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Title United States v. Hodge

Date 2001

By Alito

Subject Criminal Law

Contents

Page 1

87 of 238 DOCUMENTS

UNITED STATES OF AMERICA, Appellant v. ALEX HODGE

No. 00-3296

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

246 F.3d 301; 2001 U.S. App. LEXIS 5701

December 7, 2000, Argued

April 5, 2001, Filed

SUBSEQUENT HISTORY: **1 Counsel Amended

June 12, 2001.

PRIOR HISTORY: ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS. Dist. Court No. Crim. 1999/66. District Court Judge: Raymond L. Finch.

DISPOSITION: Order suppressing evidence is reversed and case remanded.

CASE SUMMARY:

PROCEDURAL POSTURE: The government appealed from the judgment of the United States District Court for the District Court of the Virgin Islands, which granted defendant's motion to suppress evidence obtained during the execution of a search warrant.

OVERVIEW: Defendant was arrested after police ob- served him making a sale to a well-known drug user. The police obtained a warrant to search defendant's resi- dence where more drugs and a machine gun were found. Prior to trial, defendant sought to suppress the evidence obtained in the search of his home. The district court granted defendant's motion to suppress and the govern- ment appealed. On review, judgment granting the motion to suppress was reversed and remanded because the af- fidavit for the search warranted provided a substantial basis for finding probable cause to search defendant's res- idence and the officers relied on the warrant in objective good faith. The evidence supporting probable cause for the warrant was that defendant was an experienced and re- peat drug dealer who would need to store evidence of his illicit activities somewhere, and it was reasonable to infer that the somewhere would be his residence, which was in the same city where he was to make the drug delivery. Furthermore, the officers' reliance on the search warrant was objectively reasonable, so the good faith exception applied, rendering the evidence seized during the search

of defendant's residence admissible.

OUTCOME: Judgment was reversed and remanded. The district court erred in granting motion to suppress because the affidavit for the warrant was grounded on a substan- tial basis for a finding of probable cause where received a reliable tip from a confidential informant, observed defen- dant attempting to make a delivery of drugs, and reasoned that defendant's nearby residence was the likely storage area for defendant's illicit activities.

LexisNexis(R) Headnotes

Criminal Law & Procedure > Appeals > Standards of

Review > Standards Generally

Criminal Law & Procedure > Pretrial Motions > Suppression of Evidence

HN1 In ruling on a defendant's motion to suppress, where the district court does not question the facts con- tained in the affidavit supporting the search warrant, the appellate court's review of the suppression order is ple- nary. The appellate court sits like a district court and must, like the district court, give great deference to the magis- trate judge's probable cause determination.

Criminal Law & Procedure > Search & Seizure > Search

Warrants > Probable Cause

HN2 A magistrate judge may find probable cause when, viewing the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place. An appellate court must uphold the finding if the affidavit on which it was based provided a substantial basis for finding probable cause. The ap- pellate court need not determine whether probable cause actually existed, but only whether there was a substantial basis for finding probable cause. In making this determi- nation, the appellate court confines itself to the facts that were before the magistrate judge, i.e., the affidavit, and does not consider information from other portions of the record. The resolution of doubtful or marginal cases in this area should be largely determined by the preference

246 F.3d 301, *; 2001 U.S. App. LEXIS 5701, **1

Page 2

to be accorded to warrants.

Criminal Law & Procedure > Search & Seizure > Search

Warrants > Probable Cause

HN3 Direct evidence linking the place to be searched to the crime is not required for the issuance of a search warrant. Instead, probable cause can be, and often is, in- ferred by considering the type of crime, the nature of the items sought, the suspect's opportunity for concealment and normal inferences about where a criminal might hide the fruits of his crime. A court is entitled to draw rea- sonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense.

Criminal Law & Procedure > Search & Seizure > Search

Warrants > Probable Cause

HN4 It is reasonable to infer that a person involved in drug dealing on a large scale would store evidence of that dealing at his home.

Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Delivery, Distribution & Sale Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause

HN5 A repeat drug dealer certainly has the opportunity to conceal drug-related evidence in his home. In addition, such a person logically could conclude that his residence is the best, and probably the only, location to store items such as records of illicit activity, phone books, address books, large amounts of cash, assets purchased with pro- ceeds of drug transactions, guns to protect drugs and cash, and large quantities of drugs to be sold.

Criminal Law & Procedure > Search & Seizure > Search

Warrants > Probable Cause

HN6 A magistrate judge is entitled to give considerable weight to the conclusions of an experienced law enforce- ment officer regarding where evidence of a crime is likely to be found.

Criminal Law & Procedure > Search & Seizure > Search

Warrants > Probable Cause

HN7 A grudging or negative attitude by reviewing courts toward warrants is inconsistent with U.S. Const. amend. IV's strong preference for searches conducted pursuant to a warrant.

Criminal Law & Procedure > Search & Seizure > Exclusionary Rule Exceptions > Good Faith

HN8 The good faith exception instructs that suppression of evidence is inappropriate when an officer executes a search in objectively reasonable reliance on a warrant's authority.

Criminal Law & Procedure > Search & Seizure > Exclusionary Rule Exceptions > Good Faith

HN9 The test for whether the good faith exception ap- plies is whether a reasonably well trained officer would have known that the search was illegal despite the magis- trate judge's authorization. The mere existence of a war- rant typically suffices to prove that an officer conducted a search in good faith and justifies application of the good faith exception.

Criminal Law & Procedure > Search & Seizure > Exclusionary Rule Exceptions > Good Faith

HN10 There are situations in which an officer's reliance on a warrant would not be reasonable and would not trig- ger the good faith exception. Four such situations are: (1) when the magistrate judge issued the warrant in reliance on a deliberately or recklessly false affidavit; (2) when the magistrate judge abandoned his judicial role and failed to perform his neutral and detached function; (3) when the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) when the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized.

Criminal Law & Procedure > Appeals > Standards of

Review > Standards Generally

Criminal Law & Procedure > Pretrial Motions > Suppression of Evidence

HN11 A reviewing court should focus not on what in- formation an affidavit does not include, which may lead to improper de novo review, but rather on the information it does contain.

Criminal Law & Procedure > Search & Seizure > Search

Warrants > Probable Cause

HN12 Where an affidavit is not clearly lacking in indicia of probable cause, but presents a close call, once the mag- istrate judge makes the call, it is objectively reasonable for police officers to rely on it.

Criminal Law & Procedure > Search & Seizure > Exclusionary Rule Exceptions > Good Faith

HN13 The good faith exception requires objectively, not subjectively, reasonable conduct.

COUNSEL: MICHAEL A. ROTKER (Argued), United States Department of Justice, Criminal Division, Washington, DC. LOUIS M. FISCHER, United States Department of Justice, Criminal Division, Washington, DC. MARC OSBORNE, United States Department of Justice, Washington, DC. DENISE A. HINDS, Office of the United States Attorney, Christiansted, St. Croix, United States Virgin Islands, Counsel for Appellant.

JOMO MEADE (Argued), Frederiksted, St. Croix, United States Virgin Islands, Counsel for Appellee.

246 F.3d 301, *; 2001 U.S. App. LEXIS 5701, **1

Page 3

JUDGES: Before: MANSMANN and ALITO, Circuit

Judges, and FULLAM, Senior District Judge. *

* The Honorable John P. Fullam, Senior District Judge for the Eastern District of Pennsylvania, sit- ting by designation.

OPINIONBY: ALITO OPINION: *303 OPINION OF THE COURT ALITO, Circuit Judge:

The Virgin Islands police arrested appellee Alex Hodge after he discarded two bags of crack cocaine while fleeing from police. Following the arrest and based on the affidavit of officer Samuel Abraham, *304 the police obtained a search warrant for Hodge's residence. Hodge moved to suppress the evidence **2 obtained during ex- ecution of the warrant, arguing that Abraham's affidavit failed to establish a sufficient nexus between Hodge's criminal activity and his home. The District Court of the Virgin Islands granted Hodge's motion and the United States appealed. We hold that the affidavit supporting the warrant provided a substantial basis for finding probable cause to search Hodge's residence. Alternatively, we find that the officers who executed the search relied on the war- rant in objective good faith. Accordingly, we reverse the order suppressing the evidence seized during the search of Hodge's home.

As the outcome of this case hinges on the suffi- ciency of the affidavit supporting the warrant, the under- lying facts are largely taken from that affidavit. When the affidavit was executed, Abraham, the affiant, had been a detective with the Virgin Islands Police for seven years. Appendix at 187 (App.). During the previous three years, Abraham had been assigned to the High Intensity Drug Traffic Area Task Force on St. Croix (HIDTA). Id. Abraham had "participated in numerous investigations related to narcotics trafficking." Id.

On July 18, 1999, a confidential informant, who had previously **3 "provided accurate and reliable infor- mation regarding criminal activity in St. Croix," informed a member of the HIDTA "that Alex Hodge was sched- uled to make a delivery of crack cocaine on King Street, Frederiksted, St. Croix in the vicinity of a particular store at mid-day on July 19, 1999." Id. On July 19,

1999, Abraham and other members of the HIDTA were stationed on King Street near the identified store "and ob- served Hodge exit a blue Mazda Protege and approach an-

other individual" who was a known drug user. Id. at 187-

88. "As he approached this individual Hodge" reached into the front "of his pants as if he were trying to retrieve something." Id. at 188. Abraham knew that sellers often store drugs in the front of their pants to conceal the drugs from law enforcement. Id.

Hodge fled when he saw the HIDTA agents. Id. The agents observed that Hodge had "what appeared to be a plastic sandwich bag in his" hand and that he dropped the bag near a trash can. Id. The agents apprehended Hodge and located two sandwich bags containing what appeared to be approximately 1/8 to 1/4 kilogram of crack cocaine near the trash can. Id. Hodge was arrested on the spot. Id. A member of the HIDTA **4 team knew that Hodge resided in a home behind, but not attached to, the home at Number 48 White Bay, in the same city as the anticipated transaction--Frederiksted, St. Croix. Id. The agent also knew that Hodge drove a red Acura Integra as well as a rented, blue Mazda Protege. Id. HIDTA agents went to Hodge's suspected home and saw the red Integra parked there. Agents were also told by a resident of Number 48 that Hodge lived in the home behind Number 48. Id. at

188-89.

Based on this information, Abraham averred that

Hodge resided in the home behind Number 48. Id. at

189. Abraham also averred that "the quantity of cocaine involved in Hodge's attempted transaction and the cir- cumstances surrounding his arrest indicated that Hodge was possessing the crack cocaine with an intent to dis- tribute it." Id. "Based upon his training and experience," Abraham stated that he knew "that persons involved in the receipt and distribution of controlled substances com- monly keep within their residences *305 evidence of their criminal activity." Id.

Relying on Abraham's affidavit, a magistrate judge found probable cause to search Hodge's home. During the search, the police located approximately 600 **5 grams of crack cocaine, over 30 grams of marijuana, a machine gun, and live ammunition. Hodge was indicted for pos- sessing a firearm as a felon, possessing cocaine base with intent to distribute, and possessing cocaine base near a school, with intent to distribute. Prior to trial, Hodge suc- cessfully moved to suppress evidence seized during the search of his residence. The suppression order must be reversed if (1) the affidavit provided a substantial basis for finding probable cause to search Hodge's home or (2) the officers relied on the warrant in objective good faith.

II. Probable Cause

HN1 In ruling on Hodge's motion to suppress, the

246 F.3d 301, *305; 2001 U.S. App. LEXIS 5701, **5

Page 4

District Court "did not question the facts contained in the affidavit" supporting the search warrant. United States v. Jones, 28 V.I. 375, 994 F.2d 1051, 1055 (3d Cir. 1993). Accordingly, this Court's review of the suppression order is plenary. 994 F.2d at 1055 & n.5; see also United States v. Conley, 4 F.3d 1200, 1204-05 (3d Cir. 1993). The Court sits like a district court and must, like the district court, give great deference to the magistrate judge's probable cause determination. See United States v. Loy, 191 F.3d

360, 365 (3d Cir. 1999); **6 Conley, 4 F.3d at 1205.

HN2 A magistrate judge may find probable cause when, viewing the totality of the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462

U.S. 213, 238, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983). This Court must uphold the finding if the affidavit on which it was based provided a substantial basis for find- ing probable cause. See id. at 236; Conley, 4 F.3d at 1205; Jones, 994 F.2d at 1054, 1055. The Court need not deter- mine whether probable cause actually existed, but only whether there was "a 'substantial basis' for finding proba- ble cause." Jones, 994 F.2d at 1054; see id. at 1055, 1057. In making this determination, the Court confines itself "to the facts that were before the magistrate judge, i.e., the affidavit, and does not consider information from other portions of the record." Id. at 1055. "The resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." Id. at 1057-58 (quoting United States v. Ventresca, 380

U.S. 102, 109, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965)).

**7 B.

Hodge argues, and the District Court agreed, that the affidavit failed to establish a nexus between Hodge's drug activity and Hodge's home and thus did not provide a sufficient basis for probable cause to search the home.

" HN3 Direct evidence linking the place to be searched to the crime is not required for the issuance of a search warrant." Conley, 4 F.3d at 1207. "Instead, proba- ble cause can be, and often is, inferred by 'considering the type of crime, the nature of the items sought, the suspect's opportunity for concealment and normal inferences about where a criminal might hide' " the fruits of his crime. Jones, 28 V.I. 375, 994 F.2d 1051 at 1056 (quoting United States v. Jackson, 756 F.2d 703, 705 (9th Cir. 1985)). A court "is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of *306 offense." United States v. Whitner, 219 F.3d 289, 296 (3d Cir. 2000) (quot- ing United States v. Caicedo, 85 F.3d 1184, 1192 (6th Cir.

1996)).

In the present case, there is no direct evidence that drugs or drug paraphernalia would be located at Hodge's home. **8 However, there was significant evidence from which the magistrate judge might reach that conclu- sion. Initially, the facts surrounding Hodge's arrest sug- gest that he was an experienced drug dealer who was operating a drug business. Cf. Whitner, 219 F.3d at 298. The amount of crack cocaine Hodge possessed indicated that he was "involved in selling drugs, rather than merely using them." Id. The fact that an informant, whose tip was corroborated by what actually happened, told the police that Hodge would be delivering cocaine at a particular time and location suggests both that Hodge's drug ac- tivities were organized and that Hodge was sufficiently involved in the drug trade that others knew of his activi- ties. The prearranged nature of Hodge's dealing is likewise manifested by the fact that a known drug user was present to meet Hodge at the time of the anticipated transaction. That Hodge appeared to carry the drugs in the front of his pants as is common to avoid detection also suggests that he had experience in the drug trade. Finally, Hodge's use of a rental car, another common practice in the drug trade, indicates that the anticipated transaction was not an isolated deal, **9 but part of a larger business. See, e.g., United States v. $32,310.00, 1988 U.S. Dist. LEXIS

19476, 1988 WL 169271, at *7 (D.N.J. June 23, 1988)

("Evidence indicated that rental cars are often used to facilitate drug transactions since such cars are not sub- ject to forfeiture."). All these facts combine to suggest that Hodge was an experienced and repeat drug dealer who would need to store evidence of his illicit activities somewhere. See Whitner, 219 F.3d at 298.

HN4 It is reasonable to infer that a person involved in drug dealing on such a scale would store evidence of that dealing at his home. See id. at 297-98 (citing cases from other circuits); United States v. Feliz, 182 F.3d

82, 86-88 (1st Cir. 1999) (finding "sufficient showing of probable cause" for search of "long-time, successful, drug trafficker 's " apartment, despite lack of direct evi- dence linking apartment to trafficking); United States v. McClellan, 165 F.3d 535, 546 (7th Cir. 1999) (noting

"that in the case of drug dealers evidence is likely to be found where the dealers live") (quoting United States v. Reddrick, 90 F.3d 1276, 1281 (7th Cir. 1996)) (emphasis omitted); **10 United States v. Thomas, 300 U.S. App. D.C. 380, 989 F.2d 1252, 1255 (D.C. Cir. 1993) (per cu- riam) (upholding search of drug dealer's home and noting that "observations of illegal activity occurring away from the suspect's residence, can support a finding of probable cause to issue a search warrant for the residence, if there is a reasonable basis to infer from the nature of the illegal activity observed, that relevant evidence will be found in the residence"); United States v. Williams, 974 F.2d 480,

246 F.3d 301, *306; 2001 U.S. App. LEXIS 5701, **10

Page 5

481-82 (4th Cir. 1992) (upholding search of known drug dealer's motel room despite lack of direct evidence that room was used in drug activities); cf. Jones, 994 F.2d at 1056 (cash, clothing, and firearms related to robbery were "the types of evidence likely to be kept in a sus- pect's residence"). HN5 A repeat drug dealer certainly has "the opportunity to conceal drug-related evidence in his home." Whitner, 219 F.3d at 298. In addition, such a person "logically could conclude that his residence is the best, and probably the only, location to store items such as records of illicit activity, phone books, address books, large amounts of **11 cash, assets purchased with proceeds of drug transactions, guns to protect drugs

*307 and cash, and large quantities of drugs to be sold." Id.

Hodge's home was in the same city where he was to make the anticipated drug delivery, rendering his home a more likely repository of his drug-related paraphernalia. Cf. Jones, 994 F.2d at 1057 ("All three defendants' homes were on St. Croix and thus were relatively near the site of the crime, making all of their homes a likely repository for evidence."). Moreover, as Hodge concedes, proba- ble cause existed to arrest him on drug-related charges, Appellee's Brief at 12, again making it more likely that drug-related evidence would be stored at his home. See Jones, 994 F.2d at 1055-56 (While "probable cause to arrest does not automatically provide probable cause to search the arrestee's home," probable cause to arrest in- creases "the likelihood that the arrestee's residence con- tains evidence of the crime."); cf. Conley, 4 F.3d at 1207

(Previous arrests and convictions may help to establish probable cause.).

Finally, Abraham, an experienced police officer, be- lieved that Hodge's home would likely contain evidence

**12 related to Hodge's drug activities. HN6 The mag- istrate judge was entitled to "give considerable weight to the conclusions of this experienced law enforcement of- ficer regarding where evidence of a crime was likely to be found." Whitner, 219 F.3d at 296 (quoting Caicedo,

85 F.3d at 1192).

The cumulative evidence outlined above provided a substantial basis from which to infer that a search of Hodge's home would yield evidence of Hodge's drug- related activities. To be sure, "it would have been prefer- able if Abraham could have supplied more informa- tion linking Hodge's home to the criminal activity." Whitner, 219 F.3d at 299; see also Jones, 994 F.2d at

1057. Nonetheless, "the fact remains that he did bring the evidence . .. to a magistrate judge, who determined that there was probable cause to issue the warrant ." Jones,

994 F.2d at 1057. " HN7 A 'grudging or negative at- titude by reviewing courts toward warrants' is inconsis-

tent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant." Id. (quoting Ventresca, 380 U.S. at 108). This preference for warrants further **13 persuades us to hold that the magistrate judge had a substantial basis for finding probable cause.

III. Good Faith Exception

Even if a substantial basis for finding probable cause were lacking, however, the evidence obtained through the search would be admissible under the good faith excep- tion to the exclusionary rule. See United States v. Leon,

468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984).

The District Court found that the good faith exception did not apply in this case because Abraham's affidavit was so deficient as to render reliance on it unreasonable. We exercise plenary review over the District Court's con- clusion. See Loy, 191 F.3d at 367 n.5; United States v. Williams, 3 F.3d 69, 71 n.2 (1993).

HN8 The good faith exception instructs that sup- pression of evidence "is inappropriate when an officer exe- cutes a search in objectively reasonable reliance on a war- rant's authority." Williams, 3 F.3d at 74. " HN9 The test for whether the good faith exception applies is 'whether a reasonably well trained officer would have known that the search was illegal despite the magistrate judge's au- thorization.' " Loy, 191 F.3d at 367 **14 (quoting Leon,

468 U.S. at 922 n.23). The *308 mere existence of a warrant typically suffices to prove that an officer con- ducted a search in good faith and justifies application of the good faith exception. Leon, 468 U.S. at 922; Williams,

3 F.3d at 74. Yet HN10 there are situations in which an officer's reliance on a warrant would not be reasonable and would not trigger the exception. Leon, 468 U.S. at

922-23. Our Court has identified four such situations:

(1) when the magistrate judge issued the warrant in reliance on a deliberately or reck- lessly false affidavit;

(2) when the magistrate judge abandoned his judicial role and failed to perform his neutral and detached function;

(3) when the warrant was based on an affi- davit 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable'; or

(4) when the warrant was so facially defi-

246 F.3d 301, *308; 2001 U.S. App. LEXIS 5701, **14

Page 6

cient that it failed to particularize the place to be searched or the things to be seized.

Williams, 3 F.3d at 74 n.4 (citations omitted).

In the present case, Hodge makes no serious argument that the **15 warrant was false, n1 that the magistrate judge abandoned his independent role, or that the war- rant was fatally general. Instead, Hodge contends that the affidavit lacked the necessary indicia of probable cause. Specifically, Hodge asserts again that the affidavit failed to establish a sufficient nexus between Hodge's drug ac- tivity and his home. Hodge also asserts that Abraham knew of this deficiency and thus could not rely on the magistrate judge's finding of probable cause.

n1 Hodge does argue that Abraham failed to in- clude certain relevant facts in his affidavit; namely, that officers had "traveled to Hodge's residence af- ter Hodge's arrest to inquire from his neighbor whether Hodge had been home prior to his ar- rest," that the officers were told that Hodge had been seen early in the morning, that the officers

"entered Hodge's premises prior to obtaining the search warrant," and that the officers "misrepre- sented to Hodge's neighbor that Hodge's Mazda Protege had been stolen." Appellee's Brief at 18. The fact that officers traveled to Hodge's residence was disclosed in the affidavit. Failure to disclose the remaining facts does not render the affidavit misleading.

Nor do any of the undisclosed facts undermine the magistrate judge's finding of probable cause. First, HN11 a reviewing court "should focus not on what information an affidavit does not include

which may lead to improper de novo review , but rather on the information it does contain." Conley, 4

F.3d at 1208. Second, we do not agree with Hodge that his neighbor's statement that she saw him at home "early in the morning" would have under- mined the showing of probable cause. Since the arrest occurred at about mid-day, the lapse of time between Hodge's spotting by his neighbor and his arrest was not great. By showing that Hodge had been at home at most just a few hours before the arrest, the neighbor's statement might actually have bolstered the showing of probable cause. Third, we do not agree with Hodge that the record shows that the officers entered his house before the warrant was issued. Hodge relies on his neighbor's affidavit. See App. at 176-77. In that affidavit, the neighbor first stated that the officers "approached" her and that,

"while talking to the officers, I observed that they

had made entry on to the premises and were look- ing around." Id. Two sentences later, she stated:

"At approximately 3:00 p.m. the officers went into the house and began a search." Id. at 177. By far the most reasonable reading of the affidavit is that the officers' initial entry onto the "premises" consisted of their entering the property surrounding the house and that they did not actually enter the house un- til approximately 3:00 p.m., after the warrant had been issued. The neighbor did not testify at the sup- pression hearing, and no other witness testified that the officers illegally entered the house. Moreover, it is apparent that none of the facts recited in the af- fidavit in support of the showing of probable cause were derived from an illegal entry into the house. Thus, the reference in the neighbor's affidavit to the officers' initial entry onto the premises seems entirely inconsequential for present purposes.

**16 *309

As our probable cause analysis has already shown, Abraham's affidavit "was not a 'bare bones' document" but contained sufficient indicia of probable cause to sup- port a magistrate judge's finding of probable cause. Loy,

191 F.3d at 369. At a minimum, HN12 the affidavit was not clearly lacking in indicia of probable cause, but pre- sented a close call. Once the magistrate judge made that call, it was objectively reasonable for the officers to rely on it. See Williams, 3 F.3d at 74.

The officers' reliance on the warrant is further justi- fied by the state of Circuit law at the time in question. As recently as July 2000, our Court, in United States v. Whitner, had declined to "decide whether the fact that the defendant appeared to be a drug dealer was sufficient under the circumstances of that case to conclude that he would be likely to store evidence of his drug dealing at his residence." Whitner, 219 F.3d at 298; see also Jones, 994

F.2d at 1056 (declining "to decide whether in every case the fact that a suspect committed a crime involving cash and/or a gun automatically provides a magistrate judge with enough information to **17 approve a search of a suspect's home"). As a result, even assuming error, "the officers could not be expected to know that the magistrate judge made an erroneous probable cause determination" due to insufficient evidence connecting Hodge's house to drug dealing. Loy, 191 F.3d at 368-69. Indeed, the mag- istrate judge himself could not know whether this Court would ultimately agree with his determination given the unsettled jurisprudence governing cases of this type.

"When judgment calls of this kind are required," of- ficers should be able to rely on the magistrate judge's determination of the law. Williams, 3 F.3d at 74. Here the

246 F.3d 301, *309; 2001 U.S. App. LEXIS 5701, **17

Page 7

magistrate judge determined that the affidavit established probable cause.

Hodge nonetheless seeks to defeat a finding of rea- sonable reliance by arguing that Abraham knew that the affidavit was insufficient. Hodge derives this argument from the chain of events following his arrest. After the ar- rest, Abraham and other officers drove to Hodge's home with Hodge's car, entered the premises, told a neighbor

"that the car was stolen," and were told by the neighbor

"that she had seen Hodge early in the morning feed- ing the dogs." Appellee's **18 Brief at 7. Hodge argues that Abraham went to Hodge's home to acquire additional evidence, because Abraham allegedly knew that Hodge's arrest combined with Abraham's own opinions regarding the storage of drug-related evidence would be insufficient to establish probable cause. While at the home, the offi- cers not only failed to obtain information establishing a nexus to the home, but learned that Hodge had not been home since early morning. Nevertheless, Hodge contends that Abraham applied for a search warrant and substituted his opinion for the missing factual nexus. Hodge thus sug- gests that Abraham knew that probable cause was lacking and could not reasonably rely on the warrant.

Hodge's argument is unpersuasive. Abraham's sub- jective belief regarding the sufficiency of the evidence is irrelevant. The Supreme Court has emphasized that

HN13 the good faith exception requires objectively, not

subjectively, reasonable conduct. Leon, 468 U.S. at 919-

20 & n.20, 922 & n.23. Moreover, even if subjective be- lief were relevant, the fact that officers went to Hodge's house, or that they sought additional information, does not show that they knew that their affidavit would be de- ficient. **19 Instead, the officers appear to have gone to Hodge's suspected residence for the legitimate purpose of confirming that it was indeed Hodge's home. *310 Having confirmed the location of Hodge's residence, the officers properly entrusted their evidence to a mag- istrate judge to assess probable cause. See id. at 921

("It is the magistrate judge's responsibility to determine whether the officer's allegations establish probable cause

. . . ."). They then relied on the magistrate judge's determi- nation and executed the search. The officers' reliance on the search warrant was objectively reasonable, regardless of their supposed subjective belief. As a result, the good faith exception applies, rendering the evidence seized dur- ing the search of Hodge's home admissible.

IV.

Because the magistrate judge had a substantial ba- sis for finding probable cause, and because the officers' reliance on the warrant was objectively reasonable, the evidence seized during the search of Hodge's home is ad- missible. The order suppressing that evidence is therefore reversed, and the case remanded for further proceedings consistent with this opinion.


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