US v. Kenneth Rush

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 2:14-cr-00059-1. [999722110]. [14-4695]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4695

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH RUSH,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
John T. Copenhaver,
Jr., District Judge. (2:14-cr-00059-1)

Argued:

September 17, 2015

Decided:

December 21, 2015

Before WYNN, FLOYD, and THACKER, Circuit Judges.

Reversed and remanded by published opinion. Judge Wynn wrote the
opinion, in which Judge Floyd and Judge Thacker joined.

ARGUED: Rhett Hunter Johnson, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant.
John J.
Frail, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee. ON BRIEF: Christian M. Capece, Federal
Public Defender, Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. R. Booth
Goodwin II, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, West Virginia, for Appellee.

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WYNN, Circuit Judge:
A

law

enforcement

officer

knowingly

lied

to

Defendant

Kenneth Rush by claiming that he had a warrant to search the
apartment where Defendant was staying when no warrant in fact
existed.

The

district

court

held

that

the

officer’s

false

statement stripped Defendant of his Fourth Amendment right to
object to the search, but declined to suppress evidence obtained
from the search.

On appeal, Defendant argues that the evidence

should have been suppressed.

We agree and therefore reverse the

district court and remand.
I.
On the morning of May 23, 2012, Marquita Wills called the
Charleston, West Virginia, Metropolitan Drug Enforcement Network
Team (MDENT)
apartment.

to

request

that

they

remove

Defendant

from

her

Ms. Wills suspected that Defendant, who had been

staying with her for the previous two nights, was dealing drugs
from her apartment.

Lieutenant A.C. Napier and Sergeant William

Winkler of the Charleston Police Department immediately arranged
to meet Ms. Wills at a local business.
them

the

key

to

her

apartment

and

authorizing the police to search it.

There, Ms. Wills gave
signed

a

consent

form

Ms. Wills told them that

she was afraid of Defendant because his family had a history of
violence, but she did not indicate that he had committed any
crimes against her or threatened her.
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Sergeant Winkler and Lieutenant Napier went directly to Ms.
Wills’s

apartment,

Higginbotham,

where

Detective

Officer John Halstead.

they
Keven

were

joined

Allen,

by

Detective

Detective

Tagayun,

Ryan
and

They opened the apartment door with the

key and entered with their weapons drawn, yelling “police” to
announce

their

presence.

Detectives

Allen

and

Higginbotham

found Defendant asleep in the bed in the master bedroom.

They

handcuffed Defendant, brought him into the living room, and sat
him on the couch.

After ensuring that no one else was in the

apartment, they removed the handcuffs.
At some point in this series of events, Defendant asked,
“Can you tell me what’s going on?
75.

Why are you all here?”

J.A.

Sergeant Winkler responded that the officers had a warrant

to search the apartment, even though he knew that was not true.
Sergeant Winkler testified at the suppression hearing that he
lied about having a search warrant to protect Ms. Wills.
After informing Defendant that they had a search warrant,
the officers searched the apartment and found crack cocaine and
digital
search.

scales.

Defendant

was

cooperative

throughout

the

When questioned by Detective Allen, he admitted that

the drugs belonged to him and that he had sold crack cocaine
from

Ms.

Wills’s

apartment.

Defendant

also

gave

the

police

information about the supplier who sold him the drugs and signed

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a statement, written by Lieutenant Napier, recording his answers
to Detective Allen’s questions.
After completing the search and questioning Defendant, the
officers left, without arresting Defendant or removing him from
Ms.

Wills’s

apartment.

At

the

officers’

request,

Defendant

voluntarily visited the MDENT office later that day to answer
additional

questions

about

his

supplier.

After

Defendant

answered their questions, the officers again did not arrest him;
instead, they simply allowed him to leave.
Defendant

was

ultimately

arrested

and

charged

with

one

count of knowingly and intentionally possessing with intent to
distribute

twenty-eight

grams

or

more

violation of 21 U.S.C. § 841(a)(1).

of

cocaine

base

in

Defendant moved in limine

to suppress the evidence obtained from the warrantless search of
Ms. Wills’s apartment.
Despite

finding

a

constitutional

violation,

court denied the motion to suppress.

the

district

As the district court

noted, by “inaccurately claiming that the search was supported
by

a

warrant, . . .

law

enforcement

materially

impaired

[Defendant]’s right, under [Georgia v.] Randolph, [547 U.S. 103
(2006),]

to

object

when

law

enforcement

entered

the

home.”

United States v. Rush, No. 2:13-00151, 2014 WL 989198, at *4
(S.D. W. Va. Mar. 13, 2014).

Nevertheless, the court held that

the officers did not intentionally impair Defendant’s rights,
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but instead lied about the warrant “in a justifiable effort to
protect Ms. Wills.”

Id. at *7.

The court also determined that

suppressing the evidence would have little deterrent effect on
police

misconduct

because

there

was

“a

vanishingly

likelihood of future recurrences” of the same behavior.

low

Id.

Following the denial of his motion to suppress, Defendant
agreed to plead guilty to one count of possessing with intent to
distribute an unspecified quantity of crack cocaine.

Defendant

pled guilty and was sentenced to twelve months and one day in
prison, followed by three years of supervised release.
plea

agreement,

Defendant

reserved

the

right

to

In the

appeal

district court’s decision on his motion to suppress.

the

Defendant

then timely filed a notice of appeal.
When reviewing a ruling on a suppression motion, we review
the district court’s legal determinations de novo and factual
findings for clear error.
233 (4th Cir. 2012).
review

the

government.

evidence

United States v. Davis, 690 F.3d 226,

And if the motion has been denied, we
in

the

light

most

favorable

to

the

Id.
II.

No one contests the fact that Defendant’s Fourth Amendment
rights were violated. 1

The parties disagree only about whether

1

As the district court recognized, even though Ms. Wills
consented to the search of her apartment, Defendant had a right
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the resulting evidence should have been suppressed.

Defendant

argues that the district court erred in finding that Sergeant
Winkler acted in good faith to protect Ms. Wills.

Defendant

asserts that the good-faith exception to the exclusionary rule
is inapplicable because Sergeant Winkler deliberately lied about
the existence of a search warrant and could not have had an
objectively reasonable belief that such a lie was lawful.

We

agree.
The
people

Fourth

to

be

Amendment

secure

in

provides
their

that

persons,

“[t]he

right

houses,

of

the

papers,

and

effects, against unreasonable searches and seizures, shall not
be violated.”
not

U.S. Const. amend. IV.

“expressly

preclud[e]

the

violation of its commands.”
897, 906 (1984).

use

The Fourth Amendment does
of

evidence

obtained

in

United States v. Leon, 468 U.S.

However, courts have developed a “prudential”

doctrine

that—under

certain

obtained

through

unconstitutional

an

circumstances—prohibits
search

from

evidence

being

against the subject of the search in a criminal trial.

used

Pa. Bd.

of Prob. & Parole v. Scott, 524 U.S. 357, 363 (1998).
The exclusionary rule “is ‘not a personal constitutional
right,’ nor is it designed to ‘redress the injury’ occasioned by
to object to the search because he was a present co-occupant of
the apartment.
See Randolph, 547 U.S. at 106.
The officers
unconstitutionally denied Defendant the opportunity to object to
the search by falsely stating that they had a warrant.
See
Bumper v. North Carolina, 391 U.S. 543, 548–50 (1968).
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an unconstitutional search.”

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Davis v. United States, 131 S. Ct.

2419, 2426 (2011) (quoting Stone v. Powell, 428 U.S. 465, 486
(1976)).

Instead, the rule’s purpose “is to deter future Fourth

Amendment violations.”

Id.

Exclusion is appropriate when the deterrence benefits of
suppression outweigh the “substantial social costs” of excluding
the evidence.

Leon, 468 U.S. at 907.

As the Supreme Court has

explained:
When 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. But 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 “‘deterrence rationale loses much of its force,’”
and exclusion cannot “pay its way.”
Davis,

131

(quoting

S.

Ct.

Herring

v.

at

2427–28

United

(internal

States,

555

citations
U.S.

135,

omitted)
137,

144

(2009), and Leon, 468 U.S. at 908 n.6, 909, 919).
The Supreme Court has applied the good-faith exception to
certain cases of “isolated” negligence.

Herring, 555 U.S. at

137.

In Herring, the police officers who conducted the search

were

incorrectly

informed

by

the

police

department

in

a

neighboring county that there was an outstanding warrant for the
defendant’s arrest.

Id. at 137–38.

Since the Fourth Amendment

violation arose out of “isolated negligence attenuated from the
arrest,” id. at 137, the Supreme Court held that suppressing the
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evidence would have only a marginal deterrent effect on police
behavior and thus was not warranted, id. at 147.
Additionally, the Supreme Court has applied the good-faith
exception “when the police act with an objectively ‘reasonable
good-faith belief’ that their conduct is lawful.”
Ct. at 2427 (quoting Leon, 468 U.S. at 909).

Davis, 131 S.

For instance, in

Leon, police officers conducted a search pursuant to a facially
valid search warrant.

468 U.S. at 902.

The district court

later ruled that the search warrant was unsupported by probable
cause

and

thus

invalid.

Id.

at

903.

Although

the

search

violated the Fourth Amendment, the Supreme Court declined to
suppress
warrant

the
was

evidence

because

objectively

the

officers’

reasonable.

Id.

reliance

at

926;

on

see

the
also

Massachusetts v. Sheppard, 468 U.S. 981, 990–91 (1984).
Similarly,

the

Supreme

Court

applied

the

good-faith

exception when police officers reasonably relied upon records
indicating that there was an outstanding arrest warrant for the
defendant,

even

inaccurate.
erroneous

when

the

records

were

later

found

to

Arizona v. Evans, 514 U.S. 1, 15–16 (1995).

information

was

part

employees of the Clerk of Court.

of

a

database

Id. at 4.

maintained

be
The
by

The Supreme Court

held that the evidence should not be suppressed because “the
exclusionary

rule

was

historically

8

designed

as

a

means

of

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deterring police misconduct, not mistakes by court employees.”
Id. at 14.
The

present

case

bears

no

resemblance

applications of the good-faith exception.
unconstitutional

due

to

the

to

the

previous

Here, the search was

intentional

decision

of

Sergeant

Winkler to tell Defendant that there was a search warrant, even
though he knew that his statement was untrue.
case

of

negligence,

information.
15–16.

or

reasonable

This is not a

reliance

on

faulty

See Herring, 555 U.S. at 137; Evans, 514 U.S. at

Rather, it is a case of a deliberate lie.

The good-faith exception, therefore, would apply in this
case only if the officers held an objectively reasonable belief
that it was lawful to conduct the search after lying about the
existence of a warrant.

See Davis, 131 S. Ct. at 2427–29.

In

other words, we must determine objectively “whether a reasonably
well

trained

illegal.”

officer

would

have

known

that

the

search

was

Herring, 555 U.S. at 145 (quoting Leon, 468 U.S. at

922 n.23).
Here, there can be no doubt that a reasonable officer would
know that deliberately lying about the existence of a warrant
would
courts

violate
have

misleading

Defendant’s

long

the

taken

public

Fourth

a

about

Amendment

negative
having

rights.

view

of

law

valid

warrants.

Indeed,

enforcement
In

the

seminal opinion Bumper v. North Carolina, 391 U.S. 543, 546–47
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(1968), for example, the police falsely told the defendant’s
grandmother that they had a warrant to search her home, and
believing them, she did not object to the search.

The Court

noted that “[w]hen a law enforcement officer claims authority to
search a home under a warrant, he announces in effect that the
occupant has no right to resist the search.”

Id. at 550.

As

such, any “consent” given after the officer has asserted that he
possesses a warrant is not valid.

Id. at 548.

The Bumper Court

held that the officers violated the Fourth Amendment and that
the evidence should have been suppressed.

Id. at 550; see also,

e.g., United States v. Saafir, 754 F.3d 262, 266 (4th Cir. 2014)
(“A

search

or

unconstitutional

seizure
if

it

is

is

unreasonable

premised

on

a

and
law

therefore
enforcement

officer’s misstatement of his or her authority.”); Trulock v.
Freeh, 275 F.3d 391, 402 (4th Cir. 2001) (holding that consent
given by a suspect who was falsely told that the FBI had a
search warrant was invalid).
Further, we find instructive the Sixth Circuit’s decision
in United States v. Shaw, 707 F.3d 666 (6th Cir. 2013).

In

Shaw, officers had an arrest warrant for a suspect residing at
3171 Hendricks Avenue in Memphis, Tennessee.

Id. at 667.

the

found

officers

arrived

at

the

address,

they

two

When
houses

labeled 3170 Hendricks Avenue and none with the 3171 address.
Id.

The

officers

approached

one

10

of

the

homes

(which

was

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actually 3170 Hendricks Avenue) and told the woman who answered
the door that they had a warrant “for this address.”

Id.

The

woman then allowed the officers to search the home, which led to
the discovery of illegal drugs and the arrest of one of the
occupants.

Id.

Although the officers had a “fifty-fifty chance

of being right,” id. at 668, they ultimately were incorrect and
“obtained entry into the wrong house based on a false pretense,”
id. at 669.

The Sixth Circuit held that the officers violated

the Fourth Amendment and excluded the evidence obtained through
the search.

Id. at 669–70.

The Sixth Circuit underscored that

“so long as there is an exclusionary rule, it seems safe to say
that it will apply to officers who enter and remain in a house
based on false pretenses.”

Id. at 670.

At the time of the search at issue here, Sergeant Winkler
had over sixteen years of experience with the Charleston Police
Department.

Sergeant Winkler knew with certainty that he did

not possess a search warrant, but deliberately chose to tell
Defendant

otherwise.

An

objectively

reasonable

officer

with

Sergeant Winkler’s level of experience would have known that
consent to search is not valid if given after the police falsely
claim to have a search warrant.

See Herring, 555 U.S. at 145

(noting that “a particular officer’s knowledge and experience”
may

inform

objectively

the

analysis

reasonable).

of

whether
Sergeant
11

the

officer’s

Winkler’s

action
action

was
was

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deliberate, contrary to long-standing precedent, and objectively
unreasonable.

In

other

words,

it

is

precisely

the

type

of

action that the exclusionary rule seeks to deter.
The government nevertheless argues that the officers acted
in good faith because they did not intend to violate Defendant’s
rights by claiming that they had a warrant; they sought only to
protect Ms. Wills.
behavior

suggests

Even if this were true—and the officers’
it

was

not 2—the

subjective

officers is of no import to our analysis.
145.

intent

of

the

Herring, 555 U.S. at

Further, the Supreme Court has made clear that the good-

faith exception applies only if the officers had an objectively
reasonable belief that their conduct was lawful, and not merely
preferable

or

more

expedient

than

complying

Amendment.

with

the

Fourth

Davis, 131 S. Ct. at 2427.
III.

Excluding the evidence obtained through a deliberate lie
on the part of law enforcement, as in this case, may well deter
police officers from so violating the Fourth Amendment in the

2

After searching Ms. Wills’s apartment, the officers left
Defendant there and chose not to arrest him either there or
later that day at the MDENT office. Clearly, then, they did not
see Defendant as a threat to Ms. Wills, nor did they face any
exigency that could possibly justify their decision to search
the apartment under false pretenses and without a warrant. See
United States v. Yengel, 711 F.3d 392, 399 (4th Cir. 2013)
(rejecting officers’ justifications for a search when they were
inconsistent with the officers’ behavior at the time of the
search).
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future.

We

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emphatically

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agree

with

the

Sixth

Circuit’s

statement that “so long as there is an exclusionary rule, it
seems safe to say that it will apply to officers who enter and
remain in a house based on false pretenses.”
670.

Shaw, 707 F.3d at

Accordingly, we reverse and remand.

REVERSED AND REMANDED

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