                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4009


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RONALD CHRISTOPHER MAYLE, a/k/a Chris Mayle,

                Defendant – Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:07-cr-00012-REM-JSK-1)


Submitted:   May 12, 2010                 Decided:   June 11, 2010


Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


George J. Cosenza, Parkersburg, West Virginia, for Appellant.
Betsy C. Jividen, Acting United States Attorney, Stephen D.
Warner, Assistant United States Attorney, Elkins, West Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Ronald Christopher Mayle pleaded guilty to one count

of possession of a firearm in furtherance of a drug trafficking

crime,     in     violation     of    18        U.S.C.    § 924(c)(1)(A)      (2006),

reserving       his   right   to   appeal       the     denial   of   his   motion   to

suppress    evidence      seized     from       his    home.     On   appeal,   Mayle

contests that the search warrant application failed to establish

probable cause and that the affidavit supporting the warrant was

so “bare bones” as to preclude use of the good faith exception

to the warrant requirement announced in United States v. Leon,

468 U.S. 897 (1984).          For the following reasons, we affirm.



                                           I.

            On November 3, 2006, Sergeant Ricky L. Hymes of the

Barbour County, West Virginia, Sheriff’s Department, applied for

a search warrant for Mayle’s home.                    The search warrant affidavit

provided, on the first page:

     Over the past two months, the Barbour County Sheriff’s
     Department has received information from various
     sources that the within named defendant, Chris Mayle,
     has   been  trafficking   in  narcotics   out  of   his
     residence. Anonymous tips have been verified by first
     hand   observations   of  members  of   the   Sheriff’s
     Department.      Confidential  informants   have   also
     confirmed that the defendant has been selling cocaine
     from his residence and have been in the residence
     within the past few days.       A separate information
     advised . . .

The affidavit continued on a second page:

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      That the defendant has traded cocaine for stolen
      property in the past. The defendant had traded a four
      wheeler that was reported stolen by Charles Moore for
      a quantity of cocaine. This four wheeler was seen in
      the block garage within the last few days.

(JA 58-59.)

             Sergeant Hymes presented the application and affidavit

to Magistrate Katherine McBee of Barbour County.                           Magistrate

McBee    reminded    Hymes    that   she       would   consider     only    the   “four

corners” of the document, that is, the first page.                     Accordingly,

in Magistrate McBee’s presence, Hymes typed the material from

the second page of the affidavit onto the bottom of the first

page.    Magistrate McBee thereafter approved the warrant.

             The Barbour County Sheriff’s Department, executing the

warrant, conducted a search of Mayle’s residence on November 4,

2006 and recovered incriminating evidence, including firearms,

drugs, and United States currency.                     In April 2007, a federal

grand    jury   charged      Mayle    in       a   four-count     indictment      with

multiple drug charges and the firearm charge.

             Mayle filed a motion to suppress, arguing that the

search warrant application failed to establish probable cause to

search his home.       The case was referred to a magistrate judge,

who   held   two    hearing    on    the   motion.         During    the    hearings,

Sergeant Hymes testified that he had only prepared three or four

search    warrants    in     his    career.         Magistrate      McBee    likewise




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testified that, in an average month, she received no warrant

applications and thus she rarely approved search warrants.

                  Following       the    conclusion           of    the    two    hearings,       the

magistrate          judge    issued       a   written         Report      and    Recommendation,

concluding that suppression of the evidence was not warranted

under the good faith exception announced in United States v.

Leon, 468 U.S. 897 (1984).                    See United States v. Perez, 393 F.3d

457,    460        (4th     Cir.    2004)       (explaining           that      where    defendant

challenges          both     the        probable        cause       determination        and      the

application of the good faith exception, the court may proceed

directly to the issue of good faith).                                  The magistrate judge

concluded that the affidavit was not a “bare bones” affidavit

because it consisted of anonymous tips that were “verified by

first hand observations of members of the Sheriff’s Department.”

The     magistrate          judge       noted      that        both       Sergeant      Hymes     and

Magistrate McBee lacked experience in applying for and approving

search warrants but that there was neither the indication of bad

faith        by     Hymes    nor        any   indication            that     Magistrate         McBee

abandoned her role as neutral arbiter.

                  After the district court overruled Mayle’s objections

to     the        Report    and     adopted        it     in       full,     Mayle      entered     a

conditional guilty plea to the firearm charge, reserving his

right    to        appeal    the    denial      of      his    suppression        motion.         The

district court sentenced Mayle to 60 months imprisonment but

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stayed execution of the sentence pending appeal.                          Mayle filed a

timely appeal and this court has jurisdiction pursuant to 28

U.S.C. § 1291 (2006).



                                            II.

             On     appeal,      Mayle      contends      that     Sergeant      Hymes’s

affidavit fails to establish probable cause to search his home

and   that    the      affidavit      was   so    “bare    bones”       that    the   Leon

exception     does       not   apply.       We    will    use     our    discretion    to

“proceed     to    the    good   faith      exception     without       first   deciding

whether the warrant was supported by probable cause.”                             United

States v. Legg, 18 F.3d 240, 243 (4th Cir. 1994).                         We review the

application of the Leon exception de novo.                      See United States v.

DeQuasie, 373 F.3d 509, 520 (4th Cir. 2004) (observing that,

where “there are no facts in dispute, the applicability of the

Leon exception . . . is purely a legal conclusion, and we review

the district court’s ruling de novo”).

             “Generally, evidence seized in violation of the Fourth

Amendment     is       subject   to     suppression       under    the     exclusionary

rule,” United States v. Andrews, 577 F.3d 231, 235 (4th Cir.

2009), the purpose of which is “to deter future unlawful police

conduct,” United States v. Calandra, 414 U.S. 338, 347 (1974).

The deterrence objective, however, “is not achieved through the

suppression       of     evidence     obtained    by     ‘an    officer    acting     with

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objective       good      faith’      within         the      scope      of    a    search       warrant

issued by a magistrate.”                   Perez, 393 F.3d at 461 (quoting Leon,

468 U.S. at 920); see United States v. Mowatt, 513 F.3d 395, 404

(4th Cir. 2008) (“[I]t is the magistrate's responsibility to

determine whether probable cause exists, and officers cannot be

expected to second-guess that determination in close cases.”).

Thus, the Leon Court created an exception to the exclusionary

rule,    permitting         the      use     of      evidence         “obtained          by     officers

acting in reasonable reliance on a search warrant issued by a

detached      and     neutral        magistrate            but     ultimately            found       to    be

unsupported         by    probable          cause.”              Leon,        468    U.S.       at    900.

Accordingly,          “under        Leon’s          good      faith       exception,            evidence

obtained      pursuant         to    a    search         warrant       issued        by     a    neutral

magistrate         does    not       need      to    be       excluded         if    the      officer’s

reliance      on    the    warrant         was      ‘objectively          reasonable.’”                   Id.

(quoting Leon, 468 U.S. at 922).

              The Leon Court cautioned that an officer’s reliance on

a     warrant      would       not       qualify         as      “objectively            reasonable,”

however, in four circumstances:                            where "(1) probable cause is

based    on     statements          in    an     affidavit         that        are    knowingly            or

recklessly false; (2) the magistrate fails to perform a neutral

and    detached       function        and      instead         merely         rubber       stamps         the

warrant";       (3)      the   affidavit                 is   so   lacking          in     indicia         of

probable cause as to render official belief in its existence

                                                     6
entirely       unreasonable;     or    "(4)       the    warrant     was    so    facially

deficient that the executing officer could not reasonably have

assumed it was valid."           United States v. Gary, 528 F.3d 324, 329

(4th Cir. 2008) (internal quotation marks omitted) (citing Leon,

468 U.S. at 914-15).

               In this case, the magistrate judge concluded that only

the third circumstance was potentially applicable.                              On appeal,

Mayle likewise focuses only on the third circumstance, whether

the affidavit in question was “so lacking in indicia of probable

cause”    to    make    reliance      on    the    search      warrant     unreasonable.

Leon, 468 U.S. at 923.           In making his argument, Mayle relies on

United States v. Wilhelm, 80 F.3d 116 (4th Cir. 1996), in which

we declined to apply the Leon good faith exception due to the

“bare    bones    nature    of   the       affidavit”        and   the   fact    that   the

“state magistrate could not have acted as other than a rubber

stamp.”        Id. at 121 (internal quotation marks omitted).                           The

affidavit       in     Wilhelm     relied        on     an    “unknown,     unavailable

informant without significant [police] corroboration.”                             Id. at

123.     Likewise, Mayle argues, the warrant affidavit in this case

is based upon information provided by unknown informants with no

description of their previous reliability.                          Mayle also notes

that the affidavit mentions that information was provided as

much as two months before Sergeant Hymes applied for a warrant,

suggesting that at least some of the information might have been

                                             7
stale.       Finally, Mayle contends that the generic statement that

deputies       corroborated             some       of     the      anonymous        informants

information is insufficient to move this case beyond Wilhelm.

              While we agree with the Government that the affidavit

in    this    case        is    “not     great,”        (Appellee’s        Br.     at    7),      we

nonetheless conclude that application of the Leon good faith

exception      is    warranted.               As   the    Government        notes,        and    in

contrast to the affidavit in Wilhelm, the affidavit here refers

to multiple anonymous tips.                    Unlike Wilhelm, the affidavit also

establishes that deputies performed an independent investigation

prior to applying for the warrant and were able to corroborate

at least some of the information from the tips.                                  In addition,

the   affidavit       makes          specific      reference       to    the     stolen         four

wheeler      that    was       viewed     at   Mayle’s         house    just     several        days

before       the    warrant          application         was    filed;      this        reference

supported the anonymous tip that Mayle sometimes traded drugs

for goods.          Moreover, as in United States v. Lalor, 996 F.2d

1578,     1583      (4th        Cir.     1993),        “two     judicial       officers         have

determined         that        the     affidavit        provided       probable     cause        to

search.”

              We    explained           our    principal        concern     in     Wilhelm        as

follows:       “Upholding this warrant would ratify police use of an

unknown, unproven informant — with little or no corroboration —

to justify searching someone’s home.”                          Wilhelm, 80 F.3d at 120.

                                                   8
In contrast, the affidavit in this case established a police

investigation      of    roughly    two    months      coupled     with    receipt    of

information       from     various       sources.          The     affidavit        also

specifically states that Mayle was dealing drugs from his house,

including     cocaine,      and     provided      corroboration           for   another

allegation — that Mayle traded goods for drugs — by providing

that a recently stolen four wheeler was seen in his garage.

            Accordingly, while the affidavit in this case was “not

great,”   and     both    Sergeant      Hymes    and    Magistrate    McBee      lacked

experience in search warrant procedure, the affidavit is not so

“bare bones” as to fall outside the Leon good faith exception.



                                          III.

            For     the     foregoing          reasons,     we      affirm       Ronald

Christopher Mayle’s conviction and sentence.                     We dispense with

oral   argument     because       the    facts    and    legal     contentions       are

adequately      presented    in    the    materials       before    the     court    and

argument would not aid the decisional process.

                                                                                AFFIRMED




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