. We have jurisdiction
under 28 U.S.C § 1291, and we affirm.
Although the underlying warrant for Barnes’s arrest was
the product of judicial abandonment, we apply the good faith
exception to the exclusionary rule and affirm the district
court’s denial of his motion to suppress evidence. We also
4 UNITED STATES V. BARNES
conclude that the district court properly barred Barnes’s
necessity defense because he failed to adequately
demonstrate that he took possession of the gun in response
to an imminent threat of death or bodily injury.
I.
On August 17, 2015, a Yakima Police Department
(“YPD”) officer told fellow Officers Thomas Tovar and J.
Cordova to keep an eye out during patrol for two wanted men
in the area, Travis Barnes and his son Raymond Barnes
(“Raymond”). Officers Tovar and Cordova consulted their
mobile data terminal, confirmed that there were outstanding
warrants for both men, and viewed several photographs of
Barnes and his son to get a sense of their general appearance.
A little over half an hour later, the officers saw Barnes
walking along a street, having recognized him by his
distinctive neck tattoo. Officer Tovar exited his vehicle and
informed Barnes that there was a warrant for his arrest.
Although Barnes was initially cooperative and complied
with Officer Tovar’s request to put his hands behind his
back, he took off running after he was mistakenly informed
by Officer Cordova that he was wanted on a “DOC felony
warrant.” In truth, the felony warrant was for his son,
Raymond. There was, however, a misdemeanor bench
warrant for Barnes that was based on his failure to appear for
arraignment for an alleged trip permit violation 1 some six
months earlier.
1
A trip permit, or temporary license permit, allows a vehicle owner
to drive their otherwise unlicensed vehicle on public roadways for three
consecutive days. See Wash. Rev. Code § 46.16A.320(1)(a), (3). A trip
permit violation is a gross misdemeanor. See id. § 46.16A.320(6).
 UNITED STATES V. BARNES 5
The officers ordered Barnes to stop, to no effect, and
gave chase. Deputy Marshal C. Smith, who was in the area
investigating a robbery and had observed Barnes’s
interaction with Officers Tovar and Cordova, quickly
realized that Barnes was running in his direction. Deputy
Smith exited his vehicle and instructed Barnes to stop.
When Barnes failed to comply, Deputy Smith tased him in
the back, knocking Barnes down. Officers Tovar and
Cordova caught up seconds later. Together, the officers
handcuffed Barnes’s hands behind his back and searched his
person, eventually recovering a small .22 caliber, silver
pistol from his front right pocket.
Having previously been convicted of a felony, Barnes
was arrested and taken into custody. He was subsequently
charged in federal court with being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). Barnes filed
a motion to suppress evidence before trial, arguing that his
arrest was unlawful for a variety of reasons, only one of
which he reasserts on appeal: that the arrest warrant for his
failure to appear on the trip permit violation was not
supported by probable cause. 2 The government responded
to Barnes’s motion to suppress evidence by including in its
opposition a copy of the criminal complaint prepared by a
2
A bench warrant for failing to appear at a scheduled hearing is
invalid if there was no finding of “probable cause to support the
underlying offense.” State v. Parks, 148 P.3d 1098, 1099 (Wash. Ct.
App. 2006); cf. United States v. Gooch, 506 F.3d 1156, 1160 n.3 (9th
Cir. 2007) (acknowledging that under Parks, a bench warrant issued for
failure to appear is “insufficient where there had never been a prior
finding of probable cause to arrest the defendant at any time in the
proceedings.”). Failure to appear in response to a mailed summons is not
a separate criminal offense under Washington law. See Parks, 148 P.3d
at 1101 (“[F]ailure to appear is not a crime.”); see also State v. Walker,
999 P.2d 1296, 1299 (Wash. Ct. App. 2000) (same).
6 UNITED STATES V. BARNES
city prosecutor for Barnes’s alleged trip violation. The
complaint, dated February 9, 2015, included a stamp where
the reviewing judge had circled “Yes” to “Probable Cause”
and signed with her initials on February 13, 2015. The
government argued that the signed complaint evidenced that
the misdemeanor arrest warrant was based on a valid judicial
determination of probable cause.
At an evidentiary hearing, the government called Melissa
Blackledge, a Department Assistant for the Yakima
Municipal Court Clerk’s Office, to testify. Blackledge
testified that although she was not normally involved in
processing criminal complaints, she was familiar with the
process. She explained that once the Yakima Municipal
Court received a ticket or citation, a prosecutor would
“send[] down a complaint” for a clerk to stamp with
“probable cause” and “yes” and “no” responses. The
reviewing judge would then circle either “yes” or “no” to
probable cause, sign or initial her name, and send the
complaint back to the clerk to print out a summons.
Blackledge testified on cross-examination that although the
prosecutor would forward the complaint for the judge’s
review, she never saw the prosecutors include a police report
with the complaint. When asked whether the prosecutors
would submit an affidavit with the complaint, Blackledge—
who had been with the court for six and a half years—
answered that she wasn’t sure what an affidavit was and that
she would “have to say no.” On re-direct, Blackledge
testified that the municipal court judges did not issue
separate orders finding probable cause, but rather denoted
their findings of probable cause on the criminal complaint
itself.
After hearing from the government’s witnesses and
Barnes, the district court denied Barnes’s motion to
UNITED STATES V. BARNES 7
suppress. The court did so in part because it assumed,
without evidence, that the municipal court judge “in the
ordinary course of business would have reviewed [the
arresting officer’s] citation containing his certification under
oath.” The court explained that because it had been the law
“[f]or forty years . . . that a judicial determination of
probable cause may not be based on a prosecutor’s
assessment of probable cause standing alone,” it was
“extremely difficult to fathom that a Yakima Municipal
Court Judge would make a determination of probable cause
based solely on a complaint presented by the prosecutor and
without reviewing the citation giving rise to the complaint.”
The court added that because Officers Cordova and
Tovar had acted in good faith reliance on the outstanding
bench warrant, the good faith exception to the exclusionary
rule was applicable unless one of the four United States v.
Leon, 468 U.S. 897, 922–23 (1984) exceptions to the good
faith exception applied. Unpersuaded that the facts of the
case implicated any of the four Leon exceptions, including
judicial abandonment, the court applied the good faith
exception to the exclusionary rule and denied Barnes’s
motion to suppress. In so doing, the court noted that
“suppression of the evidence in this instance would not deter
future police misconduct.”
Following the district court’s ruling, the parties
submitted jointly proposed jury instructions and a verdict
form for the court’s review. The proposed jury instructions
did not include instructions on a necessity defense. Five
days before the jury trial, however, counsel for Barnes sent
the government a copy of a news article describing close to
two dozen instances of small children accidentally shooting
themselves or others with unattended firearms. Counsel
explained in a letter that it was possible he would introduce
8 UNITED STATES V. BARNES
the article during trial. Based on the letter and news article,
the government surmised that Barnes would attempt to raise
a necessity defense and filed a motion in limine to preclude
any such defense. The government’s assessment proved
correct: Barnes submitted a proposed jury instruction for a
necessity defense on the first day of trial.
During a hearing on the proposed defense, the court
requested that counsel for Barnes make an offer of proof.
Counsel for Barnes explained that Barnes had been arrested
by Officers Cordova and Tovar while en route to a nearby
dumpster to dispose of the gun for safety reasons.
According to trial counsel, Barnes woke up in the
afternoon after caring for Raymond, who was addicted to
methamphetamine. When he went to do his son’s laundry,
Barnes realized that there were multiple strangers in the
house, including two children around the ages of two to three
years old and two adults, the latter of whom were “passed
out.” In the laundry area of Raymond’s residence, there was
a special “cubbyhole” behind a refrigerator used to conceal
people from law enforcement. Barnes noticed that the
refrigerator had been moved and that the hiding spot was
exposed. As he went to push the refrigerator back into place,
Barnes allegedly heard something fall to the ground. Shortly
thereafter, he saw a gun on the floor. Concerned that the
children, who were awake, would somehow gain possession
of the gun and injure themselves or someone else, Barnes
made a split-second decision to take the gun and dispose of
it. Barnes was arrested in the middle of his walk to a nearby
dumpster.
The district court concluded that Barnes’s offer of proof
did not meet the requirements for a necessity or justification
defense. In particular, the district court determined that the
proffered evidence fell short of showing that Barnes was
UNITED STATES V. BARNES 9
responding to an “immediate threat of death or threat of
bodily injury” or that Barnes had no reasonable legal
alternative available. Relying on the same reasoning, the
court later denied Barnes’s renewed request to present a
necessity defense following the government’s presentation
of its case as well as his motion for reconsideration.
The jury convicted Barnes of being a felon in possession
of a firearm. Barnes was sentenced to 41 months’
imprisonment followed by three years of supervised release.
He timely appealed.
II.
We review a “district court’s rulings on motions to
suppress,” including applications of the good faith exception
to the exclusionary rule, “and the validity of search warrants
de novo.” United States v. Underwood, 725 F.3d 1076, 1081
(9th Cir. 2013). We review the court’s factual findings for
clear error. See United States v. Grandberry, 730 F.3d 968,
970–71 (9th Cir. 2013). We review de novo a district court’s
decision to bar a necessity defense. See United States v.
Schoon, 971 F.2d 193, 195 (9th Cir. 1991).
III.
A. Validity of the Arrest Warrant
We address first the district court’s assumption that the
municipal court judge must have reviewed the arresting
officer’s sworn citation before finding probable cause
because it would be “extremely difficult to fathom”
otherwise. We understand the district court’s reluctance to
consider that a municipal court judge would disregard
decades of precedent establishing that judges may not rely
on a prosecutor’s complaint alone to find probable cause.
10 UNITED STATES V. BARNES
See Gerstein v. Pugh, 420 U.S. 103, 114–19 (1975);
Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560,
564–65 (1971) (concluding that a complaint “alone could not
support the independent judgment of a disinterested
magistrate”). We are not, however, at liberty to substitute
our assumptions for evidence in the record. Moreover, as
the Supreme Court has recognized, judicial determinations
of probable cause may not always adhere to the tenets of
constitutional law. See Leon, 468 U.S. at 916 n.14
(acknowledging that “there are assertions that some
magistrates become rubber stamps for the police and others
may be unable effectively to screen police conduct”); see
also State v. Hoffman, 25 N.E.3d 993, 1001 (Ohio 2014) (“It
is clear from the testimony and documentary evidence
offered at the suppression hearing that Hoffman’s
misdemeanor warrants were issued without a probable-cause
determination”); Stewart v. State, 711 S.W.2d 787, 788 (Ark.
1986) (adopting Leon and concluding that the “conduct of
Judge Bridgforth was inexcusable” because he signed blank
arrest warrants without reviewing officer affidavits or
making a judicial determination of probable cause).
The district court’s assumption that the municipal court
judge must have relied on something other than the
prosecutor’s complaint is unsupported by the record and
does not present a “permissible view[] of the evidence.”
United States v. Elliott, 322 F.3d 710, 715 (9th Cir. 2003).
There was no testimony at the suppression hearing that
Yakima Municipal Court judges were provided with,
separately retrieved, or were even able to separately
retrieve—much less that they read—the citations and officer
reports underlying the criminal complaints as part of their
ordinary course of business. To the contrary, the only court
employee to testify at the suppression hearing explained that
prosecutors regularly submitted complaints for probable
UNITED STATES V. BARNES 11
cause determinations without attaching police reports or
affidavits. Blackledge testified that she was not sure what
an affidavit was. Furthermore, it was the practice of Yakima
Municipal Court judges to record their probable cause
determinations on the criminal complaint itself without
issuing a separate order.
We recognize that the criminal complaint provided the
citation number for Barnes’s alleged trip permit violation. It
is therefore theoretically possible that the reviewing judge
could have separately looked up the citation number,
retrieved the arresting officer’s sworn statements, and made
a proper determination of probable cause. Factual findings,
however, must be rooted in evidence as opposed to
speculation. See Guam Soc’y of Obstetricians &
Gynecologists v. Ada, 100 F.3d 691, 698 (9th Cir. 1996)
(“[A]s judges, we are not permitted to engage in such
speculation. We are confined to the evidence in the record
and those inferences that directly follow from that
evidence.”). Here, there is no evidence that the reviewing
judge ever retrieved a copy of the criminal complaint—
whether in this case or in others. When trial counsel for
Barnes requested from Yakima Municipal Court a copy of
the order finding probable cause and all documents relied on
by the judge to find probable cause, he received a copy of
the complaint, an order of dismissal, and a copy of the
docket. He did not receive a copy of the criminal citation.
The government attempts to fill this evidentiary gap by
arguing that because the criminal complaint was filed in
Yakima Municipal Court, the reviewing judge must have
received it. This argument suffers from two critical flaws:
first, whether the reviewing judge actually receives an
officer’s citation is separate from the filing of the citation
with the court; and second, the judge’s receipt of the citation
12 UNITED STATES V. BARNES
is altogether different from the judge’s review of it. Notably,
the government never claims in its brief that the municipal
court judge read or otherwise reviewed the citation. Nor, for
that matter, could the government credibly advance such an
interpretation of the evidence.
At best, the record establishes that the Yakima Municipal
Court received an electronic copy of the citation for Barnes’s
alleged trip permit violation on February 9, 2015. The
citation included the arresting officer’s sworn statement
regarding the incident. From there, a prosecutor prepared a
misdemeanor criminal complaint based on the citation. A
clerk in the court then stamped the complaint with “probable
cause” with “yes” and “no” markings and forwarded the
complaint to the judge for review. Neither the clerk nor the
prosecutor provided the reviewing judge with a copy of the
citation and/or the officer’s sworn report. The reviewing
judge then circled “yes” to probable cause on February 13,
2015 and signed her initials. Later, a court clerk prepared a
summons for Barnes, directing him to appear for
arraignment. When Barnes failed to do so, the court issued
a bench warrant for his arrest.
On these facts, the district court’s finding that the
municipal court judge must have reviewed the citation as
part of her “ordinary course of business,” was clearly
erroneous. There is no record evidence that the municipal
court judge either received or read a copy of the citation prior
to her finding of probable cause. We therefore conclude that
the warrant for Barnes’s arrest for the underlying alleged trip
permit violation was inexcusably infirm and that he has
satisfied his burden of showing judicial abandonment by a
preponderance of the evidence. See United States v. Jordan,
291 F.3d 1091, 1100 (9th Cir. 2002) (explaining that a
defendant must first make a “substantial preliminary
UNITED STATES V. BARNES 13
showing, by a preponderance of the evidence,” that the
warrant was infirm in order to prevail on a motion to
suppress); United States v. Decker, 956 F.2d 773, 777 (8th
Cir. 1992) (affirming the district court’s decision to suppress
evidence because the state judge’s failure to read the search
warrants before signing them rendered both warrants
defective).
B. Good Faith Exception to the Exclusionary Rule
Ordinarily, the exclusionary rule—a “judicially created
remedy designed to safeguard Fourth Amendment rights”—
would operate to preclude “the use of evidence obtained in
violation” of the Fourth Amendment. See Leon, 468 U.S. at
906. The Supreme Court, however, recognized in Leon a
“good-faith exception” to the exclusionary rule. Id. at 924.
Under this exception, “evidence obtained in objectively
reasonable reliance on a subsequently invalidated . . .
warrant” is not subject to suppression. Id. at 922. In short,
evidence obtained pursuant to a constitutionally infirm
warrant may nonetheless be admitted so long as the officers
acting on the search or arrest warrant were unaware of—and
had no reason to be aware of—the warrant’s infirmities.
The good faith exception, however, is not without its
own exceptions. The Court in Leon “identified four
situations that per se fail to satisfy the good faith exception,”
because “the officer will have no reasonable grounds for
believing that the warrant was properly issued.”
Underwood, 725 F.3d at 1085 (quoting Leon, 468 U.S. at
922–23). Three of the four situations focus on warrants with
defects that should be immediately apparent to law
enforcement officials, such as warrants that are “so facially
deficient . . . that the executing officers cannot reasonably
presume it to be valid,” warrants resulting from recklessly or
knowingly misleading the issuing judge, or warrants that are
14 UNITED STATES V. BARNES
the product of “bare bones affidavits.” Id. (quoting Leon,
468 U.S. at 922–23). The fourth situation is “where the
judge ‘wholly abandons his or her judicial role.’” Id.
(quoting Leon, 468 U.S. at 923) (internal alterations
omitted). This last situation serves as the basis for Barnes’s
appeal.
Barnes argues that the good faith exception is
inapplicable in this instance because the municipal court
judge wholly abandoned her judicial role by relying solely
on the prosecutor’s complaint to find probable cause.
Although we agree with Barnes that the record does not
suggest that there was judicial review in this instance, we
join our sister circuits in concluding that the good faith
exception nonetheless applies unless a defendant can show
that the issuing judge abandoned his or her judicial role and
that the law enforcement officers knew or should have
known of such abandonment.
The Supreme Court did not provide a clear definition of
judicial abandonment in Leon. Instead, the Court cautioned
against deferring to magistrates when they have failed to
perform their “neutral and detached” function by rubber-
stamping arrest or search warrants for the police. Leon,
468 U.S. at 914. The Court also cited Lo-Ji Sales, Inc. v.
New York, 442 U.S. 319 (1979) as an example of judicial
abandonment and explained that judicial officers who fail to
act with the requisite “neutrality and detachment . . . cannot
provide valid authorization for an otherwise unconstitutional
search.” Leon, 468 U.S. at 914, 923. Lo-Ji Sales was an
extreme case where the judicial officer “allowed himself to
become a member, if not the leader, of the search party
which was essentially a police operation.” 442 U.S. at 327.
Rather than simply sign the warrant authorizing a search of
an adult bookstore, the judicial officer accompanied law
UNITED STATES V. BARNES 15
enforcement officials to the store, where he viewed snippets
of over twenty films and leafed through multiple magazines.
Id. at 322–23. After determining that the films and
magazines were obscene, he instructed the officers to seize
any similar items without providing guidance on what
constituted a “similar” item. Id. at 327.
We do not think the Supreme Court intended to limit
judicial abandonment to conduct such as that in Lo-Ji Sales
and other instances of judicial bias. Our reading of Leon is
consistent with the Court’s decision in Aguilar v. Texas,
378 U.S. 108 (1964), abrogated on different grounds by
Illinois v. Gates, 462 U.S. 213 (1983). There, the Court
concluded that prior to making a probable cause
determination, a magistrate “must be informed of some of
the underlying circumstances” supporting an officer’s
reliance on an informant tip. Aguilar, 378 U.S. at 114
(emphasis added). Otherwise, the magistrate cannot be said
to have acted as a “neutral and detached magistrate.” Id. at
115 (internal quotation marks omitted).
We therefore join our sister circuits in concluding that a
defendant may show judicial abandonment through any one
of the following ways: (1) the magistrate was biased against
the defendant or otherwise personally interested in issuing
the warrant; (2) the magistrate functionally occupied a
different, non-neutral role while making the probable cause
determination; or (3) the magistrate failed to review the
requisite affidavits or materials prior to making a probable
cause determination. See, e.g., United States v. Frazier,
423 F.3d 526, 537 (6th Cir. 2005) (concluding that the
record did not support the defendant’s contention that the
magistrate “issued the warrant without reading the affidavit”
and therefore that the magistrate did not abandon his judicial
role); United States v. Koerth, 312 F.3d 862, 869 (7th Cir.
16 UNITED STATES V. BARNES
2002) (concluding that the judge “complied with the
requirement of acting as a neutral and detached magistrate”
because there was no evidence that the judge had failed to
read or review the affidavit before signing the warrant);
United States v. Martin, 297 F.3d 1308, 1317 (11th Cir.
2002) (“It is clear to us that a magistrate judge should read
the warrant and make his own independent assessment as to
whether the warrant and its underlying affidavit contain a
sufficient amount of information to support a finding of
probable cause. A judge can be said to act as a mere ‘rubber
stamp’ if he solely relies upon the fact that police officers are
asking for the warrant.”); United States v. Mueller, 902 F.2d
336, 340 (5th Cir. 1990) (“Nothing suggests that the
magistrate had any bias or interest in issuing the warrant, or
that he dispensed with his neutral and detached position to
become involved in the evidence-gathering related to
issuance of the warrant as did the town justice in Lo-Ji
Sales.”); see also 1 Wayne R. LaFave, Search and Seizure:
A Treatise on the Fourth Amendment § 1.3(f) (5th ed. 2017)
(“Though it is far from clear exactly what . . . falls within the
[judicial abandonment] qualification in Leon, certainly the
most likely possibility is that mentioned by the Court earlier
in the Leon opinion: where the magistrate serves merely as a
rubber stamp for the police.” (internal quotation marks and
footnotes omitted)).
Where, as here, there is no evidence that the reviewing
judge consulted any materials other than the criminal
complaint prior to issuing a finding of probable cause, the
defendant has met his burden of demonstrating judicial
abandonment. See Koerth, 312 F.3d at 869. This, however,
does not end our inquiry.
The Supreme Court emphasized in Leon that the judicial
abandonment exception to the good faith exception operates
UNITED STATES V. BARNES 17
“in such circumstances [when] no reasonably well trained
officer should rely on the warrant.” 468 U.S. at 923. In the
decades since Leon was decided, the Supreme Court has
continued to stress that “the exclusionary rule is designed to
deter police misconduct rather than to punish the errors of
judges and magistrates.” Id. at 916. In Arizona v. Evans,
514 U.S. 1 (1995), the Supreme Court explained that
“[w]here the exclusionary rule does not result in appreciable
deterrence, then, clearly, its use is unwarranted.” Id. at 11
(internal quotation marks and alterations omitted). Because
the “exclusionary rule was historically designed as a means
of deterring police misconduct, not mistakes by court
employees,” and there was “no basis for believing that
application of the exclusionary rule in these circumstances
will have a significant effect on . . . court clerks [who] are
not adjuncts to the law enforcement team engaged in the
often competitive enterprise of ferreting out crime,” the
Court concluded that “clerical errors of court employees”
were categorically exempted from the exclusionary rule. Id.
at 14–16; see also Davis v. United States, 564 U.S. 229, 239
(2011) (summarizing the history of the good faith exception
and explaining that the doctrine arose from an understanding
that “punishing the errors of judges is not the office of the
exclusionary rule” (internal quotation marks and alterations
omitted)); Herring v. United States, 555 U.S. 135, 142
(2009) (reiterating that Evans was based, in part, on the
understanding that “[t]he exclusionary rule was crafted to
curb police rather than judicial misconduct”); Massachusetts
v. Sheppard, 468 U.S. 981, 990 (1984) (applying the good
faith exception even though “[a]n error of constitutional
dimensions may have been committed with respect to the
issuance of the warrant,” because “it was the judge, not the
police officers, who made the critical mistake.”).
18 UNITED STATES V. BARNES
Although this approach to the good faith exception has
been the subject of considerable scholarly debate, 3 we are
bound to follow the Supreme Court’s directives. We
therefore conclude, consistent with the Fifth, Sixth, and
Tenth Circuits, that the exclusionary rule only applies if the
issuing judge abandoned his or her judicial role and law
enforcement officers knew or should have known of the
abandonment. See United States v. Villanueva, 821 F.3d
1226, 1235 (10th Cir. 2016) (applying the good faith
exception because the defendant did not “set forth any
evidence or argument” that the officer “could have, or should
have, reasonably known about any alleged bias the issuing
judge might have had”); United States v. Rodriguez-Suazo,
346 F.3d 637, 649 (6th Cir. 2003) (“Because the focus of this
[exclusionary] rule is to prevent police misconduct,
exclusion should be ordered only if the police officer knew
. . . that the magistrate abandoned his or her neutral and
detached function.”); United States v. Breckenridge,
782 F.2d 1317, 1321–22 (5th Cir. 1986) (declining to
suppress the evidence because the judge appeared to both
officers to have “fulfilled his duty to act as a ‘neutral and
detached’ magistrate”); see also LaFave, supra, at § 1.3(f)
3
Leon’s conceptualization of the good faith exception to the
exclusionary rule was predicated in part on the Court’s skepticism that
ineffective or lawless magistrates was a “problem of major proportions.”
468 U.S. at 916 n.14. The Court also emphasized that the threat of the
exclusionary rule could not “be expected significantly to deter” judicial
officers the same way as it would law enforcement. Id. at 917.
Following Leon, some scholars noted that the “new rule [would] produce
a net gain for privacy and the fourth amendment . . . [but] only if
magistrates do what the Supreme Court expects of them and inquire
responsibly into the issue of probable cause.” Abraham S. Goldstein,
The Search Warrant, the Magistrate, and Judicial Review, 62 N.Y.U. L.
Rev. 1173, 1177 (1987). We expect, as the Leon Court did, that
magistrate judges will uphold their obligations to independently examine
proposed warrants for probable cause.
UNITED STATES V. BARNES 19
(“Leon recognizes only deterrence of the police . . . and this
means that the circumstances showing the magistrate has
‘wholly abandoned his judicial role’ must have been known
by (or at least reasonably knowable by) the police.”).
There is no evidence that Officers Cordova and Tovar
knew or should have known that the arrest warrant was
infirm, whether in this particular instance or as part of a
broader Yakima Municipal Court practice. Furthermore,
neither officer was present when the reviewing judge made
her determination. Although these are not the only methods
by which Barnes—or any other defendant—can demonstrate
officer knowledge, we note that there is nothing in the record
to support an inference that the officers were aware of any
judicial misconduct. Accordingly, we conclude that the
officers acted in good faith reliance on the bench warrant and
that the district court properly denied Barnes’s motion to
suppress.
IV.
Barnes next argues that the district court erred when it
denied his request to present a necessity defense to the jury.
A defendant is entitled to present evidence on a necessity
defense and have the jury instructed accordingly once he has
adequately established—through an offer of proof—that all
four requisite factors are met: (1) he was “faced with a choice
of evils and chose the lesser evil”; (2) he “acted to prevent
imminent harm”; (3) he “reasonably anticipated a causal
relation between his conduct and the harm to be avoided”;
and (4) there were “no other legal alternatives to violating
the law.” 4 United States v. Bibbins, 637 F.3d 1087, 1094
4
Generally speaking, necessity—typically presented as a situation
where the actor claims he chose “the lesser of two evils”—is a type of
20 UNITED STATES V. BARNES
(9th Cir. 2011) (quoting United States v. Arellano-Rivera,
244 F.3d 1119, 1125–26 (9th Cir. 2001)).
justification defense. See 2 Wayne R. LaFave, Substantive Criminal Law
§ 10.1(a) (3d ed. 2017) (“One who, under the pressure of circumstances,
commits what would otherwise be a crime may be justified by ‘necessity’
in doing as he did and so not be guilty of the crime in question.”); see
also United States v. Biggs, 441 F.3d 1069, 1071 (9th Cir. 2006)
(“Evidence that a defendant had no reasonable opportunity to avoid the
use of force is relevant only to a defense of justification, whether labeled
duress, coercion, or necessity.”). We have, however, tended to treat
necessity and justification as separate and distinct defenses in felon-in-
possession cases. See United States v. Gomez, 92 F.3d 770, 774 n.5 (9th
Cir. 1996); see also 1A Kevin F. O’Malley, Jay E. Grenig & Hon.
William C. Lee, Federal Jury Practice and Instructions § 19.02 (6th ed.
2018) (summarizing the different elements for a justification and
necessity defense in this circuit). The elements of a justification defense
are: (1) the defendant acted under unlawful and present threat of death
or serious bodily injury; (2) “he did not recklessly place himself in a
situation where he would be forced to engage in criminal conduct”;
(3) there was no reasonable legal alternative; and (4) “there was a direct
causal relationship between the criminal action and the avoidance of the
threatened harm.” Gomez, 92 F.3d at 775 (quoting United States v.
Lemon, 824 F.2d 763, 765 (9th Cir. 1987)); see also United States v.
Beasley, 346 F.3d 930, 933 n.2 (9th Cir. 2003) (reciting the same
elements); 9th Cir. Model Crim. Jury Instr. 6.7 (2010) (same).
We have typically analyzed similar felon-in-possession cases
raising a necessity or duress defense “in terms of justification” and under
the justification elements. Gomez, 92 F.3d at 774; see also Beasley,
346 F.3d at 933. Here, however, Barnes—with his arguments and
proposed jury instructions—distinctly raised a defense of necessity and
the district court analyzed Barnes’s offer of proof using the elements of
a necessity defense. On appeal, the parties argue whether Barnes has
met the requirements to present a necessity defense, not a justification
defense. Accordingly, we review Barnes’s evidence to determine
whether he has sufficiently made out a case for necessity. We conclude
that he has not, under either the test for necessity or for justification.
UNITED STATES V. BARNES 21
We agree with the district court that Barnes’s offers of
proof, even when viewed in the light most favorable to him,
were insufficient to show that he acted to prevent imminent
harm. “[T]he term ‘imminent harm’ connotes a real
emergency, a crisis involving immediate danger to oneself
or to a third party.” United States v. Maxwell, 254 F.3d 21,
27 (1st Cir. 2001). There is no indication that Barnes acted
in response to such a crisis. There was no evidence that the
children had, for instance, already obtained possession of the
gun or were about to do so. There was no evidence that the
children were in close proximity to the firearm. At most,
Barnes removed a dangerous weapon from a house where
children were present. 5 Accordingly, the district court
correctly denied Barnes’s request to present a necessity
defense to the jury. 6
V.
On the record before us, Barnes has met his burden of
showing judicial abandonment under Leon. Nonetheless, the
evidence here cannot be suppressed because the officers
executing the infirm warrant were unaware—and had no
reason to be aware—of any judicial misconduct. This result
5
Unlike the D.C. Circuit, see United States v. Mason, 233 F.3d 619
(D.C. Cir. 2000), we do not recognize an “innocent possession” defense
to felon-in-possession charges. See United States v. Johnson, 459 F.3d
990, 998 (9th Cir. 2006) (declining to adopt the D.C. Circuit’s reasoning
in Mason to create an innocent possession defense).
6
We note that even if Barnes’s situation constituted an imminent
emergency, he had a number of options available to him that did not
involve taking possession of the gun. He could have, for example,
removed the children from the house or asked another adult in the house
to dispose of the firearm. Because there were other legal alternatives
available, Barnes failed to make the requisite offer of proof to present a
necessity defense. See Bibbins, 637 F.3d at 1094.
22 UNITED STATES V. BARNES
underscores the critical role that judges play as “the only
effective guardian of Fourth Amendment rights.” Illinois v.
Gates, 462 U.S. 213, 275 (1983) (Brennan, J., dissenting).
When judges fail to uphold that duty, they open the door to
unjustified intrusions by the state. This, in turn, undermines
confidence in the judiciary’s ability to safeguard the people’s
constitutional rights. It is therefore our hope—as it was the
Supreme Court’s in Leon—that judicial abandonment will
prove to be an aberration, rather than the norm.
AFFIRMED.