United States v. Knox
Opinion
Defendant Jemel Knox was indicted in 2014 on one count of possession of a firearm by a convicted felon under
The firearm had been seized during the execution of a search and arrest warrant issued by a Kansas state magistrate. The district court held that although there was insufficient evidence of probable cause to justify the warrant, the officers executing the warrant were entitled to rely in good faith on the magistrate's probable cause determination and the firearm was not subject to suppression. After his motion was denied, Knox entered a conditional guilty plea which preserved his right to appeal the district court's suppression decision. Exercising jurisdiction under
I. BACKGROUND
In mid-January 2014, after Jemel Knox failed to appear in Johnson County District Court on a state charge, the merits of which are unrelated to this appeal, Kansas officers discovered that Knox had cut off his GPS monitor and fled from the apartment at which he had been staying. Based *1267 on these events, a Kansas court issued a warrant for Knox's arrest, and Detective Kevin Finley from the Johnson County Sheriff's office was assigned to locate Knox and take him into custody.
A. The Investigation
Detective Finley's investigation took two primary tacks. First, Finley obtained an order to track a phone number he believed to be Knox's. On February 1, 2014, the phone was turned on, and several phone calls were placed to Lindsey Kurtz-with whom Knox had previously been living-and a young woman named Alecia Young. Two days later, on February 3, 2014, technicians tracked Mr. Knox's phone to the general vicinity of an apartment complex located at 431 Freeman Ave., Wyandotte County, Kansas City, Kansas.
On February 6, 2014, police received a "ping" from Mr. Knox's cell-phone that placed him at 431 Freeman. As Detective Finley told the magistrate in seeking a warrant to search 431 Freeman based in part on this information, a "ping" is "a notification from T-Mobile that the phone is active and turned on and provides a distance between the nearest cell phone tower and the phone." (R. Vol. I at 36) ("Finley Aff.") ¶ 10. In this case the "ping" was accurate within a range of six meters. Officers then confirmed that Ms. Young resided at 431 Freeman, and observed a white Cadillac in the parking lot registered to Ms. Kurtz.
The second aspect of Detective Finley's investigation involved speaking with a former girlfriend of Knox's, Cynthia McBee. Ms. McBee indicated that Knox had "become violent with her lately," that he had threatened her and her neighbor on one occasion, and her father on another, and that he "always" carries a firearm. (Finley Aff. ¶ 4). As a previously convicted felon, Knox is prohibited from possessing firearms.
On the basis of this investigation, Detective Finley swore an affidavit in Johnson County District Court, and a judicial warrant was issued on February 6, 2014 authorizing the search of 431 Freeman "to obtain the person of Jemel T. Knox," and the seizure of "The body of Jemel T. Knox" and "Firearms." (R. Vol. I at 37.)
B. The Search
That same afternoon Detective Finley and other Kansas officers executed the warrant. The officers found Knox hiding underneath the bed in the master bedroom and took him into custody. After his arrest, the officers searched the residence and seized a rifle from a suitcase located on the floor next to the bed under which Knox had been hiding. On this basis the United States indicted Knox on one count of being a felon in possession of a firearm in violation of § 922(g)(1). 1
C. The Motion to Suppress
At the district court, Knox moved to suppress the rifle, arguing that Detective Finley's affidavit did not provide probable cause that a firearm would be located at 431 Freeman. 2 The district court *1268 agreed that the affidavit did not establish probable cause. The court based its decision on three things: (1) there was no information in the affidavit to establish Ms. McBee's reliability, (2) there was no information in the affidavit to establish the timeliness of Ms. McBee's assertions, particularly that the defendant "always" carried a gun, and (3) there was no information in the affidavit to establish a nexus between the firearm and 431 Freeman.
The district court nonetheless declined to suppress the firearm, deciding instead to apply the good-faith exception to the warrant requirement. In doing so, the court considered not only the information in Detective Finley's affidavit, but also information gleaned from Detective Finley at the suppression hearing that was not included in the affidavit, specifically: (1) that the affidavit had been prepared by an assistant district attorney, (2) the threat to Ms. McBee's father occurred less than two months prior to the warrant application, and (3) that a police report corroborated Ms. McBee's story about the threat to her and her neighbor.
Considering these facts alongside the information in the affidavit, the district court could not say it was "entirely unreasonable for Detective Finley to rely on the magistrate's authorization to search the apartment for firearms." (R. Vol. I at 83.) Therefore, it applied the Leon 3 good-faith exception to the warrant requirement. Following this ruling, Knox entered a conditional guilty plea to one count of being a felon in possession, judgment was entered, and Knox perfected our appellate jurisdiction by timely appealing.
II. DISCUSSION
The basic question presented in this appeal is whether the Leon good-faith exception to the warrant requirement should apply to the firearm found at 431 Freeman. Before reaching this question, however, we first address the standard of review on appeal, and whether it was appropriate for the district court to consider information outside the affidavit in assessing the executing officer's good-faith.
A. The standard of review is de novo.
Under ordinary circumstances we review a district court's application of the good-faith exception to the warrant requirement de novo.
See
United States v. Augustine
,
Here, there is no question that Knox objected to the weapon being introduced into evidence against him. Furthermore, Knox's suppression motion adequately considered, addressed, and briefed whether the good-faith exception would apply were the district court to find-as it did-that the warrant lacked probable cause. The government argues, nonetheless, that Knox's Leon argument on appeal is subject to plain-error review.
The government's position is predicated on the form of Knox's argument against the application of the good-faith exception, namely that he did not elaborate sufficiently on his argument that the district court was wrong to consider information beyond the scope of the affidavit. However, the government's characterization of Knox's arguments below as deficient is incorrect, so we need not address whether an insufficient elaboration would trigger a plain error standard of review.
In his Reply to the Government's Response to Defendant's Motion to Suppress,
*1269
Knox says: "the reviewing Court must examine 'the text of the warrant and the affidavit to ascertain whether the agents might have 'reasonably presume[d] it to be valid.' Any additional information that Detective Finley possessed, as well as information provided by the Government, is irrelevant to [the suppression] Court's determination." (R. Vol. I at 59-60) (quoting
United States v. Corral-Corral
,
Furthermore, at the suppression hearing, defense counsel objected multiple times to Detective Finley's testimony regarding information that would tend to support probable cause but was not included in the affidavit nor presented orally to the issuing magistrate. Counsel's basis for doing so was that it was "not relevant as to the proceeding, what additional information was provided to the [issuing] judge outside the four corners of the [affidavit.]" (R. Vol. I at 107-10). During her colloquy with the suppression judge following testimony, defense counsel further argued that "[i]f the [suppression] Court finds that the affidavit was devoid of any facts that would establish the probability of evidence that the criminal activity would be located in that desired search area, then the Leon good-faith exception does not apply ... [notwithstanding] additional information given to the [suppression] Court to now establish this nexus." ( Id. 126-27) (emphasis added). It is possible to cite several more instances where defense counsel either in writing or orally described the standard as whether the affidavit was so lacking in indicia of probable cause as to render the officer's belief in the existence of probable cause unreasonable. See, e.g. , R. Vol. I at 73 (emphasis added).
Accordingly we decline the government's invitation to review the district court's decision for plain error. We will consider the district court's application of the good-faith exception de novo.
Augustine
,
B. The district court erred in considering information not disclosed under oath to the issuing magistrate.
In determining that Detective Finley acted in good-faith reliance on the approved warrant, the suppression court apparently relied in part on information allegedly known to the detective at the time he sought the warrant, but not included in his affidavit in support of the warrant application or otherwise provided under oath to the issuing magistrate. (R. Vol. I at 82) ("Detective Finley also testified that the attorney did not detail in the affidavit every piece of information the detective obtained during his investigation.").
Specifically, there are three facts the suppression court may have considered in its good-faith analysis that were not provided under oath to the issuing magistrate:
1. The affidavit was prepared in consultation with an Assistant District Attorney, who chose what information to include in the affidavit and what information not to include in the affidavit. 5
*1270 2. The detective knew that the threats to Ms. McBee, her neighbor, her father, and her father's co-workers all occurred in December of 2013, and all likely included weapons.
3. A police report obtained by Detective Finley corroborated Ms. McBee's assertion that the defendant had threatened her and her neighbor twenty-five days before the search.
In general, even if a warrant is not supported by probable cause, evidence seized in good-faith reliance on that warrant is not subject to suppression.
United States v. Leon
,
At issue here is whether, in assessing this exception, the suppression court may consider information known to the officer when he executed the deficient warrant but not disclosed in the affidavit or otherwise sworn to the issuing magistrate. The Tenth Circuit has not unequivocally resolved this question.
Our most extensive discussion of this issue can be found in
United States v. Danhauer
,
However, in dicta, we noted that "the absence of information establishing the informant's reliability or basis of knowledge does not necessarily preclude an officer from manifesting a reasonable belief that the warrant was properly issued, particularly when the officer takes steps to investigate the informant's allegations."
Since
Danhauer
, a series of unpublished opinions have further failed to provide clarity. Our clearest language can be found in
United States v. Martinez-Martinez
,
From this review, it is clear our own precedent provides no clear resolution for our present inquiry. Beyond our own geographic boundaries, this is a question that has split our sister circuits. In the Seventh and Ninth Circuits, judges may not consider information unless it is presented to the warrant-issuing magistrate.
See,
e.g.
,
United States v. Koerth
,
In the Fourth, Eighth, and Eleventh Circuits, however, district courts are allowed to consider uncontroverted facts known to the officers who executed the warrant but inadvertently not disclosed to the issuing judge.
See, e.g.
,
United States v. McKenzie-Gude
,
After reviewing these authorities and our own discussions on the issue, we return nonetheless to the plain text of
Leon
itself. In outlining an exception to the general rule of
Leon
which allowed an officer's good faith reliance on a defective affidavit, the Court specified that reliance is
not
allowed when a reviewing court determines the officer did not "manifest
objective
good-faith" because the "
affidavit
[was] 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.' "
Leon
,
Accordingly, based on the plain text of
Leon
, we hold that a suppression court's assessment of an officer's good 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.
9
Not only is this rule faithful to the text of
Leon
, it will enhance administrability and encourage law enforcement officers to provide issuing courts with the type of comprehensive affidavits upon which proper probable cause determinations should rest.
See
Illinois v. Gates
,
*1273 statements about the officer's beliefs are insufficient). We therefore confine our good-faith inquiry in this case to whether the affidavit itself is sufficiently detailed to merit application of the good-faith exception to the warrant requirement.
C. Here, the affidavit had enough indicia of reliability to support Detective Finley's good-faith reliance on the magistrate's warrant.
While the Fourth Amendment offers people the right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," the amendment is silent as to what repercussions should follow a violation of that right. U.S. Const. amend. IV. In response, courts have created the exclusionary rule, under which "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. Calandra
,
The exclusionary rule, however, is not itself a constitutional guarantee. The constitutional violation occurs when an unreasonable search occurs, not when evidence seized in the course of that search is later introduced in a subsequent criminal proceeding.
Penn. Bd. of Probation & Parole v. Scott
,
Therefore, whether to apply the exclusionary rule in a given case turns on whether such application will be an effective deterrent against future Fourth Amendment violations.
Herring v. United States
,
Conducting this balancing in
Leon
, the Supreme Court concluded that when a law enforcement officer relies in objective good faith on a warrant issued by a detached and neutral magistrate, and that warrant is later invalidated as not being supported by probable cause, evidence obtained as a result of that reliance should not be subject to suppression.
Leon
,
One exception to the general rule of
Leon
holds that evidence will be suppressed notwithstanding the warrant "when the affidavit in support of the warrant
*1274
is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable."
United States v. Edwards
,
Given the "substantial social costs" of exclusion,
Herring
,
Knox urges us to suppress the rifle because no reasonable officer could have believed that the affidavit which the magistrate found to establish probable cause to search 431 Freeman for weapons actually established probable cause that weapons would be located at this address. (Aplt. Br. at 32-45.) Paragraph four of the affidavit, the only paragraph that discusses the likelihood weapons will be found at 431 Freeman, relies on the statements of Cynthia McBee, a former girlfriend of Knox's.
4. On 01/22/2014, affiant contacted a previous girlfriend of Knox's, Cynthia McBee. She advised she and Knox broke up and no longer lived together. She advised that Knox had become violent with her lately and she had a Protection Order issued against him. She did advise he always carried a gun and had threatened her and her neighbor in December. He had also gone to her father's job in Kansas City, Missouri and threatened *1275 him and his employees with a gun. She said he always carries a pistol in his pants and has numerous weapons to include an AR15 assault type rifle and a Desert Eagle pistol. Cynthia did advise that Knox had numerous girlfriends and most were only known by their street names. She did provide two friends names of Michael Dupree Jr, and Alecia Young. Cynthia was able to identify both parties by Knox's Facebook posts that the officer provided.
(Finley Aff. ¶ 4.)
"An affidavit establishes probable cause for a search warrant if the totality of the information it contains establishes the 'fair probability that contraband or evidence of a crime will be found in a particular place.' "
United States v. Soderstrand
,
In this circuit, we have identified three non-exclusive considerations that help guide a probable cause inquiry, particularly one in which the affiant relies on an informant or other witness's information:
12
1) the reliability of the informer, 2) the timeliness of the informer's allegations, and 3) the nexus between the item to be seized and the place to be searched.
See
United States v. Pulliam
,
1. Reliability of the Informer
We have said that where, as here, the information contained in a warrant application comes largely from an informer, "we pay close attention to the veracity, reliability, and basis of knowledge of the informant about the target of the proposed search."
Pulliam
,
Here, the informer, Ms. McBee, spoke from personal knowledge about the defendant's gun habits. As a former girlfriend she expressed knowledge of Knox's routines and whether he frequently carried firearms on his person. She spoke with specificity about the particular types of weapons Knox was known to carry. Furthermore, while corroboration of non-predictive information cannot itself establish sufficient reliability for probable cause,
see, e.g.
,
United States v. Tuter
,
Knox encourages us to hold that Ms. McBee's statements were particularly
un
-reliable because she was the defendant's ex-girlfriend, and therefore "a reasonably well trained [sic] officer would have viewed her statements with skepticism." (Aplt. Br. at 35-36). We decline to do so. The only Tenth Circuit case cited by Knox for this proposition does not cast doubt upon an ex-girlfriend's allegations because of her status as an ex-girlfriend, but rather because of the general unreliability of her particular statements.
United States v. Fennell
,
First, in
Fennell,
authorities were unable to corroborate any aspect of the ex-girlfriend's unsworn testimony. Here, Detective Finley was able to corroborate Ms. McBee's allegation of a relationship between Knox and Young. Second, the officer in
Fennell
spoke with the ex-girlfriend over the phone, and thus "did not have an opportunity to observe her demeanor during the interview and therefore could not form any opinion as to her veracity."
Therefore, based on Ms. McBee's personal knowledge of Knox's habits, acquired through the close proximity of a personal relationship, the information she provided bore some indicia of reliability.
2. Timeliness
Regardless of the source of the information, probable cause "cannot be based on stale information that no longer suggests that the items sought will be found in the place to be searched."
Snow
,
Even if the district court was correct in holding that there was insufficient evidence of timeliness in this affidavit to establish probable cause (a matter on which we do not express an opinion), that decision was not so obvious as to preclude good-faith reliance on the magistrate's decision. Ms. McBee indicated that Knox had become violent with her "lately," establishing timeliness regarding her testimony. (Finley Aff. ¶ 4). She similarly indicated that Knox "always" carried a gun and-listed in the same sentence of the affidavit-"had threatened her and her neighbor in December," less than a month before she spoke with Detective Finley.
Armed with the testimony that Knox "always" carried a gun and owned "numerous weapons," Detective Finley also established in the affidavit that a phone tied to Knox was tracked to 431 Freeman on February 3, 2014, and then again on February 6, 2014. (Finley Aff. ¶¶ 9,10). That he was there twice in four days suggested that Knox was not only visiting 431 Freeman, but establishing a longer-term presence at the residence. Given that the affidavit was sworn on February 6, and the warrant issued later the same day, this location information was timely.
3. Nexus
Finally, it is the conjunction of Ms. McBee's timely statement that Knox always carried a gun and the officers' timely information concerning Knox's location that provided the critical nexus between the illegal firearm sought in the search and 431 Freeman. In order for an affidavit to establish probable cause there must be "a 'nexus between the contraband to be seized ... and the place to be searched.' "
Gonzales
,
In this case, Ms. McBee's timely statement that Knox "always" carried a gun, combined with the evidence that Knox was located at 431 Freeman, provides facially sufficient evidence that Knox's illegally possessed firearm would be at 431 Freeman when he was there. Furthermore, the affidavit established that as of the afternoon the affidavit was presented to the issuing magistrate, the cell phone was still "pinging" in the location of 431 Freeman, indicating that Knox likely remained inside the residence. (Finley Aff. ¶ 11.) In light of Ms. McBee's reliability, the timeliness of the information in the affidavit, and the nexus the affidavit created between Knox's firearms and 431 Freeman, we cannot say the affidavit was "so lacking in indicia of probable cause as to render official belief
*1278
in its existence entirely unreasonable."
Leon
,
Therefore, regardless whether the district court was correct in concluding that the affidavit was insufficient to establish probable cause, the good-faith exception to the warrant requirement precludes suppression of the fruit of the subsequent search. Accordingly the district court's decision denying Knox's suppression motion is AFFIRMED.
Knox was also charged with receiving and possessing an unregistered firearm in violation of
The weapon was ultimately discovered near where Knox had been hiding from officers. However, it was not argued that the rifle was validly seized pursuant to the search-incident-to-arrest exception to the warrant requirement. That exception only applies when the search and the arrest are substantially contemporaneous.
See, e.g.
,
Lavicky v. Burnett
,
United States v. Leon
,
Both parties agree, regardless of any confusion created by language we have included in previous cases,
see, e.g.
,
United States v. Danhauer
,
We agree with both parties that this information, relating to the so-called "warrant application process" may be considered by a suppression court in assessing an officer's good-faith reliance on a warrant.
Cf.
Messerschmidt v. Millender
,
The
Perry
court's decision to apply the
Leon
exception did not have to rest on the existence of factual information known to the officer but not included in the affidavit.
The Sixth Circuit arguably also lies on this side of the split. In 2005 that court held that "a determination of good-faith reliance ... must be bound by the four corners of the affidavit."
United States v. Laughton
,
For a survey of the split as of 2005, see John E. Taylor,
Using Suppression Hearing Testimony to Prove Good Faith Under
United States v. Leon
,
In assessing good faith a suppression court must ask whether "the magistrate so obviously erred that any reasonable officer would have recognized the error."
Messerschmidt v. Millender
,
There are four exceptions to the general rule of Leon :
(1) when the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known was false if not for his reckless disregard of the truth; (2) when the issuing magistrate wholly abandon[s her] judicial role; (3) when the affidavit in support of the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) when a warrant is so facially deficient that the executing officer could not reasonably believe it was valid.
United States v. Edwards
,
Defendant urges us not to employ this standard, arguing that "it allows district courts to identify
any
fact within the affidavit to support the application of the good-faith exception, even a fact that this Court has rejected as sufficient to establish probable cause." Aplt. Br. at 30 n.6. We disagree with this characterization of our precedent. Law enforcement officers are responsible for having a "reasonable knowledge of what the law prohibits,"
Leon
,
There is a difference between traditional informants, who are often themselves criminals, and "citizen-informers," who are generally witnesses or victims rather than associates.
See, e.g.
,
United States v. Neff
,
The affidavit indicates that "Cynthia was able to identify both parties from Knox's Facebook posts that the officer provided." This at least implies that Detective Finley met in person with Ms. McBee. (Finley Aff. ¶ 4).
This should not imply that ex-girlfriends will always make particularly reliable informers. Rather, issuing judges are responsible for making a comprehensive assessment of an informer's credibility, taking into account basis of knowledge, motivation to lie, and all other "circumstances set forth in the affidavit."
See
Gates
,
While we do not hold that it is such a close question so as to necessitate reliance on this fact, that Detective Finley relied on an Assistant District Attorney to draft the affidavit and warrant application, would weigh in favor of applying the good-faith exception.
Cf.
Messerschmidt
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Jemel T. KNOX, Defendant-Appellant.
- Cited By
- 20 cases
- Status
- Published