UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4076

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DELTON EUGENE WARREN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Louise W. Flanagan, District Judge. (7:17-cr-00121-FL-1)

Argued: October 29, 2021 Decided: January 7, 2022

Before WILKINSON and AGEE, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: Mark A. Jones, BELL, DAVIS & PITT, PA, Winston-Salem, North Carolina, for Appellant. Chad Eric Rhoades, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Robert J. Higdon, Jr. United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, for Appellee

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Delton Eugene Warren appeals a final judgment of conviction from the Eastern

District of North Carolina on multiple grounds. Warren first asserts that the district court

erred in denying his motion to suppress because police officers used an unsigned warrant

as the basis for their search of his home, automobile, and person. Additionally, Warren

contends that his conviction has multiple errors under Rehaif v. United States,

(2019), requiring his conviction be vacated. Finally, Warren asks this Court to order

a new trial because the district court purportedly erred by failing to give a statutorily

required jury instruction regarding the voluntariness of his confession pursuant to

. We affirm the district court’s denial of the motion to suppress and the

conviction.

I.

A.

On February 22, 2017, Fayetteville Police Department (FPD) officers received

information from a confidential source that Warren was selling crack cocaine. Utilizing a

confidential informant, the FPD conducted four controlled purchases of cocaine base in

February and March 2017 from Warren. FPD officers confirmed the address of Warren’s

residence. They conducted a trash pull from the garbage at the residence and found several

plastic sandwich bags that were torn or had cut corners, marijuana, and mail addressed to

Warren. As a result of the controlled purchases and the trash pull, FPD detectives applied

for a search warrant for Warren’s residence.

2 The warrant at issue in the instant case is North Carolina’s standardized state court

warrant, labeled AOC-CR-119. It is a two-sided document with the first side being the

actual warrant and the second side being the “warrant application” form. See J.A. 43–44.

A “NOTE” on the warrant clarifies the difference between the “warrant” and the “warrant

application.” J.A. 43 (“The issuing official must retain a copy of the warrant and warrant

application and must promptly file them with the clerk.”) (citing N.C. Gen. Stat. Ann.

§ 15A-245(b)).

In this case, Detective Bryan Thompkins applied for a search warrant before North

Carolina Superior Court Judge Claire Hill. During that application, Judge Hill signed the

warrant application side of the AOC-CR-119 form, as well as all eight pages of Detective

Thompkins’s probable cause affidavit, attached to the form. While she reviewed the packet

of documents Detective Thompkins submitted as part of the warrant application, Judge Hill

observed that he failed to complete the “Style” or the “in the matter of” section of the

warrant. She amended those sections, edited the address of Warren’s residence on the

warrant side of the AOC-CR-119, wrote the time the warrant was issued as 2:40pm, and

initialed her edits. However, Judge Hill did not sign the warrant side of the AOC-CR-119

form.

On April 27, 2017, FPD officers executed the search warrant, finding a 9mm pistol,

156.51 grams of cocaine base, 95.94 grams of cocaine, and $15,273 in Warren’s bedroom.

Officers arrested Warren and interviewed him after he waived his rights. During the

interview, Warren admitted to possessing the drugs and the firearm.

3 On September 21, 2017, a grand jury returned a seven-count indictment, charging

Warren in Counts 1–4 with distributing cocaine base, in violation of

(a)(1),

(b)(1)(C); in Count 5 with possessing with intent to distribute more than 28 grams of

cocaine base, in violation of

(a)(1), (b)(1)(B); in Count 6 with possessing

a firearm in furtherance of a drug trafficking crime, in violation of

(c); and

in Count 7 with being a felon in possession of a firearm, in violation of

(g)(1).

Warren filed a motion to suppress evidence seized from his person, home, and

vehicle, contending the search was warrantless because the state court judge did not sign

the warrant and that the judge did not otherwise affirmatively “issue” the warrant.

B.

On April 17, 2018, a federal magistrate judge held a suppression hearing. Warren

argued that North Carolina law requires “that a state court judge sign a warrant” for it to

be valid, citing N.C. Gen. Stat. Ann. § 15A-246(a). The government proffered a statement

from Judge Hill, who said that she signed the application for the search warrant and

authorized and issued the search warrant. Further, Judge Hill said that her failure to sign

the first page, the actual warrant, was “an administrative oversight on [her] part.” J.A. 181.

The government acknowledged that Judge Hill did not sign the warrant but responded that

(1) a judge’s signature is not constitutionally required; (2) the affidavit attached to the

search warrant was sufficient to support a finding of probable cause; and (3) the deficiency

in this case would be subject to the good-faith exception.

4 The magistrate judge ordered supplemental briefing and recommended that the

motion to suppress be denied. The judge agreed with Warren that North Carolina law

required a signature but concluded that “a violation of state law is not the same as a

violation of the Fourth Amendment.” J.A. 191. He noted that the text of the Fourth

Amendment does not require a signature and recognized the issue of whether a signature

is constitutionally required is an issue of first impression within this Circuit. The

magistrate judge found that the state court judge possessed sufficient probable cause to

issue the warrant and that she intended to issue the warrant.

Warren timely objected to the magistrate judge’s report and recommendation.

Warren argued that the judge’s failure to sign the warrant, coupled with the judge’s failure

to affirmatively indicate the warrant had been issued, did not reasonably lead to the

conclusion that a search warrant had been issued. The district court adopted the magistrate

judge’s recommendation and denied Warren’s motion to suppress. It acknowledged the

Fourth Circuit had not addressed the issue, but it followed the First and Tenth Circuits’

decisions upholding the validity of unsigned warrants. See United States v. Lyons,

, 724–25 (1st Cir. 2014); United States v. Cruz,

(10th Cir.

2014).

Warren then pleaded guilty to Counts 1–5, the controlled substance counts. The

§§ 922(g) and 924(c) counts went to trial. On May 8, 2019, a jury convicted Warren of

both offenses. The district court sentenced Warren to 78 months’ imprisonment for Counts

1–5 and 7, followed by 60 months for Count 6, served consecutively, for a total of 138

months. Warren timely appealed the denial of his motion to suppress, as well as his

5 convictions on the bases of alleged errors under Rehaif and alleged errors with the jury

instructions.

II.

We review a district court’s factual findings on a motion to suppress for clear error

and its legal conclusions de novo. United States v. Black,

(4th Cir.

2013). In reviewing the denial of a motion to suppress, “we construe the evidence in the

light most favorable to the government.” United States v. Farrior,

(4th

Cir. 2008) (quoting United States v. Perkins,

(4th Cir. 2004)).

Because Warren failed to object to the sufficiency of the indictment and the jury

instructions on the ground that neither stated he must know he was a felon, as well as the

jury instructions regarding the use of confessions, we review these issues for plain error.

United States v. Olano,

(1993). On plain-error review, we may correct

an alleged error when: (1) there was error; (2) the error is plain; (3) the error affects

substantial rights; and (4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.

.

III.

The Fourth Amendment provides that “no warrants shall issue, but upon probable

cause, supported by oath or affirmation, and particularly describing the place to be

searched, and the person or things to be seized.” U.S. Const. amend. IV (emphasis added).

6 Warren asserts the district court erred in holding that Judge Hill had “issued” a valid

warrant. He argues that there is insufficient contemporaneous evidence of Judge Hill’s

issuance of a warrant, and, thus, the act of returning an unsigned warrant form to the

requesting law enforcement officer is constitutionally inadequate evidence of the warrant’s

issuance. Whether the lack of a signature on a warrant renders it constitutionally defective

is an issue of first impression for this Court. * We decline to resolve that issue today and

instead affirm under the good-faith exception to the warrant requirement as articulated in

United States v. Leon,

(1984).

The Supreme Court in Leon established a good-faith exception to the exclusionary

rule, stating that “the marginal or nonexistent benefits produced by suppressing evidence

obtained in objectively reasonable reliance on a subsequently invalidated search warrant

cannot justify the substantial costs of exclusion.”

. Courts should ask “whether

a reasonably well-trained officer would have known that the search was illegal despite the

magistrate’s authorization.”

at 922 n.23. The Fourth Amendment’s “exclusionary rule

is designed to deter police misconduct rather than to punish the errors of judges and

magistrates.” Leon,

(emphasis added).

Here, Judge Hill signed the back page of the warrant form (the application) and eight

pages of the officer’s affidavit, as well as editing and initialing part of the warrant. The

officer watched the judge review the probable cause affidavit, sign pages, and edit the

The First and Tenth Circuits have upheld the validity of unsigned warrants. See *

Lyons, 740 F.3d at 724–25; Cruz,

.

7 warrant. This is therefore not a case in which “the warrant was so facially deficient, by

failing to particularize the place to be searched or the things to be seized, that the executing

officers cannot presume it to be valid.” United States v. Hyppolite,

(4th Cir. 1995) (citing Leon,

). Here, the facts do not point to police

misconduct—the police had clear probable cause, presented the facts to the judge, and

reasonably relied on a mostly signed warrant packet. In such circumstances, it was

reasonable for the officer to believe the warrant and the subsequent search were valid. See,

e.g., United States v. Kelley,

, 601–03 (5th Cir. 1998).

Today’s holding only applies to the instant facts—we decline to answer the broader

question of whether an unsigned warrant is always constitutional or unconstitutional.

IV.

Warren next argues that the district court proceedings violated his constitutional

rights regarding his § 922(g) conviction because the indictment failed to allege that Warren

knew his “relevant status” under Rehaif, violating the Fifth Amendment’s requirement that

the indictment charge every element of the crime. Thus, Warren believes his § 922(g)

conviction should be vacated. We disagree.

In Rehaif, the Supreme Court held “the Government must prove both that the

defendant knew he possessed a firearm and that he knew he belonged to the relevant

category of persons barred from possessing a firearm” to sustain a § 922(g) conviction.

.

8 In United States v. Greer,

(2021), the Supreme Court addressed a

situation similar to Warren’s in which two defendants were convicted under § 922(g) prior

to Rehaif. Greer’s conviction resulted from a trial during which Greer did not request, and

the district court did not give, a jury instruction requiring a finding that Greer knew he was

a felon when he possessed the firearm. Id. at 2096. The other defendant was not advised

of the mens rea requirement during his plea colloquy. Id. at 2096. The Court found that it

was undisputed that Rehaif errors occurred in both these cases yet upheld their convictions.

Id. at 2097, 2100. The Court held that in felon-in-possession cases, a Rehaif error is not a

basis for plain-error relief unless the defendant first makes a sufficient argument or

representation on appeal that he would have presented evidence at trial that he did not in

fact know he was a felon. Id. at 2100.

Here, Rehaif errors occurred, and the errors were plain. However, “[i]n a felon-in-

possession case where the defendant was in fact a felon when he possessed firearms, the

defendant faces an uphill climb to satisfy the substantial-rights prong of the plain-error test

based on an argument that he did not know he was a felon.” Id. at 2097. This is because

a person with a felony record “ordinarily knows he is a felon.” Id. at 2097. At trial,

Warren’s counsel essentially told the jury Warren knew he was a felon, stating in the

opening argument that the government “charged him with possession of a firearm by a

felon, which he confessed to [ ] in his interview. He had a prior conviction. He knew he

wasn’t supposed to. But he still had it.” J.A. 261. And on appeal, Warren has not made a

sufficient showing that he would have presented evidence in the district court that he did

not in fact know he was a felon when he possessed the firearm. Thus, under Greer, Warren

9 has not carried the burden of showing that the Rehaif errors affected his substantial rights

and therefore, under plain-error review, his convictions are affirmed.

V.

Finally, Warren argues that the court erred because the government used evidence

of Warren’s confession in the trial and the court did not give proper jury instructions

regarding the use of the confession. Pursuant to

, if a district court admits

evidence of a confession, the district court “shall instruct the jury to give such weight to

the confession as the jury feels it deserves under the circumstances.” We have held that

“whether requested or not, the trial court should instruct the jury specifically upon the law

governing the use of a confession and a failure to do so is clear error.” United States v.

Sauls,

(4th Cir. 1975) (internal quotation marks and citation omitted).

Thus, Warren asserts his convictions should be reversed.

While we have said that the district court should instruct the jury on the use of a

confession, we have also said “reversal will not follow if the failure may be deemed non-

prejudicial and harmless.”

. Additionally, we upheld a conviction under similar

facts in United States v. Hardy,

(4th Cir. 2021). Like Warren, Hardy

challenged, for the first time on appeal, the district court’s failure to specifically instruct

the jury that it should “give such weight to the confession as the jury feels it deserves under

all the circumstances” as required by § 3501. Id. at 252 (quoting

(a)).

We upheld Hardy’s conviction as we found that Hardy did not suffer prejudice.

.

10 A plain error normally affects a defendant’s substantial rights if the error was

prejudicial, meaning it “affected the outcome of the district court proceedings.” Olano,

. Determining whether an error was prejudicial requires “a specific analysis

of the district court record—a so-called ‘harmless error’ inquiry.”

In this inquiry, the

burden of persuasion is placed on the defendant to “‘show a reasonable probability that,

but for the error’ the outcome of the proceeding would have been different,” Molina-

Martinez v. United States,

(2016) (quoting United States v.

Dominguez Benitez,

(2004)).

Here, the error in instruction was not prejudicial. Like in Hardy, Warren did not

meaningfully challenge at trial his confession’s voluntariness or veracity, so “there would

be little reason for the jury to disbelieve [Warren’s] confession.”

.

Additionally, like in Sauls, because the question of voluntariness was never raised by the

defendant, “[t]he failure of the trial court under these circumstances to instruct the jury

specifically on ‘an issue upon which there was no evidence before them’ could not be

regarded as prejudicial.”

(quoting United States v. Goss,

,

437–38 (6th Cir. 1973)). Warren himself did not raise the issue of voluntariness or present

any evidence that his confession was not voluntary. Yet, Warren contends that the issue

was put before the jury because the detective testified that he strategically interrogated

Warren. That is not enough to satisfy Warren’s burden that the instruction error was

prejudicial. See

(where there was “no attempt to dispute any of the testimony offered,”

the failure of the trial court to give a § 3501(a) instruction “could not be regarded as

prejudicial”). Thus, under plain error, we affirm Warren’s conviction.

11 VI.

For the above reasons, the district court’s denial of Warren’s motion to suppress and

Warren’s convictions are

AFFIRMED.

12