                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0423n.06

                                            No. 10-4240                                      FILED
                             UNITED STATES COURT OF APPEALS                             Jun 28, 2011
                                  FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                  )
                                                           )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                 )        UNITED STATES DISTRICT
                                                           )        COURT FOR THE SOUTHERN
v.                                                         )        DISTRICT OF OHIO
                                                           )
MICHAEL GODFREY,                                           )                           OPINION
                                                           )
       Defendant-Appellant.                                )
                                                           )



BEFORE:        COLE, CLAY, and GILMAN, Circuit Judges.

       COLE, Circuit Judge. Defendant-Appellant Michael Godfrey appeals the denial of his

motion to suppress a firearm seized during a Terry stop. For the following reasons, we AFFIRM.

                                                  I.

       Early in the afternoon of February 19, 2009, Officer Chris Perry, an agent with the Regional

Enforcement Narcotics Unit of the Hamilton County Sheriff’s Office, approached a four-way stop

sign in the Over-the-Rhine neighborhood in Cincinnati, Ohio. Godfrey was stopped at that

intersection in his vehicle as Perry arrived. Although Godfrey had the right of way, he motioned for

Perry to proceed first. Perry, suspicious of this apparent act of kindness in an area where he believes

residents distrust the police, declined and indicated that Godfrey should go first. Godfrey acceded,

followed by Perry and another agent driving behind Perry, Officer Timothy Nash. As Perry began
No. 10-4240
USA v. Godfrey

following Godfrey, he radioed Godfrey’s license plate to Nash, so that Nash could run a warrant

check while Perry focused on keeping Godfrey’s vehicle in sight. Nash followed.

       However, Nash “made a typographical error [when] entering [Godfrey’s] license number into

the mobile data terminal (‘MDT’) in his patrol car.” (Order, Dist. Ct. Docket No. 30, at 2; see also

Suppression Hr’g Tr., Dist. Ct. Docket No. 32, at 35.) Instead of entering in license plate number

“EAD7669,” which belonged to Godfrey, Nash entered “EAD7769,” the plate number of a vehicle

belonging to Neal Ramey. As soon as he entered the (wrong) license plate number into the MDT,

Nash received an audible (a “high-low tone”) and visible (the screen turning red) warning indicating

the vehicle’s owner had an outstanding warrant. Because Perry was working with Nash that

afternoon, Perry’s MDT system was linked to Nash’s, and Perry received alerts from Nash’s MDT.

       At this point, Godfrey turned onto another street in front of several cars, putting several

vehicles between him and the officers. Because they were concerned with catching up with Godfrey

and weaving through traffic to do so, neither Nash nor Perry “scroll[ed] through [the] several more

screens” that would be required to discover the identity and description of the individual and vehicle

for which the alert sounded. (Order, Dist. Ct. Docket No. 30, at 3.) Also, it does not appear that

Perry’s MDT would have allowed him to access any information on the individual associated with

the alert, but this is somewhat unclear from the record. (See id. at 7; Suppression Hr’g Tr., Dist. Ct.

Docket No. 32, at 61. But see Suppression Hr’g Tr., Dist. Ct. Docket No. 32, at 19-20.)

       Once Perry and Nash activated their lights and caught up with Godfrey, Godfrey pulled over

to the curb, and the officers pulled over behind him. Perry immediately exited his vehicle to secure

Godfrey, and Nash left his vehicle simultaneously to provide Perry with backup. Perry approached

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Godfrey and asked to see his driver’s license. In response, Godfrey admitted that his license was

suspended. Shortly thereafter, Perry entered Godfrey’s information into Perry’s MDT to verify that

Godfrey’s license was suspended, which it was.

       A third agent then arrived, Officer Ryan Hudson, and the officers put Godfrey in the back

of Hudson’s police car so they could impound his vehicle. Meanwhile, the officers received consent

from Godfrey to search his vehicle and found inside the vehicle a firearm with the serial number filed

off. The officers subsequently transported Godfrey to the police station, where he was questioned

and arrested with regard to the firearm.

       The government prosecuted Godfrey for being a felon-in-possession of a firearm. Godfrey

moved to suppress the firearm, but the district court denied his motion after a hearing. Godfrey then

pled guilty, reserving his right to appeal the denial of his suppression motion. Godfrey received a

sentence of one day of imprisonment followed by three years of supervised release. Godfrey timely

appealed the denial of his motion to suppress.

                                                 II.

       In examining the denial of a motion to suppress, we review the district court’s findings of

fact for clear error and its conclusions of law de novo. United States v. Foster, 376 F.3d 577, 583

(6th Cir. 2004). We must view the evidence “in the light most likely to support the district court’s

decision.” United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999) (internal quotation

marks omitted). Although, “in affirming a denial of a motion to suppress, we need not rely on the

ground[] set forth by the district court,” United States v. Pasquarille, 20 F.3d 682, 685 (6th Cir.



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1994), that basis (the good faith exception) is adequate here, so we do not reach the government’s

newly-advanced argument that reasonable suspicion justified the stop.

        Because Godfrey concedes that his detention was lawful after he admitted to driving under

a suspended license, and that he consented to the search of his vehicle, our inquiry centers around

whether the good faith exception cured the alleged unconstitutional infirmity of the stop. Yet our

focus is even narrower, for Godfrey does not contend that Nash’s mistyping of the license plate was

anything more than accidental. We must therefore determine simply whether “good faith” justifies

the officers’ failure to scroll through the several screens and confirm the details of the warrant before

intruding on Godfrey’s Fourth Amendment right to be free from unreasonable searches and seizures.

        Where we find—or a party concedes—that a search is unconstitutional, the typical remedy

is suppression of the evidence seized. Herring v. United States, --- U.S. ---, 129 S. Ct. 695, 699

(2009). However, exclusion is not always proper; instead, it “applies only where it results in

appreciable deterrence.” Id. at 700 (internal quotation marks omitted). In making this determination,

we “must consider the actions of all the police officers involved,” id. at 699, assess “the efficacy of

the [exclusionary] rule in deterring Fourth Amendment violations in the future,” id. at 700, and

analyze whether “the benefits of deterrence . . . outweigh the costs” to the justice system of letting

culpable individuals go free, id. at 700-01. Further, the Supreme Court has explained that where,

as here, police personnel are responsible for the unconstitutional error, suppression is necessary only

if the police conduct is “deliberate, reckless, or grossly negligent . . . , or in some circumstances [due

to] recurring or systemic negligence.” Id. at 702.



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        Herring formed the basis of the district court’s conclusion, so we begin with an examination

of that decision. In Herring, the Supreme Court faced a situation where an individual went to a

police station to retrieve an item from his impounded truck. Id. at 698. The officers ran a warrant

check on the individual, and the neighboring county’s warrant clerk told the officers that the

individual had an outstanding warrant. Id. The officers then arrested the individual and found drugs

and a firearm on his person. Id. Yet there was, in actuality, no arrest warrant outstanding; the

warrant had been recalled five months earlier, though, “[f]or whatever reason,” no one had cleared

it from the warrant database. Id. Applying the good faith standard, the Court in Herring held that

the exclusionary rule did not apply to bar evidence seized after an accidental police error. Id. at 704.

        We have since expounded on Herring’s effect on the exclusionary rule: “The Supreme Court

has effectively created a balancing test by requiring that in order for a court to suppress evidence

following the finding of a Fourth Amendment violation, ‘the benefits of deterrence must outweigh

the costs.’” United States v. Master, 614 F.3d 236, 243 (6th Cir. 2010) (quoting Herring, 129 S. Ct.

at 700). We explained further that “the Herring Court’s emphasis seem[ed] weighed more toward

preserving evidence for use in obtaining convictions, even if illegally seized, than toward excluding

evidence in order to deter police misconduct unless the officers engage in ‘deliberate, reckless, or

grossly negligent conduct.’” Id. (quoting Herring, 129 S. Ct. at 702).

        The district court applied Herring’s approach here and found no justification to exclude the

evidence. We agree. Nash’s initial data-entry error was a mistake and at most constituted typical

negligence of the sort present in Herring. See Herring, 129 S. Ct. at 698, 704. And Godfrey does

not argue, nor is there evidence in the record independently establishing, that Hamilton County

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officers make these sorts of typographical errors recurrently or systemically. See id. at 703 (“If the

police have been shown to be reckless in maintaining a warrant system, or to have knowingly made

false entries to lay the groundwork for future false arrests, exclusion would certainly be justified .

. . .”). Accidental typographical mistakes are not the sort of police behavior that suppression would

deter, so the exclusionary rule does not require suppression for this error.

       Once the error occurred and the officers learned of the outstanding warrant, the second

purported police error—and the one Godfrey contends was “reckless” or “deliberate”—was the

officers’ failure to verify that the information conveyed to Nash on his MDT matched Godfrey’s

person and vehicle. But, as the district court noted, accessing this information would have required

scrolling through several screens on Nash’s MDT touch screen, and the district court found—based

on Nash’s testimony—that Perry did not have access to this information at all. We believe the

decision not to scroll through the MDT screens while weaving in and out of traffic and pursuing

Godfrey was reasonable, because the officers were concerned with driving safely and not losing

Godfrey, who in their view was trying to put distance between himself and the officers. After

stopping Godfrey, Nash did not scroll for further information on his screen because Perry wanted

to secure the vehicle and the individual for whom they thought a warrant was outstanding, and Nash

had to provide Perry with backup for Perry’s safety.

       These actions and the officers’ concerns for road and officer safety, as well as a perceived

need for swift apprehension of the wanted individual, reasonably explained the officers’ failure to

double-check the MDT system before securing the suspect and his vehicle. This oversight

constituted negligence at most, and there is no reason to believe that suppression in such

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circumstances would deter similar mistakes in the future. Moreover, because there is no evidence

that such errors are commonplace or systemic, the good faith exception militates in favor of

“preserving evidence for use in obtaining convictions, even if illegally seized, [rather] than toward

excluding evidence in order to deter police misconduct.” Master, 614 F.3d at 243. As such, the

good faith exception cures any unconstitutional police action here.

       Godfrey’s reliance on Groh v. Ramirez, 540 U.S. 551 (2004), for a contrary result, is

misplaced, because that decision entailed unreasonable reliance on a facially-invalid warrant. In

Groh, the search warrant on which the officers relied to search the defendants’ ranch “failed to

identify any of the items that [the officers] intended to seize.” Id. at 554-55. Rejecting the argument

that the resultant search was constitutional or undertaken in “good faith,” the Court explained: “[A]

warrant may be 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. This is

such a case.” Id. at 565 (internal quotation marks omitted). Here, by contrast, the officers did not

examine a facially-invalid warrant, but instead at most negligently failed to examine a facially-valid,

if inapplicable, warrant. Herring thus guides our determination that the good faith exception saves

the officers’ action. See United States v. Lazar, 604 F.3d 230, 236 (6th Cir. 2010) (“This case does

not involve the sort of police error or misconduct in Herring. Like Groh, it instead deals with

particularization of search warrants and whether they are facially deficient.             Despite the

government’s argument to the contrary, Herring does not purport to alter that aspect of the

exclusionary rule which applies to warrants that are facially deficient warrants ab initio.” (footnote

omitted)).

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       As a final matter, finding good faith on the part of Perry and Nash does not necessarily

require affirmance, as remand may be appropriate where the district court failed to “consider the

actions of all the police officers involved.” Master, 614 F.3d at 243 (quoting Herring, 129 S. Ct.

at 699). Here, however, the district court independently assessed the culpability of each officer

relevant to this inquiry, and it found their actions to be at most negligent—a conclusion with which

we agree. That fact distinguishes this case from Master and establishes that no remand for

clarification is necessary. See id.

                                                III.

       For the foregoing reasons, we AFFIRM the district court’s denial of Godfrey’s motion to

suppress.




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