                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            AUGUST 26, 2009
                              No. 08-16683                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                 D. C. Docket No. 08-00170-CR-2-LSC-TMP

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

RONALD KEWON CRUSE,
a.k.a. Groove,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                       _________________________

                              (August 26, 2009)

Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.

PER CURIAM:

     Ronald Kewon Cruse appeals the denial of a motion to suppress evidence
from a search of his residence, during which law enforcement recovered drugs and

a firearm.

        On May 16, 2007, Deputy John F. Weatherly of the Jefferson County

Sheriff’s Department presented an affidavit in support of a search warrant to a

Jefferson County judge. The affidavit averred that a reliable confidential informant

had informed Deputy Weatherly that he had been in an apartment within the past

48 hours and had seen a “quantity of marijuana” there. The affidavit, through the

confidential informant, described the resident and provided directions to the

apartment. The confidential informant advised that the apartment was used to

distribute marijuana. The state judge issued the warrant. It authorized a search for,

inter alia, firearms and drugs as well as “[a]ny and all other material evidence of

violations of Criminal Code of Alabama, together with fruits, instrumentalities and

evidence of crimes at this time unknown,” the so-called “catch-all” provision. On

May 22, 2007, law enforcement executed the warrant, during which they recovered

a loaded Hi-Point .40 caliber pistol and 31 grams of marijuana.1

        In April 2008, a federal grand jury indicted Cruse for possession of a firearm

by an unlawful user of a controlled substance pursuant to 18 U.S.C. § 922(g)(3).



        1
         The magistrate judge noted that the return on the warrant was not included in the
exhibits filed before the district court, but that it “appears that the Hi-Point pistol alleged in the
indictment was seized.” No one argues to the contrary.

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Cruse filed a motion to suppress the pistol. A magistrate judge found that,

although the search warrant constituted a “general warrant” in violation of the

Fourth Amendment, the good faith exception to the warrant requirement, pursuant

to United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984), nevertheless

“saved” the pistol from suppression. As such, the magistrate judge denied the

motion. Cruse objected, but the district court accepted the magistrate judge’s

report and recommendation. Cruse plead guilty and reserved the right to appeal.

The district court sentenced Cruse to 24 months imprisonment, and this appeal

followed.

      On appeal, Cruse argues that the district court erred in determining that the

good faith exception to the exclusionary rule applied. First, Cruse argues that the

district court failed to address his contention that the state court judge acted as an

adjunct to law enforcement. Specifically, he contends that the state court judge

abandoned her neutral role because she authorized the seizure of items that were

not mentioned in the officer’s affidavit, and she included a “catch-all” provision

that made the warrant a general search warrant. Cruse further argues that the

officers could not have reasonably relied upon the warrant based on Groh v.

Ramirez, 540 U.S. 551, 124 S. Ct. 1284 (2004), because the warrant authorized a

general search. Furthermore, the officers could not have reasonably relied on the



                                            3
warrant in light of the disparity between the warrant authorizing the seizure of

numerous items when the affidavit only mentioned marijuana. Cruse also argues

that the execution of the warrant was unreasonable because the information was

stale, as it was executed approximately one week after the marijuana was observed.

      “We review de novo the legal issue as to whether the Leon good faith

exception to the exclusionary rule applies to this search, whereas the underlying

facts upon which that determination is based are binding on appeal unless clearly

erroneous.” United States v. Martin, 297 F.3d 1308, 1312 (11th Cir. 2002)

(internal quotation marks and citation omitted).

      The Fourth Amendment protects “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures. . . .” U.S. Const. amend. IV. Of particular relevance here, it further

provides that “no Warrants shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be searched, and the persons

or things to be seized.” Id. “The manifest purpose of this particularity requirement

was to prevent general searches.” Maryland v. Garrison, 480 U.S. 79, 84, 107 S.

Ct. 1013, 1016 (1987). The exclusionary rule is “a judicially created remedy

designed to safeguard Fourth Amendment rights generally through its deterrent

effect. . . .” United States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613, 620



                                           4
(1974).

      Leon “stands for the principle that courts generally should not render

inadmissible evidence obtained by police officers acting in reasonable reliance

upon a search warrant that is ultimately found to be unsupported by probable

cause.” Martin, 297 F.3d at 1313. We have explained that the Leon good faith

exception applies in all but four limited sets of circumstances:

             (1) the magistrate or judge in issuing a warrant was
             misled by information in an affidavit that the affiant
             knew was false or would have known was false except
             for his reckless disregard of the truth; (2) where the
             issuing magistrate wholly abandoned his judicial role in
             the manner condemned in Lo-Ji Sales, Inc. v. New York,
             442 U.S. 319, 99 S. Ct. 2319 (1979); (3) where the
             affidavit supporting the warrant is so lacking in indicia of
             probable cause as to render official belief in its existence
             entirely unreasonable; and (4) where, depending upon the
             circumstances of the particular case, a warrant is so
             facially deficient- i.e., in failing to particularize the place
             to be searched or the things to be seized-that the
             executing officers cannot reasonably presume it to be
             valid.

Id. (internal quotation marks omitted). Here, Cruse challenges the application of

the good faith exception based on the second, third, and fourth circumstances. We

find that this case does not fit within any of the described circumstances.

      First, there is no indication that the state court judge wholly abandoned her

judicial role by failing to independently assess the affidavit or by participating in



                                           5
the process beyond the issuing of the warrant. In Lo-Ji Sales, the Supreme Court

held that a magistrate judge did not manifest the neutrality or detachment required

in issuing a warrant as he not only issued an invalid general warrant, but also

became a member of the search party. 442 U.S. at 326-27, 99 S. Ct. at 2324-25.

No similar circumstances exist here. Furthermore, we have also determined that an

issuing magistrate fails to exhibit the neutrality and detachment required by failing

to read an affidavit and warrant and, instead, relying on the mere fact that officers

are asking for a warrant, thereby acting as a “rubber stamp.” Martin, 297 F.3d at

1316. Again, Cruse has set forth no evidence or even argument that the state court

judge failed to read the affidavit.

      Second, the affidavit leading to the search warrant did not lack indicia of

probable cause because it identified a connection between Cruse, the residence to

be searched, and marijuana distribution, and the informant’s veracity and basis of

knowledge were sufficiently demonstrated. In determining whether the affidavit

establishes probable cause, the affidavit must “state facts sufficient to justify a

conclusion that evidence or contraband will probably be found at the premises to

be searched.” Id. at 1314 (internal quotation marks and citation omitted).

Therefore, the affidavit must show that a “fair probability existed that seizable

evidence would be found in the place sought to be searched.” Id. (internal



                                            6
quotation marks and citation omitted). When the affidavit relies upon an

informant, the affidavit must demonstrate the informant’s “veracity” and “basis of

knowledge.” Id. (citation omitted). Here, the affidavit established a connection

between (1) Cruse and the residence and (2) the residence and alleged marijuana

distribution.2

       Third, the affidavit specified the location to be searched and the items to be

seized, including a firearm and drugs. As such, the warrant was not so facially

deficient that the executing officers could not have presumed it to be valid.

Contrary to Cruse’s argument, the inclusion of the “catch-all” provision does not

render the warrant “so facially deficient . . . that the executing officers cannot

reasonably presume it to be valid.” Leon, 468 U.S. at 923, 104 S. Ct. at 3421. See

Andresen v. Maryland, 427 U.S. 463, 480 n.10, 96 S. Ct. 2737, 2748 n.10 (1976)

(concluding that a warrant listing specific items to be seized and ending with

“together with other fruits, instrumentalities and evidence of crime at this (time)

unknown” did not render it an invalid “general” warrant).

       Lastly, as to both the third and fourth circumstances, Cruse relies on Groh,



       2
         Cruse also asserts that the information upon which the affidavit relied was stale. We
disagree. The information relied upon in the affidavit was one week old, and we have rejected
staleness challenges to older information. See United States v. Green, 40 F.3d 1167, 1170, 1172
(11th Cir. 1994) (rejecting a staleness challenge where the affidavit alleged that an informant had
most recently purchased cocaine from a location the month before the affidavit was submitted).

                                                 7
in which the Supreme Court held, in the context of a 42 U.S.C. § 1983 action

against federal and county law enforcement officers, that a search warrant that

failed to describe the evidence to be seized was invalid on its face and could not

have been reasonably relied upon. 540 U.S. at 557-58, 124 S. Ct. at 1289-90. In

Groh, however, the search warrant did not list any particular items to be seized

whereas the search warrant here specifically listed items to be seized, including

firearms and drugs.

      Upon review of the parties’ briefs as well as the entire record, we find that

the district court did not err in determining that the good faith exception allowed

the search of Cruse’s residence. Accordingly, we affirm.

      AFFIRMED.




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