                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4354


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HECTOR JAVIER CARABALLO,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:08-cr-00035-HCM-TEM-1)


Submitted:   June 1, 2010                   Decided:    June 23, 2010


Before KING and    DAVIS,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Larry M. Dash, Assistant Federal Public Defenders,
Norfolk, Virginia, for Appellant.      Neil H. MacBride, United
States Attorney, Katherine Lee Martin, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Hector    Javier          Caraballo      appeals        his     conviction      and

sentence    on    three    counts       of   bank        robbery     and    two    counts    of

attempted bank robbery, in violation of 18 U.S.C. § 2113 (2006);

and eight counts of use of a firearm during a crime of violence,

in violation of 18 U.S.C. § 924(c) (2006).                           Caraballo contends

that the district court erred in denying his motion to suppress

evidence    that    was     recovered        from        his   residence      because       the

search warrant affidavit did not establish probable cause that

evidence would be located at his home.                         Because the good faith

exception      recognized    in       United       States      v.   Leon,    468    U.S.    897

(1984) applies, we affirm.



                                             I.

            On January 14, 2007, Scott Baber, a Special Agent with

the   Federal     Bureau    of    Investigation             (FBI),    was     contacted      by

local   law      enforcement      officers          in    York      County    and    Henrico

County,    Virginia,       for    assistance          with       investigating       a     bank

robber responsible for eight robberies and attempted robberies

between November 7, 2006 and December 21, 2007.

            In each robbery, the robber would enter the subject

bank near closing time, typically on Friday or Saturday, and

direct a teller or bank employee at gunpoint to take him behind

the   teller     counter.        On    several       occasions,       the     robber     would

                                               2
simply jump up on the teller counter and demand that the tellers

empty their drawers.             In total, the robber had stolen more than

$100,000.

            The robber was described as a white or Hispanic male

between 5’6” and 5’8”.            The robber often donned a fake beard and

spoke with a thick Hispanic accent.                       Witnesses stated that the

robber carried a silver revolver and a camouflage bag covered in

a   rubbery     surface.          Surveillance          photographs         revealed      the

subject   wearing     a    baseball       cap,     white    tennis      shoes     and   blue

jeans, and carrying the silver revolver.                      In these surveillance

photos, the robber was clad in either a blue-checkered flannel

jacket or blue-hooded sweatshirt.

            Witnesses described the robber as escaping in several

different      vehicles.         First,     in    a   robbery     on    March     5,    2007,

witnesses      reported    seeing       the      robber    exit    in   a    gold-colored

four-door sedan with the license plate JZW 4618.                          Next, during a

robbery   in    September        2007   a     witness     described       the    robber   as

fleeing in a 1986-87 two-door gray Honda Civic.                             During a bank

robbery on November 10, 2007, witnesses described the robber as

fleeing in a dark blue Chevrolet Impala.                      Finally, two witnesses

to a robbery on December 21, 2007, described the car as a dark

blue sedan.

            Several        weeks        after         Agent       Baber         began     his

investigation,      he     was    contacted        regarding      an    attempted       bank

                                              3
robbery in Hopewell, Virginia.                  On that occasion, an unknown

individual approached the front door of the Bank of McKinney

but, because the bank had just closed, the individual was forced

to leave.           Surveillance video showed that the individual wore

clothing that matched that of the robber and left the scene in

an older two-door gray Honda or Toyota with what appeared to be

temporary window tint.

                  Despite   the   number   of    robberies,   the   robber    left

behind no DNA evidence at any scene, although he did leave shoe

impressions at three banks.                Because of the lack of suspects,

the FBI held a joint press conference in early March 2008 with

local       law    enforcement,    presenting    surveillance   photos   of    the

robber and the dates and times of the robberies.                    A reward of

$20,000 was offered for information leading to an arrest.

                  The night of the press conference, Baber received a

call from an informant * claiming that she recognized the robber

as Hector Javier Caraballo.             The informant agreed to a face-to-

face interview the next day and explained that Caraballo met the

physical description of the robber:                  he was Puerto Rican and

spoke English with a heavy accent.                 The informant stated that

she recognized Caraballo because of the clothing worn in the

surveillance photos as well as his posture and build.

        *
       Although not identified in the search warrant affidavit,
the informant was in fact Caraballo’s ex-wife.


                                           4
            The    informant      also    explained       that    Caraballo       had    a

history of violence and drug abuse and had not held a job since

2003 or 2004.       The informant supplied photographs of Caraballo

wearing    clothing   similar      to    that    of     the    robber,    including      a

blue-checkered flannel jacket with a gray hood, blue jeans, and

white tennis shoes.

            Based upon this information, Baber conducted a brief

surveillance of Caraballo.               On the morning of March 6, Baber

photographed a gray two-door 1988 Toyota Corolla in Caraballo’s

assigned parking space at his apartment complex.                     Witnesses from

two of the robberies were shown pictures of the car and stated

that it looked like the one they had seen.                     In an interview with

the   registered    owner    of    the    Corolla,       Baber    learned    that     the

owner had sold the car to Caraballo in March 2007.

            Later that day, Baber photographed a dark blue, 2000

Chevrolet Impala belonging to a friend of Caraballo.                         Witnesses

from two of the robberies stated that the car looked like the

one they had seen.

            Buttressed      by    these       witness    statements,        Baber    and

local law enforcement began detailed surveillance of Caraballo.

While under surveillance, Caraballo followed a set pattern.                             He

would depart his residence in the morning in his Corolla and

drive to the rear of a nearby building.                       While there, he would

place     window   tinting       film    on     his     car     windows     and     enter

                                          5
Interstate         64   westbound    toward      Mechanicsville.             On   the      way,

Caraballo would exit the interstate and put on a new license

plate.    Caraballo would then reenter the interstate and exit at

Mechanicsville.           While in Mechanicsville, Caraballo would drive

back and forth on Route 360, stopping in parking lots adjacent

to two different banks but never exiting his car.                        After several

hours,    Caraballo       would     drive    back     home.      During       two     of    the

trips,    Caraballo        used     the    license     plate     JZW    4618—the           same

license plate reported by a witness at one of the robberies.

              Based      upon     this    evidence,     Agent     Baber       prepared        a

delayed      notification       search      warrant    for     Caraballo’s          vehicle.

The warrant was executed at 1:00 a.m. on March 25, 2008.                                    The

search    yielded         no    evidence      implicating        Caraballo            in    the

robberies, including either the window tinting or the license

plates.       Later that morning, the FBI arrested Caraballo as he

left   his    residence.          Agent     Baber    then     applied    for      a    search

warrant      for    Caraballo’s      residence      based     upon     the    information

recounted above.           The affidavit was identical to the affidavit

filed for the search of the car, with the addition of a single

paragraph:

       On March 25, 2008, at approximately 1:00 am, a delayed
       notification search warrant was executed on the gray
       Two door Toyota Corolla associated with the listed
       individual.    No items of evidentiary value were
       located in the vehicle.      Specifically, the stolen
       license plate, and the press on window tint were not
       located in the vehicle.   At 7:00 am Hector Caraballo

                                             6
     was arrested exiting [his residence].      It is your
     affiant’s belief based upon this search and the
     surveillance of the individual that these items and
     other evidence, fruits, and instrumentalities of the
     bank robberies are located in the apartment associated
     with Hector Caraballo . . .

(J.A. at 41.)

            A federal magistrate judge approved the warrant, and

the FBI conducted the search later on March 25.                 In contrast to

the search of the Corolla, this search yielded evidence tying

Caraballo   to    the   robberies,      including   a   black   wig    and   fake

beard,   fake    nose   and   costume    makeup,    baseball    hats   matching

those worn during several robberies, a blue checkered flannel

jacket, black gloves, multiple license plates, window tinting

film, a camouflage bag that appeared to be stained with bank

dye, United States currency stained with red dye, and a .38

caliber silver revolver.

            On April 15, 2008, a federal grand jury sitting in the

Eastern District of Virginia indicted Caraballo on three counts

of bank robbery and two counts of attempted bank robbery, in

violation of 18 U.S.C. § 2113, eight counts of use of a firearm

during a crime of violence, in violation of 18 U.S.C. §924(c),

and one count of being an unlawful user in possession of a

firearm, in violation of §922(g)(1)(3).

            On July 1, 2008, Caraballo filed a motion to suppress

the evidence recovered from his home, which the district court


                                        7
denied orally on October 20, 2008.                   In denying the motion, the

district court concluded “very clearly” that there was “probable

cause to issue the warrant to search the home.”                             The district

court further concluded that probable cause existed “when they

observed the defendant coming in and out of the home using the

cars that have been also identified.”                     Thus, in the district

court’s view, “the officer could have gotten warrants for the

car and the house at the same time if he wanted to.”                                     The

district court reiterated that there was “certainly” probable

cause at the time the warrant was issued for the house, and that

there was “no doubt in the Court’s mind about that.”

            A     jury    later    convicted         Caraballo       on    all   but    the

§ 922(g)    count    and,    on    March       30,    2009,     the       district     court

sentenced   Caraballo       to    2,292    months      imprisonment.             Caraballo

filed a timely notice of appeal.



                                          II.

            On appeal, Caraballo contests only the denial of the

motion to suppress, arguing that the search warrant affidavit

fails to establish probable cause and that the warrant is so

bare bones as to preclude use of the Leon good faith exception.

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

                                           8
240, 243 (4th Cir. 1994).               Where, like here, “there are no facts

in dispute, the applicability of the Leon exception . . . is

purely a legal conclusion.”               United States v. DeQuasie, 373 F.3d

509, 520 (4th Cir. 2004).

            “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

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

                                               9
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 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,        Caraballo         contends      that      the   third

circumstance        identified        by    the       Leon   court    is     satisfied.        We

disagree.       The warrant affidavit in this case was very detailed,

discussing the beginning of the investigation, the in-depth tip

from the anonymous informant, and the corroboration of the tip.

The affidavit set forth that Caraballo had access to two of the

vehicles      matching       witness       descriptions         and     that    his    physical

description matched that of the robber.                          The informant likewise

                                                 10
provided photographs showing Caraballo in attire matching the

robber:    the blue-checkered flannel hooded jacket.                  In addition,

the affidavit set forth that, on two occasions, Caraballo was

seen putting on a license plate that matched the plate on the

getaway car from one of the robberies.                The affidavit discussed

in detail the surveillance of Caraballo, in which he would drive

long distances, change the appearance of his vehicle en route

with     window   tint       and     new    license      plates,     and    perform

reconnaissance    on     a    street       where   two   banks      were   located.

Finally, the warrant affidavit specified that no evidence—i.e.,

the additional license plates or window tint—was recovered from

Caraballo’s vehicle, suggesting that those materials were likely

in his house.      And, the affidavit set forth that the home was

indeed    Caraballo’s—the          informant    provided    his     home   address,

which Agent Baber corroborated by witnessing Caraballo enter and

leave the residence over the course of the surveillance.

            In United States v. Lalor, 996 F.2d 1578, 1582 (4th

Cir. 1993) we applied the good faith exception even though the

affidavit in question was “devoid of any basis” to infer that

evidence would be at the defendant’s residence.                    In contrast, in

this case the affidavit sets forth information suggesting that a

search of the residence would reveal at least the license plates

and window tinting, which were likely instrumentalities of the

bank robberies.     Moreover, as in Lalor, “two judicial officers

                                           11
have determined that the affidavit provided probable cause to

search.”      Id. at 1583.

              This    case    thus    stands       in    stark    contrast       to   United

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

rejected application of 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.           The affidavit in Wilhelm relied on an

“unknown,      unavailable         informant       without       significant       [police]

corroboration,” id. at 123, and we explained our concern that

“[u]pholding         th[e]    warrant    would          ratify    police     use      of   an

unknown, unproven informant—with little or no corroboration—to

justify searching someone’s home,” id. at 120.                            In this case,

the officers relied on a heavily detailed tip and spent more

than one week of detailed surveillance to corroborate the tip as

well as witness accounts from the robberies.

              Accordingly,         because    the       Leon   good     faith    exception

applies in this case, the district court correctly denied the

motion to suppress.



                                          III.

              For    the     foregoing    reasons,        we     affirm    the     district

court's judgment.            We dispense with oral argument because the

facts   and    legal       contentions       are    adequately        presented       in   the

                                             12
materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




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