US v. Kevin Brown

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:10-cr-00275-JRS-1 Copies to all parties and the district court/agency. [998864919].. [11-4957]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4957

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN A. BROWN,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, Chief
District Judge. (3:10-cr-00275-JRS-1)

Submitted:

April 23, 2012

Decided:

May 31, 2012

Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Caroline S. Platt, Appellate
Attorney, Richmond, Virginia, for Appellant.
Neil H. MacBride,
United States Attorney, Richard D. Cooke, Assistant United
States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kevin A. Brown entered a conditional guilty plea, Fed.
R. Crim. P. 11(a)(2), to one count of possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1)
(2006).
court’s

Brown
order

preserved

denying

his

his

right

motion

to

to

appeal

suppress

the

district

evidence

found

during a search of a hotel room, as well as his subsequent
incriminating statement.

We affirm.

When considering the denial of a motion to suppress,
we review a district court’s legal conclusions de novo, and its
factual

findings

for

clear

error.

United

Ortiz, 660 F.3d 757, 762 (4th Cir. 2011).

States

v.

Guijon-

The evidence is

construed in the light most favorable to the Government, the
prevailing party below.

United States v. Perkins, 363 F.3d 317,

320 (4th Cir. 2004).

We exercise our discretion to affirm for

any

in

reason

appearing

the

record.

Because

we

find

the

evidence was admissible pursuant to the good-faith exception to
the exclusionary rule articulated in United States v. Leon, 468
U.S. 897 (1984) (“good-faith exception”), we need not address
Brown’s

challenge

to

the

search

warrant.

United

States

v.

Andrews, 577 F.3d 231, 235 (4th Cir. 2009).
Pursuant to the good-faith exception, when an officer
acts “with objective good faith within the scope of a search
warrant issued by a magistrate,” suppression of the evidence
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obtained in the search does not serve the exclusionary rule’s
deterrence objective, as the officer has attempted to comport
with the law.
Cir.

2004)

“evidence

United States v. Perez, 393 F.3d 457, 461 (4th

(internal

obtained

quotation

pursuant

marks

to

a

omitted).

search

Therefore,

warrant

issued

by

a

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

on

the

warrant

was

objectively

(internal quotation marks omitted).

reasonable.”

Id.

“Usually, a warrant issued

by a magistrate suffices to establish that a law enforcement
officer

has

acted

United

States

v.

in

good

Doyle,

faith

650

F.3d

in

conducting

460,

467

the

(4th

search.”

Cir.

2011)

(internal quotation marks and alteration omitted).
However, an officer’s reliance on a warrant is not
objectively reasonable if:

(1) the magistrate was misled by

information in an affidavit that the affiant knew or would have
known was false but for his reckless disregard of the truth; (2)
the

magistrate

abandoned

the

role

of

a

detached

and

neutral

decision maker; (3) the affidavit supporting the warrant is so
lacking in indicia of probable cause as to render the officer’s
belief in its existence totally unreasonable; or (4) the warrant
is so facially deficient, by 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.
70.
3

Id. at 467-

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On

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appeal,

Brown

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focuses

(Appellant’s Br. at 14-16).

on

the

third

scenario.

To support his contention, Brown

suggests that the facts of his case are similar to those we
considered in United States v. Wilhelm, 80 F.3d 116 (4th Cir.
1996), where we found unreasonable an officer’s reliance on a
warrant due to the “bare bones nature of the affidavit.”

Id. at

121

bones”

(internal

quotation

marks

omitted).

A

“bare

affidavit is “one that contains wholly conclusory statements,
which lack the facts and circumstances from which a magistrate
can independently determine probable cause.”

United States v.

DeQuasie, 373 F.3d 509, 521 (4th Cir. 2004) (internal quotation
marks omitted).
Because
supporting

we

may

affidavit

look

in

outside

the

determining

four

whether

corners
an

of

a

officer’s

reliance on the resulting warrant was objectively reasonable, we
find Brown’s reliance on Wilhelm unavailing.

United States v.

McKenzie-Gude,

2011).

consider

671

F.3d

information

452,

459

conveyed

(4th

to

Cir.

the

magistrate

We
but

may
not

contained in the affidavit as well as uncontroverted facts known
to

the

officer

magistrate.

but

inadvertently

not

presented

to

the

Id. at 460-61.

Here, the information in the affidavit supporting the
warrant,

considered

in

conjunction

with

the

information

the

affiant officer disclosed to the issuing magistrate but did not
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include in his affidavit, was more than sufficient to justify an
objectively

reasonable

probable cause.

officer’s

belief

in

the

existence

First, an informant’s tip indicated that Brown

was selling cocaine base from the hotel room in question.
tip

was

of

partially

corroborated

by

the

affiant

The

officer’s

independent investigation and was provided in person by a source
who

had

proven

supporting

a

reliable

reasonable

in

previous

belief

in

the

investigations,
tip’s

thus

veracity.

See

Perez, 393 F.3d at 462; United States v. Bynum, 293 F.3d 192,
197 (4th Cir. 2002); Wilhelm, 80 F.3d at 122; United States v.
Lalor, 996 F.2d 1578, 1581 (4th Cir. 1993).

Unlike in Wilhelm,

here there is no indication that the officer attempted to imbue
the informant’s tip with unmerited credibility.

Wilhelm, 80

F.3d at 123.
Moreover, the officer indicated that he had observed
Brown engaging in conduct consistent with the sale of narcotics
while

Brown

Although

the

was

frequenting

conduct

the

described

was

hotel

room

not

plainly

in

question.

criminal

in

nature, even objectively innocent activity may become suspicious
in light of an initial tip, and an officer is entitled to rely
on

his

activity

experience
when

regarding

judging

the

conduct

existence

consistent
of

probable

with

criminal

cause.

See

Illinois v. Gates, 462 U.S. 213, 232, 245 n.13 (1983); United
States v. Robinson, 275 F.3d 371, 381 (4th Cir. 2001).
5

When

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these investigative observations are considered in conjunction
with

the

provide

informant’s
much

more

tip,

it

is

corroborating

clear

that

the

information

facts

than

those

here
we

considered in Wilhelm, and we cannot say that reliance on the
warrant was objectively unreasonable.

Cf. Perez, 393 F.3d at

462-63.
Accordingly, we affirm the district court’s denial of
Brown’s

motion

to

suppress.

We

dispense

with

oral

argument

because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED

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