Petition for Writ of Certiorari — LaMarcus Thomas, Petitioner v. United States

Supreme Court briefApr 23, 2019

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No. 18-

In the Supreme Court of the United States

LAMARCUS THOMAS,

PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JUVAL O. SCOTT

ANDREA LANTZ HARRIS

OFFICE OF THE FEDERAL

PUBLIC DEFENDER

FOR THE WESTERN

DISTRICT OF VIRGINIA

401 E. Market St.

Suite 106

Charlottesville, VA

22902

DANIEL R. ORTIZ

Counsel of Record

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

SUPREME COURT

LITIGATION CLINIC

580 Massie Rd.

Charlottesville, VA

22903

(434) 924-3127

dortiz@law.virginia.edu

QUESTION PRESENTED

The good-faith exception to the exclusionary rule

allows the admission of illegally obtained evidence if

“the

officers’

reliance

the

magistrate’s

determination of probable cause was objectively

reasonable.” United States v. Leon, 468 U.S. 897, 926

(1984). What information may be considered in

determining whether the officer’s reliance was

reasonable “is a question that has split [the]

circuits.” United States v. Knox, 883 F.3d 1262, 1271

(10th Cir. 2018). The question presented is:

Whether a suppression court may consider (1) only

information contained within the four corners of the

warrant application, as the Ninth Circuit, Colorado,

Maryland and South Carolina hold; (2) only that

information plus any other information presented to

the issuing magistrate at the time of the warrant

application, as the Fifth, Sixth, Seventh, and Tenth

Circuits hold; or (3) all information known by the

officer at the time she applied for the warrant, even if

she never disclosed it to the magistrate, as the Fourth,

Eighth, and Eleventh Circuits and Arkansas,

Kentucky, Louisiana, Nebraska, and Virginia hold—

and further, even if, as the Fourth Circuit holds, the

officer failed to disclose the information as a result of

a departmental policy.

TABLE OF CONTENTS

Page(s)

Question Presented................................................. I

Table Of Authorities ..............................................V

Opinions Below ...................................................... 1

Jurisdiction ............................................................ 1

Relevant Constitutional Provision ........................ 1

Introduction ........................................................... 2

Statement ............................................................... 2

A. Legal Background ....................................... 2

B. Factual and Procedural Background ......... 4

Reasons For Granting The Petition ...................... 9

I. The Decision Below Further Entrenches An

Already Deep Split .......................................... 9

A. Three Circuits and Five State Supreme

Courts Hold That All Information Known

By The Officer When Applying For The

Warrant May Be Considered .................... 10

B. Four Circuits Hold That Only Information

Presented To The Issuing Magistrate May

Be Considered ........................................... 14

C. One Circuit And Three State High Courts

Hold That Only Information Presented

Within The Four Corners Of The Affidavit

And Warrant Application May Be

Considered ................................................. 16

III

TABLE OF CONTENTS

Page(s)

II. The Decision Below Violates The Fourth

Amendment ................................................... 20

A. The Fourth Circuit’s Unwarranted

Expansion Of The Good-Faith Exception

Undermines The Core Protections Of The

Fourth Amendment .................................. 20

1. The Fourth Circuit’s Rule Permits An

End Run Around The Magistrate ....... 20

2. The Decision Below Weakens The ExAnte Check That Warrants Provide ... 22

B. The Fourth Circuit’s Rule Wrongly Turns

The Good-Faith Exception Into A

Subjective Inquiry ..................................... 24

C. Herring v. United States And Davis v.

United States Also Require Exclusion In

This Case ................................................... 30

III. This Case Presents An Ideal Vehicle For

Resolving A Recurring Question Of

Undeniable Importance ................................ 32

Conclusion ............................................................ 34

Appendices:

Court of Appeals Opinion (Nov. 8, 2018) ....... 1a

District Court Suppression Opinion (Dec. 15,

2016) ........................................................ 16a

TABLE OF CONTENTS

Page(s)

District Court Suppression Order (Dec. 15,

2016) ........................................................ 49a

Court of Appeals Denial of Petition for

Rehearing En Banc (Dec. 7, 2018) .......... 50a

District Court Judgment (Aug. 9, 2017) ...... 51a

Transcript Excerpts From Suppression

Hearing (Aug. 17, 2016) .......................... 74a

TABLE OF AUTHORITIES

Page(s)

Cases:

Adams v. Commonwealth, 657 S.E.2d 87

(Va. 2008) ..................................................... 12, 13

Aguilar v. Texas, 378 U.S. 108 (1964) .................... 22

Anderson v. Creighton, 483 U.S. 635 (1987) .......... 13

Arizona v. Hicks, 480 U.S. 321 (1987) ................... 33

Ashcroft v. al-Kidd, 563 U.S. 731 (2011) ............... 27

Beck v. Ohio, 379 U.S. 89 (1964) ...................... 23, 27

Bond v. United States, 529 U.S. 334 (2000) ........... 26

Brigham City v. Stuart, 547 U.S. 398 (2006)......... 26

Davis v. United States, 564 U.S. 229 (2011) .... 30, 31

Florida v. Jimeno, 500 U.S. 248 (1991) ................. 26

Graham v. Connor, 490 U.S. 386 (1989) ................ 27

Greenstreet v. State, 898 A.2d 961 (Md.

2006)....................................................... 16, 17, 19

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ............ 25

Herring v. United States, 555 U.S. 135

(2009) ....................................................... 3, 30, 31

Illinois v. Gates, 462 U.S. 213 (1983) ..................... 26

Johnson v. United States, 333 U.S. 10 (1948) ....... 20

Katz v. United States, 389 U.S. 347 (1967) ...... 20, 23

Kyllo v. United States, 533 U.S. 27 (2001) ............. 33

Maryland v. King, 569 U.S. 435 (2013) ................. 33

TABLE OF AUTHORITIES

Page(s)

Missouri v. Seibert, 542 U.S. 600 (2004) ................ 24

Moore v. Commonwealth, 159 S.W.3d 325

(Ky. 2005) ..................................................... 11, 19

Moya v. State, 981 S.W.2d 521 (Ark. 1998) ..... 11, 12

People v. Miller, 75 P.3d 1108 (Colo. 2003) 16, 18, 19

People v. Reed, 56 P.3d 96 (Colo. 2002) .................. 18

Scott v. United States, 436 U.S. 128 (1978) ........... 26

Silverman v. United States, 365 U.S. 505

(1961) ................................................................. 33

Sims v. State, 969 S.W.2d 657 (Ark. 1998) ............ 11

State v. Adolphe, 441 S.E.2d 832

(S.C. Ct. App. 1994) ........................................... 17

State v. Edmonson, 598 N.W.2d 450

(Neb. 1999) ......................................................... 12

State v. Johnson, 395 S.E.2d 167

(S.C. 1990)........................................ 16, 17, 18, 19

State v. Varnado, 675 So. 2d 268

(La. 1996) ............................................... 11, 13, 19

Steagald v. United States, 451 U.S. 204 (1981) ..... 21

United States v. Bynum, 293 F.3d 192

(4th Cir. 2002).................................................... 13

United States v. Calandra, 414 U.S. 338

(1974) ............................................................. 3, 23

United States v. Chadwick, 433 U.S. 1

(1977) ............................................................. 2, 20

VII

TABLE OF AUTHORITIES

Page(s)

United States v. Frazier, 423 F.3d 526

(6th Cir. 2005).............................................. 14, 19

United States v. Houston, 665 F.3d 991

(8th Cir. 2012).................................................... 10

United States v. Hove, 848 F.2d 137

(9th Cir. 1988).................................................... 15

United States v. Knox, 883 F.3d 1262

(10th Cir. 2018).................................. 9, 14, 15, 19

United States v. Koerth, 312 F.3d 862

(7th Cir. 2002).............................................. 14, 15

United States v. Laughton, 409 F.3d 744

(6th Cir. 2005).................................................... 15

United States v. Lefkowitz, 285 U.S. 452 (1932).... 21

United States v. Leon, 468 U.S. 897

(1984) ......................................................... passim

United States v. Luong, 470 F.3d 898

(9th Cir. 2006).............................................. 16, 17

United States v. Maggitt, 778 F.2d 1029

(5th Cir. 1985)........................................ 14, 15, 19

United States v. Martin, 833 F.2d 752

(8th Cir. 1987).................................................... 13

United States v. Martin, 297 F.3d 1308

(11th Cir. 2002)............................................ 11, 12

United States v. Martinez-Fuerte, 428 U.S. 543

(1976) ................................................................. 23

VIII

TABLE OF AUTHORITIES

Page(s)

United States v. McKenzie-Gude, 671 F.3d 452

(4th Cir. 2011) ............................................ passim

United States v. Proell, 485 F.3d 427

(8th Cir. 2007).................................................... 10

United States v. Taxacher, 902 F.2d 867

(11th Cir. 1990).................................................. 12

Whiteley v. Warden, 401 U.S. 560 (1971) ............... 22

Whren v. United States, 517 U.S. 806 (1996)... 25, 27

Wong Sun v. United States, 371 U.S. 471

(1963) ................................................................. 20

Constitutional and Statutory Provisions:

U.S. Const. amend. IV .................................... passim

28 U.S.C. § 1254(1) ................................................... 1

Miscellaneous:

Mary Nicol Bowman, Full Disclosure: Cognitive

Science, Informants, and Search Warrant

Scrutiny, 47 Akron L. Rev. 431 (2014) ............. 21

John M. Burkoff, Search Warrant Law Deskbook

§ 6:7 (2019)......................................................... 17

Thomas K. Clancy, The Framers’ Intent: John

Adams, His Era, and the Fourth Amendment,

86 Ind. L.J. 979 (2011) ........................................ 2

Pamela L. Coleman, Note, Beyond the Four

Corners: Objective Good Faith Analysis or

Subjective Erosion of Fourth Amendment

Protections?, 54 Mercer L. Rev. 1719 (2003) .... 10

TABLE OF AUTHORITIES

Page(s)

Kenneth C. Halcom, Note, Illegal Predicate

Searches and the Good Faith Exception, 2007

U. Ill. L. Rev. 467 (2007) ................................... 10

Jerold H. Israel, Criminal Procedure, the Burger

Court, and the Legacy of the Warren Court, 75

Mich. L. Rev. 1319 (1977).................................. 26

2 Wayne R. LaFave, Search and Seizure: A

Treatise on the Fourth Amendment (5th ed.

2012)............................................................. 23, 24

Dianne L. Martin, Lessons About Justice from the

“Laboratory” of Wrongful Convictions: Tunnel

Vision, the Construction of Guilt and Informer

Evidence, 70 UMKC L. Rev. 847 (2002) ........... 21

Model Penal Code § 2.02(c) (1985) ......................... 30

1 S.C. Jur. Affidavits § 29 (2019) ........................... 17

Derek V. Smith, What Were They Thinking?

Officers’ Subjective Knowledge and the “Good

Faith” Exception of Fourth Amendment

Jurisprudence—United States v. Laughton,

74 U. Cin. L. Rev. 1525 (2006) .................... 24, 28

Simon Stern, Constructive Knowledge, Probable

Cause, and Administrative Decisionmaking,

82 Notre Dame L. Rev. 1085 (2007) .................. 21

John E. Taylor, Using Suppression Hearing

Testimony to Prove Good Faith Under United

States v. Leon, 54 U. Kan. L. Rev. 155 (2005) ... 9

TABLE OF AUTHORITIES

Page(s)

Richard Van Duizend et al., The Search Warrant

Process: Preconceptions, Perceptions, and

Practices (1985).................................................. 32

Webster’s Third New International Dictionary

(1971) ................................................................. 31

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a15a) is reported at 908 F.3d 68 (4th Cir. 2018). The

district court’s memorandum opinion denying

petitioner’s suppression motion (App., infra, 16a-48a)

is unreported but may be found at 2016 WL 7324095

(W.D. Va. Dec. 15, 2016).

JURISDICTION

The judgment of the court of appeals was entered

on November 8, 2018. On November 21, 2018,

petitioner filed a petition for rehearing en banc, which

was denied on December 7, 2018. On February 26,

2019, the Chief Justice extended the time for filing a

petition for a writ of certiorari until May 6, 2019. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

RELEVANT CONSTITUTIONAL PROVISION

The Fourth Amendment to the United States

Constitution provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.

INTRODUCTION

This case asks whether the good-faith exception to

the exclusionary rule allows the prosecution to use

evidence obtained from an illegal search when a law

enforcement officer testifies at a suppression hearing

that at the time he obtained the deficient warrant he

knew additional information—never disclosed to the

magistrate—which would have furnished probable

cause. Here the officer, following departmental policy,

purposefully omitted key details from the warrant

affidavit, including facts linking a seized cell phone to

the alleged offenses and the dates the alleged offenses

took place. Because he later testified to those facts at

the suppression hearing, the Fourth Circuit held that

the good-faith exception applied and admitted the

illegally obtained evidence. The Fourth Circuit’s

holding further entrenches an already deep three-way

split. This case can resolve it.

STATEMENT

A. Legal Background

“[A] search warrant ‘provides the detached

scrutiny of a neutral magistrate, which is a more

reliable safeguard against improper searches than the

hurried judgment of a law enforcement officer engaged

in the often competitive enterprise of ferreting out

crime.’” United States v. Leon, 468 U.S. 897, 913-914

(1984) (quoting United States v. Chadwick, 433 U.S. 1,

9 (1977)).

Reflecting the Revolution’s fear of

unchecked governmental authority, see, e.g., Thomas

K. Clancy, The Framers’ Intent: John Adams, His Era,

and the Fourth Amendment, 86 Ind. L.J. 979, 991-992

(2011), the Fourth Amendment’s warrant requirement

ensures that “neutral judicial officers,” who “have no

stake in the outcome of particular criminal

prosecutions,” provide an ex-ante check on potentially

oppressive governmental searches. Leon, 468 U.S. at

917.

This Court has thus “expressed a strong

preference for warrants,” id. at 914, which “[t]he

[exclusionary] rule * * * ‘safeguard[s] through its

deterrent effect.’” Id. at 906 (quoting United States v.

Calandra, 414 U.S. 414 U.S. 338, 348 (1974)).

Evidence obtained through an illegal search—

which would ordinarily be suppressed—can

nonetheless be admitted “when an officer acting with

objective good faith has obtained a search warrant

from a judge or magistrate and acted within its scope.”

Leon, 468 U.S. at 920. This Court recognized this

good-faith exception in part because “the exclusionary

rule is designed to deter police misconduct rather than

to punish the errors of judges and magistrates” in

granting a subsequently invalidated warrant. Id. at

916; see also Herring v. United States, 555 U.S. 135,

144 (2009) (stating that the exclusionary rule is

“trigger[ed]” when police conduct is “sufficiently

deliberate” and “sufficiently culpable”).

But this Court has also held that “it is clear” the

good-faith exception does not apply when an officer

has “no reasonable grounds for believing the warrant

was properly issued.” Leon, 468 U.S. at 922-923.

“Suppression therefore remains an appropriate

remedy” if an affidavit is “so lacking in indicia of

probable cause as to render official belief in its

existence entirely unreasonable.” Id. at 923 (internal

citations and quotation marks omitted).

The Fourth Circuit and some other courts have

developed an exception to this part of Leon’s holding.

Even if an officer relied on a “warrant based on an

affidavit so lacking in indicia of probable cause,” Leon,

468 U.S. at 923 (internal citation and quotation marks

omitted), they hold, a court may fill in the gaps and

find objective good faith by looking “beyond the four

corners of the affidavit” to consider “facts known to

[the officer] but omitted from the affidavit presented

to the magistrate.” See App., infra, 9a. Other courts

disagree. See pp. 13-19, infra.

B. Factual and Procedural Background

In 2014, Detective Charles Coleman of the

Winchester, Virginia, City Police Department received

an anonymous tip that petitioner LaMarcus Thomas

had sexually abused a minor. App., infra, 4a. The

minor’s mother accused Thomas of sexually assaulting

two of her sons and claimed that he had called her

several times since the alleged assault to schedule

further visits. Ibid. After observing interviews of the

minor and his brother, Coleman used a telephone

number the mother had provided to contact petitioner,

who appeared for an interview and admitted to sexual

contact. Ibid. Coleman then obtained two warrants

for Thomas’s arrest. App., infra, 4a. In arresting

Thomas, he seized a cell phone. Ibid.

Coleman later applied for a warrant to search the

cell phone. App., infra, 5a. In the affidavit, he swore

that he had obtained two previous arrest warrants,

that Thomas had corroborated the allegations against

him, and that based on Coleman’s training, phones

commonly contained “contact items” from victims

(pictures, text messages, and voicemails). Ibid. The

affidavit did not, however, mention that Thomas had

telephoned the minors’ mother after the alleged

assault or specify when the offenses allegedly

occurred. Ibid. A magistrate—who was unfamiliar

with the prior arrest warrant application, C.A. J.A.

118–119—reviewed and granted the search warrant,

pursuant to which sexually explicit images and videos

of two minors were later found. App., infra, 6a.

Petitioner was indicted on six counts of producing

child pornography. Ibid.

Thomas moved to suppress the evidence obtained

from the cell phone. App., infra, 6a. He argued that

Coleman’s affidavit failed to establish probable cause

for two reasons: it failed to link the phone to the

alleged offenses and it did not indicate when the

offenses occurred, thereby making it impossible for the

magistrate to determine whether any evidence was

likely on the phone. Ibid.

At the suppression hearing, Coleman testified that

“all the information” he “provided to the magistrate for

the search warrant” was the “search warrant affidavit

and the attached statement of probable cause.” App.,

infra, 73a. In response to the court’s questioning,

Coleman stated that he omitted from his “affidavit for

the search warrant” all information linking the

assault allegations to the cell phone. See App., infra,

74a-76a. Further questioning made the point clear:

THE COURT: Essentially, [petitioner] had a phone

on him, but you didn’t put anything in th[e cell

phone search warrant] affidavit that indicates the

phone had anything to do with the molestation,

other than the fact he had it on him; right?

THE WITNESS [Coleman]: Correct.

App., infra, 75a.

Earlier, he had given an explanation. Through “inhouse training,” App., infra, 73a, the police

department had instructed him to include in warrant

applications only the minimum amount of information

he believed necessary to establish probable cause:

Q. [by the Government]: Specifically with that inhouse training, what have you been taught about

drafting a search warrant?

A. [by Coleman]: One of the things is, in our

department, we are taught to put no more PC

[probable cause] into the warrant than it takes to

obtain the warrant.

Ibid.

The district court denied petitioner’s motion to

suppress. App., infra, 48a. It agreed with Thomas

that “the warrant at issue [wa]s facially invalid” for

two reasons. App., infra, 17a. First, “while the

affidavit contain[ed] facts supporting a finding of

probable cause as to the aggravated sexual battery

charge, no such facts exist[ed] as to * * * child

pornography.” Ibid. Second, “[b]ecause the affidavit

provides no nexus whatsoever between Thomas’ LG

cell phone and the aggravated sexual battery offense

listed in the warrant, the magistrate had no facts

sufficient to establish probable cause to search the LG

phone.” App., infra, 18a. But the court nevertheless

admitted the illegally obtained evidence under Leon’s

good-faith exception. Ibid.

Looking “outside the four corners of [the] deficient

affidavit,” App., infra, 31a, 39a (citing United States v.

McKenzie-Gude, 671 F.3d 452, 459 (4th Cir. 2011)), the

district court considered additional information

Coleman testified he knew when he applied for the

warrant but did not tell the magistrate, App., infra,

22a-26a.

In particular, it found, “Coleman’s

knowledge that Thomas had phoned the victim’s

mother * * * supplied the missing link between the LG

cell phone and the crime of aggravated sexual

battery.” App., infra, 39a. It further reasoned that

Coleman’s omission of the dates of the alleged assaults

did not matter because he had “reason to believe that

Thomas’ phone calls to the victims’ mother took place

* * * just a few months” before the phone was seized.

App., infra, 40a-41a. After the district court denied

his suppression motion, Thomas accepted a plea

bargain that allowed him to appeal that ruling. App.,

infra, 7a.

The Fourth Circuit affirmed. It saw “[t]he central

question” as whether “we can look beyond the four

corners of the affidavit in applying Leon, and consider

as well facts known to Coleman but omitted from the

affidavit presented to the magistrate.” App., infra, 9a.

“[W]e already have answered precisely that question

in the affirmative,” it stated, “holding * * * that ‘Leon

presents no barrier’ to considering ‘uncontroverted

facts’ known to an officer but ‘inadvertently not

presented to the magistrate’ in assessing the officer’s

objective good faith.” App., infra, 9a-10a (quoting

McKenzie-Gude, 671 F.3d at 460).

Applying that rule to the facts, the court found that

at the time of the warrant application Coleman (1)

knew that one of the victims and his mother had

reported that Thomas had used a phone to facilitate

the abuse and (2) could infer that the cell phone seized

at his arrest was the same one. App., infra, 12a. It

similarly found that Coleman had knowledge placing

the abuse “less than five months prior to the search,

resolving any staleness issues.” Ibid.

It then addressed Thomas’s argument that the

warrant affidavit could not be supplemented because

“Coleman’s omissions were not ‘inadvertent’ within

the meaning” of Fourth Circuit precedent. App., infra,

12a. The omission, the court held, was not “the kind

of deliberate or bad faith effort to mislead a magistrate

that would render Leon’s good faith exception

inapplicable.”

App., infra, 13a.

“The police

department’s purported policy was not to file deficient

affidavits,” it explained, “it was to file affidavits that

included enough, but no more than necessary, to

establish probable cause.” Ibid. If “Coleman[ ] fell

short,” he “was not acting pursuant to that policy [but]

simpl[y] miscalculat[ing] * * * how much of what he

knew he needed to include in his affidavit to show

probable cause.” App., infra, at 13a-14a.

REASONS FOR GRANTING THE PETITION

I. The Decision Below Further Entrenches An

Already Deep Split

The courts of appeals and state high courts are

openly and irreconcilably split over whether a

suppression court may apply Leon’s good-faith

exception to the exclusionary rule based on

information an officer allegedly knew when making a

warrant application, but that he failed to disclose to

the issuing magistrate. A number of courts have

directly recognized this conflict. See United States v.

Knox, 883 F.3d 1262, 1271 (10th Cir. 2018) (“Beyond

our own geographic boundaries, this is a question that

has split our sister circuits.”); United States v.

McKenzie-Gude, 671 F.3d 452, 460 & n.3 (4th Cir.

2011) (acknowledging that although a “number of [the

Fourth Circuit’s] sister circuits” agree with its

approach, other circuits have “held that Leon good

faith reliance can be measured only by what is in an

officer’s affidavit.”) (internal quotation marks and

citation omitted).

So has the government itself. It has noted “that

circuit courts differ on whether a district court should

consider information outside the four corners of the

affidavit,” e.g., Gov’t C.A. Br. at 23-30, United States

v. Knox, 883 F.3d 1262 (10th Cir. 2018) (No. 16-3324)

(Apr. 26, 2017), and has discussed the split, ibid.

Fourth Amendment commentators have also

acknowledged the split. See John E. Taylor, Using

Suppression Hearing Testimony to Prove Good Faith

Under United States v. Leon, 54 U. Kan. L. Rev. 155,

180 (2005) (“[T]he courts that have addressed whether

information not presented to the magistrate can be

used to prove good faith have split.”); Pamela L.

Coleman, Note, Beyond the Four Corners: Objective

Good Faith Analysis or Subjective Erosion of Fourth

Amendment Protections?, 54 Mercer L. Rev. 1719,

1739 (2003) (“The ‘totality of the circumstances’

standard is being hailed by a majority of circuits as

license for going beyond the four corners of the

affidavit and warrant in determining objective good

faith. Yet, the circuits are split regarding this issue.”);

see also Kenneth C. Halcom, Note, Illegal Predicate

Searches and the Good Faith Exception, 2007 U. Ill. L.

Rev. 467, 478 n.66 (2007) (noting these “disagreements”). “As an issue creating disparity among the

circuits, inevitably the Supreme Court must

intercede.” Coleman, 54 Mercer L. Rev. at 1739.

A. Three Circuits And Five State Supreme

Courts Hold That All Information Known

By The Officer When Applying For The

Warrant May Be Considered

The Fourth, Eighth, and Eleventh Circuits and the

supreme courts of Arkansas, Kentucky, Louisiana,

Nebraska, and Virginia hold that a court may consider

all information known by the officer when applying for

the warrant in determining whether the police officer

acted in good faith. See, e.g., United States v. Houston,

665 F.3d 991, 995 (8th Cir. 2012) (“When assessing the

objective [reasonableness] of police officers executing

a warrant, we must look to the totality of the

circumstances, including any information known to

the officers but not presented to the issuing judge.”)

(quoting United States v. Proell, 485 F.3d 427, 431 (8th

Cir. 2007)); McKenzie-Gude, 671 F.3d at 460

(“[O]fficers * * * who swore out the affidavit and

executed the search[ ] acted with the requisite

objective

reasonableness

when

relying

uncontroverted facts known to them but inadvertently

not presented to the magistrate.”); United States v.

Martin, 297 F.3d 1308, 1318-1319 (11th Cir. 2002)

(adopting an approach “based upon the totality of the

circumstances,” which includes “facts not presented to

the issuing judge”); Moya v. State, 981 S.W.2d 521,

525-526 (Ark. 1998) (stating that “when assessing

good faith, we can and must look to the totality of the

circumstances, including what the affiant knew, but

did not include in his affidavit” and including

“information known to the executing officers that may

or may not have been communicated to the issuing

judge”) (emphasis omitted) (quoting Sims v. State, 969

S.W.2d 657, 659-660 (Ark. 1998)); Moore v.

Commonwealth, 159 S.W.3d 325, 328 (Ky. 2005)

(“[W]e must look to the totality of the circumstances,

including any information known to the officer but not

presented to the issuing magistrate.”); State v.

Varnado, 675 So. 2d 268, 270 (La. 1996) (per curiam)

(holding good-faith exception applicable to warrant

application that “omi[tted]” officer’s knowledge that

“the targeted premises [w]as the defendant’s

residence” because “[t]he reasonableness inquiry

under Leon is an objective one which turns on the

totality of the circumstances surrounding the issuance

of the warrant,” which “include[s] the overall

familiarity of the officer applying for the warrant with

the investigation”) (citation omitted); State v.

Edmonson, 598 N.W.2d 450, 460-462 (Neb. 1999)

(holding good-faith exception applicable when officers

obtained additional information before executing

warrant that magistrate did not know when he issued

it); Adams v. Commonwealth, 657 S.E.2d 87, 94 (Va.

2008) (concluding that “the totality of the

circumstances should be considered when deciding the

question of good faith,” while rejecting an approach

that “confine[s] the good-faith analysis to the facts set

forth in the four corners of the search warrant

affidavit (even if the analysis also considers additional

information presented to the magistrate)”).

These courts justify this conclusion differently.

Some point to language in a footnote from Leon that a

court should consider “all of the circumstances.” See

United States v. Leon, 468 U.S. 897, 922 n.23 (1984).

The Fourth Circuit, for example, has “consistently

rejected the notion that reviewing courts may not look

outside the four corners of a deficient affidavit when

determining, in light of all the circumstances, whether

an officer’s reliance on the issuing warrant was

objectively reasonable.” McKenzie-Gude, 671 F.3d at

459 (citation omitted; emphasis added). The Eleventh

Circuit has similarly concluded that its “standard

comports with the language used by the Court in Leon,

that in determining ‘whether a reasonably well

trained officer would have known that the search was

illegal despite the magistrate’s authorization,’ ‘all of

the circumstances . . . may be considered.’” Martin,

297 F.3d at 1318-1319 (quoting United States v.

Taxacher, 902 F.2d 867, 871 (11th Cir. 1990)). The

Arkansas, Louisiana, and Virginia supreme courts

have also relied on this language. See Moya, 981

S.W.2d at 525; Adams, 657 S.E.2d at 92; Varnado, 675

So. 2d at 270.

Some courts reason that this approach is

consistent with the purposes of the exclusionary rule

and its good-faith exception. The Fourth Circuit, for

example, notes that “[r]efusing to consider such

information risks the anomalous result of suppressing

evidence ‘obtained pursuant to a warrant supported

by the affidavit of an officer, who, in fact, possesses

probable cause, but inadvertently omits some

information from his affidavit.’” McKenzie-Gude, 671

F.3d at 460 (quoting United States v. Bynum, 293 F.3d

192, 199 (4th Cir. 2002)).

A few courts analogize to qualified immunity to

justify their conclusion. The first Eighth Circuit case

adopting this approach, for example, cited only

Anderson v. Creighton, 483 U.S. 635, 641 (1987), a

case involving the appropriate standard for qualified

immunity analysis in a Bivens action. See United

States v. Martin, 833 F.2d 752, 756 (8th Cir. 1987).

The Eighth Circuit simply quoted this case—without

explanation—for

the

proposition

that

“the

determination whether it was objectively legally

reasonable to conclude that a given search was

supported by probable cause or exigent circumstances

will often require examination of the information

possessed by the searching officials.” Ibid. (quoting

Anderson, 483 U.S. at 641).

B. Four Circuits Hold That Only Information

Presented To The Issuing Magistrate May

Be Considered

The Fifth, Sixth, Seventh, and Tenth Circuits

confine the good-faith exception inquiry to the

information presented in the warrant application

process, whether in the affidavit or elsewhere in the

proceeding. United States v. Knox, 883 F.3d 1262,

1272 (10th Cir. 2018) (“[G]ood faith is confined to

reviewing the four corners of the sworn affidavit and

any other pertinent information actually shared with

the issuing judge under oath prior to the issuance of

the warrant, as well as information relating to the

warrant application process.”); United States v.

Frazier, 423 F.3d 526, 535-536 (6th Cir. 2005) (“[W]e

hold that a court reviewing an officer’s good faith

under Leon may look beyond the four corners of the

warrant affidavit to information that was known to

the officer and revealed to the issuing magistrate.”)

(emphasis added); United States v. Koerth, 312 F.3d

862, 871 (7th Cir. 2002) (holding that “the probablecause determination is based solely on the information

presented during the warrant application process”

and courts should therefore decline “to consider documents that were not presented to” the warrant-issuing

judge and were “cited * * * for the first time at the

suppression hearing”); United States v. Maggitt, 778

F.2d 1029, 1036 (5th Cir. 1985) (holding where

“investigating officers appeared before a judicial

authority who carefully examined them about the

portions of the affidavit that he apparently considered

to be lacking,” that “[i]t was objectively reasonable for

the officers to believe that whatever flaws may have

existed in the warrant were cured by the city judge’s

questions and their answers at the warrant

application proceeding”).

These courts point to Leon’s instruction that the

inquiry is objective to exclude information known to

the officer but not presented to the issuing magistrate.

See Knox, 883 F.3d at 1272 (noting that Leon

“specified that [the issue is] manifest objective goodfaith,” holding that “the officer’s reliance * * * must be

objectively reasonable,” and “eschew[ing] inquiries

into the subjective beliefs of law enforcement officers”)

(second emphasis added); United States v. Laughton,

409 F.3d 744, 752 (6th Cir. 2005) (noting that

considering information not presented to the issuing

magistrate “would clearly perch a reviewing court at

the edge of the proverbial slippery slope, with courts

forced to determine not only how much affiants knew,

but also when and from whom they learned it. It

would also lead to the very kind of subjectivity that the

Supreme Court has repeatedly and explicitly

rejected.”); Koerth, 312 F.3d at 871 (“The Leon test for

good faith reliance is clearly an objective one and it is

based solely on facts presented to the magistrate. An

obviously deficient affidavit cannot be cured by an

officer’s later testimony on his subjective intentions or

knowledge.”) (quoting United States v. Hove, 848 F.2d

137, 140 (9th Cir. 1988)); Maggitt, 778 F.2d at 1036

(“It was objectively reasonable for the officers to

believe that whatever flaws may have existed in the

warrant were cured by the city judge’s questions and

their answers.”) (emphasis added).

C. One Circuit And Three State High Courts

Hold That Only Information Presented

Within The Four Corners Of The Affidavit

And Warrant Application May Be

Considered

The Ninth Circuit and the high courts of Colorado

Maryland, and South Carolina hold that a reviewing

judge may not look beyond the affidavit to determine

whether an executing officer had a reasonable basis

for reliance on a defective warrant. United States v.

Luong, 470 F.3d 898, 904 (9th Cir. 2006) (rejecting

“the government’s invitation to look to facts orally

conveyed to the magistrate” because the circuit has

“repeatedly held that all data necessary to show

probable cause for the issuance of a search warrant

must be contained within the four corners of a written

affidavit given under oath”) (citation and internal

quotation marks omitted); People v. Miller, 75 P.3d

1108, 1116 (Colo. 2003) (holding that in determining

whether “police met the objective good faith standard,”

“we are restricted to the information contained within

the four corners of the affidavit”); Greenstreet v. State,

898 A.2d 961, 978 (Md. 2006) (“To determine whether

the officer held an objective reasonable belief that the

search conducted was authorized, we review the

warrant and its application.”); State v. Johnson, 395

S.E.2d 167, 170 (S.C. 1990) (“We have already found

that the affidavit alone does not include sufficient

information to allow a magistrate to determine

probable cause. Therefore, the good faith exception

may not be employed to validate this warrant.”).1

These courts generally justify this conclusion from

Leon. In United States v. Luong, for example, the

Ninth Circuit held that suppression courts must limit

their consideration to the four corners of the affidavit

because “Leon clearly and unequivocally states that

when the affidavit itself is entirely lacking in indicia

of probable cause, it cannot be said that the officer

acted in good faith in relying on a warrant that

issues.” 470 F.3d at 904.

The Maryland Court of Appeals and the Colorado

Supreme Court rely on a different aspect of Leon: its

objective focus. See Greenstreet, 898 A.2d at 978 &

n.4 (confining the good-faith inquiry to the “warrant

1 South Carolina is one of a minority of states that allows warrant

affidavits to be supplemented by sworn oral testimony at

application.

See John M. Burkoff, Search Warrant Law

Deskbook § 6:7 & n.3 (2019) (citing Johnson). The South Carolina

Supreme Court thus remanded in Johnson for determination of

whether “the affidavit was in fact supplemented by sworn oral

testimony before the magistrate.” Johnson, 395 S.E.2d at 170.

But this determination goes to “the validity of the [underlying]

warrant,” not the applicability of the good-faith exception, which,

as quoted above, the court held “may not be employed to validate

this warrant.” Ibid.; see also State v. Adolphe, 441 S.E.2d 832,

834 (S.C. Ct. App. 1994) (“[Johnson] declined to apply the good

faith exception if the underlying affidavit does not include

sufficient information to allow a magistrate to determine

probable cause.”); 1 S.C. Jur. Affidavits § 29 (2019) (“The [South

Carolina c]ourts will not apply the good faith exception adopted

in [Leon] if the underlying affidavit does not include sufficient

information to allow a magistrate to determine probable cause.”)

(citing Adolphe).

and its application” and specifically rejecting the

State’s invitation to peer beyond the affidavit’s “four

corners,” because Leon “eschew[s]” such “subjective”

inquiries) (quoting United States v. Leon, 468 U.S.

897, 924 (1984)); Miller, 75 P.3d at 1116-1117

(“[C]ourts must consider whether reliance on the

warrant was objectively reasonable, based on the

contents of the warrant, and cannot inquire into the

police’s subjective good faith.”) (citing People v. Reed,

56 P.3d 96, 101 (Colo. 2002)).

The South Carolina Supreme Court relies on a

different aspect of Leon. Quoting its language that

“[s]ufficient information 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,” Johnson, 395 S.E.2d at

170, it held that “the good faith exception may not be

employed to validate [a] warrant” when “the affidavit

alone does not include sufficient information to allow

a magistrate to determine probable cause,” ibid.2

2 Citing Johnson and its progeny, the State of South Carolina has

repeatedly petitioned this Court to rectify what it considers “the

South Carolina appellate courts[’] regular[ ] misapprehen[sion

of ] the appropriate constitutional standard for the applicability

of the ‘good faith’ exception.” See, e.g., Cert. Reply, South

Carolina v. Miller, No. 16-231, 2016 WL 7473966, at *5 (Dec. 21,

2016); Pet., South Carolina v. Thompson, No. 17-378, 2017 WL

4060171, at *14 n.2 (Sept. 9, 2017) (“[South Carolina] courts have

historically struggled to correctly interpret [Leon].”). As the

State itself has informed this Court, “South Carolina appellate

courts have never applied * * * Leon in a published decision to

preclude the exclusion of evidence discovered in a case involving

a subsequently-invalidated search warrant at any point since the

Leon decision was announced over three decades ago.” Ibid.

*****

The circuits and state high courts are intractably

split over what information suppression courts may

consider in applying Leon’s good-faith exception.

Whether evidence is admissible under the exception

depends on the jurisdiction involved. The conflict’s

particular geography, moreover, worsens the

inconsistency and confusion. In many places, whether

evidence is admissible under this rule depends wholly

on whether the defendant is charged in state or federal

court.

Compare Greenstreet, 898 A.2d at 978

(Maryland’s Four-Corners Rule), and Johnson, 395

S.E.2d at 170 (South Carolina’s Four-Corners Rule),

with App., infra, 10a-11a (Fourth Circuit’s Totality

Rule); compare Miller, 75 P.3d at 1116 (Colorado’s

Four-Corners Rule), with Knox, 883 F.3d at 1272

(Tenth

Circuit’s

All-Information-Presented-toMagistrate Rule); compare Frazier, 423 F.3d at 535536 (Sixth Circuit’s All-Information-Presented-toMagistrate Rule), with Moore, 159 S.W.3d at 328

(Kentucky’s Totality Rule); compare Maggitt, 778 F.2d

at 1036 (Fifth Circuit’s All-Information-Presented-toMagistrate Rule), with Varnado, 675 So. 2d at 270

(Louisiana’s Totality Rule). As petitioner’s case

illustrates, state criminal investigations frequently

morph into federal charges, which in these

jurisdictions would change a suppression motion’s

outcome and perhaps the case’s ultimate result. This

Court’s review is warranted to provide horizontal and

vertical uniformity across all jurisdictions.

II. The Decision Below Violates The Fourth

Amendment

A. The

Fourth

Circuit’s

Unwarranted

Expansion Of The Good-Faith Exception

Undermines The Core Protections Of The

Fourth Amendment

1. The Fourth Circuit’s Rule Permits An

End Run Around The Magistrate

This Court has consistently maintained that

review by a neutral judicial officer is central to the

Fourth Amendment’s warrant requirement. See, e.g.,

Katz v. United States, 389 U.S. 347, 357 (1967) (“[T]he

Constitution requires ‘that the deliberate, impartial

judgment of a judicial officer * * * be interposed

between the citizen and the police.’”) (quoting Wong

Sun v. United States, 371 U.S. 471, 481-482 (1963));

Johnson v. United States, 333 U.S. 10, 14 (1948)

(holding that the Fourth Amendment’s “protection

consists in requiring that those inferences [regarding

probable cause] be drawn by a neutral and detached

magistrate”). In Leon itself, this Court emphasized

that “the detached scrutiny of a neutral magistrate

* * * is a more reliable safeguard against improper

searches than the hurried judgment of a law

enforcement officer ‘engaged in the often competitive

enterprise of ferreting out crime.’” United States v.

Leon, 468 U.S. 897, 913-914 (1984) (quoting United

States v. Chadwick, 433 U.S. 1, 9 (1977)).

The Fourth Circuit’s rule permits police officers to

sidestep this central procedural safeguard. So long as

an officer later testifies that at the time of the warrant

application he had information in his head that would

have furnished probable cause he can effectively cure

a deficient warrant. See App., infra, 9a-10a. The

Fourth Circuit’s rule thus does away with the

requirement that the magistrate weigh all the

information before a search. It instead allows the

officer to do so.

Encouraging the officer to substitute his judgment

for the magistrate’s undermines the “informed and

deliberate determinations of magistrates” that this

Court has recognized are “preferred over the hurried

action of officers and others who may happen to make

arrests.” United States v. Lefkowitz, 285 U.S. 452, 464

(1932). Not only are officers’ judgments often hurried,

they are often incorrect. As this Court has noted, the

warrant requirement itself “implicitly acknowledges

that an officer engaged in the often competitive

enterprise of ferreting out crime may lack sufficient

objectivity to weigh correctly the strength of the

evidence supporting the contemplated action against

the individual’s interests in protecting his own liberty

and * * * privacy.” Steagald v. United States, 451 U.S.

204, 212 (1981). 3

Empirical research supports this Court’s insight that

magistrates make these determinations more deliberately and

objectively than do officers. See, e.g., Mary Nicol Bowman, Full

Disclosure: Cognitive Science, Informants, and Search Warrant

Scrutiny, 47 Akron L. Rev. 431, 454 (2014) (describing how

officers “showed bias in terms of how they interpreted new

information during an investigation and insensitivity to

potentially exonerating information presented later in the

investigation”); see also Simon Stern, Constructive Knowledge,

Probable Cause, and Administrative Decisionmaking, 82 Notre

Worse yet, the rule allows law enforcement officers

to pick and choose what information to provide the

magistrate, knowing that if they are later secondguessed they can testify at the suppression hearing to

additional information they may have possessed. The

rule thus removes an incentive for the officer to

provide the magistrate with the full picture on which

any truly objective judgment necessarily rests. Taken

to its logical conclusion, moreover, the rule would find

good faith when the officer searched without any

warrant at all so long as he could later testify that at

the time he executed the search he possessed private

information that would furnish probable cause.

For all these reasons, this Court has held that “an

otherwise

insufficient

affidavit

cannot

rehabilitated by testimony concerning information

possessed by the affiant when he sought the warrant

but not disclosed to the issuing magistrate.” Whiteley

v. Warden, 401 U.S. 560, 565 n.8 (1971) (quoting

Aguilar v. Texas, 378 U.S. 108, 109 n.1 (1964)). “A

contrary rule would,” it noted, “render the warrant

requirements

the

Fourth

Amendment

meaningless.” Ibid.

2. The Decision Below Weakens The ExAnte Check That Warrants Provide

The Fourth Circuit’s decision undermines another

central feature of the Fourth Amendment: that it

Dame L. Rev. 1085, 1120 (2007); Dianne L. Martin, Lessons

About Justice from the “Laboratory” of Wrongful Convictions:

Tunnel Vision, the Construction of Guilt and Informer Evidence,

70 UMKC L. Rev. 847, 848 (2002).

provides a powerful check on government

overreaching before, not after, a search occurs. As this

Court has held, “[t]he purpose of the Fourth

Amendment is to prevent unreasonable governmental

intrusions into the privacy of one’s person, house,

papers, or effects. The wrong condemned is the

unjustified governmental invasion of these areas of an

individual’s life.

That wrong * * * is fully

accomplished by the original search.” United States v.

Calandra, 414 U.S. 338, 354 (1974).

A check

afterwards cannot prevent an injury that has already

occurred. At most, it can deter future misconduct.

Ex-post review suffers, moreover, from hindsight

bias. As this Court has noted, “an after-the-event

justification for [a] search[, is] too likely to be subtly

influenced by the familiar shortcomings of hindsight

judgment.” Katz v. United States, 389 U.S. 347, 358

(1967) (citing Beck v. Ohio, 379 U.S. 89, 96 (1964)).

One important “purpose [served by the warrant

requirement] is to prevent hindsight from coloring the

evaluation of the reasonableness of a search or

seizure.” United States v. Martinez-Fuerte, 428 U.S.

543, 565 (1976). Without a warrant, “the safeguards

provided by an objective predetermination of probable

cause” are traded for “the far less reliable procedure of

an after-the-event justification for the arrest or

search.” Beck, 379 U.S. at 96. As Professor LaFave

has recognized, “[i]t must be much harder for a judge

to decide that an officer had something less than

probable cause to believe cocaine was in the trunk of a

defendant’s car when the cocaine was in fact there.” 2

Wayne R. LaFave, Search and Seizure: A Treatise on

the Fourth Amendment § 4.1(a), at 563 (5th ed. 2012)

(internal citation omitted).

The Fourth Circuit’s rule also places law

enforcement officers in a difficult position. Once a

warrant has been challenged, they may be expected to

defend it vigorously. But because no one, including

the officer, can know with certainty exactly what was

in the officer’s head when the search warrant was

issued, ex-post testimony can create a risk of distorted

memory. An ex-post check provides “no assurance

that the critical facts and details were in fact known

prior to the issuance of the warrant,” which creates

“too great a potential for abuse.” 2 LaFave § 4.3(a), at

640; see also Derek V. Smith, What Were They

Thinking? Officers’ Subjective Knowledge and the

“Good Faith” Exception of Fourth Amendment

Jurisprudence—United States v. Laughton, 74 U. Cin.

L. Rev. 1525, 1546 (2006) (arguing that “preservation

of the integrity of the judicial system * * * point[s]

toward a good faith exception analysis centered on the

information provided in the affidavit itself ” ).

B. The Fourth Circuit’s Rule Wrongly Turns

The Good-Faith Exception Into A

Subjective Inquiry

In Leon, this Court held that “evidence obtained in

objectively reasonable reliance on a subsequently

invalidated search warrant” should not be suppressed.

Leon, 468 U.S at 922. It “emphasize[d] that the

standard of reasonableness we adopt is an objective

one,” rejecting arguments that “assume that the

exception will turn on the subjective good faith of

individual officers.” Id. at 919 n.20 (emphasis added).

And objectivity girdles Fourth Amendment law more

generally, since “[s]ubjective intentions play no role in

ordinary,

probable-cause

Fourth

Amendment

analysis.” Whren v. United States, 517 U.S. 806, 813

(1996).

An objective standard serves four important

purposes. The first is administrability. “[O]bjective

good faith” can be proven “without a substantial

expenditure of judicial time,” and so objective

standards “should not be difficult to apply in practice.”

Leon, 468 U.S. at 924; see also Missouri v. Seibert, 542

U.S. 600, 626 (2004) (O’Connor, J., dissenting)

(acknowledging that “evidentiary difficulties have led

us to reject an intent-based test in several criminal

procedure contexts”). In qualified immunity cases, for

example, this Court has recognized that “substantial

costs attend the litigation of the subjective good faith

of government officials,” since “there often is no clear

end to the relevant evidence” that could prove

subjective intent. Harlow v. Fitzgerald, 457 U.S. 800,

816-817 (1982); see also Leon, 468 U.S. at 922 n.23

(stating that just as the Court “eliminated the

subjective component” of qualified immunity analysis

in Harlow, the Court “also eschew[s] inquiries into the

subjective beliefs of law enforcement officers”). A

subjective inquiry implicates potentially anything an

officer knew; an objective standard, by contrast, limits

a court’s inquiry to the facts surrounding a particular

situation, like an appearance before a magistrate.

Second, an objective good-faith standard “retains

the value of the exclusionary rule as an incentive for

the law enforcement profession as a whole to conduct

themselves in accord with the Fourth Amendment.”

Leon, 468 U.S. at 919 n.20 (quoting Illinois v. Gates,

462 U.S. 213, 261 n.15 (1983) (White, J., concurring in

judgment)). Its objectivity encourages “police training

programs” to “emphasize the need to operate within

[the] limits” of the Fourth Amendment. Ibid. (citing

Jerold H. Israel, Criminal Procedure, the Burger

Court, and the Legacy of the Warren Court, 75 Mich.

L. Rev. 1319, 1412 (1977)).

Third, an objective standard gives police a clear

rule to follow, because it “requires officers to have a

reasonable knowledge of what the law prohibits.”

Leon, 468 U.S. at 919 n.20 (emphasis added; citation

omitted). An objective standard enables officers to

attend to their duties because “[a]n action is

‘reasonable’ under the Fourth Amendment, regardless

of the individual officer’s state of mind, ‘as long as the

circumstances, viewed objectively, justify [the]

action.’” Brigham City v. Stuart, 547 U.S. 398, 404

(2006) (quoting Scott v. United States, 436 U.S. 128,

138 (1978)). Objective tests therefore predominate in

Fourth Amendment law generally. See, e.g., ibid.

(holding that an “officer’s subjective motivation is

irrelevant” when deciding whether an exigency

existed) (citing Bond v. United States, 529 U.S. 334,

335, 338 n.2 (2000)); Bond, 529 U.S. at 335, 338 n.2

(holding that “the issue is not [the law enforcement

officer’s] state of mind, but the objective effect of his

actions” in analyzing whether a search violated the

Fourth Amendment); Florida v. Jimeno, 500 U.S. 248,

251 (1991) (holding that “[t]he standard for measuring

the scope of a suspect’s consent under the Fourth

Amendment is that of ‘objective’ reasonableness”)

(internal citations omitted); Graham v. Connor, 490

U.S. 386, 397 (1989) (holding that “[a]n officer’s evil

intentions will not make a Fourth Amendment

violation out of an objectively reasonable use of force;

nor will an officer’s good intentions make an

objectively unreasonable use of force constitutional”).

Fourth, an objective standard promotes fair and

uniform application of the law. Subjective inquiries

may draw on an endless list of sources and make “the

search and seizure protections of the Fourth

Amendment * * * variable, and * * * turn upon * * *

trivialities.” Whren, 517 U.S. at 815 (internal citations

omitted).

This Court, in deciding whether a

government official was entitled to immunity, stated

that “[e]fficient and evenhanded application of the law

demands that we look to whether the arrest is

objectively justified, rather than to the motive of the

arresting officer.” Ashcroft v. al-Kidd, 563 U.S. 731,

740 (2011) (emphases added). An objective standard

consistently safeguards constitutional rights, unlike

the shifting ground of subjective tests. This Court

accordingly recognized that “[i]f subjective good faith

alone were the test, the protections of the Fourth

Amendment would evaporate, and the people would be

‘secure in their persons, houses, papers, and effects,’

only in the discretion of the police.” Beck, 379 U.S. at

97.

The decision below nonetheless invites subjective

analysis by allowing courts far-removed from the

conduct in question to squint into an officer’s head in

search of information never brought before the

magistrate. The Fourth Circuit has tried to square its

policy with Leon by emphasizing that a court does not

“abandon[ ] the objective inquiry required by Leon

when it considers the uncontroverted facts known to

the officer, which he has inadvertently failed to

disclose to the magistrate.”

United States v.

McKenzie-Gude, 671 F.3d 452, 460 (4th Cir. 2011); see

App., infra, 10a-11a (explaining that the “‘specific,

uncontroverted facts known to the officer’ * * *

necessarily inform the objective reasonableness of an

officer’s determination regarding probable cause”)

(citation omitted). The restriction imposed by Leon,

the Fourth Circuit stated, “simply precludes courts

from inquiring into the subjective beliefs of law

enforcement officers,” but “does not require courts to

disregard specific, uncontroverted facts known to the

officers.” McKenzie-Gude, 671 F.3d at 460 (internal

quotation marks and citation omitted).

But there is no meaningful difference here between

“subjective beliefs” and “facts known to the officer.”

McKenzie-Gude, 671 F.3d at 460. Both require an

inquiry into what was in an officer’s head. While facts

could be uncontroverted, whether the officer knew a

certain fact at a certain time may be controverted.

Looking outside the warrant process ex-post is “a

difficult and time-consuming fact-finding process”

because it “forces courts to make evaluations of what

information the officers had, how much information

existed, and when it was known.”

Derek V.

Smith, What Were They Thinking? Officers’ Subjective

Knowledge and the “Good Faith” Exception of Fourth

Amendment

Jurisprudence—United

States

Laughton, 74 U. Cin. L. Rev. 1525, 1541 (2006). This

is even truer when a court venturing beyond the

warrant process wades into questions of what an

officer actually thought at a specific time long past.

Evidence tending to show that an officer knew

“uncontroverted facts” when applying for a warrant

will often be missing or imperfect.

In these

circumstances, the inquiry must draw on the same

sources of evidence as would an inquiry into an

officer’s subjective understanding.

In short, determining whether an officer knew a

fact, even if the fact itself is uncontroverted, will often

require inquiry into the “minds of police officers,”

exactly what Leon barred. Leon, 468 U.S. at 922 n.23

(citation omitted). When an officer includes facts in

the affidavit supporting the warrant application, it is

certainly clear that those facts are “known to the

officer[ ].” McKenzie-Gude, 671 F.3d at 460. But when

the officer fails to include all known facts in the

affidavit, suppression courts are much more likely to

face subjective inquiries. For example, if one fact on

one sheet of paper buried in one of several boxes of

evidence is later found necessary to support probable

cause, the suppression court will have to determine

whether the officer knew that fact at the time he

applied for the warrant. Even more problematically,

if an officer claims he knew a necessary fact at the

time of the warrant application, but there is no

evidence that the fact was known by anyone at the

time, the suppression court can look nowhere else

other than the mind of the officer to determine

whether there was probable cause.

C. Herring v. United States And Davis v.

United States Also Require Exclusion In

This Case

In Herring v. United States, this Court held that

the exclusionary rule should apply whenever a law

enforcement officer’s conduct is both “sufficiently

deliberate that exclusion can meaningfully deter it,

and sufficiently culpable that such deterrence is worth

the price paid by the justice system.” 555 U.S. 135,

144 (2009). And in Davis v. United States, this Court

made clear that “[w]hen the police exhibit ‘deliberate,’

‘reckless,’ or ‘grossly negligent’ disregard for Fourth

Amendment rights, the deterrent value of exclusion is

strong and tends to outweigh the resulting costs.” 564

U.S. 229, 238 (2011) (quoting Herring, 555 U.S. at

144). In this case, Officer Coleman’s own conduct was

intentional. He deliberately followed a departmental

policy he was taught during in-house police

department training. See App., infra, 12a-13a, 73a.

This policy, which requires that officers include only

the very minimum amount of information necessary to

establish probable cause, is reckless. By purposefully

omitting relevant information from a warrant

affidavit, Coleman “consciously disregard[ed] a

substantial and unjustifiable risk” that a deficient

warrant would be issued. Model Penal Code § 2.02(c)

(1985). This is especially true when other means, like

sealing the warrant application, would have achieved

any goal of protecting privacy.

This situation is far different from those in Herring

and Davis, where this Court held suppression

unwarranted. In Herring, the officer could not have

known that the arrest warrant he was relying on—

from a different police department—was not active.

555 U.S. at 137-138. The error was someone else’s in

a different jurisdiction and although it was

“negligent,” it was not “reckless or deliberate,” which

this Court noted was a “fact * * * crucial to our holding

that th[e] error [wa]s not enough by itself to require”

suppression. Id. at 140 (citations omitted). Later

summarizing its holding, this Court indicated that

Thomas’s case should come out differently: “[W]e

conclude that when police mistakes are the result of

negligence * * * rather than systemic error or reckless

disregard of constitutional requirements,” suppression

is inappropriate. Id. at 147 (emphasis added; citation

omitted).

In Davis, the officer did not know and could not

have been expected to know that his search of an

automobile, which was clearly constitutional under

existing circuit precedent, would later be declared

unconstitutional by this Court. 564 U.S. at 239-240.

“The officers who conducted the search,” this Court

held, “did not violate Davis’s Fourth Amendment

rights deliberately, recklessly, or with gross

negligence.” Id. at 240. In such a situation, “all that

exclusion would deter * * * is conscientious police

work.” Id. at 241.

The Fourth Circuit attempted to escape Herring

and Davis’s implications by misrepresenting

Coleman’s purposefully following a reckless policy as

mere “inadverten[ce].” App., infra, 13a. “[A]ny error,”

it stated, “appears to have resulted from a simple

miscalculation by Coleman as to how much of what he

knew he needed to include in his affidavit to show

probable cause.” App., infra, 13a-14a. The Fourth

Circuit’s description of his action as “inadvertent,”

however, errs on the law. Miscalculating what

amount of information amounts to probable cause

reflects an intentional, if incorrect, judgment, not a

failure to “turn[ ] the mind to a matter.” Inadvertent,

Webster’s Third New International Dictionary 1140

(1971). Stretching good faith to those purposefully

following a reckless policy would allow the exception

to swallow the rule.

III. This Case Presents An Ideal Vehicle For

Resolving A Recurring Question Of Undeniable Importance

The question presented by this case can arise

frequently—whenever an officer tries to rehabilitate a

warrant later found unsupported by probable cause.

Untold numbers of search warrants issue in

jurisdictions across the nation each year. According to

one representative study conducted by the National

Center for State Courts, suppression hearings

occurred in 39 percent of cases involving the execution

of a search warrant. Richard Van Duizend, et al., The

Search Warrant Process: Preconceptions, Perceptions,

and Practices 42-44 (1985). Given the regularity with

which suppression hearings arise, the good faith

exception often comes into play and knowing what

information can support probable cause is crucial.

This case thus presents the Court with an opportunity

to provide guidance to lower court judges on a question

they often encounter. It also presents a separate but

related issue that should be considered at the same

time: whether purposefully following a departmental

policy not to include all relevant information in the

warrant affidavit defeats good faith.

This case presents an ideal vehicle for deciding

both issues. There are no jurisdictional disputes and

the issues concern pure questions of law. Both issues

were fully briefed below and decided by the court of

appeals.

* * * * *

The Fourth Amendment aims foremost to

safeguard citizens, not criminals. “[T]here is nothing

new,” this Court has noted, “in the realization that the

Constitution sometimes insulates the criminality of a

few in order to protect the privacy of us all.” Arizona

v. Hicks, 480 U.S. 321, 329 (1987). “‘At the very core’

of the Fourth Amendment ‘stands the right of a man

to * * * be free from unreasonable governmental

intrusion.’” Kyllo v. United States, 533 U.S. 27, 31

(2001) (quoting Silverman v. United States, 365 U.S.

505, 511 (1961)). Whether a reviewing judge may

consider knowledge undisclosed to the original

magistrate bears deeply on the privacy of those “for

whom the Fourth Amendment’s protections ought to

be most jealously guarded: people who are innocent of

the State’s accusations.” Maryland v. King, 569 U.S.

435, 482 (2013) (Scalia, J., dissenting). This Court

should resolve the conflict among the courts of appeals

and state high courts. The issue is fully developed,

squarely presented, and free from any threshold

questions in this case. It warrants this Court’s

immediate review.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

JUVAL O. SCOTT

ANDREA LANTZ HARRIS

OFFICE OF THE

FEDERAL PUBLIC

DEFENDER FOR THE

WESTERN DISTRICT

OF VIRGINIA

401 E. Market St.

Suite 106

Charlottesville, VA

22902

APRIL 2019

DANIEL R. ORTIZ

Counsel of Record

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

SUPREME COURT

LITIGATION CLINIC

580 Massie Rd.

Charlottesville, VA 22903

(434) 924-3127

dortiz@law.virginia.edu

APPENDICES

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

_______________________

No. 17-4523

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

LAMARCUS THOMAS,

Defendant-Appellant.

_______________________

Appeal from the United States District Court

for the Western District of Virginia at

Harrisonburg, Michael F. Urbanski, Chief

District Judge (5:16-cr-00001-MFU-JCH-1)

_______________________

Argued: September 28, 2018

Decided: November 8, 2018

_______________________

Before WILKINSON and HARRIS, Circuit

Judges, and William L. OSTEEN, Jr., United

States District Judge for the Middle District of

North Carolina, sitting by designation.

_______________________

Affirmed by published opinion. Judge Harris

wrote the opinion, in which Judge Wilkinson

and Judge Osteen joined.

_______________________

ARGUED: Andrea Lantz Harris, OFFICE OF

THE FEDERAL PUBLIC DEFENDER,

Charlottesville, Virginia, for Appellant. Nancy

Spodick Healey, OFFICE OF THE UNITED

STATES

ATTORNEY,

Charlottesville,

Virginia, for Appellee. ON BRIEF: Larry W.

Shelton, Federal Public Defender, Christine

Madeleine Lee, Assistant Federal Defender for

Appellate Litigation, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Roanoke,

Virginia, for Appellant. Leslie Williams Fisher,

Child Exploitation & Obscenity Section,

UNITED

STATES

DEPARTMENT

JUSTICE, Washington, D.C.; Rick A.

Mountcastle, Acting United States Attorney,

OFFICE OF THE UNITED STATES

ATTORNEY, Roanoke, Virginia, for Appellee.

_______________________

PAMELA HARRIS, Circuit Judge:

Detective Charles Coleman arrested LaMarcus

Thomas on charges of aggravated sexual battery, and

seized a cell phone from Thomas during a search

incident to the arrest. After Coleman obtained a

warrant to search the phone, authorities discovered

sexually explicit images and videos involving children.

Charged with producing child pornography,

Thomas moved to suppress that evidence, arguing

that the affidavit submitted with Coleman’s warrant

application was insufficient to establish probable

cause for the search. The district court agreed that the

affidavit was deficient, but nevertheless denied

Thomas’s motion to suppress under the good faith

exception to the exclusionary rule articulated in

United States v. Leon, 468 U.S. 897 (1984). While the

affidavit alone did not establish probable cause, the

district court reasoned, additional information known

to Coleman was enough to give rise to an objectively

reasonable belief that there was probable cause for the

search.

We agree with the district court that the evidence

obtained from Thomas’s phone is admissible under

Leon. Our precedents make clear that in assessing an

officer’s objective good faith in executing a search

warrant, we may consider facts known to the officer,

but inadvertently omitted from a warrant affidavit.

And under all the circumstances presented here,

Coleman had a reasonable basis to believe there

existed probable cause to search Thomas’s phone.

Accordingly, we affirm the judgment of the district

court.

In 2014, the police department in Winchester,

Virginia received an anonymous tip that LaMarcus

Thomas had sexually abused a minor. Detective

Charles Coleman was assigned to investigate the

allegations.

Coleman began his investigation by contacting the

alleged victim’s mother. During her conversation with

Coleman, the mother accused Thomas—who knew her

family through church and often acted as a caretaker

for her children—of sexually assaulting two of her

minor sons. The mother also claimed that since the

alleged assault, Thomas had reached out to her

several times over the phone, hoping to schedule

further visits with her children.

Coleman arranged for the two boys to be

interviewed, and observed the interviews from a

separate room. Both boys stated that Thomas had put

his hand inside their pajamas and fondled their

genitals during a sleepover at a hotel. One of the boys

also described Thomas’s attempts to contact his

mother through phone calls and text messages after

the assault, in an effort to arrange further sleepovers.

Using a telephone number provided by the boys’

mother, Coleman contacted Thomas and asked him to

appear for an interview at the Winchester police

station. Thomas agreed, and during his video-recorded

interview with Coleman, he admitted to touching the

boys’ genitals.

Coleman filed a criminal complaint against

Thomas, describing his investigation of the alleged

assaults and requesting two warrants for Thomas’s

arrest. The complaint included the ages of the victims

and identified October 11, 2014, as the estimated date

of the assaults. Coleman arrived at that date by

reviewing records from the hotel the boys identified as

the site of their abuse, which indicated that Thomas

had stayed there on September 16, 2014, and again on

October 11, accompanied by two children.

On January 5, 2015, a magistrate issued two

warrants for Thomas’s arrest on charges of aggravated

sexual battery of a minor. Coleman arrested Thomas

on the same day, and during a search incident to the

arrest, seized a cell phone from Thomas’s pocket.

After consulting with state prosecutors, Coleman

requested a warrant to search the phone and

submitted an accompanying affidavit. The affidavit

explained that Coleman had obtained two arrest

warrants for Thomas on charges of aggravated sexual

battery, based on an investigation in which Thomas

had corroborated the allegations against him. It noted

the date — January 5, 2015 — on which the warrants

had issued and Coleman had made the arrest, but it

did not include the date on which the offenses were

alleged to have occurred. With respect to the phone,

specifically, Coleman averred that based on his

training and experience, it is common for offenders

like Thomas to keep “contact items” from victims—

pictures, text messages, voicemails, and the like—on

their cell phones. J.A. 208. The affidavit did not

reference Thomas’s use of a phone to contact the boys’

mother after the assaults.

A magistrate issued a search warrant for the phone

on the same day, January 13, 2015. After conducting

a forensic analysis of the phone, state authorities

discovered explicit images and videos of Thomas with

two minors. Thomas eventually confessed to sexually

abusing the minors and memorializing the abuse on

his cell phone.

On January 13, 2016, a federal grand jury in the

Western District of Virginia charged Thomas with six

counts of producing child pornography, in violation of

18 U.S.C. §§ 2251(a), (e) (2012). Thomas moved to

suppress the evidence derived from the search of his

cell phone, arguing that for two reasons, Coleman’s

affidavit fell short of establishing probable cause for

the search. First, according to Thomas, the affidavit

did not sufficiently link the phone to the alleged

offenses, and thus did not establish probable cause

that evidence would be found in the place to be

searched. And second, Thomas argued, there was a

problem with timing and staleness: Even if there were

some reason to think evidence would have been found

on his phone at around the time of the alleged offenses,

the affidavit gave no indication of when those offenses

occurred, making it impossible for a magistrate to

assess the likelihood that evidence would remain on

the phone at the time of the search.

Following a hearing at which Coleman testified,

the district court denied Thomas’s motion to suppress.

The court agreed with Thomas that the search

warrant was unsupported by probable cause, finding

that “while the affidavit contains sufficient facts

supporting the aggravated sexual battery charge, it

contains no facts linking that crime to” the subsequent

search of Thomas’s cell phone. J.A. 251. Nevertheless,

the court held that the evidence found on Thomas’s

phone was admissible under United States v. Leon,

468 U.S. 897 (1984), because Coleman had an

“objectively reasonable belief ” that there was

probable cause to execute the search. J.A. 244. Relying

on United States v. McKenzie-Gude, 671 F.3d 452, 459,

460 (4th Cir. 2011), the court reasoned that any gaps

in Coleman’s affidavit could be filled by looking

“outside the four corners” of the affidavit, J.A. 260, and

considering “uncontroverted facts known to [Coleman]

but inadvertently not presented to the magistrate,”

J.A. 244. Here, the court continued, Coleman was

aware that Thomas had phoned the victims’ mother to

set up a new encounter with her sons, “suppl[ying] the

missing link between the [ ] cell phone and the crime

of aggravated sexual battery.” J.A. 260–61. Similarly,

any staleness concern was addressed by Coleman’s

knowledge that the assaults occurred — and the phone

calls in question were made—around October of 2014,

just a few months before the search was authorized in

January of 2015.

Thomas pled guilty to two counts of producing child

pornography, reserving his right to appeal the district

court’s denial of his motion to suppress. The district

court sentenced Thomas to 360 months of

imprisonment, followed by a lifetime of supervised

release, and Thomas timely appealed.

II.

Thomas’s sole challenge on appeal is to the district

court’s denial of his motion to suppress. In considering

the district court’s suppression decision, we review

legal determinations de novo and the court’s

underlying factual findings for clear error. United

States v. Guijon-Ortiz, 660 F.3d 757, 762 (4th Cir.

2011). For the reasons that follow, we agree with the

district court that the evidence discovered on

Thomas’s phone was admissible under Leon’s good

faith exception to the exclusionary rule.1

The exclusionary rule ordinarily provides that

“evidence obtained in violation of the Fourth

Amendment cannot be used in a criminal proceeding

against the victim of the illegal search and seizure.”

United States v. Kimble, 855 F.3d 604, 610 (4th Cir.

2017) (quoting United States v. Calandra, 414 U.S.

338, 347 (1974) ). In Leon, however, the Supreme

Court recognized a good faith exception to that rule,

under which evidence obtained by an officer who acts

in objectively reasonable reliance on a search warrant

will not be suppressed, even if the warrant is later

deemed invalid. 468 U.S. at 922. Typically, an officer’s

In light of this holding, we need not consider whether the

affidavit was deficient in establishing probable cause. We intend

to cast no doubt on the district court’s decision in this regard.

Rather, by proceeding directly to the question of admissibility

under Leon, we simply adopt the same analytical approach we

have taken in similar cases in the past. See, e.g., United States

v. Bynum, 293 F.3d 192, 194-95 (4th Cir. 2002); cf. Leon, 468 U.S.

at 925 (stating that a reviewing court may proceed directly to the

good faith inquiry without first deciding whether a warrant was

supported by probable case).

reliance on a magistrate’s decision to issue a warrant

will be deemed objectively reasonable. Id. But as Leon

makes clear, when a supporting affidavit is “so lacking

in indicia of probable cause as to render official belief

in its existence entirely unreasonable,” then an officer

cannot be found to have reasonably relied on the

resulting warrant, and suppression remains the

appropriate remedy. Id. at 923 (internal quotation

marks omitted).

Thomas argues that this case falls squarely within

that limit on Leon. According to Thomas, the affidavit

submitted by Coleman in support of his search

warrant application was so “lacking in indicia of

probable cause” that Coleman could not reasonably

have relied on the warrant in searching Thomas’s

phone. The government’s primary response is that

even if Coleman’s affidavit was obviously deficient in

establishing probable cause — a point the government

does not concede — Coleman reasonably believed in

the existence of probable cause based on his own

knowledge of the investigation. And that is enough,

the government argues, to establish that Coleman

executed the search warrant with the objective good

faith required by Leon.

Like the district court, we agree with the

government. The central question in this case is

whether, as the government urges, we can look beyond

the four corners of the affidavit in applying Leon, and

consider as well facts known to Coleman but omitted

from the affidavit presented to the magistrate. And as

the district court recognized, we already have

answered precisely that question in the affirmative,

10a

holding in McKenzie-Gude that “Leon presents no

barrier” to considering “uncontroverted facts” known

to an officer but “inadvertently not presented to the

magistrate” in assessing the officer’s objective good

faith. 671 F.3d at 460.

In McKenzie-Gude, officers executed a residential

search warrant that led to the seizure of weapons from

a defendant’s bedroom. Id. at 457. The affidavit

supporting the warrant application included most, but

not all, of the facts necessary to show probable cause

that evidence would be found in the place to be

searched: It established that the defendant likely

possessed illegal weapons and that he likely possessed

them in his home, and it included the address to be

searched — but it failed to state that the defendant

lived at, or had any connection to, the listed address.

See id. at 457–58. Despite that obvious deficiency, we

applied the good faith exception under Leon. Id. at

461. While the affidavit itself lacked any nexus

between the place to be searched and the defendant,

we reasoned, that gap could be filled by an

uncontroverted fact known to the searching officers —

specifically, that the defendant lived at the address

identified in the affidavit. Id. at 458–60.

As we explained in McKenzie-Gude, that result is

entirely consistent with Leon’s “objective inquiry” into

officer good faith. Id. at 460. The key, “objectively

ascertainable question” under Leon is “‘whether a

reasonably well trained officer would have known that

the search was illegal’ in light of ‘all of the

circumstances.’” Id. at 459 (quoting Leon, 468 U.S. at

922 n.23, 104 S.Ct. 3405). Among those circumstances

11a

are “specific, uncontroverted facts known to the

officer[ ],” id. at 460, which necessarily inform the

objective reasonableness of an officer’s determination

regarding probable cause, even if they are omitted

inadvertently from a warrant application. And when

an officer’s belief in the existence of probable cause is

objectively reasonable, he or she has no reason to

second guess the magistrate’s decision to issue a

warrant, and acts in good faith when executing the

search. Id. at 459, 461; see also Leon, 468 U.S. at 920–

21, 104 S.Ct. 3405.

Moreover, we reasoned, any other outcome would

produce “anomalous result[s].” McKenzie-Gude, 671

F.3d at 460. Evidence might be suppressed even when

“obtained pursuant to a warrant supported by the

affidavit of an officer, who, in fact, possesses probable

cause.” Id. (quoting Bynum, 293 F.3d at 199). And that

cost to the criminal justice system would come without

offsetting benefits: When a warrant is invalidated only

because an officer mistakenly omitted information

necessary to establish probable cause, application of

the exclusionary rule can have little, if any, deterrent

effect. “[W]hen police mistakes are the result of

negligence ... rather than systemic error or reckless

disregard of constitutional requirements, any

marginal deterrence [through application of the

exclusionary rule] does not pay its way.” Id. at 461

(quoting Herring v. United States, 555 U.S. 135, 147–

48 (2009) ).

The district court correctly applied McKenzie-Gude

to the present case, considered both the affidavit and

the facts known to Detective Coleman, and concluded

12a

that Coleman reasonably relied on the warrant to

search Thomas’s phone. Although the affidavit did not

contain particularized facts establishing a nexus

between the place to be searched — Thomas’s phone

— and the alleged sexual abuse, the court reasoned,

Coleman knew that both the victims’ mother and one

of the victims had reported that Thomas used a phone

in furtherance of his criminal conduct, calling the

mother to attempt to arrange further interactions

with her sons. And Coleman “reasonably could infer,”

the court continued, that the cell phone seized during

Thomas’s arrest was the same phone Thomas had

used to contact the boys’ mother. J.A. 244. Similarly,

though Coleman’s affidavit lacked any information

about when the offenses and phone calls occurred,

Coleman knew that Thomas had visited a hotel with

his victims and tried to contact their mother less than

five months prior to the search, resolving any

staleness issues that otherwise might arise.

Thomas’s principal argument in response to this

straightforward analysis is that Coleman’s omissions

were not “inadvertent” within the meaning of

McKenzie-Gude, in that there is no evidence that

Coleman believed (albeit incorrectly) that he had

included the relevant facts in his affidavit.2 Instead,

2 Thomas also argues briefly that unlike the fact omitted from the

affidavit in McKenzie-Gude – the defendant’s address – the

information known to Coleman and considered by the district

court was not “uncontroverted.” But as Thomas concedes, it is

indeed uncontroverted that at the time Coleman sought a search

warrant and then executed the search, he knew “Thomas had

called the victims’ mother by phone and left her voicemail or text

messages.” Appellant’s Br. At 23. Similarly, Thomas does not

13a

Thomas argues, Coleman intentionally omitted

crucial facts from his affidavit pursuant to a police

department policy, which Coleman described at the

suppression hearing as one of limiting newspaper

publicity by “put[ting] no more [probable cause] into

the warrant [affidavit] than it takes to obtain the

warrant.” J.A. 74. And because the court’s decision in

McKenzie-Gude was conditioned on inadvertence,

Thomas concludes, we should not go beyond the four

corners of the affidavit here.

We disagree. Coleman’s error in this case —

assuming there was one — was inadvertent in

precisely the same sense as the error in McKenzieGude: In neither case did the error result from the

kind of deliberate or bad faith effort to mislead a

magistrate that would render Leon’s good faith

exception inapplicable. Cf. Leon, 468 U.S. at 914 &

n.12, 923 (“knowing or reckless falsity” in a search

warrant affidavit may preclude reliance on Leon). The

police department’s purported policy was not to file

deficient affidavits; it was to file affidavits that

included enough, but no more than necessary, to

establish probable cause.

To the extent Coleman’s affidavit fell short,

Coleman was not acting pursuant to that policy, and

there is no other reason to think he was acting

contest that Coleman knew, within a reasonably narrow window,

the dates on which the abuse and subsequent calls occurred. This

uncontroverted information, along with the information included

in Coleman’s affidavit, is enough to show an objectively

reasonable belief in the existence of probable cause to search the

phone seized when Thomas was arrested.

14a

deliberately.3 Rather, any error appears to have

resulted from a simple miscalculation by Coleman as

to how much of what he knew he needed to include in

his affidavit to show probable cause. That is not the

kind of deliberate misconduct that the exclusionary

rule was intended to deter. See Herring, 555 U.S. at

144 (“To trigger the exclusionary rule, police conduct

must be sufficiently deliberate that exclusion can

meaningfully deter it, and sufficiently culpable that

such deterrence is worth the price paid by the justice

system.”).

In short, the district court properly considered

facts known to Detective Coleman, but inadvertently

omitted from his supporting affidavit, when it applied

Leon in this case. Because Coleman “harbored an

objectively reasonable belief in the existence of

probable cause,” Leon, 468 U.S. at 926, 104 S.Ct. 3405,

under that standard, the district court correctly

denied Thomas’ motion to suppress under Leon.

III.

In short, the district court properly considered

facts known to Detective Coleman, but inadvertently

3 Indeed, it would be the rare circumstance in which an officer

would have any incentive to deliberately withhold from a search

warrant affidavit information known to him that he believes

necessary to establish probable cause. Should an officer do so,

the most likely outcome would be the denial of a search warrant,

leaving the officer empty-handed; the best-case scenario would be

the granting of a search warrant that could not withstand the

almost inevitable Fourth Amendment challenge. This is not a

case, in other words, in which we need be concerned that police

officers will have some systemic incentive to avoid the “detached

scrutiny of a neutral magistrate.” Leon, 468 U.S. at 913-14.

15a

omitted from his supporting affidavit, when it applied

Leon in this case. Because Coleman “harbored an

objectively reasonable belief in the existence of

probable cause,” Leon, 468 U.S. at 926, 104 S.Ct. 3405,

under that standard, the district court correctly

denied Thomas’s motion to suppress under Leon.

For the foregoing reasons, we affirm the judgment

of the district court.

AFFIRMED.

16a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

HARRISONBURG DIVISION

UNITED STATES,

LAMARCUS THOMAS,

Defendant.

)

) Civil Action No.

)

5:16-cr-001

)

) By: Michael F.

)

Urbanski

) United States

) District Judge

MEMORANDUM OPINION

Defendant Lamarcus Thomas (“Thomas”) moves

to suppress evidence obtained from the search of an

LG cell phone found on his person at the time of his

arrest. ECF No. 28. The court held an evidentiary

hearing on August 17, 2016, during which the court

heard the testimony of Detective Charles Coleman

(“Detective Coleman”), an officer with

the

Winchester, Virginia Police Department (the

“WPD”), who swore and submitted an Affidavit for

Search Warrant (“affidavit”); ECF No. 39-1, in

support of the search warrant at issue.

As a result of the images and videos found on

Thomas’ LG cell phone and interviews conducted

thereafter, the United States charged Thomas as

the sole defendant in an indictment alleging six

counts of using a minor to engage in sexually

17a

explicit conduct for the purpose of creating child

pornography. ECF No. 1. Thomas argues that the

affidavit submitted by Detective Coleman to the

state magistrate to obtain a search warrant for

Thomas’ LG cell phone contained insufficient facts,

rendering the warrant invalid. The government

counters that the LG cell phone warrant is facially

valid as to each of the offenses listed in the warrantaggravated sexual battery, production of child

pornography, and possession of child pornographyand that Detective Coleman possessed a good faith

belief as to the warrant’s validity, satisfying the good

faith exception articulated in United States v. Leon,

468 U.S. 897; 923 (1984). Alternatively, the

government argues that even if Detective Coleman’s

affidavit was too thin to support probable cause as

to the crimes of possession and production of child

pornography, it was plainly sufficient as to the

aggravated sexual battery charge, rendering

suppression inappropriate under Leon. Finally, the

government argues that the evidence of child

pornography was in plain view during the search for

evidence of aggravated sexual battery.

The court finds that the warrant at issue is

facially invalid as the supporting affidavit is

deficient in two respects. First, while the affidavit

contains facts supporting a finding of probable

cause as to the aggravated sexual battery charge, no

such facts exist as to the possession or production of

child pornography charges. Under controlling

Fourth Circuit precedent, evidence of sexual

assault, standing alone, is insufficient to justify a

18a

search warrant for child pornography. United

States v. Doyle, 650 F.3d 460, 472 (4th Cit. 2011).

Second, even as to the adequately supported

charge of aggravated sexual battery, the affidavit

contains insufficient facts linking it to Thomas’ LG

cell phone. The only reference to the LG cell phone

in Detective Coleman’s affidavit is the fact that it

was found on Thomas’ person at the time of his

arrest on January 5, 2015. Because the affidavit

provides no nexus whatsoever between Thomas’ LG

cell phone and the aggravated sexual battery

offense listed in the warrant, the magistrate had no

facts sufficient to establish probable cause to search

the LG cell phone.

Nevertheless, the court concludes that the

Leon good faith exception applies in this case. At

the time he submitted the affidavit, Detective

Coleman knew that the LG cell phone played a

role in the aggravated sexual battery offense

listed in his affidavit. During his investigation,

Detective Coleman learned from the victims’

mother that Thomas had called her several times

in an attempt to set up another rendezvous with

her children and left her multiple voicemail

messages. Although Detective Coleman’s affidavit

itself provides no link between the use of the LG

cell phone and the crime, it is Uncontroverted

that Detective Coleman knew that Thomas used

a phone in furtherance of his criminal conduct.

Detective Coleman reasonably could infer that

the LG cell phone seized at Thomas’ arrest was

19a

the phone that Thomas used to call the victims’

mother just a few months earlier. Thus, it is clear

that Detective Coleman “‘harbored an objectively

reasonable belief in the existence’ of this factual

predicate,” United States v. McKenzie-Gude, 671

F.3d 452, 458-59 (4th Cir. 2011) (quoting Leon, 468

U.S. at 926), linking Thomas’ phone to the

aggravated sexual battery. It cannot be said here

that Detective Coleman relied on “an affidavit so

lacking- in indicia of probable cause as to render

official

belief

its

existence

entirely

unreasonable.” Leon, 468 U.S. at 923. As was the

case in McKenzie-Gude, “Leon presents no

barrier to holding that the experienced officer[] in

this case, who swore out the affidavit and

executed the search, acted with the requisite

objective reasonableness when relying on

uncontroverted facts known to [him] but

inadvertently not presented to the magistrate.”

McKenzie-Gude, 671 F.3d at 460.

Accordingly, the court will DENY Thomas’

motion to suppress, ECF No. 28.

I.1

On January 13, 2015, Detective Coleman

submitted an affidavit for a search warrant of an LG

1 The facts recounted below consist primarily of those described

by Detective Coleman during his testimony at the suppression

hearing.

20a

cell phone seized during Thomas’ arrest. 2 The

warrant indicated the search related to the following

offenses: (1) possession of child pornography, (2)

production of child pornography, and (3) aggravated

sexual battery. In describing the “place, person, or

thing to be searched,” the warrant application

stated, “A cell phone black/silver in color, with ‘LG’

printed in silver on the front, ‘LG’ printed in dark

gray on the back, in a purple and black case

belonging to LaMarcus Thomas. Phone is in

possession of the Winchester Police Department.” In

the portion of the affidavit describing the “things or

persons to be searched,” the warrant application

stated:

Any and all incoming and outgoing calls, gps

locations, photos, text messages, voicemails,

media, websites, instant messages, address

books, media card, Sim card, contacts, contact

numbers, social media websites to include but

not limited to Facebook, Twitter, MySpace,

Snap Chat, Vine, etc., media cloud, any stored

electronic data that may be stored inside a

smart phone that would be related to this crime

and/or crime scene.

In the narrative portion of the affidavit,

Detective Co1eman submitted the following:

01-05 15 Det. Coleman obtained two arrest

warrants on LaMarcus Thomas for aggravated

2 Copies of the warrant and affidavit are found at ECF Nos. 28-

1 and 39-1.

21a

sexual battery. Det. Coleman located and

arrested Thomas in the 500 block of North

Loudon Street on the same date. During the

arrest Det. Coleman removed a LG cell phone

that Thomas advised was his personal cell

phone. Det. Coleman is investigating a case

were two children were allegedly molested by

LaMarcus Thomas. During an interview with

Det. Coleman LaMarcus Thomas corroborated

both juvenile's statements against him. Det.

Coleman has received many hours of training

to investigate child sexual abuse cases and

has learned through training and experience

that it is common for offenders to keep

contact items from victims such as follows;

pictures of victims, text messages, phone

calls, Voice mails and/or child pornography on

their cell phone/storing devices. Det. Coleman

had reason to believe Thomas may also have

these types of items on his cell phone/media

cloud. Det. Coleman is requesting a search

warrant for the cell phone taken from

Thomas’s person at the time of arrest. Det.

Coleman and the Winchester Police

Department have maintained possession of

this cell in the evidence room per WPD

general orders since the time of arrest. /s/

Det. Coleman.

On January 13, 2015, the state magistrate

issued the search warrant for the LG phone seized

from Thomas during his arrest (hereinafter the “LG

warrant”). Detective Coleman did not examine the

22a

LG cell phone himself, but turned it over to the

Virginia State Police crime lab for forensic analysis.

The Virginia State Police provided _a report indicating

that images and videos of child pornography were

found on the SD memory card taken from the LG

cell phone. Detective Coleman was unable to specify

the procedure employed by the Virginia State Police

to search the LG cell phone other than to state that

while the investigators were unable to access the

password protected phone itself, they were able to

remove and search the LG cell phone’s SD card.

After the forensic report issued; agents of the

Federal Bureau of Investigation (“FBI”) interviewed

Thomas on April 10, 2015, and the federal indictment

issued on January 13; 2016.

Detective Coleman has had a long career as a police

officer and significant experience investigating cases

of child battery and sex crimes with the WPD.

Detective Coleman has taken multiple classes

discussing child neglect, child abuse, and child sexual

assault.

Detective Coleman testified that he

understands that persons who engage in sexual

crimes related to children often engage in crimes

involving child pornography. Detective Coleman

explained that child molesters frequently keep

images containing child pornography on electronic

devices such as computers, cell phones, and other

forms of media storage.

Detective Coleman has received substantial

training in drafting search warrants, both at the

23a

police academy and through the WPD. Detective

Coleman testified that it is WPD policy to provide

no more probable cause information than necessary

to obtain a warrant because of media access to

warrants.

Detective Coleman explained that he became

involved in the investigation of Thomas in

November 2014 after the WPD received an

anonymous tip that Thomas had abused a child

(hereinafter referred to as “MV4”). After learning of

the alleged abuse, Detective Coleman contacted

MV4’s mother. The mother advised Detective

Coleman that MV4 and a sibling (hereinafter

referred to as “MV3”) had spent the night with

Thomas. Thereafter, Thomas repeatedly called her

to arrange additional sleepovers.

Detective Coleman arranged for the Child

Advocacy Center to interview MV3 and MV4

regarding their interactions with Thomas. Detective

Coleman observed the interviews from another

room. Detective Coleman testified that the victims

stated that they had been sexually assaulted by

Thomas during an overnight visit at a hotel. The

interviews

also

revealed

that

Thomas

communicated with the victims’ mother by phone

calls, often leaving voicemail messages.

Upon contacting the hotel, Detective Coleman

learned that Thomas stayed there on September 16,

2014 and October 11, 2014. The government

introduced hotel receipts for those nights bearing

Thomas’ signature. ECF No. 39-6, at 2-3. In

24a

particular, the hotel records confirmed that the

October 11, 2014 receipt indicated “1 + 2,” meaning

one adult and two children. id. at 3.

After he confirmed that Thomas rented rooms at

the hotel, Detective Coleman contacted Thomas via

the phone number given to him by the victims’

mother and arranged to interview Thomas at the

WPD. ECF No. 35, at 2. On December 18, 2014,

Detective Coleman interviewed Thomas. During

that interview, Thomas admitted sexually

assaulting both victims. Id. at 2-3.

On January 5, 2015, at the instruction of state

prosecutors, Detective Coleman obtained two arrest

warrants against Thomas for aggravated sexual

battery. ECF No. 35, at 3; ECF No. 39-2. Though the

arrest warrant application reflects an offense date

of October 11, 2014-the date the hotel receipt

indicated Thomas rented a hotel room accompanied

by two children-Detective Coleman testified that he

later learned that different children had

accompanied Thomas to the hotel on October 11,

2014. Detective Coleman later discovered that MV3

and MV4 accompanied Thomas to the hotel on

September 16, 2014, the date on which the hotel

records indicated Thomas rented a room, but made

no mention of the fact that he was accompanied by

children.

On January 5, 2015, Detective Coleman arrested

Thomas. While arresting Thomas, Detective Coleman

found the LG cell phone located in Thomas’ pocket.

On January 6, 2015, Detective Coleman obtained and

25a

executed search warrants for two of Thomas’ recent

residences. Detective Coleman testified that he seized

a laptop, a tablet, and an additional cell phone at

one residence. Detective Coleman testified that this

phone was an older model, found in a bag with

miscellaneous items. After executing the residential

search warrants, Detective Coleman consulted with

an Assistant Commonwealth’s Attorney about

obtaining a search warrant for the LG cell phone

seizure during Thomas’ arrest. On January 13, 2015,

Detective Coleman submitted the affidavit to search

the LG cell phone.

During his testimony at the suppression hearing,

Detective Coleman acknowledged that the affidavit

in support of the LG warrant did not contain the

date of the alleged offense or the ages of the victims,

but stated that this information was contained in

the earlier arrest warrants which he referenced in

the LG cell phone warrant affidavit. Likewise,

Detective Coleman confirmed that the only

information in the affidavit about the LG cell phone

was that the phone was recovered from Thomas'

person at the time of his arrest.

Detective Coleman also acknowledged that at the

time he submitted the affidavit, he had no information

that Thomas had used his LG cell phone to take

pictures or videos of the minor victims. The reference

in his affidavit to having “reason to believe Thomas

may have these types of items on his cell phone/ media

cloud” resulted from his training and experience in

26a

investigating child sex crimes, rather than anything

specific about Thomas.

After receiving authorization to search the LG

cell phone, Detective Coleman sent it to the Virginia

State Police for examination. As noted above,

Detective Coleman testified that the Virginia State

Police’s forensic examination of the SD card

contained in the LG cell phone revealed

pornographic images of children other than MV3

and MV4. Detective Coleman testified that the

images of the children on the SD card were produced

by Thomas on October 11, 2014.

II.

“The Fourth Amendment generally requires police

to secure a warrant before conducting a search.”

United States v. Banks, 482 F.3d 733, 738 (4th Cir.

2007)(quoting Maryland v. Dyson, 527 U.S. 465, 466

(1999). Warrants must be supported by probable

cause, which “exists where the known facts and

circumstances are sufficient to warrant a man of

reasonable prudence in the belief that contraband or

evidence of a crime will be found’ in the place to be

searched.” United States v. Richardson, 607 F.3d 357,

369 (4th Cir. 2010)(quoting Ornelas v. United States,

517 U.S. 690, 696 (1996)). Evidence seized pursuant

to an invalid warrant is subject to suppression under

the exclusionary rule, absent operation of the good

faith exception described in Leon. See United States

v. Andrews, 577 F.3d 231, 235 (4th Cir. 2009). Thomas

challenges both the facial validity of the search

27a

warrant and the applicability of the good faith

exception.

Probable cause exists where 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 magistrate’s findings are

entitled to “great deference,” United States v.

Blackwood, 913 F.2d 139, 142 (4th Cir. 1990), and the

court limits its inquiry to whether the warrant

contained a “substantial basis for determining the

existence of probable case.” Gates, 462 U.S. at 239.

The affidavit submitted by Detective Coleman

includes the following relevant facts: (1) on January 5,

2015, Detective Coleman arrested Thomas pursuant to

arrest warrants for aggravated sexual battery; (2)

during the course of the arrest, Detective Coleman

seized an LG cell phone that Thomas indicated was his

personal cell phone; (3) prior to the arrest, Detective

Coleman was investigating whether Thomas had

sexually assaulted two children and Thomas had

corroborated statements made by the alleged victims;

and (4) that Detective Coleman received training

indicating that offenders in child sexual abuse cases

tend to keep evidence of various sexual offenses on

their cell phones.

For two reasons, these few facts fail to support a

finding of probable cause. First, there are no facts

supporting a finding of probable cause as to the child

pornography offenses. The affidavit contains no facts

supporting the conclusion that Thomas engage in

28a

crimes involving child pornography, much less why the

LG cell phone was likely to reveal evidence related to

such crimes. Second, while the affidavit contains

sufficient facts supporting the aggravated sexual

battery charge, it contains no facts linking that crime

to Thomas’ LG cell phone. In particular, the affidavit

does not share with the magistrate Detective

Coleman’s knowledge gleaned from his investigation

that Thomas used a telephone to perpetrate the

aggravated sexual battery offenses. Rather than

articulating any nexus between the LG cell phone and

the crimes at issue, the affidavit explains generally

that it is common for sex offenders to have

incriminating evidence on heir cell phones. Of course,

Detective Coleman knew facts linking Thomas’ use of

a phone to the aggravated sexual battery offenses –

namely, Thomas’ communications with the victims’

mother – but he neglected to put them in the affidavit.

The fact of the affidavit simply provided the

magistrate with no information linking the LG cell

phone and the crimes listed in the warrant. Thus,

there was no “substantial basis for determining the

existence of probable cause.” Gates, 462 U.S. at 239.

Accordingly, the court finds the LG warrant facially

invalid.

“Under the good faith exception to the warrant

requirement, evidence obtained from an invalidated

search warrant will be suppressed only if ‘the officers

were dishonest or reckless in preparing their affidavit

or could not have harbored an objectively reasonable

29a

belief in the existence of probable cause.’” United

States v. Lalor, 996 F.2d 1578, 1583 (4th Cir.

1993)(quoting Leon, 468 U.S. at 926). The good faith

exception is rooted in the underlying purpose of the

exclusionary rule, which is to deter police misconduct.

Andrews, 577 F.3d at 235-36; see also United States v.

Bynum, 293 F.3d 192, 195 (4th Cir. 2002) (“[A] court

should not suppress the fruits of a search conducted

under the authority of a warrant… unless ‘a

reasonably well trained officer would have know that

the search was illegal despite the magistrate’s

authority.’”). As the Fourth Circuit has recognized,

the deterrence objective of the exclusion rule “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.”

Andrews, 577 F.3d at 235 (quoting United States v.

Perez, 393 F.3d 457, 461 (4th Cir. 2004), and Leon, 468

U.S. at 920) (internal quotation marks omitted). “[I]t

is the magistrate’s responsibility to determine

whether probable cause exists, and officers cannot be

expected to second-guess that determination in close

cases.” United States v. Mowatt, 513 F.3d 395, 404

(4th Cir. 2008), abrogated on other grounds by

Kentucky v. King, 563 U.S. 452 (2011). Accordingly,

“under Leon’s good faith exception, evidence obtained

pursuant to a search warrant issued by a neutral

magistrate does not need to be excluded if the officer’s

reliance on the warrant was “objectively reasonable.”

Perez, 393 F.3d at 461 (citing Leon, 468 U.S. at 922).

In most cases, “a warrant issued by a magistrate…

suffices to establish that a law enforcement officer has

30a

acted in good faith in conducting the search.” Id. at

461. However, courts recognize four circumstances in

which an officer’s reliance on a warrant is not

“objectively reasonable”:



First, where the magistrate or judge is issuing

a warrant 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;

Second, where the magistrate acted as a rubber

stamp for the officers and so wholly abandoned

his detached and neutral judicial role;

Third, where a supporting affidavit is so lacking

in indicia of probable cause as to render official

belief in its existence entirely unreasonable;

and

Fourth, where 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 reasonably presume it

to be valid.

United States v. Williams, 548 F.3d 311, 317-18 (4th

Cir. 2008) (internal citations, quotation marks, and

brackets omitted).

“In any of these four

circumstances… the Leon good faith exception does

not apply.” Perez, 393 F.3d at 461.

In his motion to suppress, Thomas focuses on the

third circumstance, arguing that the Leon good-faith

exception ought not apply because Detective

Coleman’s affidavit is bare bones and devoid of indicia

that could give rise to probable cause. See United

31a

States v. Wellman, 663 F.3d 224, 229 (4th Cir. 2011)

(explaining that the argument that a search warrant

contains grossly insufficient information invokes the

third circumstance in which Leon is inapplicable).

Under the third Leon exception, a warrant affidavit

must be so lacking in “indicia of probable cause” that

no reasonable officer could believe probable cause

existed to justify a search. This standard demands

even less from the government than the “substantial

basis threshold” required to prove that probable cause

existed in the first place. Bynum, 293 F.3d at195; see

also Williams, 548 F.3d at 318 n.6 (distinguishing the

“substantial basis” and “indicia of probable cause”

standards). Moreover, the good faith analysis is

objective, and must be “confined to the objectively

ascertainable question whether a reasonably well

trained officer would have known that the search was

illegal in light of all the circumstances.” Herring v.

United States, 555 U.S. 135, 145 (2009) (internal

citation and quotation marks omitted). To determine

“objective reasonableness,” a court looks to the

information included in the warrant affidavit and any

“uncontroverted facts known to the officers but

inadvertently not disclosed to the magistrate.”

McKenzie-Gude, 671 F.3d at 459; United States v.

Brown, 481 F.App’x 853,855 (4th Cir. 2012) (“We may

consider information conveyed to the magistrate but

not contained in the affidavit as well as

uncontroverted facts known to the officer but

inadvertently not presented to the magistrate.”)

32a

The outcome in this case hinges on the interplay of

the Fourth Circuit’s opinions in McKenzie-Gude and

Doyle. McKenzie-Gude instructs courts undertaking a

Leon analysis to “look outside the four corners of a

deficient affidavit” and to consider “uncontroverted

facts known to the officers but inadvertently not

disclosed to the magistrate.” 671 F.3d at 459-60. In

McKenzie-Gude, a residential search led to the seizure

of a number of guns and explosive devices from the

defendant’s bedroom.

The affidavit included

information showing the defendant had engage in

criminal activity, but failed to provide any information

linking the defendant to the residence that officers

searched. Id. at 456-58. However, the affiants knew

that McKenzie-Gude lived at the residence. Id. Police

reports and a letter submitted by the defendant’s coresident confirmed the affiants’ knowledge as to the

defendant’s home. Id. In addressing the question

whether a court may consider information known to

the officers, but inadvertently excluded from the

affidavit, the Fourth Circuit stated:

Leon instructs that the “good-faith inquiry is

confined to the objectively ascertainable

question whether a reasonably well trained

officer would have known that the search was

illegal” in light of “all of the circumstances.” 468

U.S. at 22 n.23 [ ] (emphasis added): accord

Herring [ ], 555 U.S. 135, 145 [ ]; United States

v. DeQuasie, 373 F.3d 509, 520 (4th Cir. 2004).

For this reason, we have consistently rejected

the notion that reviewing courts may not look

outside the four corners of a deficient affidavit

33a

when determining, in light of all the

circumstances, whether an officer’s reliance on

the issuing warrant was objectively reasonable.

See, e.g., [ ] Perez, 393 F.3d [at] 462, United

States v. Legg, 18 F.3d 240, 243-44 (4th Cir.

1994).

…

Refusing to consider such information risks the

anomalous result of suppressing evidence

“obtained pursuant to a warrant supported by

the affidavit of an officer, who, in fact, possesses

probable cause, but inadvertently omits some

information from his affidavit.” Bynum, 293

F.3d at 109.

Id. at 459-60. McKenzie-Gude explains that a court

undertaking a Leon analysis is precluded from

“inquiring into the subjective beliefs of law

enforcement officers,” but is allowed to consider the

“uncontroverted facts known to the officers.” Id. at

460. The Fourth Circuit concluded that the officers

acted with the “requisite objective reasonableness” in

that case, despite their inadvertent failure to present

uncontroverted facts to the magistrate. Id. at 460.

In Doyle, the Fourth Circuit ordered the

suppression of evidence resulting from a search

warrant issued without proper factual foundation. 650

F.3d at 476. The Fourth Circuit described the warrant

application in Doyle as follows:

Authorization was sought to search Doyle’s

house for

“any and all materials, books,

34a

magazines, picture, or videos that are of sexual

nature involving any minor child” as well as

“any communication system that could be used

to facilitate a sexual offense against a child.

(computer).”

In the section stating the

“material facts constituting probable cause that

the search should be made,” the affidavit stated:

“three minor children have come forward and

stated that Doyle has sexually assaulted them

at the Doyle residence. One victims [sic]

disclosed to an Uncle that Doyle had shown the

victim pictures of nude children.” The affidavit

indicated that the affiant learned this

information through an informant whose

credibility was determined from “detailed

Victim statements of the assault and of the

Doyle residence, where victims describe the

assailants [sic] bedroom and vehicle he drives

and description of the home. Which has all been

verified by Sheriff ’ s Dept.”

Id. at 464. The opinion focused on two major

deficiencies in the affidavit, both of which rendered the

officer’s reliance on the warrant unreasonable. The

Fourth Circuit first addressed the issue of probable

cause as to support the existence of a crime, noting the

“remarkably scant evidence in the affidavit… to

support a belief that Doyle in fact possessed child

pornography.” Id. at 472. While the affidavit in Doyle

was submitted to authorize a search for evidence of the

crime of possession of child pornography, the facts

contained in the affidavit did not rise to the level of

probable cause that a child pornography offense has

35a

been committed.

The closest it came was the

statement that one of the victims “disclosed” to an

Uncle that Doyle had shown the victim pictures of

nude children.” Id. at 472. The Fourth Circuit found

this to be insufficient.

Without anything more than a description of the

photographs as depicting “nude children,” there

were arguably insufficient indicia of probable

case to justify reasonable reliance on a warrant

authorizing a search for child pornography.

Insofar as possessing nude pictures of children

is not per se illegal, reasonable officers should

at least obtain a description of the photographs

before relying on them to justify entry into a

residence.

Id. at 473-74. In short, while the affidavit in Doyle

would have been sufficient to support a warrant

concerning sexual assault, the Fourth Circuit held

that it was insufficient to establish probable cause to

search for evidence as to the separate crime of

possession of child pornography.

It is worth

emphasizing that the search warrant in Doyle, unlike

the warrant in the present case, only sought evidence

related to the offense of possession of child

pornography.

A second concern addressed by the court in Doyle

stemmed from the absence of any suggestion in the

affidavit as to when Doyle may have possessed the

alleged child pornography. The court recognized that

though “substantial amounts of time can elapse before

probable cause to search for child pornography

36a

becomes ‘stale,’” the affidavit’s complete absence of

information as to when the alleged child pornography

may have been possessed rendered it ”completely

devoid of indicia that the probable cause was not

stale.” Id. at 475. The Doyle court concluded that

‘[h]ere, nothing indicated when and if child

pornography existed in Doyle’s home. We conclude

that an objectively reasonable officer would not rely on

a warrant application so devoid of necessary

information.” Id. at 476.3

This case is far closer to the circumstances in

McKenzie-Gude than those present in Doyle. First,

unlike in Doyle, the search warrant in this case sought

evidence related to the crime of aggravated sexual

battery, along with the child pornography offenses.

Here, the affidavit contained ample evidence of

probable cause as to the aggravated sexual battery

charge. Not only did the affidavit refer back to the

recently obtained arrest warrants for these offenses, it

The Doyle court was less concerned with the lack of any

information tying the place to be searched, Doyle’s house, to the

child pornography charge. There was no indication from the

victim’s uncle as to where the nude pictures were allegedly

shown. The court cited its earlier decision in United States v.

Anderson, 851 F.2d 727, 729 (4th Cir. 1988), for the proposition

that “the nexus between the place to be searched and the items to

be seized may be established by the nature of the item and the

normal inferences of where one would likely keep such evidence.”

The court determined that “in light of Anderson, we cannot

conclude that the district court erred in concluding that, if Doyle

actually possessed child pornography, it was reasonable to

assume that Doyle kept it at his house.” Doyle, 650 F.3d at 472.

37a

stated that Thomas, in a post-arrest interview,

“corroborated both juvenile’s statements against him.”

ECF No. 39-1, at 6. Thus, the threshold failure of the

affidavit in Doyle, the lack of evidence to support a

finding of probable cause as to the only crime

referenced in the warrant – possession of child

pornography – is not present here. While the affidavit

in Doyle failed to establish probable cause that any

crime had been committed, the affidavit in this case

plainly is sufficient as to the crime of aggravated

sexual assault.4

While Detective Coleman’s affidavit is sufficient to

support a finding of probable cause as to the

aggravated sexual battery charge, it makes no

4 It is true that Detective Coleman’s search warrant affidavit

also listed the crimes of possession and production of child

pornography. As to these two crimes, Detective Coleman’s

affidavit presents even less factual basis than was present in

Doyle.

As to the possession and production of child

pornography charges, Doyle teaches that Detective Coleman

could not have reasonably concluded that the warrant

contained probable cause.

At the suppression hearing,

Detective Coleman made clear that his suspicion that Thomas

possessed or had produced child pornography was based on the

general notion that those who engage in sexual assault of

minors are likely to also produce or possess child pornography.

The affidavit contains no facts suggesting that Thomas

produced or possessed child pornography. Detective Coleman

also gave no indication that he knew any facts not included in

the affidavit that would have bolstered a finding of probable

cause that Thomas produced or possessed child pornography.

Regardless of the child pornography offenses, Detective

Coleman’s affidavit establishes probable cause as to the listed

crime of aggravated sexual battery.

38a

mention of Thomas’ LG cell phone, other than to say

that it was removed from him at the time of his arrest.

In other words, the affidavit provides no link between

Thomas’ LG cell phone and the aggravated sexual

battery charge. The next question, therefore, is

whether the holding in McKenzie-Gude provides a

legal basis sufficient to cover this omission.

McKenzie-Gude allows courts to consider

information outside the four corners of the affidavit

where the affiant inadvertently omits information

from an affidavit. 671 F.3d at 459-60. At the

suppression hearing, Detective Coleman made clear

that he knew at the time he applied for the search

warrant that Thomas communicated with the victims’

mother by phone calls to arrange another meeting

with the victims. To be sure, Detective Coleman’s

subjective belief as to whether the affidavit contained

probable cause is irrelevant. Leon, 468 U.S. at 922

n.23; United States v. Hodson, 543 F.3d 286, 292-93

(6th Cir. 2008) (explaining that the Leon analysis is

conducted independently of the specific beliefs of the

officer, but with the “faceless, nameless, reasonably

well-trained officer in the field”). Rather, the inquiry

is objective and focuses on the facts a “reasonably welltrained officer would have known” in considering the

legality of the warrant. McKenzie-Gude, 671 F.3d at

459 (citing Leon, 468 U.S. at 92 n.23).

In Leon, the Supreme Court held that a court

should not suppress the fruits of a search conducted

pursuant to a “subsequently invalidated” warrant

unless “a reasonably well-trained officer would have

39a

known that the search was illegal despite the

magistrate’s authorization.” Leon, 468 U.S. at 922

n.23. Thomas argues that the warrant was invalid

because it failed to link him and his alleged criminal

activity to the LG cell phone to be searched. Leon

requires the court to assess whether Detective

Coleman “harbored an objectively reasonable belief in

the existence” of this factual predicate. Id. at 926.

Leon states that officers cannot be found to have

acted with “objective reasonableness” and suppression

remains the appropriate remedy when they rely on “an

affidavit so lacking in indicia of probable cause as to

render official belief in its existence entirely

unreasonable.” Id. at 923. The government contends

that Detective Coleman acted with objective

reasonableness in relying on the affidavit and

“additional evidence” known to him. The government

maintains that this “additional evidence” – the fact

that Thomas telephoned the victims’ mother to set up

another encounter – conclusively establishes the

objectively reasonable belief in the sufficiency of the

warrant.

The court agrees. Leon instructs that the “goodfaith inquiry is confined to the objectively

ascertainable question whether a reasonably welltrained officer would have known that the search was

illegal” in light of “all of the circumstances.” Id. at 922

n.23; accord Herring v. United States, 555 U.S. 135,

145 (2009). For this reason, a reviewing court may

“look outside the four corners of a deficient affidavit

when determining, in light of all the circumstances,

40a

whether an officer’s reliance on the issuing warrant

was objectively reasonable.” McKenzie-Gude, 671

F.3d at 459. Because Detective Coleman’s knowledge

that Thomas had phoned the victims’ mother to set up

a new encounter supplied the missing link between the

LG cell phone and the crime of aggravated sexual

battery, his reliance on the issuing warrant was

objectively reasonable.

Thomas argues that the search warrant must failed

because it does not list the age of the minor victims or

the dates of the alleged sexual assaults, again citing

Doyle. But the issue of staleness that concerned the

Doyle court is not present her. In Doyle, the uncle first

reported the sodomy of his step-nephew to the police

in August 2003. The victim children were interviewed

later that month, and a state search warrant was

issued and executed in January, 2004. The indictment

was not forthcoming for more than three years, issued

as it was on March 6, 2007. The Doyle court was

justifiably concerned that there were no facts stated in

the warrant as to when Doyle possessed the nude

pictures of children, noting that “[a] valid search

warrant may issue only upon allegations of facts so

closely related to the time of the issue of the warrant

as to justify a finding of probable cause at the time.”

Doyle, 650 F.3d at 474 (emphasis added) (quoting

United States v. McCall, 740 F.2d 1331, 1335-36 (4th

Cir.184)). The Doyle court concluded “that even if the

affidavit established probable cause, it was completely

devoid of indicia that the probable cause was not

stale.” Id. at 475. The complete lack of information as

to when the events supposedly creating probable cause

41a

to search took place caused the Doyle court to conclude

that the officers could not have reasonably relied on

the resulting search warrant.

But this case is different. While Detective Coleman

did not list the dates of the alleged sexual assaults in

his affidavit, his offense dates were noted on the arrest

warrants issued by another magistrate in Winchester

eight days earlier. More importantly, at the time he

applied for the LG cell phone search warrant,

Detective Coleman had an objective reason to believe

that Thomas’ phone calls to the victims’ mother took

place some time around October 2014. Detective

Coleman knew this because his investigation revealed

that Thomas visited the hotel with two minors on

October 11, 2014, the date he used as the date of

offense in the arrest warrants.5 Unlike in Doyle,

where no officer had any idea when Doyle may have

possessed the alleged nude photographs, Detective

Coleman knew within a reasonably narrow window

when the aggravated sexual battery took place and the

phone calls were made.

It was reasonable for

Detective Coleman to infer that the phone seized from

Thomas at his arrest on January 5, 2015 had been

used by him just a few months earlier to call the

victims’ mother. See Anderson, 851 F.2d at 729 (“[T]he

nexus between the place to be searched and the items

to be seized may be established by the nature of the

It is of no moment that Detective Coleman ultimately

determined that Thomas sexually assaulted MV3 and MV4 a

month earlier, on September 16, 2014, and that the October 11,

2014 hotel stay was with two other children. Either way, Doyle’s

staleness concerns are not present her.

42a

item and the normal inferences of where one would

likely keep such evidence.”). As such, the staleness

concern of the Doyle court is simply not present here.

III.

Having determined that Detective Coleman’s

reliance on the search warrant was objectively

reasonable and subject to the Leon good faith

exception, the next question concerns whether the

review of the SD card by the Virginia State Police was

authorized by the warrant. Based on the evidence

adduced and the Fourth Circuit’s opinion in United

States v. Williams, 592 F.3d 511 (4th Cir.2010), the

search of the LG cell phone’s SD memory card was

proper.

In Williams, the Fairfax County Police required a

search warrant for Williams’ home during their

investigation of threatening emails sent to the Fairfax

Baptist Temple. Id. at 515. During the course of the

search of Williams’ home, the FBI seized computer and

electronic media and later search their contents,

finding child pornography. Id. at 515-16. Williams

sought suppression of the child pornography, arguing

that the warrant, authorizing a search for evidence

relating to other crimes involving threats of bodily

harm and harassment by computer, could not reach

evidence of child pornography.

The Fourth Amendment guarantees “[t]he right of

the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches

and seizures” and provides that “no warrants shall

issue, but upon probable cause, supported by oath or

43a

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” At

its core, the Fourth Amendment protects against

general warrants that authorize “exploratory

rummaging in a person’s belongings… by requiring a

particular description of the things to be seized.”

Andresen v. Maryland, 427 U.S. 463, 480 (1976). The

particularity requirement is fulfilled when the

warrant identifies the items to be seized by their

relation to designated crimes and when the description

of the items leaves nothing to the discretion of the

officer executing the warrant.

When a search is conducted pursuant to a warrant,

it “is limited in scope by the terms of the warrant’s

authorization.” United States v. Phillips, 588 F.3d

218, 223 (4th Cir. 2009). But the terms of the warrant

are not to be interpreted in a “hypertechnical” manner.

United States v. Robinson, 275 F.3d 371, 380 (4th Cir.

2001).

Rather, they should be read with a

”commonsense and realistic” approach, to avoid

turning a search warrant into a “constitutional strait

jacket.” Phillips, 588 F.3d at 223 (quoting United

States v. Ventresca, 380 U.S. 102, 108 (1965), and

United States v. Dornhorfer, 859 F.2d 1195, 1198 (4th

Cir. 1988)). Here, the warrant authorized the search

of the LG cell phone for phone calls, gps locations,

photos, text messages, voicemails, and other evidence

related to the crime of aggravated sexual battery.

Obviously, a search of the LG cell phone for evidence

supporting the mother’s and victims’ claims of phone

communication is within the express scope of the

warrant’s authorization. The same is true for gps

44a

locations, data, and photos that may corroborate the

aggravated sexual battery charges.

The fact that evidence of additional crimes –

possession and production of child pornography – was

located while searching the LG cell phone pursuant to

the warrant’s authorization does not render the

warrant overbroad or otherwise invalidate it. “Courts

have never held that a search is overbroad merely

because it results in additional criminal charges.”

Phillips, 588 F.3d at 224.

Thus, the fact that possession of child

pornography is itself a crime does not render the

seizure outside the scope of an investigation into

the computer harassment crime. Whether

seized evidence falls within the scope of a

warrant’s authorization must be assessed solely

in light of the relation between the evidence and

the terms of the warrant’s authorization.

Williams, 592 F.3d at 520-21. The GL warrant

authorized the police to look for data related to the

crime of aggravated sexual battery. Plainly, the

images of child pornography located on the LG cell

phone’s SC card “were sufficiently relevant to the

crimes designated in the warrant to justify their

seizure under the warrant.” Id. at 521. As the LG

warrant, by means of the Leon good faith exception,

authorized the search of the LG cell phone, the child

pornographic images seized fell within its terms and

are not properly the subject of suppression under the

exclusionary rule.

45a

Even if it could be argued that the LG warrant did

not authorize the seizure of the child pornography

images and videos found on the SD memory card, the

court alternatively concludes that the seizure of these

images and videos falls within the plain view exception

to the warrant requirement. See Coolidge v. New

Hampshire, 403 U.S. 443, 465 (1971).

Under this exception, police may seize evidence

in plain view during a lawful search if (1) the

seizing officer is lawfully present at the place

from which the evidence can be plainly viewed;

(2) the seizing officer has a lawful right of access

to the object itself; and (3) the object’s

incriminating

character

immediately

apparent.

Williams, 592 F.3d at 521 (internal quotation and

punctuation omitted) (quoting United States v. Legg,

18 F.3d 240, 242 (4th Cir. 1994)).

In this case, the warrant authorized a search of

Thomas’ LG cell phone for evidence relating to

aggravated sexual battery. As such, “[t]o conduct that

search, the warrant impliedly authorized officers to

open each file on the [LG cell phone’s SD card] and

view its contents, at least cursorily, to determine

whether the file fell within the scope of the warrant’s

authorization – i.e., whether it related to the

designated Virginia crime.” Williams, 592 F.3d at 52122. Further,

once it is accepted that a computer search must,

by implication, authorize at least a cursory

review of each file on the computer, then the

46a

criteria for applying the plain-view exception

are readily satisfied. First, an officer who has

legal possession of the computer and electronic

media and a legal right to conduct a search of it

is “lawfully present at the place from which the

evidence can be viewed,” thus satisfying the

first element of the plain-view exception.

Second, the officer, who is authorized to search

the computer and electronic media for evidence

of a crime and who is therefore legally

authorized to open and view all its files, at least

cursorily, to determine whether anyone falls

within the terms of the warrant, has “a lawful

right of access” to all files, albeit only

momentarily. And third, when the officer then

comes upon child pornography, it becomes

“immediately apparent” that its possession by

the computer’s owner is illegal and

incriminating. And so, in this case, any child

pornography viewed on the computer or

electronic media may be seized under the plainview exception.

Id. at 522 (internal citations omitted). As the Affidavit

of Allison Boos, Digital Investigative Analyst, High

Technology Investigative Unit, Child Exploitation and

Obscenity Section, Criminal Division, United State

Department of Justice, makes clear, there is no

practical difference between an officer searching

computer files and digital files located on an SD

47a

memory card. ECF No. 41.1.6

Thus, although

Detective Coleman’s affidavit was insufficient to

justify a search of the LG cell phone for evidence of the

possession and production of child pornography

offenses, the Virginia State Police crime lab had lawful

authority under Leon to search Thomas’ LG cell phone

and its SD memory card for evidence related to the

crime of aggravated sexual battery. In doing so, the

crime lab was lawfully authorized to access, albeit only

momentarily, all of the files on the SD card. As in

Williams, once child pornography images are viewed,

their illegal nature becomes immediately apparent.

As such, their seizure was lawful under the plain view

exception.

IV.

Application of the exclusionary rule to suppress the

evidence found on Thomas’ LG cell phone is not called

for in this case. Detective Coleman applied for a

search warrant to examine the phone’s contents,

having ample information that Thomas had

committed aggravated sexual battery crimes and used

a phone to perpetrate those crimes. Although his

search warrant affidavit could have provided more

information linking Thomas’ crimes to evidence

located on his phone, it is clear that Detective Coleman

acted reasonably and with objective good faith. There

is no suggestion of police misconduct in this case, and

6 The court exercises its discretion to admit the Boos affidavit for

the limited purpose of providing background on the nature and

organization of digital data stored on SD cards, as to which the

court cannot discern any factual dispute.

48a

Detective Coleman’s good faith reliance on the LG

warrant was objectively reasonable and grounded in

the facts of his investigation. For these reasons,

Thomas’ motion to suppress, ECF No. 28, will be

DENIED.

An appropriate order will be entered.

Entered: 12/15/2016

/s/ Michael F. Urbanski

Michael F. Urbanski

United States District

Judge

49a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

HARRISONBURG DIVISION

UNITED STATES,

)

) Civil Action No. 5:16-cr-001

)

) By: Michael F. Urbanski

LAMARCUS THOMAS, ) United States District Judge

Defendant.

ORDER

For the reasons set forth in the accompanying

memorandum opinion entered this day, Defendant

Lamarcus Thomas’ motion to suppress evidence

obtained during and as a result of his LG cell phone,

ECF No. 28, is DENIED.

It is SO ORDERED.

Entered: 12/15/2016

/s/ Michael F. Urbanski

Michael F. Urbanski

United States District

Judge

50a

FILED: December 7, 2018

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________________

No. 17-4523

(5:16-cr-00001-MFU-JCH-1)

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

LAMARCUS THOMAS,

Defendant-Appellant.

_______________________

ORDER

_______________________

The petition for rehearing en banc was

circulated to the full court. No judge requested a poll

under Fed. R. App. P. 35. The court denies the petition

for rehearing en banc.

For the Court

/s/ Patricia S. Connor, Clerk

51a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

JUDGMENT IN A

CRIMINAL CASE

UNITED STATES

OF AMERICA,

LAMARCUS THOMAS

Case Number:

DVAW516CR000001-001

USM Number:

21321-084

Andrea Harris, AFPD

Defendant’s Attorney

THE DEFENDANT:

☒ pleaded guilty to count(s) two and six

☐ pleaded nolo contendere to count(s)

which was accepted by the court.

☐was found guilty on count(s)

after a plea of not guilty,

The defendant is adjudicated guilty of these offenses:

52a

Title & Section

18 U.S.C./§2251(a)

Nature of

Offense

Sexual

Exploitation

of a Minor

Sexual

Exploitation

of a Minor

Offense

Ended

July 2014

Count

10/11/2014

The defendant is sentenced as provided in pages 2

through 8 of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

☐ The defendant has been found not guilty on

count(s)

_________________________________________________

☒ Count(s) 1,3, 4 & 5 ☐ is ☒ are dismissed on the

motion of the United States.

It is ordered that the defendant must notify the

United States attorney for this district within 30 days

of any changes of name, residence or mailing address

until all fines, restitution, costs, and special

assessments imposed by this judgment are fully paid.

If ordered to pay restitution, the defendant must

notify the court and United States attorney of

material changes in economic circumstances.

August 4, 2017

Date of Imposition of Judgment

/s/ Michael F. Urbanski

Signature of Judge

53a

Michael F. Urbanski

United States District Judge

Name and Title of Judge

8/9/2017

Date

Judgment-Page 2 of 8

Defendant:

LaMarcus Thomas

Case Number: DVAW516CR000001-01

IMPRISONMENT

The defendant is hereby committed to the custody

of the Federal Bureau of Prisons to be imposed for a

term of: 360 months as to Count 2 and Count 6, all to

be served concurrently.

☒ The court makes the following recommendations to

the Bureau of Prisons:

That the defendant receive the appropriate sex

offender treatment and/or mental health treatment.

That the defendant be housed at Petersburg, VA.

☒ That the defendant is remanded to the custody of

the United States Marshal.

☐ The defendant shall surrender to the United States

Marshal for this district:

☐ at

☐ a.m. ☐ p.m. on

54a

☐ as notified by the United States Marshal.

☐ The defendant shall surrender for service of

sentence at the institution designated by the Bureau

of Prisons:

☐ before

☐ a.m. ☐ p.m. on

☐ as notified by the United States Marshal

☐ as notified by the Probation or Pretrial Services

Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on

judgment.

, with a certified copy of this

United States Marshall

Deputy United States Marshall

55a

Judgment-Page 3 of 8

Defendant:

LaMarcus Thomas

Case Number: DVAW516CR000001-01

SUPERVISED RELEASE

Upon release from imprisonment, you will be on

supervised release for a term of:

Life on Count 2 and Count 6, all such terms to run

concurrently.

MANDATORY CONDITIONS

1. You must not commit another federal, state or local

crime.

2. ☐ You must make restitution in accordance with

sections 3663 and 3663A, or any other statute

authorizing a sentence of restitution. (check if

applicable)

3. You must not unlawfully possess a controlled

substance.

4. You must refrain from any unlawful use of a

controlled substance. You must submit to one drug

test within 15 days of release from imprisonment

and at least two periodic drug tests thereafter, as

determined by the court.

☐ The above drug testing condition is

suspended, based on the court’s determination

that you pose a low risk of future substance

abuse. (check if applicable)

56a

5. ☒ You must cooperate in the collection of DNA as

directed by the probation officer.

(check if

applicable)

6. ☒ You must comply with the requirements of the

Sex Offender Registration and Notification Act (42

U.S.C. §16901, et seq.) as directed by the probation

officer, the Bureau of Prisons, or any state sex

offender registration agency in which you reside,

work, are a student, or were convicted of a

qualifying offense. (check if applicable)

7. ☐ You must participate in an approved program

for domestic violence. (check if applicable)

You must comply with the standard conditions that

have been adopted by this court as well as with any

other conditions on the attached page.

57a

Judgment-Page 4 of 8

Defendant:

LaMarcus Thomas

Case Number: DVAW516CR000001-01

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply

with the following standard conditions of supervision.

These conditions are imposed because they establish

the basic expectations for your behavior while on

supervision and identify the minimum tools needed by

probation officers to keep informed, report to the court

about, and bring about improvements in your conduct

and condition.

1. You must report to the probation office in the

federal judicial district where you are authorized to

reside within 72 hours of your release from

imprisonment, unless the probation officer

instructs you to report to a different probation

office or within a different time frame.

2. After initially reporting to the probation office, you

will receive instructions from the court or the

probation officer about how and when you must

report to the probation officer, and you must report

to the probation officer as instructed.

3. You must not knowingly leave the federal judicial

district where you are authorized to reside without

first getting permission from the court or the

probation officer.

4. You must answer truthfully the questions asked by

your probation officer.

58a

5. You must live at a place approved by the probation

officer. If you plan to change where you live or

anything about your living arrangements (such as

the people you live with), you must notify the

probation officer at least 10 days before the change.

If notifying the probation officer in advance is not

possible due to unanticipated circumstances, you

must notify the probation officer within 72 hours of

becoming aware of a change or expected change.

6. You must allow the probation officer to visit you at

any time at your home or elsewhere, and you must

permit the probation officer to take any items

prohibited by the conditions of your supervision

that he or she observes in plain view.

7. You must work full time (at least 30 hours per

week) at a lawful type of employment, unless the

probation officer excuses you from doing so. If you

do not have full-time employment you must try to

find full-time employment, unless the probation

officer excuses you from doing so. If you plan to

change where you work or anything about your

work (such as your position or your job

responsibilities), you must notify the probation

officer at least 10 days before the change. If

notifying the probation officer at least 10 days in

advance is not possible due to unanticipated

circumstances, you must notify the probation

officer within 72 hours of becoming aware of a

change or expected change.

8. You must not communicate or interact with

someone you know is engaged in criminal activity.

If you know someone has been convicted of a felony,

59a

you must not knowingly communicate or interact

with that person without first getting the

permission of the probation officer.

9. If you are arrested or questioned by a law

enforcement officer, you must notify the probation

officer within 72 hours.

10. You must not own, possess, or have access to a

firearm, ammunition, destructive device, or

dangerous weapon (i.e., anything that was

designed, or was modified for, the specific purpose

of causing bodily injury or death to another person

such as nunchakus or tasers).

11. You must not act or make any agreement with a

law enforcement agency to act as a confidential

human source or informant without first getting

the permission of the court.

12. If the probation officer determines that you pose a

risk to another person (including an organization),

the probation officer may require you to notify the

person about the risk and you must comply with

that instruction. The probation officer may contact

the person and confirm that you have notified the

person about the risk.

13. You must follow the instructions of the probation

officer related to the conditions of supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the

conditions specified by the court and has provided me

with a written copy of this judgment containing these

conditions. For further information regarding these

60a

conditions, see Overview of Probation and Supervised

Release Conditions, available at: www.uscourts.gov.

Defendant’s Signature

Date

61a

Judgment-Page 5 of 8

Defendant:

LaMarcus Thomas

Case Number: DVAW516CR000001-01

SPECIAL CONDITIONS OF SUPERVISION

The defendant shall participate in a program of mental

health treatment, as approved by the probation officer,

until such time as the defendant has satisfied all

requirements of the program.

The defendant shall participate in a program of drug

testing and treatment for substance abuse, as

approved by the probation officer, until such time as

the defendant has satisfied all requirements of the

program.

The defendant shall reside in a residence free of

firearms, ammunition, destructive devices, and

dangerous weapons.

The defendant shall submit to warrantless search and

seizure of person and property as directed by the

probation officer, to determine whether the defendant

is in possession of firearms or illegal controlled

substances.

The defendant shall comply with the supervised sex

offender conditions as ordered by the court.

The defendant shall register with all local and

state sex offender registration agencies in any

jurisdiction where the defendant resides, is employed,

62a

carries a vocation, is a student, or is otherwise

required to register by SORNA.

2. The defendant shall have no direct or indirect

contact at any time, for any reason, with any victim

identified in the presentence report or any victim’s

family.

3. The defendant shall not possess, view, or otherwise

use any materials depicting or describing “child

pornography” as defined in 18 U.S.C. § 2256, nor shall

the defendant knowingly enter, or knowingly remain

in, any location where such materials can be accessed,

obtained, or viewed, including pictures, photographs,

books, writings, drawings, videos, or video games.

4. The defendant shall submit to an evaluation by a

qualified mental health professional, approved by the

probation officer, who is experienced in the treatment

of sexual offenders. The defendant shall take all

medications reasonably related to his or her condition,

complete all treatment recommendations, and abide

by all rules, requirements, and conditions imposed by

the treatment provider until discharged from

treatment by the provider.

5. The defendant shall submit to risk assessments

and other specific tests to monitor defendant’s

compliance.

In conjunction with sex offender

treatment, defendant shall submit to polygraph,

plethysmograph, or other testing useful for treatment

of sex offenders.

6. The defendant shall submit to a search of his or her

person, property, residence, vehicle, papers, computer,

electronic communication devices, or data storage

devices or media at any time by the probation officer

63a

with reasonable suspicion concerning unlawful

conduct or a violation of a condition of release. The

defendant should warn any other residents or

occupants that their premises or vehicles in which the

defendant may be located could be subject to search

pursuant to this condition.

7. The defendant shall not linger within 100 feet of

any parks, school property, playgrounds, arcades,

amusement parks, daycare centers, swimming pools,

community recreation fields, zoos, youth centers,

carnivals, circuses, or other places that are primarily

use or can reasonably be expected to be used by

minors, without prior permission of the probation

officer.

8. The defendant shall not use, purchase, possess,

procure, or otherwise obtain any computer or

electronic device or cellular telephone that can be

linked to any computer networks, bulletin boards, the

Internet, or other exchange formats involving

computers which have the capacity to contact minors

or gather information about a minor, unless approved

approved by the probation officer for lawful purposes

such as defendant’s gainful employment, use by an

immediate family member living in defendant’s

household, or other legitimate activities. In addition,

defendant shall not access or use any computer that

utilizes any “cleaning” or “wiping” software programs.

9. The defendant shall not associate or have verbal,

written, telephonic, electronic communications or

knowingly socialize through the Internet with any

minor, except: 1) in the present of the parent or legal

guardian of said minor; 2) on the condition that the

64a

defendant notifies the parent or legal guardian of the

defendant’s sex offender condition(s); and 3) with prior

approval from the probation officer. This provision

does not encompass minors working as waiters,

cashiers, ticket vendors, and similar service positions

with whom the defendant must deal in order to obtain

ordinary and usual commercial services.

10. The defendant shall not purchase, posses, or use

any camera or video recording devices without

approval of the probation officer.

11. The defendant shall notify employers, family

members, and other with whom the defendant has

regular contact of the defendant’s sex offender

conditions and that the defendant is under the

supervision of the probation officer.

12. The defendant shall not be employed in any

position or participate as a volunteer in any activity

that involves contact with minors without prior

approval of the probation officer. The defendant may

not engage in an activity that involves being in a

position of trust or authority over any minor.

13. The defendant shall participate in the Computer

and Internet Monitoring Program and abide by all

conditions therein as directed by the probation officer.

Participation in this program is contingent upon all

program criteria being met.

14. The defendant shall contact the probation officer

within 72 hours of establishing an ongoing romantic

relationship with another individual having custody of

a minor child and provide the probation officer with

information about the other party. The defendant

65a

shall also inform the other party of his or her prior

criminal history concerning sex offenses.

15. The defendant shall not be in the company of or

have contact with children under the age if 18,

including the defendant’s own children, without prior

permission of the probation officer. Contact includes

but is not limited to letters, communication devices,

audio or visual devices, and communication through a

third party. The defendant shall immediately report

any such contact to the probation officer.

66a

Judgment-Page 6 of 8

Defendant:

LaMarcus Thomas

Case Number: DVAW516CR000001-01

ADDITIONAL SUPERVISED RELEASE TERMS

16. The defendant shall not have any contact, other

than incidental contact in a public forum such as

ordering a restaurant or grocery shopping, with any

minor that is under the age of 18 without prior

permission of the probation officer. Any approved

contact shall be supervised by an adult at all times.

The contact addressed in this condition included but is

not limited to direct or indirect, personal, telephonic,

written, and through a third party. If the defendant

has any contact with any such minor not otherwise

addressed in this condition, the defendant is required

to immediately leave the situation and notify the

probation officer.

17. (objection sustained. condition deleted)

18. (objection sustained. condition deleted)

19. The defendant shall identify for the probation

officer and authorize the probation officer to access

(including providing user identification and password)

all social networking sites used by defendant.

Defendant shall not utilize by any means an electronic

device, including a cellular phone, computer, or other

device, to access a social networking website or other

Internet website, blog, forum, chat room or other

environment, to contact a minor, view images of

minors or gather information about a minor.

67a

20. The defendant shall submit to unannounced

examination by the probation officer of the defendant’s

computer equipment and electronic devices, which

may include the retrieval and copying of all data from

the equipment or devices, to ensure compliance with

the conditions of supervision. If the probation officer

has reasonable suspicion that the defendant has

violated the terms and conditions of supervision, the

defendant shall consent to the seizure of such

equipment and devices for the purpose of conducting a

more thorough investigation.

21. The defendant shall permit the probation officer to

conduct periodic, unannounced examinations of any

computer equipment the defendant uses or possesses,

which includes all hardware and software related to

online use. This computer equipment includes but is

not limited to any internal or external peripherals,

internet-capable devices, and data storage media.

These examinations may include retrieval and copying

of data related to online use and viewing of pictures

and movies which may be potential violations of the

terms of supervision.

The relevant computer

equipment may be removed by the probation officer for

more thorough examination. The probation officer

may use and install any hardware or software system

that is needed to monitor the defendant’s computer

use.

68a

Judgment-Page 7 of 8

Defendant:

LaMarcus Thomas

Case Number: DVAW516CR000001-01

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal

monetary penalties under the schedule of payments on

Sheet 6.

TOTALS

Assessment

$200.00

JVTA Assessment1

TOTALS

Fine

$500.00

Restitution

☒ The determination of restitution is deferred until 90

days. An Amended Judgment in a Criminal Case

(AO 245C0 will be entered after such

determination.

☐ The defendant must make restitution (including

community restitution) to the following payees in

the amount listed below.

If the defendant makes a partial payment, each

payee shall receive an approximately proportioned

payment, unless specified otherwise in the priority

order or percentage payment column below.

1 Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-

22.

69a

However, pursuant to 18 U.S.C. §3664(i), all

nonfederal victims must be paid before the United

States is paid.

Name of Payee

TOTALS

Total Loss**

-------

Restitution Priority or

Ordered

Percentage

-------

--------

☐ Restitution amount ordered pursuant to plea

agreement $

☐ The defendant must pay interest on restitution and

a fine of more than $2,500, unless the restitution or

fine is paid in full before the fifteenth day after the

date of the judgment, pursuant to 18 U.S.C.

§3612(f ) . All of the payment options on Sheet 6

may be subject to penalties for delinquency and

default, pursuant to 18 U.S.C. §3612(G).

☒ The court determined that the defendant does not

have the ability to pay interest and it is ordered

that:

☐ the interest requirement is waived for the ☐ fine

☐ restitution.

☐ the interest requirement for the ☐ fine ☐

restitution is modified as follows:

Findings for the total amount of losses are required under

Chapters 109A, 110, 110A, and 113A of Title 18 for offenses

committed on or after September 13, 1994, but before April 23,

1996.

70a

Judgment-Page 8 of 8

Defendant:

LaMarcus Thomas

Case Number: DVAW516CR000001-01

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, the

total criminal monetary penalties are due immediately

and payable as follows:

A ☒ Lump sum payment of $200.00 immediately,

balance payable

☐ no later than

, or

☒ in accordance ☐ C, ☐ D, ☐E, ☒ F or, ☐ G

below); or

B ☐ Payment to begin immediately (may be

combined with ☐ C, ☐ D, ☐F, or ☐ G below); or

C ☐ Payment in equal

(e.g., weekly,

monthly, quarterly) installments of $

over a period of

(e.g.

months

years), to commence

(e.g., 30

or 60 days) after the date of this judgment; or

D ☐ Payment in

(e.g., weekly,

monthly, quarterly) installments of $

over a period of

(e.g.

months

years), to commence

(e.g., 30

71a

or 60 days) after release from imprisonment to a

term of supervision; or

E ☐ Payment during the term of supervised release

will commence within

(e.g., 30 or 60

days) after release from imprisonment. The court

will set the payment plan based on an assessment

of the defendant’s ability to pay at that time; or

F ☒ During the term of imprisonment, payment in

equal monthly (e.g., weekly, monthly, quarterly)

installments of $20 or 25% of the defendant’s

income, whichever is greater, to commence 60 days

(e.g., 30 or 60 days) after the date of this judgment;

AND payment in equal monthly (e.g., weekly,

monthly, quarterly) installments of $25.00 during

the term of the supervised release, to commence 60

days (e.g., 30 or 60 days) after release from

imprisonment.

G ☐ Special instructions regarding the payment of

criminal monetary penalties:

Any installment schedule shall not preclude

enforcement of the restitution or fine order by the

United States under 18 U.S.C. §3613 and 3664(m).

Any installment schedule is subject to adjustment by

the court at any time during the period of

imprisonment or supervision, and the defendant shall

notify the probation officer and the U.S. Attorney of

72a

any change in the defendant’s economic circumstances

that may affect the defendant’s ability to pay.

All criminal monetary penalties shall be made payable

to the Clerk, U.S. District Court, 210 Franklin Rd.,

Suite 540, Roanoke, Virginia 24011, for disbursement.

The defendant shall receive credit for all payments

previously made toward any criminal monetary

penalties imposed.

Any obligation to pay restitution is joint and several

with other defendants, if any, against whom an order

of restitution has been or will be entered.

☐ Joint and Several

Defendant and Co-Defendant Names and Case

Numbers (including defendant number), Total

Amount, Joint and Several Amount, and

corresponding payee, if appropriate.

☐ The defendant shall pay the cost of prosecution.

☐ The defendant shall pay the following court cost(s):

☒ The defendant shall forfeit the defendant’s interest

in the following property to the United States:

Oral Order entered forfeiting the items listed in the

indictment.

73a

Payments shall be applied in the following order: (1)

assessment, (2) restitution principal, (3) restitution

interest, (4) fine principal, (5) fine interest, (6)

community restitution, (7) penalties, and (8) costs,

including costs of prosecution and court costs.

74a

Transcript Excerpts From Suppression Hearing

[9]

Q. Have you received any training, whether formal or

informal, about how to draft a search warrant as a

Winchester police officer?

A. Yes. You receive it at basic academy. Once again,

some of those investigation classes include that.

There’s also a lot of in-house training on that as

well.

Q. Specifically with that in-house training, what have

you been taught about drafting a search warrant?

A. One of the things is, in our department, we are

taught to put no more PC into the warrant than it

takes to obtain the warrant.

***

[64]

Q. [BY MR. WILSON] Detective Coleman, the

information you provided to the magistrate for the

search warrant for the LG phone consists of the

information in Government's Exhibit 4, which is

the search warrant affidavit and the attached

statement of probable cause. A. Yes, sir.

Q. Is that all the information you provided the

magistrate?

A. Yes, sir.

***

75a

BY MS. FISHER:

Q. Just a few

Coleman.

additional

questions,

Detective

Now, when you interviewed the mother of Minor

Victims 3 and 4, she did indicate that she had

received phone communication from the defendant;

is that correct?

[65]

A. Correct.

Q. And this was after the abuse occurred; is that

correct?

A. Yes, ma’am.

Q. And also, when you observed the CAC interviews of

the Minor Victims 3 and 4, did either of them say

anything about phone communications their

mother had received from the defendant?

A. M3 indicated calls and text messages after the

abuse, trying to get M3 and M4 to return back for

a sleepover, for a keyboard.

Q. Now, about the cell phone that was –

The court: You didn’t put either of those, though,

in your affidavit for the search warrant.

The witness: I did not.

The court: You didn’t put any reference in that

affidavit that the mother had indicated she had

phone communication; correct?

The witness: That’s correct.

76a

The court: You also didn’t indicate in there that

M3, Minor Victim 3, had indicated there were calls

and text messages after the abuse. That’s not in

there either.

The witness: No, sir.

The court: In fact, are there any facts in this

affidavit connecting the LG phone to be searched

with the investigation you were conducting about

the molestation of

[66]

MV3 and M4?

The witness: I did indicate in there that the arrests

were made for the molestation and that he had the

cell phone on his person and was investigating

where two children were allegedly molested, and

the phone had been removed from Mr. Thomas, and

he had corroborated their statements.

The court: Essentially, he had a phone on him, but

you didn’t put anything in this af

This text is long and has been trimmed here. Open the source document for the complete record.

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