                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3324
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of North Dakota.
Jerald Vincent Proell,                  *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: February 13, 2007
                                Filed: April 23, 2007
                                 ___________

Before LOKEN, Chief Judge, SMITH and GRUENDER, Circuit Judges.
                              ___________

SMITH, Circuit Judge.

       Jerald Vincent Proell was charged with three illegal weapon and narcotics
offenses,1 after officers executing search warrants on Proell's property discovered
firearms, ammunition, drugs, and drug paraphernalia. Proell moved to suppress the
evidence, claiming that the initial warrant lacked probable cause and that the



      1
       Proell was charged with possession of an unregistered firearm, in violation of
21 U.S.C. §§ 5861(d) and 5871, and two separate counts of possession of firearms and
ammunition by an unlawful user of a controlled substance, in violation of 18 U.S.C.
§§ 922(g)(3) and 924(a)(2)
subsequently discovered evidence was "fruit of the poisonous tree." The district court2
denied Proell's motion, finding that probable cause existed. Proell was subsequently
convicted by a jury on all three counts and sentenced to 41 months' imprisonment.
Proell appeals the district court's denial of this motion to suppress. We affirm.

                                     I. Background
       Proell resided at 79 4th Avenue Southwest, in Garrison, McLean County, North
Dakota. Proell operated an auto-repair shop at the same address located just behind
his house. Leslie Huston, Proell's long-time girlfriend, lived in a third structure located
behind the auto-repair shop with her two teenage sons, Bryant and Jerrod Huston. The
Hustons' property, 78 3rd Avenue Southwest, and Proell's property were contiguous,
sharing a back property line.

      The McLean County Sheriff's Department received information that Bryant
Huston illegally hunted deer. On April 6, 2005, a North Dakota state district judge3
heard testimony from Lieutenant Sylvin Brunsell of the McLean County Sheriff’s
Department and North Dakota Game Warden Ken Skuza, in support of two search
warrants to search for evidence of the unlawful hunting. One warrant covered both 78
3rd Avenue Southwest—the Hustons' residence—and 79 4th Avenue
Southwest—Proell's residence and shop. The other warrant covered a different
residence.

       After hearing testimony from Lt. Brunsell and Warden Skuza, the judge found
that there was probable cause to issue the search warrants. The search warrant
pertaining to the Huston and Proell properties, signed by the judge, stated:


      2
        The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.
      3
       The Honorable Bruce A. Romanick, State of North Dakota District Judge for
the South Central Judicial District.

                                           -2-
        To any Peace Officer of this State:

               Sworn testimony having been presented to me by Warden Ken
        Skuza and Lt. Sonny Brunsell that they has [sic] reason to believe that
        there is evidence at the structure(s), known as 79 4th Ave. SW and 78
        3rd Ave. SW, Garrison, ND, including a shop, houses, other structures,
        and the open fields within the curtilage, namely: Untagged deer heads,
        antlers, or other deer body parts, pictures of illegally taken deer, a
        30.06 rifle and 30.06 ammunition, a .243 rifle and ammunition which
        constitutes evidence of a criminal offense in violation of NDCC chapter
        20.01 and I am satisfied that there is probable cause to believe that the
        property so described can be found at this address.
               YOU ARE HEREBY COMMANDED to, within ten (10) days
        after receiving this Warrant, search the premisses so described during
        daytime hours and by knocking and announcing your presence and to
        seize the described property and to leave a copy of this Warrant at the
        premises and prepare a written inventory of the property seized and bring
        it before me.

        Dated this 6 day of April, 2005

                                                   /s/ Bruce A. Romanick
                                                   DISTRICT JUDGE

(Emphasis in original).

       State authorities executed the warrants the same day they were issued. The
search of the Hustons' residence revealed deer antlers, eagle talons, and a rifle. The
search of Proell's residence and shop uncovered marijuana, drug paraphernalia, and
firearms.4 After discovering these items on Proell's property, the authorities suspended
the search and applied for a second search warrant. That same day, the state court
judge issued a second search warrant for both properties, this time authorizing the

        4
            It is unclear whether these items were located at Proell's residence or in his
shop.

                                             -3-
officers to search for drugs, drug paraphernalia, evidence, records, and proceeds from
drug transactions, and firearms. Items of this nature were seized from Proell's property
during the second search.

       A federal grand jury indicted Proell on four counts: possession of an
unregistered firearm; possession with intent to distribute marijuana; possessing a
firearm during, in relation to, or in furtherance of a drug trafficking crime; and
possession of firearms by an unlawful drug user. On September 27, 2005, Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF) agents executed a federal arrest
warrant on Proell at his residence. During a search incident to arrest, a glass pipe with
drug residue and a baggie of methamphetamine were found in Proell's possession.
Upon discovering these items, ATF Agent Jay McCrary applied for a federal search
warrant covering Proell's residence. Once the search warrant was obtained, a third
search of Proell's residence ensued. During this search, additional firearms and a large
quantity of ammunition was seized from the residence.5

       Proell filed a motion to suppress the evidence, arguing that there was no
probable cause for the initial search of his property and that the warrant was based in
part on false or misleading statements by Lt. Brunsell during the search warrant
application hearing. Therefore, Proell argued, the search was illegal and all of the
evidence subsequently discovered on his property should be excluded because it was
"fruit of the poisonous tree." The federal district court held an evidentiary hearing on
the issue. After considering Lt. Brunsell and Proell's testimony, and upon reviewing
the record, the court found that Proell failed to meet his burden on his Franks6
challenge. The court went on to state that "[e]ven assuming, arguendo, that [Proell]

      5
       Following this search of Proell's property, a superseding indictment was issued,
excluding two counts from the original indictment and adding one count based on the
evidence discovered during the third search.
      6
        Franks v. Delaware, 438 U.S. 154 (1978) (holding that the Fourth Amendment
entitles a defendant to an evidentiary hearing about the veracity of a search warrant
affidavit if the defendant can make a "substantial preliminary showing" that the affiant
intentionally or recklessly included a false statement in the affidavit).

                                          -4-
satisfied his initial burden under Franks, there was more than sufficient information
presented to Judge Romanick to support a finding of probable cause even if the
[challenged] portion of Lieutenant Brunsell's testimony was omitted." The court, in
a footnote, noted that while it was not relying upon it, "the good faith exception to the
exclusionary rule as announced in United States v. Leon, 468 U.S. 897 (1984), would
likely operate in favor of the United States if suppression of the evidence was
warranted."

      At trial, a jury found Proell guilty, and the court sentenced him to 41 months'
imprisonment. On appeal, Proell challenges the district court's denial of his motion to
suppress, asserting there was no probable cause for the initial April 6, 2005 search
warrant.

                                      II. Discussion
       On appeal from the denial of a motion to suppress, we review the district court's
findings of fact for clear error and review the court's determination of probable cause
de novo. United States v. Rodriguez-Lopez, 444 F.3d 1020, 1022 (8th Cir. 2006). For
a search warrant to be valid, the "warrant must be based upon a finding by a neutral
and detached judicial officer that there is probable cause to believe that evidence,
instrumentalities or fruits of a crime, contraband, or a person for whose arrest there
is probable cause may be found in the place to be searched." Walden v. Carmack, 156
F.3d 861, 870 (8th Cir. 1998). "Probable cause to issue a search warrant exists when
an affidavit [or testimony] in support of the warrant sets forth sufficient facts to
establish that there is a 'fair probability that contraband or evidence of' criminal
activity will be found in the particular place to be searched." United States v. Davis,
471 F.3d 938, 946 (8th Cir. 2006) (quoting Illinois v. Gates, 462 U.S. 213, 238
(1983)). The determination of probable cause is made after considering the totality of
the circumstances. United States v. Gettel, 474 F.3d 1081, 1086 (8th Cir. 2007). After
a judge has issued a search warrant upon a finding of probable cause, "that finding
deserves great deference." Walden, 156 F.3d at 870 (citing Gates, 462 U.S. at 236).

                                          -5-
Thus, when reviewing the sufficiency of the testimony or affidavit supporting a search
warrant that was found by the issuing judge to provide probable cause, we give great
deference to the issuing judge's finding. Id.

        However, before reviewing the existence of probable cause, we may consider
the applicability of the good-faith exception to the exclusionary rule, as established
in Leon. United States v. Warford, 439 F.3d 836, 841 (8th Cir. 2006). Under the good-
faith exception, evidence seized pursuant to a search warrant issued by a magistrate
that is later determined to be invalid, will not be suppressed if the executing officer's
reliance upon the warrant was objectively reasonable. Thus, if the officers acted in
good-faith reliance on the warrant when they conducted the initial search of Proell's
residence and shop, "then there is no need to visit the underlying question of probable
cause." Id.

       The "good-faith inquiry is confined to the objectively ascertainable question
whether a reasonably well trained officer would have known that the search was
illegal despite the [issuing judge's] authorization." United States v. Puckett, 466 F.3d
626, 630 (8th Cir. 2006) (internal quotations and citation omitted) (alteration in
original). The rationale for the good-faith exception is that "no justification exists to
exclude evidence 'when an officer acting with objective good faith has obtained a
search warrant from a judge or magistrate and acted within its scope.'" Id. (quoting
Leon, 468 U.S. at 920).

      It is the magistrate's responsibility to determine whether the officer's
      allegations establish proable cause and, if so, to issue a warrant
      comporting in form with the requirements of the Fourth Amendment. In
      the ordinary case, an officer cannot be expected to question the
      magistrate's probable-cause determination or his judgment that the form
      of the warrant is technically sufficient . . . . Penalizing the officer for the
      magistrate's error, rather than his own, cannot logically contribute to the
      deterrence of Fourth Amendment violations.

Leon, 468 U.S. at 921.
                                           -6-
       Leon identified four situations in which an officer's reliance on a warrant would
be unreasonable: (1) when the affidavit or testimony supporting the warrant contained
a false statement made knowingly and intentionally or with reckless disregard for its
truth, thus misleading the issuing judge; (2) when the issuing judge "wholly
abandoned his judicial role" in issuing the warrant; (3) when 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"; and (4) when the warrant is "so facially
deficient" that no police officer could reasonably presume the warrant to be valid. Id.
at 923 (emphasis added); Puckett, 466 F.3d at 630.

       Proell contends that the good-faith exception should not apply in this case
because the testimony in support of the warrant was "so lacking in indicia of probable
cause" that it was "entirely unreasonable" for the officers executing the warrant to
believe that probable cause existed. "When assessing the objective [reasonableness]
of police officers executing a warrant, we must look to the totality of the
circumstances, including any information known to the officers but not presented to
the issuing judge." United States v. Marion, 238 F.3d 965, 969 (8th Cir. 2001)
(internal quotations and citations omitted).

       The initial search warrant was not based solely upon a written affidavit. Rather,
the issuing judge found that probable cause existed to search the structures after
hearing live testimony from two officers. During the warrant application hearing, the
officers testified regarding Bryant Huston's suspected illegal poaching and why
evidence of these crimes might be found on Proell's property. The testimony
established that: (1) based on the knowledge and experience of the officers, evidence
of Huston's illegal hunting was likely to be found on or near Huston's residence; (2)
Huston's residence and Proell's property were in close proximity to each other, with
the two properties sharing a back boundary line; and (3) Huston had access to Proell's
property.

                                           -7-
       Following the initial examination of the officers, Judge Romanick raised two
questions regarding the basis for searching Proell's and Huston's properties. To
respond to the judge's questions, the government recalled Lt. Brunsell and Warden
Skuza to the stand for further questioning by the State's Attorney. Upon hearing the
additional testimony, Judge Romanick was satisfied that probable cause existed to
search both Proell's and Huston's property.

       Additionally, Lt. Brunsell provided further testimony at the motion to suppress
hearing before the federal district court that had not been provided to the issuing state
judge. Brunsell testified that he believed Bryant Huston had access to the shop and
house on Proell's property because he had personally seen Huston on and around
Proell's property. Brunsell also testified that "word throughout the area" of Garrison,
North Dakota, a town of less than 1,500 residents, was that Proell "ha[d] taken care
of [the Huston] boys all the time and they had access to everything on the two lots."7

       Assuming, without deciding, that the testimony in support of the warrant failed
to provide a sufficient nexus between Proell's property and the illegal activity being
investigated, under the totality of the circumstances, we conclude that the executing
officers were not "entirely unreasonable" in believing that the warrant was supported
by probable cause. See United States v. Carpenter, 341 F.3d 666 (8th Cir. 2003)
(finding affidavit in support of search warrant was not so lacking in indicia of
probable cause as to render officer's belief in its existence entirely unreasonable, as
would preclude admission of seized evidence under good faith exception, even though
affidavit failed to indicate nexus between residence and suspected contraband).
"'Entirely unreasonable' is not a phrase often used by the Supreme Court, and we find
nothing in Leon or in the Court's subsequent opinions that would justify our dilution
of the Court's particularly strong choice of words." Carpenter, 341 F.3d at 670.


      7
       At the time of the initial search, Proell had dated Leslie Huston, Bryant
Huston's mother, for more than 16 years. Proell testified that he considered the Huston
boys to be his own.
                                         -8-
Considering that both the issuing state court judge and the district court determined
that the testimony established probable cause for the search warrant to issue, we
conclude that the officers were not entirely unreasonable in believing that the
testimony provided probable cause to issue the warrant. Puckett, 466 F.3d at 629
(finding it not entirely unreasonable for officer to believe warrant supported by
probable cause where issuing state judge, magistrate judge, and district judge all
believed affidavit provided probable cause for warrant to issue); Carpenter, 341 F.3d
at 670 (same).

                                  III. Conclusion
      Accordingly, we affirm the district court's denial of Proell's motion to suppress.
                     ______________________________




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