Opposition Brief — Brandon Gale Combs, Petitioner v. United States
Supreme Court briefMar 15, 2019
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No. 18-6702
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
BRANDON GALE COMBS, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
BRIAN A. BENCZKOWSKI
Assistant Attorney General
ANDREW W. LAING
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
QUESTIONS PRESENTED
1.
Assuming that the affidavit in support of a search
warrant in petitioner’s case failed to establish probable cause,
whether evidence obtained under the warrant was admissible in court
under the good-faith exception to the exclusionary rule.
2.
Whether
the
good-faith
exception
is
categorically
inapplicable when a warrant affidavit includes information that
the affiant obtained in a manner later determined to have been
unlawful, and the affiant also executed the search warrant.
(I)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 18-6702
BRANDON GALE COMBS, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1A-7A) is not
published in the Federal Reporter but is reprinted at 729 Fed.
Appx. 250.
JURISDICTION
The judgment of the court of appeals was entered on April 10,
2018.
A petition for rehearing was denied on June 25, 2018 (Pet.
App. 8A).
On August 7, 2018, the Chief Justice extended the time
within which to file a petition for a writ of certiorari to and
including November 12, 2018, and the petition was filed on November
2
9, 2018. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
STATEMENT
Following a guilty plea in the United States District Court
for the District of South Carolina, petitioner was convicted on
one count of possession of a firearm by a felon, in violation of
18 U.S.C. 922(g)(1) and 924(a)(2).
C.A. App. 130.
The district
court sentenced petitioner to 51 months of imprisonment, to be
followed by three years of supervised release.
The court of appeals affirmed.
1.
Id. at 131-132.
Pet. App. 1A-7A.
On May 20, 2015, Lieutenant Tanner Davis of the Clover
Police Department received a phone call from Kristin Shea.
App. 14, 24-25.
Shea, who was crying, said that she had been
assaulted by petitioner, with whom she had a child.
26.
C.A.
Id. at 25-
She said that she was still at petitioner’s home, and needed
the police to come get her.
Id. at 14, 26.
Before that phone call, Lieutenant Davis had received a tip
that
petitioner
had
obtained
a
firearm.
C.A.
Lieutenant Davis asked Shea whether that was true.
App.
14,
Ibid.
27.
Shea
stated that it was and that she had seen the firearm the previous
night.
She said that the last time she had seen the firearm, it
was under petitioner’s mattress.
Id. at 27-28.
Police officers responded to petitioner’s residence.
App. 15, 26.
C.A.
Shea was sitting in front of the home with her child.
3
Id. at 15, 26-27.
id. at 28.
She “had obvious bruising.”
C.A. App. 15; see
Officers approached the home and knocked on the door.
Id. at 15, 29-30.
After several minutes, petitioner “approached
the door and spoke to the officers through a slightly ajar door,”
but then “closed the door and began to walk away.”
id. at 30-31.
see id. at 31.
Officers followed petitioner inside.
Id. at 15;
After seeing that petitioner was naked, they
allowed him to dress.
petitioner.
Id. at 15; see
Id. at 15, 31-32.
Id. at 15, 32-34.
Officers spoke with
At one point during the interview,
petitioner asked Lieutenant Davis for a cigarette, and gave him
permission to enter petitioner’s bedroom to obtain one.
36.
Id. at
While getting cigarettes from the bedroom, Lieutenant Davis
saw a bullet on the floor beside the bed.
Id. at 37.
After speaking with petitioner, officers placed him under
arrest for criminal domestic violence. C.A. App. 15, 32-34. While
placing petitioner under arrest, Lieutenant Davis told petitioner
that he had received information that petitioner was in possession
of a gun, knowing that he was not allowed to have one, and asked
petitioner for consent to search the home.
Id. at 34.
Petitioner
did not answer, and Lieutenant Davis said he would interpret the
silence as declining to give consent. Id. at 35. But as petitioner
was being escorted to the police car, he told officers that he
would “just go in and get [the officers] the gun.” Ibid.
Officers
4
did not allow petitioner to reenter the home for that purpose.
Id. at 35-36.
Lieutenant Davis immediately sought and obtained a warrant to
search petitioner’s house and to seize “[f]irearms, ammunition, or
items consistent with the purchase, sale or possession of firearms”
therein.
C.A. App. 68; see id. at 36, 67-69.
Lieutenant Davis’s
affidavit in support of the search warrant described Shea’s call
to him reporting the domestic violence, and identified Shea by
name.
Id. at 69.
The affidavit explained that “Lt. Davis had
received intelligence the previous week regarding [petitioner]
purchasing
a
handgun,”
and
that
“Lt.
Davis
asked
[Shea]
if
[petitioner] still had a handgun in the home and she stated that
he did.”
Ibid.
The affidavit also explained that officers had
responded to the scene, spoken with petitioner at the door,
followed him into the home, and questioned him there.
addition,
the
affidavit
explained
that
cigarette
for
petitioner
at
request,
his
“observed a 9mm bullet laying on the floor.”
while
Ibid.
In
retrieving
a
Lieutenant
Ibid.
Davis
The affidavit
related that petitioner had declined to consent to a search for
the gun, but that while officers were escorting petitioner to the
car, petitioner had “stated ‘just let me go get the gun for you.’”
Ibid.
The affidavit further related that petitioner was not
permitted to possess a firearm because of prior convictions for
5
“burglary 2nd degree violent and criminal domestic violence of a
high and aggravated nature in 2013.”
A magistrate issued the warrant.
Ibid.
C.A. App. 39-40.
Officers
executed the warrant later that same day and recovered a ninemillimeter handgun from petitioner’s house.
2.
Id. at 70.
A grand jury charged petitioner with possession of a
firearm by a felon, in violation of 18 U.S.C. 922(g)(1) and
924(a)(2).
C.A. App. 10.
Petitioner filed a motion to suppress
“any evidence that was seized from the search of” his house, “on
the grounds that the search warrant was invalid, not supported by
probable cause, and the execution of the warrant constituted a
violation of the Fourth Amendment.”
Id. at 13.
Petitioner also
moved to suppress “any and all statements made by [petitioner] on
May 20, 2015” -- the day of the search -- on the ground that “he
was never advised of his Miranda warnings.”
Id. at 20.
The district court conducted a suppression hearing, at which
Lieutenant Davis testified about the tip he had received regarding
the gun, Shea’s call, the investigation and arrest at petitioner’s
home, and his obtaining a warrant.
conclusion
of
the
hearing,
the
suppression motion from the bench.
C.A. App. 21-66.
court
denied
At the
petitioner’s
The court explained that even
if all of the evidence that petitioner challenged were excluded
from the affidavit, Lieutenant Davis “still had the statement from
6
Miss Shea, and it also corroborated the anonymous tip.”
61.
Id. at
Under those circumstances, the court found there was “no
question that there was probable cause to get the search warrant.”
Id.
at
64.
petitioner
The
made
court
in
later
custody
suppressed
on
the
the
date
statements
of
his
that
arrest
--
specifically, his statement that he would go get the gun in the
house -- on the ground that petitioner had not been given Miranda
warnings and Lieutenant Davis’s inquiries had been reasonably
likely to yield an incriminating response.
Id. at 6.
Petitioner entered a conditional guilty plea, reserving his
right to appeal on the ground that the district court should not
have denied his suppression motion.
C.A. App. at 73, 130.
The
court sentenced petitioner to 51 months of imprisonment, to be
followed by three years of supervised release.
3.
Id. at 131-132.
The court of appeals affirmed in an unpublished per
curiam order.
Pet. App. 1A-7A.
As relevant here, petitioner
argued on appeal that his suppression motion should have been
granted.
Id. at 2A.
Petitioner argued that the initial tip that
Lieutenant Davis had received regarding petitioner’s possession of
a gun “should have been treated as if it was from an anonymous
source” and “stripped from the magistrate’s consideration” on that
basis.
Id. at 3A.
Petitioner also argued that his own “statement
regarding the gun should be excluded from consideration because he
7
was not given Miranda warnings.”
Ibid.
In addition, he argued
that evidence officers observed while inside his house (the stray
bullet) should have been excluded from consideration on the ground
that
officers’
“entry
into
his
house
without
a
warrant
was
illegal.” Ibid. Finally, petitioner argued that Shea’s statement,
by itself, was inadequate to support probable cause because “the
officer did not provide any information about Shea’s veracity or
credibility.”
Ibid.
The court of appeals rejected petitioner’s argument.
App. 3A-7A.
Pet.
The court explained that, “[o]rdinarily, ‘a warrant
issued by a magistrate . . . suffices to establish that a law
enforcement officer has acted in good faith in conducting the
search.’”
Id. at 4A (quoting United States v. Perez, 393 F.3d
457, 461 (4th Cir. 2004)).
The court noted that reliance on a
search warrant “is not considered reasonable” if, among other
things, “the magistrate was misled by information in an affidavit
that the officer knew was false or would have known was false
except for the officer’s reckless disregard of the truth,” or if
“‘the warrant was based on an affidavit that was so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable.’”
Ibid. (quoting United States
v. Hyppolite, 65 F.3d 1151, 1156 (4th Cir. 1995), cert. denied,
517
U.S.
1162
(1996)).
The
court
explained
that
under
its
8
precedent
the
good-faith
analysis
includes
consideration
of
“information in the warrant affidavit and any ‘uncontroverted
facts known to officers but inadvertently not disclosed to the
magistrate.’”
Ibid. (quoting United States v. McKenzie-Gude, 671
F.3d 452, 459 (4th Cir. 2011)).
The court of appeals explained that it need not decide whether
the search warrant established probable cause, because when “a
defendant challenges both probable cause and the applicability of
the good faith exception, we may proceed directly to the good faith
analysis.”
Pet. App. 5A.
Applying that analysis, the court first
found “no evidence that Davis intentionally or recklessly omitted
material information from the affidavit.”
Ibid.
It observed that
“Davis’s testimony at the suppression hearing shows that the facts
not included in the affidavit would have actually strengthened
probable cause rather than defeating it.”
Ibid.; see id. at 6A-
7A (describing facts).
The court of appeals then determined that, even assuming
arguendo that the affidavit “was insufficient because it included
information from the improper questioning of [petitioner] and did
not provide any information regarding the informant,” the goodfaith exception applied.
Pet. App. 6A.
The court observed that
“[t]he informant’s statement regarding the gun was corroborated by
Shea,” and that “Shea’s story was corroborated by her physical
9
appearance
and
[petitioner’s]
criminal
background,”
and
thus
determined that “a reasonably well-trained law enforcement officer
objectively would have believed the search to have been lawful.”
Id. at 6A-7A.
ARGUMENT
Petitioner contends (Pet. 8-14) that the court of appeals
erred
in
determining
that
the
good-faith
exception
to
the
exclusionary rule applied, in an analysis that included reference
to a fact known to the warrant affiant but not included in the
affidavit.
The court was correct in its application of the good-
faith exception.
Although some disagreement exists in the courts
of appeals regarding the relevance to good-faith analysis of facts
outside the warrant affidavit, this case presents a poor vehicle
for considering that disagreement, because the court below did not
materially rely on facts outside the affidavit and because the
affidavit alone would establish probable cause or good faith in
the circuits whose methodology petitioner invokes.
This Court has
previously denied review of cases presenting similar issues, see
Campbell v. United States, 138 S. Ct. 313 (2017) (No. 16-8855);
Fiorito v. United States, 565 U.S. 1246 (2012) (No. 11-7217), and
the same result is warranted here.
Petitioner also contends (Pet.
15-22) that “[t]he good faith exception is not intended to apply
to police officers whose affidavits include evidence illegally
10
obtained by the officer swearing the affidavit and subsequently
executing the warrant,”
omitted).
Pet. 15 (capitalization altered; emphasis
That claim lacks merit, does not clearly implicate any
ongoing disagreement in the circuits, and was neither pressed nor
passed upon below.
1.
a.
Further review is unwarranted.
The court of appeals correctly applied the good-
faith exception to the exclusionary rule in petitioner’s case.
The exclusionary rule is a “‘judicially created remedy’” that
is “designed to deter police misconduct.”
United States v. Leon,
468 U.S. 897, 906, 916 (1984) (citation omitted).
This Court has
explained that in order to justify suppression, a case must involve
police conduct that is “sufficiently deliberate that exclusion can
meaningfully
deter
it,
and
sufficiently
culpable
that
such
deterrence is worth the price paid by the justice system” in
suppressing evidence.
Herring v. United States, 555 U.S. 135, 144
(2009); see Davis v. United States, 564 U.S. 229, 236-239 (2011).
Leon recognized a good-faith exception to the exclusionary
rule in the context of search warrants.
The Court explained that
application of the exclusionary rule is “restricted to those areas
where
its
served.”
remedial
objectives
are
thought
most
468 U.S. at 908 (citation omitted).
efficaciously
It observed that
“the marginal or nonexistent benefits produced by suppressing
evidence
obtained
in
objectively
reasonable
reliance
on
a
11
subsequently
invalidated
search
substantial costs of exclusion.”
warrant
cannot
Id. at 922.
justify
the
The Court thus held
that evidence should not be suppressed if officers acted in an
objectively reasonable manner in relying on a search warrant, even
if the warrant was later deemed deficient.
Ibid.
The Court noted that an officer’s reliance would not be
objectively reasonable if an officer lacked “reasonable grounds
for believing that the warrant was properly issued,” such as when
a warrant was “based on an affidavit so lacking in indicia of
probable cause as to render official belief in its existence
entirely unreasonable.”
Leon, 468 U.S. at 923 (citation and
internal quotation marks omitted).
The Court has explained,
however, “that the threshold for establishing” such a deficiency
“is a high one, and it should be.”
565 U.S. 535, 547 (2012).
Messerschmidt v. Millender,
And it has emphasized that whether “a
reasonably well trained officer would have known that the search
was illegal despite the magistrate’s authorization” is to be
decided based on “all of the circumstances.”
Leon, 468 U.S. at
922 n.23.
b.
Assuming arguendo (like the court of appeals) that the
affidavit in this case did not establish probable cause to search
petitioner’s residence, the good-faith exception applied because
officers reasonably relied on the magistrate-issued warrant, which
12
was not “so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable.”
468 U.S. at 923 (citation omitted).
Leon,
Lieutenant Davis’s affidavit,
which was attached to the warrant, explained that Shea had reported
her
presence
at
petitioner’s
home,
petitioner’s
assault,
and
petitioner’s possession of a gun, and that Shea was at petitioner’s
residence when Lieutenant Davis arrived.
C.A. App. 69.
The
affidavit also stated that an anonymous source of “intelligence”
stated that petitioner had purchased a handgun the previous week.
Ibid.
The affidavit further revealed that petitioner was at his
house when Lieutenant Davis arrived, and that petitioner had a
criminal history that included violent offenses that made it
unlawful
for
him
to
possess
a
firearm.
Ibid.
In
those
circumstances -- even setting aside additional information in the
affidavit that petitioner contends should not have been considered
on the ground that it was unlawfully obtained -- it was not
“entirely
unreasonable”
for
an
officer
to
believe,
that
the
affidavit possessed the requisite “fair probability” required to
justify a search of the residence for firearms.
See Illinois v.
Gates, 462 U.S. 213, 238 (1983) (probable cause exists if “there
is a fair probability that contraband or evidence of a crime will
be found in a particular place”).
13
Petitioner argues (Pet. 8-14) that the court of appeals erred
in stating that courts may take into account additional facts known
to
law
enforcement,
but
not
disclosed
to
a
magistrate,
determining whether the good-faith exception applies.
is
mistaken
in
suggesting
that
Leon
bars
in
Petitioner
consideration
of
information outside of the warrant affidavit in the good-faith
analysis.
on
the
Although Leon makes clear that an “officer’s reliance
magistrate’s
technical
sufficiency
probable-cause
of
the
determination
warrant”
must
be
and
on
the
“objectively
reasonable,” the Court in Leon held that “all of the circumstances
* * *
may
be
considered”
reasonableness is established.
when
deciding
whether
objective
468 U.S. at 922-923 & n.23; accord
Herring, 555 U.S. at 145 (explaining that the good-faith inquiry
is based on “‘whether a reasonably well trained officer would have
known that the search was illegal’ in light of ‘all of the
circumstances’” and that “[t]hese circumstances frequently include
a particular officer’s knowledge and experience”) (quoting Leon,
468 U.S. at 922 n.23).
Indeed, Leon itself listed a circumstance
outside the four corners of the affidavit -- “whether the warrant
application
had
magistrate”
--
consider.
previously
as
among
the
been
rejected
by
circumstances
that
468 U.S. at 923 n.23.
a
different
courts
might
And in a companion case decided
the same day as Leon, the Court again examined circumstances
14
outside the four corners of the warrant affidavit in concluding
that the good-faith exception was applicable.
Massachusetts v.
Sheppard, 468 U.S. 981, 989 (1984) (considering circumstances
under which warrant application was presented).
That approach accords with the principles that underlie the
good-faith doctrine and the exclusionary rule more generally. This
Court has explained that suppression is appropriate only “[w]hen
the police exhibit deliberate, reckless, or grossly negligent
disregard for Fourth Amendment rights.”
Davis, 564 U.S. at 238
(citation and internal quotation marks omitted).
An officer’s
error does not rise to that level when, as here, he omits from a
warrant affidavit facts known to him that “would actually have
strengthened probable cause rather than defeating it.”
Pet. App.
5A.
Such an omission cannot be deemed more “culpabl[e]” than the
type
of
negligence
for
which
this
Court
has
indicated
suppression of evidence is not ordinarily appropriate.
564 U.S. at 238.
that
See Davis,
Moreover, officers already have considerable
incentives to include facts supporting probable cause in their
search
warrant
affidavits,
because
doing
so
increases
likelihood that the magistrate will issue a warrant.
the
Those
existing incentives suggest that any additional marginal benefit
that
a
narrow
theoretically
construction
of
provide
deterring
in
the
good-faith
officers
doctrine
from
might
omitting
15
inculpatory facts from warrant applications does not outweigh the
high social costs of a suppression remedy.
See Herring, 555 U.S.
at 141.
c.
“taken
“[A] majority of circuits” to consider the question have
into
consideration
facts
outside
the
affidavit
when
determining whether the Leon good faith exception applies.” United
States v. Martin, 297 F.3d 1308, 1319 (11th Cir.), cert. denied,
537 U.S. 1076 (2002); see id. at 1320 (considering information
known to officer but not included in affidavit in making goodfaith determination); see also United States v. Farlee, 757 F.3d
810, 819 (8th Cir.) (“[W]hen assessing the officer’s good faith
reliance on a search warrant under the Leon good faith exception,
we can look outside of the four corners of the affidavit and
consider the totality of the circumstances, including what the
officer knew but did not include in the affidavit.”), cert. denied,
135 S. Ct. 504 (2014); United States v. McKenzie-Gude, 671 F.3d
452, 461 (4th Cir. 2011) (concluding that a court may consider
“undisputed, relevant facts known to the officers prior to the
search” but inadvertently not disclosed to the magistrate, as part
of good-faith analysis); United States v. Taxacher, 902 F.2d 867,
871-873 (11th Cir. 1990) (relying on facts known to officer but
not presented to magistrate in determining “whether the officer
acted
in
objective
good
faith
under
all
the
circumstances”
16
(emphasis omitted)), cert. denied, 499 U.S. 919 (1991); see also
United States v. Procopio, 88 F.3d 21, 28 (1st Cir. 1996) (applying
Leon where “only omission [in an affidavit] was the failure to
explain how the agent -- who had ample basis for the contention
-- knew that” place to be searched belonged to subject of search),
cert. denied, 519 U.S. 1046 (1996), and 519 U.S. 1138 (1997).
As petitioner notes (Pet. 10-11), some courts of appeals have,
at least in some circumstances, disapproved of consideration of
facts outside the four corners of the search warrant affidavit in
the Leon analysis.
United States v. Knox, 883 F.3d 1262, 1272-
1273 (10th Cir.), cert. denied, 139 S. Ct. 197 (2018); United
States v. Laughton, 409 F.3d 744, 751 (6th Cir. 2005); see United
States v. Hove, 848 F.2d 137, 140 (9th Cir. 1988); United States
v. Koerth, 312 F.3d 862, 869 (7th Cir. 2002), cert. denied, 538
U.S. 1020 (2003); but see United States v. Dickerson, 975 F.2d
1245,
1250
(7th
Cir.
1992)
(concluding
that
the
good-faith
exception applied based on facts known to officers at the scene
but not disclosed to the magistrate), cert. denied, 507 U.S. 932
(1993); United States v. Mendonsa, 989 F.2d 366, 369 (9th Cir.
1993)
(determining
that
good-faith
exception
applied
because
detective “sought advice from county attorneys concerning the
substantive completeness of the affidavit before he submitted it
17
to the magistrate” and “the attorney advised him that the affidavit
seemed complete”).
Petitioner’s case does not present a suitable vehicle for
addressing any disagreement, however.
Although the court of
appeals cited its prior decision in McKenzie-Gude, supra, for the
proposition that courts may consider facts beyond the affidavit in
conducting the good-faith analysis, its analysis in petitioner’s
case did not go materially beyond the affidavit.
The court
determined
establish
that
--
assuming
the
affidavit
did
not
probable cause -- the good-faith exception applied based on the
mutually
corroborative
statements
of
Shea
and
the
anonymous
informant, and on the corroboration of Shea’s story “by her
physical appearance and [petitioner’s] criminal background.”
App. 6A-7A.
Pet.
Thus, all of the facts on which the court relied,
aside from Shea’s “physical appearance,” were contained in the
warrant affidavit.
See C.A. App. 69.
In addition, the affidavit-based information on which the
decision below chiefly relied -- statements of a named victim
witness that were also corroborated by an unnamed informant -would
establish
probable
cause
or
good
faith
in
jurisdictions whose precedent petitioner invokes.
any
of
the
Petitioner
principally argues that the warrant did not establish probable
cause because the affidavit did not set forth facts establishing
18
the reliability of Shea, the named victim-witness.
Pet. App. 3A.
But this Court has made clear that statements of such witnesses
are “not to be viewed in the same light as the typical police
informant.”
2 Wayne R. LaFave, Search and Seizure:
A Treatise on
the Fourth Amendment § 3.4(a), at 266 (2012); see Jaben v. United
States, 381 U.S. 214, 224 (1965); see also Chambers v. Maroney,
399 U.S. 42, 46-47 (1970).
Accordingly, “[t]he lower courts have
rather consistently held that the proof-of-veracity rules which
obtain in informant cases are not applicable with respect to other
sources
of
information,”
such
as
victims,
eyewitnesses,
and
citizen-informants (as distinct from those “from the criminal
milieu” or paid informants).
LaFave § 3.4(a), at 266; see id. at
266 n.8 (compiling many cases, including decisions from the Ninth,
Tenth, and Seventh Circuits).
In any event, the warrant affidavit did set forth grounds to
conclude that Shea’s statements regarding petitioner’s firearm
were reliable, because, as the warrant affidavit explained, an
informant had separately stated that petitioner purchased a gun
the prior week.
informant’s
C.A. App. 69.
statements
should
Petitioner argued that the
have
been
“stripped
from
the
magistrate’s consideration” because the affidavit “did not provide
any
information
reliability.
regarding
the
Pet. App. 3A, 6A.
informant”
to
establish
his
But that is directly contrary to
19
this Court’s leading probable-cause decision, which makes clear
that
even
statements
of
anonymous
informants
are
properly
considered as part of the probable-cause analysis when additional
investigation corroborates those statements.
Illinois v. Gates,
462 U.S. 213, 227-228 (1983).
In light of those principles, nothing in the petition suggests
that a warrant based on the mutually corroborating statements of
a
named
victim-witness
and
an
anonymous
source
would
be
insufficient for both probable cause and good faith under any
circuit’s case law.
Cf. C.A. App. 61, 64 (district court finding
“no question” as to probable cause based on “the statement from
Miss Shea” which “corroborated the anonymous tip,” even if other
information in the affidavit were not considered).
Petitioner
identifies no decision from any court taking such a view.
On the
contrary, decisions in the courts on whose cases petitioner relies
undercut his argument.
See, e.g., United States v. Dismuke, 593
F.3d 582, 587-588 (7th Cir. 2010) (finding affidavit sufficient to
support probable cause where informant told law enforcement “he
personally observed [defendant] at his home in possession of three
specific firearms” and could identify defendant, despite absence
of
“additional
particularized
facts
about
the
informant’s
observations”), cert. denied, 564 U.S. 1018 (2011), abrogated on
other grounds as recognized in United States v. Miller, 721 F.3d
20
435, 438-439 (7th Cir. 2013); United States v. Frazier, 423 F.3d
526, 536 (6th Cir. 2005) (applying good-faith exception where court
concluded probable cause was lacking because the warrant affidavit
was “based almost exclusively on the uncorroborated testimony of
unproven confidential informants”); United States v. Bryan, No.
92-50723, 1994 WL 65073, at *2 (9th Cir.) (finding affidavit
sufficient to support probable-cause finding where two “untested
informants” “corroborated each other”), cert. denied, 512 U.S.
1245 (1994); United States v. Quezada-Enriquez, 567 F.3d 1228,
1233-1234
(10th
Cir.)
(applying
good-faith
exception
where
affidavit underlying warrant was based on “an uncorroborated tip
from a reliable confidential informant” but did “not describe the
basis of the informant’s knowledge and police did not corroborate
any details suggesting a gun would be found in the premises to be
searched”), cert. denied, 558 U.S. 959 (2009).
A case in which the court of appeals made virtually no use of
facts outside the warrant affidavit, and which presents no serious
basis
for
concluding
another
circuit
would
have
ordered
suppression, is not a suitable vehicle for addressing the relevance
of facts outside the warrant affidavit in good-faith analysis.
This
Court’s
unwarranted.
review
of
that
question
here
is
accordingly
21
2.
Petitioner alternatively contends (Pet. 15-22) that “the
good faith exception is not intended to apply to police officers
whose
affidavits
include
evidence
illegally
obtained
by
the
officer swearing the affidavit and subsequently executing the
warrant,”
Pet. 15 (capitalization altered; emphasis omitted).
Petitioner’s case would not be a suitable vehicle for reviewing
that contention, because it was neither pressed nor passed upon
below.
In any event, petitioner’s argument lacks merit, and it is
not clear that it implicates any ongoing disagreement in the
circuits.
a.
Petitioner is mistaken in contending (Pet. 15-22) that
the good-faith exception is inapplicable in all cases in which a
search-warrant affidavit incorporated information that is later
determined to have been obtained unlawfully, if the affiant also
subsequently executed the search warrant.
Petitioner suggests that the good-faith exception should be
categorically
unavailable
in
“police officers’ misconduct.”
such
cases
because
they
involve
Pet. 16 (“This Court has limited
the exclusionary rule frequently when the mistakes or misconduct
are not directly related to police officers’ misconduct.”).
But
while this Court has declined to apply the exclusionary rule in a
number of cases involving errors by non-law-enforcement officers,
this Court has also more broadly explained that the exclusionary
22
rule does not apply “where [an] officer’s conduct is objectively
reasonable” because suppression “cannot be expected, and should
not be applied, to deter objectively reasonable law enforcement
activity.”
Leon,
468
U.S.
at
919.
Instead,
to
justify
suppression, “police conduct must be sufficiently deliberate that
exclusion cannot meaningfully deter it, and sufficiently culpable
that such deterrence is worth the price paid by the justice system
from the exclusion of probative evidence.”
Herring, 555 U.S. at
144.
a search should be
“[E]vidence obtained from
* * *
suppressed only if it can be said that the law enforcement officer
had knowledge, or may properly be charged with knowledge, that the
search was unconstitutional under the Fourth Amendment.”
Leon,
468 U.S. at 919 (citation omitted).
This Court’s recent decisions accordingly make clear that the
good-faith doctrine is not limited to circumstances involving
officers’ reliance on determinations by third parties.
Herring
applied the good-faith doctrine when an arrest was a result of an
error by “police employees” in “maintaining records in a warrant
database.” Davis, 564 U.S. at 239 (emphasis omitted). The Court
concluded
that
the
“‘[i]solated,’
‘nonrecurring’
police
negligence,” ibid. (citation omitted), before it was not the type
of “deliberate, reckless, or grossly negligent conduct, or in some
circumstances
recurring
or
systemic
negligence”
for
which
an
23
exclusionary sanction was appropriate, Herring, 555 U.S. at 144.
And Davis concluded that suppression is inappropriate “when the
police conduct a search in objectively reasonable reliance on
binding judicial precedent,” because such searches do not involve
the
type
sanction.
of
culpable
conduct
that
warrants
564 U.S. at 239; see id. at 249.
an
exclusionary
Those decisions
demonstrate that petitioner is incorrect that an exclusionary
sanction is required whenever a warrant was obtained based on an
affidavit
containing
information
that
resulted
from
conduct
subsequently determined to have been unlawful, and the affiant
executes the warrant, regardless of whether it was reasonable for
officers to believe that the warrant had not been tainted by
illegal conduct.
b.
Petitioner’s
case
does
disagreement in the circuits.
not
implicate
any
current
Several courts of appeals have
applied the good-faith doctrine in cases where officers conducted
searches pursuant to warrants that relied in part on information
obtained through unlawful searches or seizures.
See United States
v. Cannon, 703 F.3d 407, 413 (8th Cir.), cert. denied, 569 U.S.
987 (2013); United States v. McClain, 444 F.3d 556, 559, 564-566
(6th Cir.), cert. denied, 549 U.S. 1030 (2006); United States v.
Diehl, 276 F.3d 32, 41-45 (1st Cir.), cert. denied, 537 U.S. 834
(2002); United States v. Thomas, 757 F.2d 1359, 1368 (2d Cir.),
24
cert. denied, 474 U.S. 819 (1985), and 479 U.S. 818 (1986)).
In
finding the good-faith exception applicable, those courts have
generally relied on a determination that the initial unlawful
search or seizure had been “close enough to the line of validity”
for officers to have reasonably believed the search to be lawful.
McClain, 444 F.3d at 566 (citation omitted); see Cannon, 703 F.3d
at 413.
Before this Court’s decisions in Herring and Davis, several
courts suppressed evidence in decisions that treated the goodfaith doctrine as having no application where law enforcement
obtains a warrant based on information obtained during a predicate
unreasonable search or seizure.
See United States v. Mowatt, 513
F.3d 395, 405 (4th Cir. 2008), abrogated on other grounds by
Kentucky v. King, 563 U.S. 452 (2011); United States v. Herrera,
444 F.3d 1238, 1248-1255 (10th Cir. 2006); United States v.
McGough, 412 F.3d 1232, 1239-1240 (11th Cir. 2005); United States
v. Wanless, 882 F.2d 1459, 1466-1467 (9th Cir. 1989); United States
v. Vasey, 834 F.2d 782, 789-790 (9th Cir. 1987); State v. DeWitt,
910 P.2d 9, 12-15 (Ariz. 1996) (en banc); People v. Machupa, 872
P.2d 114, 119-125 (Cal. 1994); State v. Carter, 630 N.E.2d 355,
364 (Ohio 1994); State v. Johnson, 716 P.2d 1288, 1301 (Idaho
1986).
Those decisions generally reasoned that the good-faith
doctrine applied only where “a neutral third party,” rather than
25
a police officer, makes “the mistake resulting in the Fourth
Amendment violation.”
Herrera, 444 F.3d at 1251; see Mowatt, 513
F.3d at 405; McGough, 412 F.3d at 1239-1240; Vasey, 834 F.2d at
789; Machupa, 872 P.2d at 119, 122; Johnson, 716 P.2d at 1301.*
Following Herring and Davis, however, it is not clear that
any disagreement persists.
Herring rejected the principle --
generally central to the decisions rejecting good faith above -that good faith applies only to errors by neutral third parties,
rather
than
by
police
officers.
See
555
U.S.
at
147-148.
Similarly, Davis undercuts the reasoning of those decisions by
explaining
that
“when
the
police
act
with
an
objectively
‘reasonable good-faith belief’ that their conduct is lawful, or
when their conduct involves only simple, ‘isolated’ negligence,”
the drastic sanction of exclusion is inappropriate -- without
imposing any additional requirement that officers have relied on
Several additional cases cited in the petition (Pet. 17)
are inapposite. United States v. Cos, 498 F.3d 1115 (10th Cir.
2007), did not address whether good faith can apply to a warrantbased search when the warrant affidavit incorporated information
determined to have been unlawfully obtained. Instead, it rejected
an attempt to invoke Leon in the context of a warrantless search.
Id. at 1131-1133. United States v. Reilly, 76 F.3d 1271 (2d Cir.
1996), likewise did not categorically reject the application of
good faith when a warrant affidavit includes reference to illegally
obtained evidence. Instead, the court stated that the good-faith
exception applies only when officers “reasonably believe that the
warrant was based on a valid application of the law to the known
facts,” and determined that this condition was not satisfied on
the facts before it. Id. at 1280-1283.
*
26
the judgment of a neutral third party.
omitted).
564 U.S. at 238 (citations
Petitioner identifies no decision since Herring and
Davis to have suppressed evidence on the theory that the goodfaith doctrine is categorically inapplicable to the fruits of
warrants based in part on erroneous police searches.
It is thus
far from clear that any other court of appeals would have reached
a different result in this case.
c.
In any event, petitioner’s case would be an unsuitable
vehicle for review of this question because it was neither pressed
nor passed upon below.
In the court of appeals, petitioner stated
that the court should determine whether the good-faith exception
applied using a four-part test derived from Leon, under which
“‘evidence will be excluded based on an invalid warrant if:
(1) the affidavit contained information that the affiant knew was
false or was stated in reckless disregard for the truth, (2) the
magistrate
judge
abandoned
his
detached
and
neutral
role,
(3) police relied on a warrant ‘so lacking in indicia of probable
cause as to render official belief in its existence entirely
unreasonable’ or (4) the warrant is so ‘facially deficient’ that
an officer could not reasonably believe it is valid.”
Br. 46 (citation omitted); see id. at 46-48.
Pet. C.A.
Accordingly, the
court of appeals determined whether good faith applied under that
test.
Pet. App. 4A (setting out same test); id. at 4A-7A.
It did
27
not address the distinct argument that the good-faith exception is
categorically
unavailable
if
the
warrant
affidavit
included
evidence obtained by the affiant that is later determined to have
been obtained illegally, when the affiant also executes the search
warrant.
This Court’s usual practice is to “refrain from addressing
issues not raised in the [c]ourt of [a]ppeals.”
EEOC v. Federal
Labor Relations Auth., 476 U.S. 19, 24 (1986) (per curiam); see
United States v. Williams, 504 U.S. 36, 41 (1992) (“Our traditional
rule
* * *
question
precludes a grant of certiorari
presented
(citation
was
omitted).
not
pressed
Adherence
to
or
* * *
passed
the
upon
usual
when ‘the
below.’”)
practice
is
particularly appropriate here because -- since the question was
neither pressed nor passed upon below -- the lower courts did not
address antecedent issues such as whether the warrant established
probable cause even when the challenged evidence was excluded
(rendering the evidence obtained admissible irrespective of the
good-faith
exception),
and
whether
the
challenged
evidence
resulted from conduct that officers could reasonably have believed
to be permissible.
28
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
BRIAN A. BENCZKOWSKI
Assistant Attorney General
ANDREW W. LAING
Attorney
MARCH 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.