UNITED STATES оf America, Plaintiff-Appellee v. James Cecil HOLLEY, Jr., Defendant-Appellant
No. 15-40360
United States Court of Appeals, Fifth Circuit.
July 27, 2016
831 F.3d 322
After ruling on the Section 1983 and FTCA claims, the district court ordered the plaintiffs to file a third amended complaint asserting any remaining claims against the CCA defendants. The plaintiffs’ amended pleading included only state law claims. The district court dismissed the case without prejudice for lack of subject matter jurisdiction because there were no remaining federal claims. Again, we review such a dismissal de novo. See Wagner, 545 F.3d at 300.
On appeal, the plaintiffs and the CCA defendants agree that dismissal was improper because the plaintiffs pled alienage jurisdiction. A district court has original jurisdiction over a case exceeding $75,000 between “citizens of a State and citizens or subjects of a foreign state, except that [no jurisdiction exists] ... between citizens of a State and сitizens or subjects of a foreign state who are lawfully admitted for permanent residence ....”
Some authority supports the view that the plaintiffs’ amended pleading is sufficient to show alienage jurisdiction. See generally Karazanos v. Madison Two Assocs., 147 F.3d 624, 627-28 (7th Cir. 1998). We leave it to the district сourt to consider the validity of this argument.
Thus, we REVERSE dismissal of the remaining claims in plaintiffs’ third amended complaint, and REMAND. We otherwise AFFIRM.
F. Clinton Broden, Broden, Mickelsen, Helms & Snipes, L.L.P., Dallas, TX
Before HIGGINBOTHAM, PRADO, and GRAVES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
A jury convicted Appellant James Cecil Holley, Jr. of conspiracy to commit a drug trafficking crime, felon in possession of a firearm, and possession of a firearm in furtherance of a drug trafficking crime. Holley now challenges all three convictions, and we AFFIRM.
I.
On March 6, 2008, Officer Travis Putman received information from a confidential informant that Holley was distributing large quantities of marijuana in the Dallas area. Putman conducted a records search and determined that Holley was associated with a house located at 6203 Gray Wolf Trail. A different officer traveled to the house on two separate occasions and used a trained canine to “conduct[] a free-air sniff of ... [the] garage door.” On both occasions, the dog “alerted to the presence of the odor of an illegal drug while sniffing the garage door.” Based largely upon the canine alerts, Putman sought and received a search warrant for the Gray Wolf Trail house. During the search, officers discovered $9,990 in cash, a money counter, digital scales, ten pounds of marijuana, a marijuana seed, two trays of drying marijuana, a Heckler and Koch (“H&K“) .45 caliber handgun, two loaded magazines, a drug ledger, and a utility bill for a house on Winterwood Lane in the name of Justin Dismore. Holley was present at the time of the search and seated a short distance from the handgun.
After locating the utility bill, officers began to investigate the house on Winterwood Lane. As with the Grаy Wolf Trail house, an officer traveled to the Winterwood Lane house and used a trained canine to conduct a “free-air sniff” of the “garage door.” The dog again “alerted to the presence of the odor of an illegal drug while sniffing the garage door.” Based upon this alert and the utility bill found at the Gray Wolf Trail house, the officers obtained a search warrant for the house on Winterwood Lane. That search resulted in the discovery of a large hydroponic marijuana cultivation operation, 263 marijuana plants, and evidence linking Holley to the house. In 2009, investigators searched two other houses connected with Holley, one on McShann Road and one on Harvest Hill Road. Holley and Blake Huggins were present when officers executed the search warrant for the McShann Road house. In-
On May 28, 2014, a federal grand jury in the Eastern District of Texas returned a superseding indictment charging Holley with three counts: one count of conspiracy to commit a drug trafficking crime in violation of
Holley‘s case was tried to a jury from June 3-6, 2014. The Government presented testimony from one of Holley‘s former customers, Meina Azez, and two of Holley‘s former co-defendants who pleaded guilty and agreed to cooperate, Justin Brown and Jason Sirovica. Brown testified that he bought large quantities of marijuana from Holley on a regular basis. At some point, he started his own grow operation using seeds extracted from marijuana purchased from Holley. Brown explained that two individuals helped him with his grow operation, Corey Armstrong and Jason Sirovica. Brown elaborated that a third individual, Nick Neighbors, assisted both him and Holley. Brown also recounted that Holley and his associate, Michael Strickland, unexpectedly stopped by his “grow room” on one occasion. Holley and Strickland noticed that Brown‘s plants were healthy and producing well. As a result, they asked “what chemicals [he] was using,” and Brown told them. Sirovica testified consistently with Brown. He confirmed that he and Brown used to buy marijuana from Holley and started growing their own. Sirovica testified that he and Brown worked together, although they both grew marijuana separately as well. He added that Strickland—who is аn electrician—helped him wire one of his “marijuana grows.” The Government established through other witnesses that: (1) the Winterwood Lane house was leased in Holley‘s name; (2) Strickland was listed as the emergency contact on the lease for the Winterwood Lane house; and (3) the H&K handgun found at the Gray Wolf Trail house had been manufactured in Germany.
At the close of the Government‘s case, Holley moved for a judgment of acquittal. Following a thorough review of the evidence, the district court denied this motion. The jury subsequently returned a guilty verdict on all counts. Holley renewed his motion for a directed verdict, but the district court again denied it. In March 2015, the district court sentenced Holley to 185 months of imprisonment fol-
II.
On appeal, Holley presses four arguments: (1) the district court erred in denying the motions to suppress; (2) there was insufficient evidence to convict on Count One because the Government proved only that he conspired to distribute marijuana, not marijuana plants; (3) there was insufficient evidence to convict on Count Three because the Government proved only that he used a gun to further a conspiracy to distribute marijuana, not a conspiracy to distribute marijuana plants; and (4) there was insufficient evidence to convict on Counts Two and Three because the Government proved only that the H&K handgun moved in foreign commerce, not interstate commerce.
A.
Holley argues that the district court erred in denying all three motions to suppress. As below, he urges that the dog sniffs of the Gray Wolf Trail and Winterwood Lane houses violated the Fourth Amendment under the Supreme Court‘s recent decision in Florida v. Jardines. He further argues that the McShann Road warrant was fruit of the poisonous tree because it was based in part on these searches. The Government responds that the dog sniffs did not violate the Fourth Amendment. Alternatively, the Government argues that the good faith exception applies. We start with the good faith exception. For purposes of our analysis, we assume without deciding that the dog sniffs violated the Fourth Amendment.
In his briefing, Holley argues that “Leon is not applicable in the instant case because the warrants were based upon the preceding unconstitutional and warrantless dog sniff searches.”2 That is, Holley urges that the Leon good faith exception is categorically inapplicable when a warrant is obtained using tainted evidence—or is fruit of the poisonous tree. This position is inconsistent with this Court‘s recent decision in United States v. Massi.3 In Massi, this Court held that evidence seized pursuant to a warrant is admissible—even if the warrant was the product of an illegal search—if two requirements are met:
(1) the prior law enforcement conduct that uncovered evidence used in the affidavit for the warrant must be “close enough to the line of validity” that an objectively reasonable officer preparing the affidavit or executing the warrant would believe that the information supporting the warrant was not tainted by unconstitutional conduct, and (2) the resulting search warrant must have been sought and executed by a law enforcement officer in good faith as prescribed by Leon.4
There is no allegation that the officers did not seek the Gray Wolf Trail and Winterwood Lane warrants in good faith. As a result, the only quеstion is whether the dog sniffs were “close enough to the line of validity” that an objectively reasonable officer would not have realized that the resulting warrants were tainted.
Although the issue is close, we are persuaded that the good faith exception applies. The disputed dog sniffs took place in 2008. At that point in time, this Court had issued only one decision, albeit an unpublished one, that addressed a similar
We do not hold—as the dissent suggests—that “a search is reasonable so long as no court has explicitly found a search under identical circumstances to be unreasonable.” Prior to Jardines, thirteen different federal and state judges (including three members of this Court) concluded that a dog sniff of a garage door did not violate the Fourth Amendment. Although these cases necessarily involved different facts, their uniformity refutes the dissent‘s assertion that a reasonable officer should have realized that a dog sniff of a garage door was categorically unconstitutional. Indeеd, even now, it is unclear whether a dog sniff of a garage door is unconstitutional. The dissent urges that Florida v. Jardines9 and Kyllo v. United States10 inexorably lead to this conclusion. But the dissent ignores cases holding that a driveway is not part of the home‘s curtilage11 and a dog is not the type of “sense-enhancing” tool discussed in Kyllo.12 To deny use of the evidence here would ill serve the purposes of the exclusionary rule.
B.
Count One alleged that Holley conspired “with other persons known and unknown to the United States Grand Jury, to knowingly and intentionally possess with the intent to manufacture and distribute, and to manufacture and distribute 100 or more marijuana plants, a violation of
Holley‘s position is unconvincing. By its plain text, there are six different ways to violate
The Supreme Court has instructed that the “general rule is that when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, as [Holley‘s] indictment did, the verdict stands if the evidence is sufficient with respect to any one of the acts charged.”15 Put another way, Holley‘s sufficiency challenge fails if there was sufficient evidence that he entered a conspiracy to either manufacture marijuana plants, distribute marijuana plants, possess with the intent to manufacture marijuana plants, or possess with the intent to distribute marijuana plants.16 There undoubtedly was. Though Holley contends that he did not conspire to distribute marijuana plants, there is аmple evidence that he conspired to manufacture marijuana plants. At trial, the Government introduced evidence that several different people assisted Holley with his grow operation: (1) Nick Neighbors provided unspecified assistance; (2) Justin Brown provided advice about chemicals; (3) Michael Strickland was the emergency contact for one of the grow houses; (4) Justin Dismore put his name on the utilities for one of the grow houses; (5) Louis Lee put his name on the utilities for a different grow house; and (6) Blake Huggins was found at one of the grow houses and possessed a schematic for a hydroponic marijuana cultivation system. The Government had to establish only that Holley conspired with one of these individuals to prove a violation of
Count Three alleged that Holley possessed the H&K handgun “in furtherance of a drug trafficking crime ... to wit: conspiracy to possess with intent to distribute and manufacture, distribute, and manufacture marijuana plants as alleged in Count One of th[e] Superseding Indictment” in violation of
The same principles apply as above. Though Count Three was pleaded conjunctively, the Government had four different routes to a conviction: (1) Holley possessed the handgun “in furtherance of” a conspiracy to manufacture marijuana plants; (2) Holley possessed the handgun “in furtherance of” a conspiracy to distribute marijuana plants; (3) Holley possessed the handgun “in furtherance of” a conspiracy to possess with the intent to manufacture marijuana plants; or (4) Holley possessed the handgun “in furtherance of” a conspiracy to possess with the intent to distribute marijuana plants. Because the jury returned a general verdict, it “stands if the evidence is sufficient with respect to any one of” these four alternative ways of violating
We conclude that the Government presented sufficient evidence that Holley possessed the H&K handgun “in furtherance of” a conspiracy to manufacture marijuana plants. This Court has held that evidence that a firearm is being used to protect a drug operation against robbery is sufficient to support a conviction under
the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found.23
Almost all of these factors weigh against Holley: (1) Holley was “engaged in significant drug activity“;24 (2) the handgun was found a short distance from Holley; (3) the handgun is large caliber and semi-auto-
Holley‘s only reply is that the handgun “was not located at the grow house and there is no indication that it was used to protect the marijuana plants at the grow house.”28 This argument is unpersuasive. The evidence at trial established that Holley was the mastermind of a large grow operation involving several houses. Although the handgun was not found at a grow house, it would have been reasonable for the jury to infer that Holley carried the gun when he traveled to the grow houses and used it to protect the larger grow operation. This is especially true because the police found evidence at the Gray Wolf Trail house connecting it to the grow houses, including a utility bill for the Winterwood Lane house and drying marijuana.29 Accordingly, “considering the evidence and all reasonable inferences in the light most favorable to the prosecution,”30 there was sufficient evidence to support Holley‘s
D.
Counts Two and Three both alleged that Holley possessed a firearm “affecting interstate commerce.” Holley contends that the evidence presented at trial was insufficient to establish that the H&K handgun “affect[ed] interstate commerce” because it demonstrated only that the handgun moved in foreign commerce—not interstate commerce. As Holley concedes, this argument is foreclosed by prior decisions of this Court.31
III.
For the reasons stated above, we AFFIRM.
Under cover of darkness, at approximately five o‘clock in the morning, a police officer walked through an alleyway to the door of Holley‘s attached, rear-entry garage.1 The officer brought along a drug-detection dog who allegedly “alerted to the presence of the odor of an illegal drug while sniffing the garage door.” Despite those facts, the majority affirms the district court‘s denial of Holley‘s motions to suppress. Because I conclude that the district court erred, I respectfully dissent.
I.
In Davis v. United States, the Supreme Court held “that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” 564 U.S. 229, 232, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). In 2008, when these searches were conducted, there existed no “unequivocal” and “binding” Fifth Circuit precedent “specifically authorizing” police to come onto a person‘s property with a drug-detection dog in order to have the dog sniff at the garage doors. The majority states that “Holley does not point us to a single pre-Jardines decision that invalidated a search factually similar to those under review.” Like Holley, the Government cannot point to a single binding decision in which a similar sеarch was deemed valid.
The majority states that the search was “‘close enough to the line of validity’ that an objectively reasonable officer would not have realized that the Gray Wolf Trail and Winterwood Lane warrants were tainted.” The majority adds that “[i]n these circumstances, ‘[t]o suppress the evidence derived from th[ese] warrant[s] would not serve the interest of deterring future constitutional violations.‘” United States v. Massi, 761 F.3d 512, 532 (5th Cir. 2014) (citing United States v. Leon, 468 U.S. 897, 919-20, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). I disagree. This is not the sort of police action that the good-faith exception is intended to protect.
II.
The good-faith exception is inapplicable in this case. Under the good-faith exception to the exclusionary rule, evidence is admissible if it is obtained by law enforcement officers acting in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate. Leon, 468 U.S. at 927-28, 104 S.Ct. 3405. The majority reasons that the disputed dog sniffs took place in 2008 before the Supreme Court‘s issuance of Florida v. Jardines, --- U.S. ---, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013)—which found that a warrantless dog sniff of a person‘s porch violated the Fourth Amendment—and does not address that opinion‘s effect on this case. Instead, the majority suggests that one unpublished opinion from the Fifth Circuit, United States v. Tarazon-Silva, along with a few other non-binding cases,2 demonstrate that the dog sniffs
In Tarazon-Silva, a panel stated that a “dog-sniff of the outer edge of the garage and the dryer vent on the exterior wall of the [defendant‘s] house did not occur on protected curtilage” and thus the defendant “had no reasonable expectation of privacy in those areas.” Id. at *1. Reliance on Tarazon-Silva is problematic for a least two reasons. The first is that Tarazon-Silva is not binding precedent. See Ballard v. Burton, 444 F.3d 391, 401 (5th Cir. 2006) (citing 5th Cir. R. 47.5.4 (“An unpublished opinion issued after January 1, 1996 is not controlling precedent, but may be persuasive authority.“)). The second is that Tarazon-Silva lacked any substantial factual analysis. In a one page opinion, the panel merely concluded that the search did not occur on protected curtilage. Tarazon-Silva provides scant analytical guidance and is, in my view, improperly relied upon by the majority.
The majority implies that the absence of a similar case prohibiting this type of search pre-Jardines protects the officer‘s actions. Essentially, their holding would suggest that a search is reasonable so long as no court has explicitly found a search under identical circumstances to be unreasonable. Jardines did not announce a new rule and thus this type of warrantless search was not “close enough to the line of validity” even pre-Jardines. See United States v. Burston, 806 F.3d 1123, 1129 (8th Cir. 2015) (finding that Davis does not apply because no cases “serve as binding precedent to permit the drug-detection dog sniff in this factual context“).
III.
The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” “The touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.‘” California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). “Katz posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?” Id. (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)). The Supreme Court has long recognized that “when it comes to the Fourth Amendment, the home is first among equals.” Jardines, 133 S.Ct. at 1414. “At the Amendment‘s ‘very core’ stands ‘the right of a man to retreat into his own home and there be freе from unreasonable governmental intrusion.‘” Id. (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961)).
The Supreme Court specifically addressed the interplay between the Fourth Amendment and the good-faith exception in Leon, noting that it was not “persuaded that application of a good-faith exception to searches conducted pursuant to warrants will preclude review of the constitutionality of the search or seizure, deny needed guidance from the courts, or freeze Fourth Amendment law in its present state.” Leon, 468 U.S. at 924, 104 S.Ct. 3405. The Supreme Court elaborated:
The good-faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe that it will have this effect. ... There is no need for courts to adopt the
inflexible practice of always deciding whether the officers’ conduct manifested objective good faith before turning to the question whether the Fourth Amendment has been violated. Defendants seeking suppression of the fruits of allegedly unconstitutional searches or seizures undoubtedly raise live controversies which Art. III empowers federal courts to adjudicate. ... If the resolution of a particular Fourth Amendment question is necessary to guide future action by law enforcement officers and magistrates, nothing will prevent reviewing courts from deciding that question before turning to the good-faith issue. Indeed, it frequently will be difficult to determine whether the officers acted reasonably without resolving the Fourth Amendment issue.
The Supreme Court stated that it regards “the area ‘immediately surrounding and associated with the home‘—what [its] cases call the curtilage—as ‘part of the home itself for Fourth Amendment purposes.‘” Jardines, 133 S.Ct. at 1414-15 (quoting Oliver v. United States, 466 U.S. 170, 176, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)). “That principle has ancient and durable roots.” Id. “Just as the distinction between the home and the open fields is ‘as old as the common law,’ [Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 68 L.Ed. 898 (1924)], so too is the identity of home and what Blackstone called the ‘curtilage or homestall’ for the ‘house protects and privileges all its branches and appurtenants.‘” Id. (quoting 4 W. Blackstone, Commentaries on the Laws of England 223, 225 (1769)). In Jardines, the Supreme Court recognized that the front porch of a home “is the classic exemplar of an area adjacent to the home and ‘to which the activity of home life extends.‘” Id. at 1415. “The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.” Ciraolo, 476 U.S. at 212-13, 106 S.Ct. 1809.
The Fourth Amendment has long protected against unwarranted searches of a person‘s home and its curtilage. In 1961, the Supreme Court stated that “[t]he Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511-12, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) (citing Entick v. Carrington, 19 Howell‘s State Trials 1029, 1066 (1765); Boyd v. United States, 116 U.S. 616, 626-630, 6 S.Ct. 524, 29 L.Ed. 746 (1886)). In 1980, the Supreme Court specifically stated that the “Fourth Amendment draws ‘a firm line at the entrance to the house.‘” Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).
In Kyllo, the Supreme Court noted that where “the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” Kyllo v. United States, 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001); see also United States v. Beene, 818 F.3d 157, 165-75 (5th Cir. 2016) (Graves, J., dissenting). The devicе utilized in this case was a drug-detection dog. “[D]rug-detection dogs are highly trained tools of law enforcement, geared to respond in distinctive ways to specific scents so as to convey clear and reliable information to their human partners.” Jardines, 133 S.Ct. at 1418 (Kagan, J., concurring) (citing Florida v. Harris, --- U.S. ---, 133 S.Ct. 1050,
Here, the search was conducted at the door of a rear-entry garage. Courts utilize four factors to determine if an area is within the curtilаge of the home: (1) “the proximity of the area claimed to be curtilage to the home;” (2) “whether the area is included within an enclosure surrounding the home;” (3) “the nature of the uses to which the area is put;” and (4) “the steps taken by the resident to protect the area from observation by people passing by.” United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). Holley‘s garages were attached and therefore enclosed within the home. The garage served as an entrance to the home. See generally Burston, 806 F.3d at 1127 (finding an area six to ten inches from defendant‘s window to be part of the curtilage). A garage is often used for home purposes—it can serve as a workshop, a family room, an exercise room, or a place for storage of home goods.
Still, the Government contends that the driveway upon which the officer and the drug-dеtection dog stood was open to the public. The driveway, however, was removed from the street and accessible only by an alleyway. The Government implies that it was open to the public. I cannot agree. The implication is that the Fourth Amendment right in these circumstances only arises upon the erecting of a fence, the closing of a gate, or the posting of a sentry. Holley had his garage door closed—that should be enough, in my view, to keep away uninvited guests at 5:00 a.m. Furthermore, I do not suggest, as the majority states, that a “dog sniff of a garage door [i]s categorically unconstitutional.” This specific search is, in my view, unconstitutional.
In Jardines, the Supreme Court described the lack of invitation for an officer to approach a home with a drug-detection dog and how the situation violates social nоrms. “[A] police officer not armed with a warrant may approach a home and knock, precisely because that is ‘no more than any private citizen might do.‘” Jardines, 133 S.Ct. at 1416 (quoting Kentucky v. King, 563 U.S. 452, 469, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011)). “But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that.” Id. The Supreme Court noted that this is the type of situation that would inspire someone to call the police on the trespasser. In this case the officer came onto Holley‘s property at 5:00 a.m.—thus violating social norms and distinguishing this situation from when a Girl Scout or a trick-or-treater approaches a person‘s door from an open walkway.4 This is common
IV.
Hаving described the illegality of the initial dog sniff, I turn to its effect on the later obtained warrant. The affidavit to support the search warrant relied heavily on two “free-air sniff” dog searches of Holley‘s rear-entry garage at approximately 5:00 a.m. on two different days.6 On both occasions, the dog allegedly “alerted to the presence of the odor of an illegal drug while sniffing the garage door.” Based largely upon the canine alerts, an officer sought and received a search warrant for the Gray Wolf Trail house. Officers first searched Gray Wolf and then Winterwood, which was discovered as a result of the records found during the execution of the Gray Wolf search warrant. Before obtaining a warrant to search Winterwood, an officer again conducted a warrantless dog sniff of the property.
The lаter issued warrant, however, does not sanitize an otherwise illegal search. As noted by the Eighth Circuit, “[i]f clearly illegal police behavior can be sanitized by the issuance of a search warrant, then there will be no deterrence, and the protective aims of the exclusionary rule will be severely impaired if not eliminated.” United States v. O‘Neal, 17 F.3d 239, 243 n.6 (8th Cir. 1994); see also United States v. McGough, 412 F.3d 1232, 1240 (11th Cir. 2005) (“In this case, it was not an ‘objectively reasonable law enforcement activity’ but rather the officers’ unlawful entry into [defendant‘s] apartment that led to [the officer‘s] request for a search warrant. In such a situation, ‘the search warrant affidavit was tainted with evidence obtained as a result of a prior, warrantless, presumptively unlawful entry into a personal
Because the later issued warrant was based on an illegal search, the evidence obtained through the use of the warrants should be excluded as fruit of the poisonous tree. See Nix v. Williams, 467 U.S. 431, 441, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)); see also Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (“[T]he exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), but also evidence later discovered and found to be derivative of an illegality or ‘fruit of the poisonous tree.’ “) (citation omitted). The good-faith exception limits exclusion where “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.” Leon, 468 U.S. at 922, 104 S.Ct. 3405. This is not such a case. In this situation, excluding the tainted evidence would advance the interest of deterring unlawful police conduct in the form of the invasion of a person‘s home space with a drug-detection dog in the early morning hours. Where the benefits produced by suppressing the evidence are not merely marginal or nonexistent and do justify the costs of exclusion, the good-faith exception does not apply. See Massi, 761 F.3d at 537 (Graves, J., dissenting) (citing Leon, 468 U.S. at 922, 104 S.Ct. 3405).
V.
As a direct result of a constitutional violation, authorities obtained a search warrant. Thus, the evidence obtained as a result of that search is tainted. Exclusion of that tainted evidence would certainly advance the interest of deterring unlawful рolice conduct. Because the warrant was based on an illegal and unreasonable search, I cannot conclude that the good-faith exception applies in this instance. I do not agree that “the two dog sniffs were ‘close enough to the line of validity’ that an objectively reasonable officer would not have realized that the Gray Wolf Trail and Winterwood Lane warrants were tainted.” The officer did not act on binding precedent. Instead, he intruded into a constitu-
Sergio LUGO-RESENDEZ, Petitioner v. Loretta LYNCH, U.S. Attorney General, Respondent
No. 14-60865
United States Court of Appeals, Fifth Circuit.
July 28, 2016