                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT



                               No. 14-4695



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

KENNETH RUSH,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:14-cr-00059-1)


Argued:   September 17, 2015                Decided:   December 21, 2015


Before WYNN, FLOYD, and THACKER, Circuit Judges.


Reversed and remanded by published opinion. Judge Wynn wrote the
opinion, in which Judge Floyd and Judge Thacker joined.


ARGUED: Rhett Hunter Johnson, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant.     John J.
Frail, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee. ON BRIEF: Christian M. Capece, Federal
Public Defender, Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. R. Booth
Goodwin II, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, West Virginia, for Appellee.
WYNN, Circuit Judge:

       A    law    enforcement          officer       knowingly    lied     to   Defendant

Kenneth Rush by claiming that he had a warrant to search the

apartment where Defendant was staying when no warrant in fact

existed.          The        district    court    held   that     the   officer’s     false

statement stripped Defendant of his Fourth Amendment right to

object to the search, but declined to suppress evidence obtained

from the search.               On appeal, Defendant argues that the evidence

should have been suppressed.                 We agree and therefore reverse the

district court and remand.

                                                 I.

       On the morning of May 23, 2012, Marquita Wills called the

Charleston, West Virginia, Metropolitan Drug Enforcement Network

Team (MDENT)            to    request    that    they    remove    Defendant     from    her

apartment.          Ms. Wills suspected that Defendant, who had been

staying with her for the previous two nights, was dealing drugs

from her apartment.               Lieutenant A.C. Napier and Sergeant William

Winkler of the Charleston Police Department immediately arranged

to meet Ms. Wills at a local business.                          There, Ms. Wills gave

them       the    key    to     her     apartment     and    signed     a   consent     form

authorizing the police to search it.                        Ms. Wills told them that

she was afraid of Defendant because his family had a history of

violence, but she did not indicate that he had committed any

crimes against her or threatened her.

                                                 2
       Sergeant Winkler and Lieutenant Napier went directly to Ms.

Wills’s      apartment,    where    they    were   joined    by    Detective      Ryan

Higginbotham,         Detective    Keven    Allen,   Detective       Tagayun,      and

Officer John Halstead.            They opened the apartment door with the

key and entered with their weapons drawn, yelling “police” to

announce      their    presence.       Detectives    Allen     and       Higginbotham

found Defendant asleep in the bed in the master bedroom.                         They

handcuffed Defendant, brought him into the living room, and sat

him on the couch.          After ensuring that no one else was in the

apartment, they removed the handcuffs.

       At some point in this series of events, Defendant asked,

“Can you tell me what’s going on?                Why are you all here?”           J.A.

75.    Sergeant Winkler responded that the officers had a warrant

to search the apartment, even though he knew that was not true.

Sergeant Winkler testified at the suppression hearing that he

lied about having a search warrant to protect Ms. Wills.

       After informing Defendant that they had a search warrant,

the officers searched the apartment and found crack cocaine and

digital      scales.       Defendant       was   cooperative       throughout      the

search.       When questioned by Detective Allen, he admitted that

the drugs belonged to him and that he had sold crack cocaine

from   Ms.    Wills’s     apartment.       Defendant   also       gave    the   police

information about the supplier who sold him the drugs and signed



                                           3
a statement, written by Lieutenant Napier, recording his answers

to Detective Allen’s questions.

      After completing the search and questioning Defendant, the

officers left, without arresting Defendant or removing him from

Ms.   Wills’s     apartment.        At     the       officers’      request,     Defendant

voluntarily visited the MDENT office later that day to answer

additional       questions    about      his         supplier.        After      Defendant

answered their questions, the officers again did not arrest him;

instead, they simply allowed him to leave.

      Defendant     was     ultimately       arrested         and    charged     with   one

count of knowingly and intentionally possessing with intent to

distribute       twenty-eight       grams       or     more    of    cocaine     base    in

violation of 21 U.S.C. § 841(a)(1).                     Defendant moved in limine

to suppress the evidence obtained from the warrantless search of

Ms. Wills’s apartment.

      Despite     finding    a   constitutional           violation,       the   district

court denied the motion to suppress.                          As the district court

noted, by “inaccurately claiming that the search was supported

by    a    warrant, . . .        law       enforcement         materially        impaired

[Defendant]’s right, under [Georgia v.] Randolph, [547 U.S. 103

(2006),]    to    object     when    law     enforcement         entered      the   home.”

United States v. Rush, No. 2:13-00151, 2014 WL 989198, at *4

(S.D. W. Va. Mar. 13, 2014).                Nevertheless, the court held that

the officers did not intentionally impair Defendant’s rights,

                                            4
but instead lied about the warrant “in a justifiable effort to

protect Ms. Wills.”           Id. at *7.         The court also determined that

suppressing the evidence would have little deterrent effect on

police       misconduct     because     there           was   “a      vanishingly     low

likelihood of future recurrences” of the same behavior.                         Id.

       Following the denial of his motion to suppress, Defendant

agreed to plead guilty to one count of possessing with intent to

distribute an unspecified quantity of crack cocaine.                           Defendant

pled guilty and was sentenced to twelve months and one day in

prison, followed by three years of supervised release.                           In the

plea       agreement,    Defendant    reserved          the   right    to   appeal    the

district court’s decision on his motion to suppress.                           Defendant

then timely filed a notice of appeal.

       When reviewing a ruling on a suppression motion, we review

the district court’s legal determinations de novo and factual

findings for clear error.            United States v. Davis, 690 F.3d 226,

233 (4th Cir. 2012).            And if the motion has been denied, we

review       the   evidence    in    the        light     most     favorable    to    the

government.        Id.

                                           II.

       No one contests the fact that Defendant’s Fourth Amendment

rights were violated. 1         The parties disagree only about whether


       1
       As the district court recognized, even though Ms. Wills
consented to the search of her apartment, Defendant had a right
                                            5
the resulting evidence should have been suppressed.                       Defendant

argues that the district court erred in finding that Sergeant

Winkler acted in good faith to protect Ms. Wills.                         Defendant

asserts that the good-faith exception to the exclusionary rule

is inapplicable because Sergeant Winkler deliberately lied about

the existence of a search warrant and could not have had an

objectively reasonable belief that such a lie was lawful.                             We

agree.

      The   Fourth    Amendment    provides         that   “[t]he     right    of    the

people   to    be   secure    in   their      persons,      houses,    papers,      and

effects, against unreasonable searches and seizures, shall not

be violated.”       U.S. Const. amend. IV.           The Fourth Amendment does

not   “expressly      preclud[e]    the       use   of     evidence    obtained      in

violation of its commands.”            United States v. Leon, 468 U.S.

897, 906 (1984).       However, courts have developed a “prudential”

doctrine      that—under     certain   circumstances—prohibits                evidence

obtained    through    an    unconstitutional         search    from    being       used

against the subject of the search in a criminal trial.                        Pa. Bd.

of Prob. & Parole v. Scott, 524 U.S. 357, 363 (1998).

      The exclusionary rule “is ‘not a personal constitutional

right,’ nor is it designed to ‘redress the injury’ occasioned by


to object to the search because he was a present co-occupant of
the apartment.   See Randolph, 547 U.S. at 106.      The officers
unconstitutionally denied Defendant the opportunity to object to
the search by falsely stating that they had a warrant.        See
Bumper v. North Carolina, 391 U.S. 543, 548–50 (1968).
                                          6
an unconstitutional search.”           Davis v. United States, 131 S. Ct.

2419, 2426 (2011) (quoting Stone v. Powell, 428 U.S. 465, 486

(1976)).     Instead, the rule’s purpose “is to deter future Fourth

Amendment violations.”         Id.

       Exclusion is appropriate when the deterrence benefits of

suppression outweigh the “substantial social costs” of excluding

the evidence.        Leon, 468 U.S. at 907.            As the Supreme Court has

explained:

       When the police exhibit “deliberate,” “reckless,” or
       “grossly negligent” disregard for Fourth Amendment
       rights, the deterrent value of exclusion is strong and
       tends to outweigh the resulting costs. But when the
       police act with an objectively “reasonable good-faith
       belief” that their conduct is lawful, or when their
       conduct involves only simple, “isolated” negligence,
       the “‘deterrence rationale loses much of its force,’”
       and exclusion cannot “pay its way.”

Davis,    131   S.    Ct.    at   2427–28        (internal     citations   omitted)

(quoting    Herring     v.    United   States,         555   U.S.   135,   137,    144

(2009), and Leon, 468 U.S. at 908 n.6, 909, 919).

       The Supreme Court has applied the good-faith exception to

certain cases of “isolated” negligence.                      Herring, 555 U.S. at

137.     In Herring, the police officers who conducted the search

were     incorrectly    informed       by       the   police    department    in    a

neighboring county that there was an outstanding warrant for the

defendant’s arrest.          Id. at 137–38.           Since the Fourth Amendment

violation arose out of “isolated negligence attenuated from the

arrest,” id. at 137, the Supreme Court held that suppressing the

                                            7
evidence would have only a marginal deterrent effect on police

behavior and thus was not warranted, id. at 147.

     Additionally, the Supreme Court has applied the good-faith

exception “when the police act with an objectively ‘reasonable

good-faith belief’ that their conduct is lawful.”                                Davis, 131 S.

Ct. at 2427 (quoting Leon, 468 U.S. at 909).                                For instance, in

Leon, police officers conducted a search pursuant to a facially

valid search warrant.               468 U.S. at 902.                   The district court

later ruled that the search warrant was unsupported by probable

cause   and    thus     invalid.         Id.       at    903.         Although         the   search

violated the Fourth Amendment, the Supreme Court declined to

suppress      the   evidence       because      the       officers’         reliance         on   the

warrant    was      objectively      reasonable.                Id.    at     926;      see       also

Massachusetts v. Sheppard, 468 U.S. 981, 990–91 (1984).

     Similarly,         the       Supreme      Court          applied        the       good-faith

exception when police officers reasonably relied upon records

indicating that there was an outstanding arrest warrant for the

defendant,       even      when    the   records          were        later      found       to     be

inaccurate.         Arizona v. Evans, 514 U.S. 1, 15–16 (1995).                                    The

erroneous      information        was    part       of    a     database         maintained        by

employees of the Clerk of Court.                        Id. at 4.        The Supreme Court

held that the evidence should not be suppressed because “the

exclusionary        rule    was    historically            designed         as     a    means      of



                                               8
deterring police misconduct, not mistakes by court employees.”

Id. at 14.

       The    present    case      bears    no    resemblance      to    the    previous

applications of the good-faith exception.                    Here, the search was

unconstitutional        due   to    the    intentional      decision      of    Sergeant

Winkler to tell Defendant that there was a search warrant, even

though he knew that his statement was untrue.                           This is not a

case     of     negligence,        or      reasonable      reliance        on    faulty

information.       See Herring, 555 U.S. at 137; Evans, 514 U.S. at

15–16.       Rather, it is a case of a deliberate lie.

       The good-faith exception, therefore, would apply in this

case only if the officers held an objectively reasonable belief

that it was lawful to conduct the search after lying about the

existence of a warrant.             See Davis, 131 S. Ct. at 2427–29.                  In

other words, we must determine objectively “whether a reasonably

well    trained    officer      would      have    known    that   the     search     was

illegal.”       Herring, 555 U.S. at 145 (quoting Leon, 468 U.S. at

922 n.23).

       Here, there can be no doubt that a reasonable officer would

know that deliberately lying about the existence of a warrant

would    violate      Defendant’s       Fourth     Amendment      rights.        Indeed,

courts    have    long   taken      a     negative   view    of    law    enforcement

misleading      the   public    about      having    valid     warrants.         In   the

seminal opinion Bumper v. North Carolina, 391 U.S. 543, 546–47

                                            9
(1968), for example, the police falsely told the defendant’s

grandmother that they had a warrant to search her home, and

believing them, she did not object to the search.                         The Court

noted that “[w]hen a law enforcement officer claims authority to

search a home under a warrant, he announces in effect that the

occupant has no right to resist the search.”                      Id. at 550.      As

such, any “consent” given after the officer has asserted that he

possesses a warrant is not valid.             Id. at 548.         The Bumper Court

held that the officers violated the Fourth Amendment and that

the evidence should have been suppressed.                  Id. at 550; see also,

e.g., United States v. Saafir, 754 F.3d 262, 266 (4th Cir. 2014)

(“A    search    or      seizure      is      unreasonable         and     therefore

unconstitutional      if   it    is      premised     on     a    law    enforcement

officer’s misstatement of his or her authority.”); Trulock v.

Freeh, 275 F.3d 391, 402 (4th Cir. 2001) (holding that consent

given by a suspect who was falsely told that the FBI had a

search warrant was invalid).

      Further, we find instructive the Sixth Circuit’s decision

in United States v. Shaw, 707 F.3d 666 (6th Cir. 2013).                            In

Shaw, officers had an arrest warrant for a suspect residing at

3171 Hendricks Avenue in Memphis, Tennessee.                     Id. at 667.      When

the   officers   arrived    at     the   address,     they       found   two   houses

labeled 3170 Hendricks Avenue and none with the 3171 address.

Id.     The   officers     approached      one   of    the       homes   (which   was

                                         10
actually 3170 Hendricks Avenue) and told the woman who answered

the door that they had a warrant “for this address.”                   Id.     The

woman then allowed the officers to search the home, which led to

the discovery of illegal drugs and the arrest of one of the

occupants.      Id.   Although the officers had a “fifty-fifty chance

of being right,” id. at 668, they ultimately were incorrect and

“obtained entry into the wrong house based on a false pretense,”

id. at 669.       The Sixth Circuit held that the officers violated

the Fourth Amendment and excluded the evidence obtained through

the search.      Id. at 669–70.        The Sixth Circuit underscored that

“so long as there is an exclusionary rule, it seems safe to say

that it will apply to officers who enter and remain in a house

based on false pretenses.”         Id. at 670.

      At the time of the search at issue here, Sergeant Winkler

had over sixteen years of experience with the Charleston Police

Department.       Sergeant Winkler knew with certainty that he did

not possess a search warrant, but deliberately chose to tell

Defendant      otherwise.    An    objectively     reasonable   officer       with

Sergeant Winkler’s level of experience would have known that

consent to search is not valid if given after the police falsely

claim to have a search warrant.              See Herring, 555 U.S. at 145

(noting that “a particular officer’s knowledge and experience”

may   inform    the   analysis    of   whether    the   officer’s    action   was

objectively      reasonable).          Sergeant     Winkler’s       action    was

                                        11
deliberate, contrary to long-standing precedent, and objectively

unreasonable.        In     other       words,   it   is   precisely      the    type   of

action that the exclusionary rule seeks to deter.

       The government nevertheless argues that the officers acted

in good faith because they did not intend to violate Defendant’s

rights by claiming that they had a warrant; they sought only to

protect Ms. Wills.               Even if this were true—and the officers’

behavior      suggests      it    was    not 2—the    subjective    intent       of     the

officers is of no import to our analysis.                    Herring, 555 U.S. at

145.       Further, the Supreme Court has made clear that the good-

faith exception applies only if the officers had an objectively

reasonable belief that their conduct was lawful, and not merely

preferable      or   more    expedient       than     complying    with    the    Fourth

Amendment.      Davis, 131 S. Ct. at 2427.

                                           III.

           Excluding the evidence obtained through a deliberate lie

on the part of law enforcement, as in this case, may well deter

police officers from so violating the Fourth Amendment in the


       2
       After searching Ms. Wills’s apartment, the officers left
Defendant there and chose not to arrest him either there or
later that day at the MDENT office. Clearly, then, they did not
see Defendant as a threat to Ms. Wills, nor did they face any
exigency that could possibly justify their decision to search
the apartment under false pretenses and without a warrant. See
United States v. Yengel, 711 F.3d 392, 399 (4th Cir. 2013)
(rejecting officers’ justifications for a search when they were
inconsistent with the officers’ behavior at the time of the
search).
                                            12
future.     We   emphatically   agree   with   the    Sixth   Circuit’s

statement that “so long as there is an exclusionary rule, it

seems safe to say that it will apply to officers who enter and

remain in a house based on false pretenses.”         Shaw, 707 F.3d at

670.   Accordingly, we reverse and remand.


                                               REVERSED AND REMANDED




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