                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

                                 ____________

                                 No. 96-2613
                                ____________

United States of America,                          *
                                       *
            Appellee,                        *
                                       C    Appeal from the United
                                            States
      v.                               *    District Court for the
                                       C    District of Minnesota
James Arthur Taylor,                         *
also known as Creature,                          *
                                       *
            Appellant.                   *
                                ____________

                         Submitted: December 10, 1996

                                   Filed: July 10, 1997
                                ____________


McMILLIAN, Circuit Judge.


    James Taylor appeals from a final judgment entered in
the District Court1 for the District of Minnesota upon a
jury verdict finding him guilty of aiding and abetting
distribution of cocaine base (also referred to as "crack
cocaine") in violation of 21




  1
   The Honorable James M. Rosenbaum, United States District Judge for the District
of Minnesota.
U.S.C. § 841(a)(1),(b)(1)(A), and 18 U.S.C. § 2,
possession with intent to distribute cocaine in violation
of 21 U.S.C. § 841(a)(1), and being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). For
reversal, Taylor argues that the district court erred in
denying his motion to suppress certain evidence. For the
reasons discussed below, we affirm the judgment of the
district court.

                       BACKGROUND

    The following facts are based upon the evidence
presented by the government at trial and at the
suppression motion hearing.    In May 1995, Minneapolis
police officer David Hayhoe received information from a
confidential informant that a person named "Creature" was
selling drugs through a drug runner known as "Dominick."
Officer Hayhoe had prior knowledge through an ongoing
investigation   that   "Creature"   was   James   Taylor.
"Dominick" was later identified as William Riley. The
informant agreed to make recorded telephone calls to
Riley setting up a crack cocaine purchase from Taylor.

    In the first telephone conversation, the informant
told Riley that he wanted to purchase 2 ounces of crack
cocaine, but Riley told him that he would have to call
back because "James . . . uh    . . . Creature" was out
buying a new pager. In the second telephone conversation
Riley contacted the informant to make arrangements for
the sale of the crack cocaine.    This second telephone
conversation ended prematurely when Riley was mugged
while using the pay phone.      In the third telephone
conversation, Riley contacted the informant again.

                           -2-
During the conversation, another voice could be heard in
the background on Riley's end.    Riley referred to the
voice in the background as "Creature."      During this
conversation a meeting time and place were arranged for
the sale of the crack.

    The informant, after being searched by officers to
insure that he did not have any drugs, drove to the
meeting place where surveillance officers were already in
place.




                           -3-
A car driven by Taylor soon arrived with Riley as a
passenger. Riley got out of the car and got into the
informant's car. Riley showed the crack cocaine to the
informant, who then signaled the surveillance officers.
The officers arrested both Taylor and Riley and seized 70
grams of crack cocaine from Riley.

    After his arrest, Riley told police that the cocaine
belonged to Taylor. Riley agreed to cooperate by taking
the officers to Taylor's "stash house," where Riley
claimed they had been just prior to the drug sale. Riley
took the officers to a four-plex at 1829 25 1/2 Street
East in Minneapolis. Riley identified Taylor's apartment
as unit #4, located in the upper-right corner of the
building. Riley told the officers that the only person
inside the apartment was Yolanda Jackson, Taylor's
girlfriend. The building had a locked security door and
the officers did not attempt to enter.       The building
remained under surveillance while Officer Hayhoe obtained
a search warrant for apartment #4.

     Meanwhile, surveillance officers observed a car
registered to Yolanda Jackson arrive at the building and
a woman exit the car and enter the building.         The
officers knew from a prior report of a domestic incident
that   Jackson   was  Taylor's   girlfriend.     Shortly
thereafter, Officer Hayhoe returned with a search
warrant, which he had obtained from the state court
judge. Later, Jackson exited the apartment building and
began to drive away; the officers stopped her car and
detained her while other officers executed the search
warrant. The officers obtained Jackson's keys and used
them to unlock the security door of the apartment

                           -4-
building as well as apartment #4. The police discovered
from the occupants of apartment #4 that Taylor and his
girlfriend lived in apartment #3. Officer Hayhoe then
obtained a corrected search warrant for apartment #3.

    In the meantime, officers inserted Jackson's keys in
the lock of apartment #3 without actually entering the
apartment. Apparently, Jackson's keys fit the locks of
both apartments #3 and #4, and this information was
relayed to Officer Hayhoe. Also




                           -5-
during this time interval, Jackson signed a consent form,
consenting to a search of apartment #3. However, there
was conflicting testimony at trial as to when the consent
form was signed.

    In obtaining the corrected search warrant, Officer
Hayhoe told the state court judge that the police had
stopped Jackson and used her keys to open apartment #4,
the occupants of apartment #4 told the officers that
Taylor and Jackson lived in apartment #3, and Jackson's
keys fit in the locks of both apartments #3 and #4. The
state court judge made some hand-written amendments to
the warrant to specify apartment #3 as the place to be
searched and added a reference to Jackson and her keys,
but he failed to add that the occupants of apartment #4
had informed the police that Taylor and Jackson lived in
apartment #3.

    While searching apartment #3 pursuant to the
corrected search warrant, the officers found 9 ounces of
powder cocaine, baking soda supposedly used to "cook"
crack cocaine, a gun in the hall closet, numerous
documents bearing Taylor's name, and $18,350 in cash in
a hidden compartment in a bureau in the bedroom. All of
these items were referenced in Counts II, III, and IV of
the indictment against Taylor. Taylor was indicted in
Count I for aiding and abetting the distribution of
cocaine base, Count II for possession with intent to
distribute cocaine, Count III seeking forfeiture of
$18,350 as drug related proceeds, and Count IV for being
a felon in possession of a firearm.

    Following his indictment, Taylor moved to suppress

                           -6-
the evidence obtained in the search of apartment #3 on
the ground that the warrant was not supported by probable
cause. He argued that the good faith exception to the
exclusionary rule did not apply because the information
contained in the warrant was tainted by information
illegally obtained when the police tried Jackson's key in
the lock of apartment #3 before the corrected search
warrant was issued.    The magistrate judge recommended
denial of the




                           -7-
motion to suppress based on the Leon good faith
exception,2   and   the   district  court   adopted   the
               3
recommendation. See Brief for Appellant, Addendum at C1-
C2 (Transcript of Mar. 5, 1996, Hearing of Pretrial
Motions at 19-20).      The magistrate judge found that
Jackson was in custody at the time she signed the consent
form and therefore the consent was invalid. United States
v. Taylor, No. 4:95-CR-87 (Feb. 28, 1996) (report and
recommendation) (hereinafter "slip op."). The magistrate
judge also found that the officers did not search the
apartment until Officer Hayhoe returned with the
corrected search warrant.      Slip op. at 12-13.     The
magistrate judge reasoned that because the officers
relied in good faith on the search warrant and thereby on
the state court judge's determination of probable cause,
suppression of the seized evidence would be unwarranted.
Id. at 9. The magistrate judge further stated that none
of the four circumstances that negate the Leon good faith
exception was present in this case.          Id. at 12.
Additionally, the magistrate judge reasoned that the Leon
good faith exception applies to the trying of the key in
the lock of apartment #3 because the officers were
relying on the validity of the original search warrant.4
Id. at 12. Taylor was convicted on Counts I, II, and IV.
After these convictions Taylor stipulated to Count III,
which was the forfeiture of the proceeds of drug


   2
       United States v. Leon, 468 U.S. 897, 918-22 (1984).
   3
   The Honorable Franklin L. Noel, Chief Magistrate Judge, the United States District
Court for the District of Minnesota.
   4
    The magistrate judge assumed for the purposes of analysis that the trying of the key
in the lock constituted a search.

                                          -8-
transactions. Thereafter, the district court sentenced
Taylor to twenty years imprisonment.      This appeal
followed.




                          -9-
                       DISCUSSION

The good faith exception to the exclusionary rule of
evidence

    Taylor's sole issue on appeal is whether the district
court erred in denying his motion to suppress evidence
obtained pursuant to the search of apartment #3. Taylor
argues that the search warrant for apartment #3 was not
supported   by   probable   cause,   the  officers   made
misrepresentations to the state court judge, and that the
officers' reliance on the warrant does not fall under the
good faith exception to the exclusionary rule because the
warrant was tainted by the information that Jackson's key
fit the lock of apartment #3.

    Assuming, without deciding, that both search warrants
were invalid for lack of probable cause, we agree with
the district court that the Leon good faith exception
applies in this case. We review the application of the
good faith exception de novo. United States v. LaMorie,
100 F.3d 547, 555 (8th Cir. 1996).     "In reviewing the
grant . . . of a motion to suppress evidence on Fourth
Amendment grounds, we are bound by the district court's
findings of fact . . . unless we believe on the basis of
the record as a whole that the District Court clearly
erred."    Id.   The deferential standard applied when
reviewing determinations of probable cause by the
District Court is "abuse of discretion."       Ornelas v.
United States, 116 S. Ct. 1657, 1660-61 n.3 (1996); see,
e.g., United States v. Riedesel, 987 F.2d 1383, 1387 (8th
Cir. 1993) (citations omitted).     "We may reverse the
district court's ultimate ruling on the suppression

                           -10-
motion, however, if the ruling reflects an erroneous view
of the applicable law."   United States v. Riedesel, 987
F.2d at 1388; see also United States v. LaMorie, 100 F.3d
at 552.

    In United States v. Leon, 468 U.S. 897, 905 (1984),
the Supreme Court held that the Fourth Amendment
exclusionary rule should not be applied to exclude the
use of evidence obtained by officers acting in reasonable
reliance on a detached and neutral magistrate judge's
determination of probable cause in the issuance of a
search warrant




                           -11-
that is ultimately found to be invalid. The officer's
reliance on the magistrate judge's probable cause
determination must be objectively reasonable.     Id. at
922-23. Four circumstances exist in which the Leon good
faith exception does not apply and suppression remains
an appropriate remedy: (1) the magistrate judge issuing
the warrant was misled by statements made by the affiant
that were false or made "in reckless disregard for the
truth"; (2) "the issuing magistrate judge wholly
abandoned his [or her] judicial role"; (3) the affidavit
in support of the warrant is "so lacking in indicia of
probable cause as to render official belief in its
existence entirely unreasonable," or (4) the warrant is
"so facially deficient . . . that the executing officers
cannot reasonably presume it to be valid." Id. at 923
(citations omitted).

    There is no evidence in the record that Officer
Hayhoe made any misrepresentations to the issuing state
court judge, nor did he make any statements in reckless
disregard for the truth. The only incorrect information
given to the state court judge was that Taylor's
apartment was unit #4 instead of unit #3. At the time it
was given Officer Hayhoe believed this information was
correct. The officers did not search Taylor's apartment
(unit #3) until after a corrected search warrant had been
obtained, even though they had obtained Jackson's written
consent to search.      These precautions taken by the
officers demonstrate their good faith in conducting the
search of Taylor's apartment in compliance with the law.
There is no evidence to suggest that any of the other
three exceptions to the Leon good faith exception would
apply to the search of Taylor's apartment. Therefore,

                           -12-
even if a Fourth Amendment violation occurred, the Leon
good faith exception applies to prevent the exclusion of
evidence obtained from the search of Taylor's apartment
pursuant to the corrected search warrant.

Fruit of the poisonous tree doctrine

    Taylor argues that the good faith exception was
negated in this case because the officers’ successful
attempt to use Jackson's key in the lock of apartment #3
constituted




                          -13-
an illegal search for Fourth Amendment purposes, and the
fruit of that search, which was the information that
Jackson's key fit the lock, was used to obtain the search
warrant for apartment #3. Thus, Taylor argues that the
corrected search warrant for apartment #3 was tainted and
invalid because it was fruit of the poisonous tree. The
Eighth Circuit has not decided whether trying a key in a
lock constitutes a search for purposes of the Fourth
Amendment. See United States v. Dickson, 58 F.3d 1258,
1264 (8th Cir.), superseded on other grounds, 64 F.3d 409
(8th Cir. 1995), cert. denied, 116 S. Ct. 747 (1996).
The federal courts of appeals are split on this issue.
See, e.g., United States v. Concepcion, 942 F.2d 1170,
1172 (7th Cir. 1991) (holding that although the owner of
a lock has enough privacy interest in a keyhole to make
the inspection of that lock a "search," the privacy
interest is so small that no probable cause is needed to
inspect it); United States v. Lyons, 898 F.2d 210, 212-13
(1st Cir.)(holding that the insertion of a key into a
padlock was merely a means of identifying ownership
rather than a "search"), cert. denied, 498 U.S. 920
(1990); United States v. DeBardeleben, 740 F.2d 440 (6th
Cir.) (holding that the insertion of a key into a lock
solely for the purpose of identifying ownership does not
constitute a "search"), cert. denied, 469 U.S. 1028
(1984); United States v. Portillo-Reyes, 529 F.2d 844,
848 (9th Cir. 1975)(holding that the insertion of a key
into the door of a car to see if it fit constituted the
beginning of a search because there is a reasonable
expectation of privacy), cert. denied, 429 U.S. 899




                           -14-
(1976).5

    The officers tested Jackson's keys in the lock of
unit #3 before the corrected search warrant was issued.
Therefore, the corrected search warrant would not apply
to the use of the key in the lock. Assuming, without
deciding, that the testing of the key in the lock
constitutes a search for purposes of the Fourth
Amendment, the only fruit of that search was the
knowledge that Jackson's key fit the locks of both unit
#3 and




   5
    But see United States v. Grandstaff, 813 F.2d 1353, 1358 n.5 (9th Cir.) (suggesting
that the Portillo-Reyes case has been undermined by intervening decisions of the
Supreme Court and the 9th Circuit), cert. denied, 484 U.S. 837 (1987).

                                         -15-
unit #4.    Although that information was given to the
state court judge and handwritten on the corrected
warrant, that information was superfluous to support
probable cause for the search of unit #3 because both the
state court judge and the officers had information from
the occupants of unit #4 that Jackson and Taylor lived in
unit #3.   We therefore hold that the Leon good faith
exception applies to prevent the exclusion of the
evidence from apartment #3.

                       CONCLUSION

    Accordingly, the judgment of the district court is
affirmed.

    A true copy

        Attest:

             CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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