CA4: Officer’s lie about existence of SW required suppression

The officer knowingly lied about the existence of a search warrant to gain access to defendant’s house. The district court (United States v. Rush, 2014 U.S. Dist. LEXIS 32632 (S.D. W. Va., Mar. 13, 2014)): “In view of the limited deterrent effect and the grave consequences that suppression would visit upon the judicial and societal interests in further pursuing the prosecution, suppression is plainly unauthorized under Supreme Court precedent.”), remarkably refused to suppress [Thank you Chief Justice Roberts, by allowing this district court holding to even occur.]. United States v. Rush, 2015 U.S. App. LEXIS 22212 (4th Cir. Dec. 21, 2015):

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.

. . .

The present case bears no resemblance to the previous applications of the good-faith exception. Here, the search was unconstitutional due to the intentional decision of Sergeant Winkler to tell Defendant that there was a search warrant, even though he knew that his statement was untrue. This is not a case of negligence, or reasonable reliance on faulty information. See Herring, 555 U.S. at 137; Evans, 514 U.S. at 15-16. 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 officer would have known that the search was illegal.” 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 violate Defendant’s Fourth Amendment rights. Indeed, courts have long taken a negative view of law enforcement misleading the public about having valid warrants. In the seminal opinion Bumper v. North Carolina, 391 U.S. 543, 546-47, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (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 seizure is unreasonable and therefore unconstitutional if it is premised on a law 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. When the officers arrived at the address, they found two houses labeled 3170 Hendricks Avenue and none with the 3171 address. Id. The officers approached one of the homes (which was 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 the analysis of whether the officer’s action was objectively reasonable). Sergeant Winkler’s action was 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. Even if this were true—and the officers’ behavior suggests it was not—the subjective intent of the officers is of no import to our analysis. Herring, 555 U.S. at 145. 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 with the Fourth Amendment. Davis, 131 S. Ct. at 2427.