                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            NOV 02, 2007
                             No. 07-11974                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket No. 06-00145-CR-CB

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

BRANDON TODD HENDON,

                                                         Defendant-Appellant.


                       ________________________

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

                            (November 2, 2007)

Before BIRCH, DUBINA and FAY, Circuit Judges.

PER CURIAM:
      Brandon Todd Hendon appeals his conviction for conspiracy to possess with

intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and

(b)(1)(A). Hendon argues that the district court erred in finding that the good faith

exception to the exclusionary rule applied because the warrant affidavit “was so

lacking in probable cause” that the law enforcement officer’s reliance upon the

search warrant was unreasonable. Hendon also argues that the state judge who

issued the warrant “abandoned his judicial role” when he signed the warrant

without any inquiry as to the factual basis. For the reasons set forth more fully

below, we affirm.

      Before trial, Hendon filed a motion to suppress evidence seized as the result

of an allegedly deficient affidavit used to procure a search warrant for his

apartment and his car. The government responded that, while the affidavit was not

prepared “perfectly,” the evidence obtained during the execution of the warrant

was not due to be suppressed because the officer relied upon the warrant in good

faith. The district court determined that the search warrant was not supported by

probable cause, finding that the only thing that could be determined from the

affidavit was that, at some point in time, an unknown black male may have

possessed a large quantity of cocaine at the apartment to be searched and that the

same black male may have stored cocaine and marijuana inside the car to be



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searched.

      The court scheduled an evidentiary hearing to determine whether the good

faith exception applied. The court heard testimony from the law enforcement

officer and subsequently denied Hendon’s motion to suppress, finding that the

good faith exception applied to permit introduction of the evidence. The court

acknowledged that it had previously determined that the affidavit lacked probable

cause, but determined that, based on the totality of the circumstances, the officer

acted in good faith in relying upon the search warrant.

      Hendon subsequently pled guilty to the charged offense, reserving his right

to appeal the motion to suppress and withdraw his plea if he prevailed on appeal.

Thereafter, the court sentenced Hendon to 121 months’ imprisonment and 5 years’

supervised release.

                                           I.

      “A district court’s ruling on a motion to suppress presents a mixed question

of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999).

We accept the district court’s findings of fact to be true, unless shown to be clearly

erroneous, and review the district court’s application of the law to those facts

de novo. Id. “[A]ll facts are construed in the light most favorable to the prevailing

party below.” United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000).



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“The individual challenging the search bears the burdens of proof and persuasion.”

United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998).

      The Fourth Amendment provides for the right to be free of unreasonable

searches and seizures, and mandates that “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV. In

order to establish probable cause, the search warrant affidavit must “state facts

sufficient to justify a conclusion that evidence or contraband will probably be

found at the premises to be searched.” United States v. Martin, 297 F.3d 1308,

1314 (11th Cir. 2002). More specifically, the affidavit should establish “a

connection between the defendant and the residence to be searched and a link

between the residence and any criminal activity.” Id. “The information in the

affidavit must also be fresh.” Id. In determining whether the affidavit underlying

the search warrant was “so lacking in indicia of probable cause as to render official

belief in its existence entirely unreasonable,” we look to the face of the particular

affidavit. Id. at 1313.

      Here, the facts alleged within the four corners of the warrant affidavit

indicate only that (1) information was received from a confidential informant

(“CI”) within the past 72 hours that drugs were located at 408 C North Brazier

Drive and in a 2000 Buick parked next to the apartment building; (2) an unknown



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black male was in possession of the drugs inside the apartment and the same

unknown black male stored additional drugs inside the Buick; (3) the CI had

observed cocaine before and believed that the drugs inside the apartment and inside

the Buick were cocaine; and (4) the CI was reliable, previously having provided

information that led to convictions in other cases. Although the information

contained in the affidavit was arguably “fresh,” having been obtained within 72

hours of the officer’s application for the warrant, it does not provide any details to

show that Hendon was the “unknown black male,” such as a physical description,

or indicate that the CI’s information was in any way corroborated. Thus, on its

face, the affidavit arguably does not establish a sufficient basis to connect Hendon

with either the drugs or the places to be searched and, therefore, could be found

lacking to establish a sufficient basis for a finding of probable cause. Nevertheless,

we need not address whether there was sufficient probable cause to justify the

search of the apartment at 408 North Brazier Drive because the district court did

not err in finding that the evidence seized was not subject to exclusion because of

the good faith exception to the warrant requirement, as explained below.

                                          II.

      We review “de novo whether the . . . good faith exception to the

exclusionary rule applies to a search, but ‘the underlying facts upon which that



                                           5
determination is based are binding on appeal unless clearly erroneous.’” United

States v. Robinson, 336 F.3d 1293, 1295 (11th Cir. 2003). As we have held,

“[e]vidence seized as the result of an illegal search may not be used by the

government in a subsequent criminal prosecution.” Martin, 297 F.3d at 1312.

“The exclusionary rule, as it is known, is ‘a judicially created remedy designed to

safeguard Fourth Amendment rights generally through its deterrent effect.’” Id.

      The good faith exception, as articulated by the Supreme Court in United

States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984),

“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. The exception applies in all but four circumstances, two of which

Hendon relies upon in the instant case: (1) where the issuing magistrate wholly

abandoned his judicial role; and (2) where the warrant is based on an affidavit so

lacking in indicia of probable cause as to render official belief in its existence

entirely unreasonable. Id. However, “[t]he Leon good faith exception requires

suppression ‘only if the officers were dishonest or reckless in preparing their

affidavit or could not have harbored an objectively reasonable belief in the

existence of probable cause.’” Id. “The purpose of the exclusionary rule is to



                                            6
deter unlawful police misconduct; therefore, when officers engage in ‘objectively

reasonable law enforcement activity’ and have acted in good faith when obtaining

a search warrant from a judge or magistrate, the Leon good faith exception

applies.” Id. Moreover, we have held that a district court “can look beyond the

four corners of the affidavit and search warrant to determine whether [the officer]

reasonably relied upon the warrant.” Id. at 1318.

      As an initial matter, to the extent Hendon argues that the state judge who

issued the warrant abandoned his judicial role, he failed to raise this claim below

either in his motion to suppress or during the evidentiary hearing. Accordingly,

this issue is not preserved for appeal and is subject to plain error review. United

States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003). Nevertheless, we decline

to review Hendon’s argument for plain error because, as discussed below, it fails

even under the preserved error standard of review.

      As to Hendon’s first claim that the state judge abandoned his judicial role,

he has presented no evidence to show that the state judge merely “rubber-stamped”

the search warrant. To the contrary, the officer’s testimony at the suppression

hearing indicates that, in reviewing other affidavits where the state judge thought

probable cause was lacking, the state judge asked him for additional information

and required him to submit an amended affidavit. Although the officer’s testimony



                                          7
indicates that he was aware of additional information that would support a finding

of probable cause, he did not include this information in the affidavit because the

state judge did not request it. Moreover, although the district court found that the

warrant affidavit was lacking in probable cause, such a finding does not

automatically indicate that the state judge abandoned his judicial role. See Martin,

297 F.3d at 1318 (indicating that “[j]ust because the affidavit is later found to be

lacking in probable cause does not mean the magistrate served as a mere rubber

stamp”).

      As to Hendon’s second claim, the warrant itself was based on information

that the officer believed to be reliable based on his prior dealings with the CI.

Based on the CI’s first-hand observation of the drugs at 408 C North Brazier Drive

and inside a 2000 Buick parked nearby, within 72 hours of the warrant’s issuance,

it cannot be said that it was objectively unreasonable for the officer to believe that

there was a “fair probability” of finding contraband in either location. United

States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir. 1999); see also Illinois v.

Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330-31, 767 L.Ed.2d 527 (1983)

(recognizing that affidavits “are normally drafted by nonlawyers in the midst and

haste of a criminal investigation. Technical requirements of elaborate specificity

once exacted under common law pleadings have no proper place in this area.”).



                                           8
      Moreover, going beyond the four corners of the affidavit, the officer was not

dishonest or reckless in his affidavit for procuring a search warrant, and his

reliance was reasonable given the additional information he received from the CI,

but failed to include in the text of the affidavit. See Martin, 297 F.3d at 1318

(holding the court could go outside the four corners of the affidavit and warrant

when determining if the officer reasonably relied on the warrant). According to the

officer’s testimony, the CI contacted him the day before he applied for the warrant.

The CI indicated at that time that he had personally observed a black male in

possession of cocaine at the apartment and had also observed the same person

inside the Buick, which contained cocaine and marijuana. The CI told the officer

that he had seen the black male with the drugs that same day, only moments before

their conversation. The CI gave the officer a physical description of the person.

The officer did not rely solely on this information. Instead, he drove by the

apartment to confirm the locations to be searched and, in doing so, personally

observed Hendon, who matched the physical description he received from the CI,

outside the apartment building. The officer also saw the Buick parked nearby.

Only after independently corroborating the CI’s information did the officer attempt

to get a search warrant for the apartment and the car.

      Thus, while the affidavit in this case may have lacked sufficient indicia of



                                           9
probable cause on its face, the totality of the evidence, viewed in a light most

favorable to the government, supports the conclusion that the state judge did not

“wholly abandon” his role and the officer’s belief that probable cause existed was

not so objectively unreasonable as to warrant exclusion of the seized evidence in

light of Leon’s good faith exception. Accordingly, the district court did not err in

denying the motion to suppress.

      In light of the foregoing, Hendon’s conviction is

      AFFIRMED.




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