McClain v. United States - Opposition

No. 06-160

In the Supreme Court of the United States

KEVIN MCCLAIN, GEORGE BRANDT III,
AND JASON DAVIS, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record

ALICE S. FISHER
Assistant Attorney General

THOMAS M. GANNON
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether evidence seized under search warrants is admissible under the good-faith exception to the ex clusionary rule, when the warrants were issued based in part on information acquired in a search that was later held invalid, but that earlier search was close enough to the line of validity to make the executing officers' re liance on the warrants objectively reasonable.

In the Supreme Court of the United States

No. 06-160

KEVIN MCCLAIN, GEORGE BRANDT III,
AND JASON DAVIS, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-19a) is reported at 430 F.3d 299. The opinion of the district court (Pet. App. 20a-32a) is unreported.

JURISDICTION

The court of appeals entered its judgment on Decem ber 2, 2005. A petition for rehearing was denied on March 31, 2006 (Pet. App. 33a-34a). On June 21, 2006, Justice Stevens extended the time within which to file a petition for a writ of certiorari to and including July 28, 2006, and the petition was filed on that date. The juris diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

On July 25, 2002, a federal grand jury in the United States District Court for the Middle District of Tennes see returned an indictment charging petitioners with conspiring to manufacture and to possess with intent to distribute more than 1000 marijuana plants, in violation of 21 U.S.C. 846; manufacturing and possessing with intent to distribute 1000 or more marijuana plants, in violation of 21 U.S.C. 841(a)(1); and possessing less than 50 kilograms of marijuana with the intent to distribute it, in violation of 21 U.S.C. 841(a)(1). Pet. App. 2a, 4a-5a. Petitioners moved to suppress evidence found during searches of their marijuana grow house. The district court granted the suppression motions. Id. at 20a-32a. On the government's appeal, the court of appeals re versed and remanded for further proceedings. Id. at 1a- 19a.

1. On the night of October 12, 2001, a police dis patcher in Hendersonville, Tennessee, received a tele phone call from a citizen reporting that a light was on at a neighboring house located at 123 Imperial Point. The caller stated that the house had been vacant for several weeks. When Officer Michael Germany arrived at the house shortly after 9:30 p.m., he observed that the front door was slightly ajar, with the deadbolt lock exposed, and that a light was visible through the open door. Sus pecting that a burglary or other crime might be in prog ress, Officer Germany called for backup, and Officer Jason Williams arrived at the scene a short time later. Pet. App. 2a-3a.

Officers Germany and Williams pushed open the front door of the house and announced their presence, but they received no response. The officers then moved from room to room in order to determine whether crimi nal activity was in progress. When the officers moved to the basement, they saw that the basement windows were covered with reflective paper that faced inward, and that a large room in the basement contained a substantial amount of electrical wiring that was connected to a junc tion box and what appeared to be plant stimulators. The basement also contained a number of boxes. The offi cers did not open them, but their markings suggested that they contained grow lights. Germany did not see any marijuana plants, but he suspected that a marijuana grow operation was being set up in the basement of the house. Pet. App. 3a-4a.

The following day, Sumner County Drug Task Force Officer Brian Murphy received Officer Germany's report about the incident and visited the house at 123 Imperial Point. Officer Murphy photographed parts of the prop erty, but he did not enter the house. Officer Murphy placed the property under off-and-on surveillance and began an investigation. He determined that petitioner McClain was the owner of the property, and he came to suspect that McClain, petitioners Brandt and Davis, and a fourth person, Anthony Collins,1 were establishing a marijuana grow operation there. Pet. App. 4a; Gov't C.A. Br. 6-7.

On November 27, 2001, Officer Murphy obtained warrants to search the house at 123 Imperial Point and five other properties that Murphy had linked to petition ers through surveillance and investigation. The warrant applications were based in part on information obtained during the initial warrantless search of 123 Imperial Point, and the affidavits supporting the warrant applica tions described the circumstances of the prior search. On November 28, 2001, when officers executed the war rant for 123 Imperial Point, they found a marijuana grow operation and recovered 348 marijuana plants and various types of grow equipment. Warrant-authorized searches of the other five properties uncovered numer ous marijuana plants and grow-related paraphernalia. Pet. App. 4a.

2. Before trial, petitioners moved to suppress the evidence obtained as a result of the searches conducted at 123 Imperial Point. After a hearing, the district court granted petitioners' motion to suppress. See Pet. App. 20a-32a.2 The court held that the initial warrantless search was not justified by exigent circumstances be cause the information known to officers Germany and Williams at the time of the search was insufficient to support an objectively reasonable belief that a burglary was in progress. Id. at 24a-28a. The district court also rejected the government's contention that the "good faith" exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897 (1984), barred sup pression of the fruits of the November 28, 2001, warrant-authorized search. The court stated that, "[u]nlike Leon, this is not an instance in which the offi cers[] relied on a defective search warrant." Pet. App. 28a-29a.3

3. The court of appeals reversed. Pet. App. 1a-19a.

a. The court of appeals first addressed the legality of the initial warrantless search. See Pet. App. 6a-10a. The court held that the search was unlawful because the circumstances surrounding the officers' warrantless entry did "not present the type of objective facts neces sary to establish probable cause that a burglary was in progress at the house." Id. at 8a. The court found "no evidence that [the officers] acted in bad faith," and it observed that "[s]ometimes the line between good police work and a constitutional violation is fine indeed." Id. at 9a. The court concluded, however, that the officers "had no objective basis for their concern that a burglary was being committed" on the night in question, ibid., and that the officers' suspicions in that regard did not "suf fice to overcome the presumption of unconstitutionality attached to a warrantless intrusion into the sanctity of the home," id. at 10a. Accordingly, the court of appeals found "no error in the district court's conclusion that the entry and search were in violation of the Fourth Amend ment." Ibid.

b. The court of appeals further held that, notwith standing the illegality of the October 12, 2001, warrantless search, the evidence obtained pursuant to the warrant-authorized searches of November 28, 2001, should be admitted under the Leon "good faith" excep tion to the exclusionary rule. Pet. App. 10a-14a. The court concluded that "this is one of those unique cases in which the Leon good faith exception should apply de spite an earlier Fourth Amendment violation." Id. at 13a. The court explained:

The facts surrounding these officers' warrantless entry into the house at 123 Imperial Point were not sufficient to establish probable cause to believe a burglary was in progress, but we do not believe that the officers were objectively unreasonable in sus pecting that criminal activity was occurring inside [petitioner] McClain's home, and we find no evidence that the officers knew they were violating the Fourth Amendment by performing a protective sweep of the home. More importantly, the officers who sought and executed the search warrants were not the same officers who performed the initial warrantless search, and Officer Murphy's warrant affidavit fully disclosed to a neutral and detached magistrate the circumstances surrounding the initial warrantless search. On the basis of that affidavit, the magistrate issued the search warrants. There was indeed noth ing more that Officer Murphy could have or should have done under these circumstances to be sure his search would be legal. Because the officers who sought and executed the search warrants acted with good faith, and because the facts surrounding the initial warrantless search were close enough to the line of validity to make the executing officers' belief in the validity of the search warrants objectively rea sonable, we conclude that despite the initial Fourth Amendment violation, the Leon exception bars appli cation of the exclusionary rule in this case.

Id. at 13a-14a (citation and internal quotation marks omitted).

c. Chief Judge Boggs concurred in the judgment but wrote separately to state his view that the initial warrantless search of 123 Imperial Point was lawful. See Pet. App. 14a-19a. After reviewing case law govern ing warrantless entries based on exigent circumstances, see id. at 15a-16a, the facts of this case, id. at 16a, and the alternatives available to Officers Germany and Wil liams, see id. at 16a-17a, Chief Judge Boggs balanced "the intrusiveness of the search against the exigency of the circumstance," id. at 18a, and concluded that "this was a situation where a common sense assessment would be that a legitimate owner, could that person have been contacted, would want the officers to investigate the possible break in," ibid. Based on his determination that "there was probable cause to believe that criminal activity was afoot in the house," Chief Judge Boggs would have "uph[e]ld the initial warrantless search as falling under the exigent circumstances exception" to the warrant requirement. Id. at 19a.

d. The court of appeals denied rehearing en banc with four judges dissenting. See Pet. App. 33a-68a.

ARGUMENT

The interlocutory ruling of the court of appeals is correct and does not conflict with any decision of this Court. Although two courts of appeals have adopted a general rule to the effect that the Leon "good faith" ex ception is inapplicable when the pertinent judicial war rant is obtained using information that is the product of a prior unlawful search, neither of those courts has spe cifically addressed the distinctive set of circumstances that underlay the Sixth Circuit's ruling here. Further review is not warranted.

1. Petitioners have not been tried for the offenses alleged in the indictment, and the court of appeals' deci sion does not resolve the merits of the criminal charges. Rather, the court of appeals simply held that evidence seized pursuant to the November 28, 2001, warrant-au thorized search would be admissible at petitioners' crim inal trial, and it remanded the case for further proceed ings consistent with that conclusion. See Pet. App. 14a. The interlocutory posture of the case "alone furnishe[s] sufficient ground for the denial" of the petition. Hamil ton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916); accord Brotherhood of Locomotive Firemen v. Bangor & Aroostook R.R., 389 U.S. 327, 328 (1967) (per curiam); Virginia Military Inst. v. United States, 508 U.S. 946 (1993) (opinion of Scalia, J., respecting the denial of the petition for writ of certiorari). If petition ers are acquitted following a trial on the merits, their Fourth Amendment claims will become moot. If peti tioners are convicted, they will be entitled to reassert their current challenge to the admission of the seized evidence, in addition to any other claims they may have at that time.

2. The court of appeals correctly held that the evi dence obtained pursuant to the November 28, 2001, warrant-authorized search of 123 Imperial Point was admissible under this Court's decision in United States v. Leon, 468 U.S. 897 (1984). Under the "good faith" exception to the exclusionary rule announced in Leon, suppression of evidence seized pursuant to a search war rant is generally not justified unless (1) the issuing mag istrate was misled by affidavit information that the affiant either knew was false or offered with reckless disregard of the truth; (2) the issuing magistrate wholly abandoned his judicial role and served merely as a "rub ber stamp" for the police; (3) the supporting affidavit was "bare bones," i.e., so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) the warrant was so facially deficient in failing to particularize the place to be searched or the things to be seized that the executing officers could not reasonably presume it to be valid. See id. at 923. The court of appeals "agree[d] with the government that none of these factors is present in this case," Pet. App. 12a, and petitioners do not challenge that determination.

Petitioners nevertheless contend (Pet. 7-24) that the evidence obtained through the warrant-authorized search should be suppressed because the affidavit pre pared by Officer Murphy in connection with the warrant application was based in part on information acquired through an earlier warrantless search that was ulti mately held to be unconstitutional. The court of appeals correctly rejected that argument, concluding that "this is one of those unique cases in which the Leon good faith exception should apply despite an earlier Fourth Amendment violation." Pet. App. 13a. The court ex plained that "the facts surrounding the initial warrant less search were close enough to the line of validity to make the executing officers' belief in the validity of the search warrants objectively reasonable"; that "the offi cers who sought and executed the search warrants were not the same officers who performed the initial war rantless search"; and that "Officer Murphy's warrant affidavit fully disclosed to a neutral and detached magis trate the circumstances surrounding the initial warrant less search." Id. at 14a. Under those circumstances, the court of appeals recognized, there was "nothing more that Officer Murphy could have or should have done * * * to be sure his search would be legal." Ibid. (in ternal quotation marks omitted). Because a rule of sup pression in these circumstances could not reasonably be expected to affect the future behavior of persons in Offi cer Murphy's position, the Leon exception is applicable here. See Leon, 468 U.S. at 918 (holding that "suppres sion of evidence obtained pursuant to a warrant should be ordered * * * only in those unusual cases in which exclusion will further the purposes of the exclusionary rule").

Petitioners' apparent response (see Pet. 11-12) is that, although ordering suppression in these circum stances might not affect the behavior of officers (like Officer Murphy) who apply for and execute search war rants, it would nevertheless serve the purposes of the exclusionary rule by deterring future officers in the po sition of Officers Germany and Williams, who conducted the earlier warrantless search that was ultimately held to be unlawful. This Court, however, has "never sug gested that the exclusionary rule must apply in every circumstance in which it might provide marginal deter rence." Pennsylvania Bd. of Probation & Parole v. Scott, 524 U.S. 357, 368 (1998). Rather, in light of the substantial costs that the exclusionary rule entails, the Court has restricted the rule's application to "those ar eas where its remedial objectives are thought most effi caciously served." United States v. Calandra, 414 U.S. 338, 348 (1974).

In the present context, the prospect that evidence seized during a warrantless search will be suppressed if the search is found to be unconstitutional is itself a sub stantial deterrent to Fourth Amendment violations. Where (as the court of appeals found was true here, see Pet. App. 14a) an initial warrantless search is suffi ciently close to the constitutional line to support an ob jectively reasonable belief in its validity, the prospect that evidence seized during a later warrant-authorized search might be suppressed as well is unlikely to have significant incremental deterrent value. Cf. Scott, 524 U.S. at 367-368 (concluding that the prospect that unlawfully-seized evidence will be inadmissible at a parole-revocation proceeding, as well as at a criminal trial, would likely have only a minimal deterrent effect). Consistent with this Court's recognition that "the con nection between police misconduct and evidence of crime may be sufficiently attenuated to permit the use of that evidence at trial," Leon, 468 U.S. at 911, the court of appeals correctly applied Leon's "good faith" exception here.4

3. Petitioners' reliance (Pet. 8-10) on Murray v. United States, 487 U.S. 533 (1988), is misplaced. The Court in Murray held that, when incriminating evidence was observed but not seized during an initial unlawful search, and a search warrant was subsequently obtained through information unconnected to the unlawful entry, the evidence was admissible at a criminal trial under the "independent source" doctrine. See id. at 536-541. The Court made clear that the "independent source" doc trine would not support admission of the evidence "if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, or if infor mation obtained during that entry was presented to the Magistrate and affected his decision to issue the war rant." Id. at 542. But the fact that the "independent source" doctrine is inapplicable here does not mean that suppression is appropriate. The Court in Murray did not cite Leon, and it did not discuss whether and under what circumstances the "good faith" exception will sup port admission of evidence even when a warrant-autho rized search is not "independent" of an earlier illegality. Indeed, the Court did not discuss the possibility that a prior search might be so close to the constitutional line that an officer could have an objectively reasonable be lief in its validity. Even the court of appeals judges who dissented from the denial of rehearing en banc in this case recognized (Pet. App. 48a) that Murray is "not di rectly on point" here.

4. As petitioners acknowledge (Pet. 19), the Sixth Circuit's resolution of the question presented here is consistent with decisions of the majority of the courts of appeals that have addressed the application of Leon to situations in which judicial warrants were premised on information obtained through prior unlawful searches. See, e.g., United States v. Diehl, 276 F.3d 32, 43-44 (1st Cir.) (refusing to exclude evidence despite officer's pres ence in curtilage of house when he smelled marijuana; officer's "affidavit reflect[ed] neither deliberate mis statement nor any other bad faith," and his conduct was fully disclosed), cert. denied, 537 U.S. 834 (2002); United States v. White, 890 F.2d 1413, 1419 (8th Cir. 1989) (ap plying Leon where "facts [of earlier search] are close enough to the line of validity to make the officers' belief in the validity of the warrant objectively reasonable"), cert. denied, 498 U.S. 825 (1990); United States v. Carmona, 858 F.2d 66, 68 (2d Cir. 1988) (holding that, where officers seeking warrant acted in good faith, Leon exception applied despite officer's illegal seizure of cash necessary to establish probable cause for ensuing warrant-based search); United States v. Thornton, 746 F.2d 39, 49 (D.C. Cir. 1984) (finding suppression unwar ranted even if antecedent search of defendant's trash was unconstitutional; judge and police officers could rea sonably have believed that trash search was consti tutional, and its fruits therefore could be used to estab lish probable cause for search warrant).5

As petitioners explain (Pet. 19-22), the Ninth and Eleventh Circuits have refused to apply the Leon "good faith" exception in some cases where information used to obtain a judicial warrant was acquired through an unlawful search. See United States v. Vasey, 834 F.2d 782, 789-790 (9th Cir. 1987); United States v. Wanless, 882 F.2d 1459, 1466-1467 (9th Cir. 1989); United States v. Bishop, 264 F.3d 919, 924 & n.2 (9th Cir. 2001); United States v. McGough, 412 F.3d 1232, 1239-1240 (11th Cir. 2005). The Sixth Circuit in the instant case, however, did not hold that the Leon exception applies in all or even most such cases. Rather, the court stated that "this is one of those unique cases in which the Leon good faith exception should apply despite an earlier Fourth Amendment violation." Pet. App. 13a. The court emphasized that the prior search, though unlawful, was close to the constitutional line; that the circumstances of the earlier search were fully disclosed to the magistrate who issued the warrant; and that the officers who exe cuted the warrant-authorized search had not been in volved in the prior illegality. Id. at 13a-14a. In none of the cases cited by petitioners did the Ninth or Eleventh Circuit discuss the application of the Leon "good faith" exception to that combination of circumstances.

Petitioners contend (Pet. 22) that, "[a]s a factual mat ter," the pertinent Ninth and Eleventh Circuit cases "were easily as 'close' as this one." The opinions in those prior cases make clear, however, that none involved the combination of circumstances that the Sixth Circuit found dispositive here. In Vasey, the warrant was ob tained by the same officer who had conducted the initial unlawful search, see 834 F.2d at 784-785, and the offi cer's warrant application misrepresented the circum stances of that search, see id. at 790 n.4. In Wanless and McGough as well, the warrants were obtained by officers who had participated in the prior unlawful con duct. See Wanless, 882 F.2d at 1460-1462; McGough, 412 F.3d at 1233-1235. And in Bishop, the court treated the earlier Fourth Amendment violation as a clear one, stating that "[t]here should be little doubt" that the an tecedent warrantless stop of the defendant's vehicle "was illegal and without probable cause." 264 F.3d at 924.

For the same reason, the state-court cases cited by petitioners (see Pet. 21) do not establish a conflict in authority warranting this Court's review. In State v. Dewitt, 910 P.2d 9, 11 (Ariz. 1996), and State v. Johnson, 716 P.2d 1288, 1290-1291 (Idaho 1986), the warrants were obtained by the same agents who had conducted the earlier unlawful searches. The decision in People v. Machupa, 872 P.2d 114, 123-124 (Cal. 1994), rested in part on the court's determination that an internal incon sistency in the warrant affidavit would have hindered any effort by the magistrate to assess the legality of an antecedent warrantless entry. And in State v. Carter, 630 N.E.2d 355, 362 (Ohio 1994), the officer who had performed the initial warrantless seizure "was unable to point to specific articulable facts that would lead a rea sonable person to believe" that the seized individual had committed a crime.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

ALICE S. FISHER
Assistant Attorney General

THOMAS M. GANNON
Attorney

OCTOBER 2006

1 Collins was charged in the indictment, but his case was severed from petitioners', and he is no longer a party to this case. See Gov't C.A. Br. 3 n.1.

2 The government argued in the district court that petitioners lacked standing to contest the searches of 123 Imperial Point. The district court rejected that contention, see Pet. App. 23a-24a, and the govern ment did not renew the argument on appeal, see id. at 5a n.1; Gov't C.A. Br. 8 n.3.

3 The district court also suppressed the post-arrest statements of petitioners Brandt and Davis as fruits of the warrantless search conducted on October 12, 2001. See Pet. App. 29a-31a. The court explained that "the Government does not identify any independent source for [the statements] that is not derivative of the warrantless search of 123 Imperial Point." Id. at 31a.

4 Petitioners assert (Pet. 12) that the court of appeals endorsed the "good faith" exception on the facts presented because of a view that "when the magistrate considered the warrant application to conduct the second search, he considered whether the first search had complied with the Fourth Amendment." That, however, is not what the court said. Rather, the court reasoned that "the facts surrounding the initial Fourth Amendment violation were 'close enough to the line of validity to make the officer's belief in the validity of the warrant objectively reasonable.'" Pet. App. 13a (quoting United States v. White, 890 F.2d 1413, 1419 (8th Cir. 1989)). The court also emphasized that the officers who sought the warrant were different from those who had conducted the antecedent search, and that the officers had disclosed the circum stances of that search to the magistrate. Id. at 14a. The court thus relied on the uncertainty of a prior violation and the objectively reasonable behavior of the police in seeking and executing the warrant. The police officers who conducted the warrant-authorized search therefore could and should have done nothing more to assure them selves that their search was lawful.

5 The same courts of appeals have sometimes declined to apply the Leon "good faith" exception when the officer who conducted the initial warrantless search failed to inform the magistrate of the circumstances under which that search was conducted, see United States v. Reilly, 76 F.3d 1271, 1280-1283 (2d Cir. 1996), or when the antecedent warrantless search was clearly unlawful, see United States v. O'Neal, 17 F.3d 239, 242-243 n.6 (8th Cir.), cert. denied, 513 U.S. 960 (1994).