                                                  NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                 No. 08-1534
                                _____________

                        UNITED STATES OF AMERICA

                                       v.

                               EMORY HICKS,

                                      Appellant
                                _____________

                On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                         District Court No. 06-cr-00684
                 District Judge: The Honorable J. Curtis Joyner

               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              January 13, 2012

           Before: SCIRICA, RENDELL, and SMITH, Circuit Judges

                           (Filed: January 17, 2012)

                           _____________________

                                  OPINION
                           _____________________

SMITH, Circuit Judge.

      Defendant Emory Hicks is appealing the District Court’s denial of his

motion to suppress physical evidence because the search warrant executed by the
                                       1
police investigators allegedly lacked probable cause and the investigators did not

act in good faith. We will affirm.

                               I.    BACKGROUND

      In the summer of 2006, the Philadelphia police and a task force of the

Federal Bureau of Investigation were searching for Malik Collins, who was wanted

for, among other offenses, two separate murders in Philadelphia County. Collins

was suspected of being a member of a drug distribution organization known as the

Thompson University Gang (the “Gang”), which was based in the area of 29th and

Thompson Streets in Philadelphia.

      Philadelphia police detective Leon Lubiejewski, who was assigned to Squad

10 of the joint Philadelphia police/FBI task force, was responsible for seeking and

arresting murder fugitives. On August 23, 2006, Lubiejewski met with FBI agent

Nick Grill and Philadelphia police detective Rickie Durham, who were both

assigned to Squad 2 of the task force, to discuss information they had regarding

Collins. Grill and Durham told Lubiejewski that on approximately August 17,

2006, a reliable, confidential informant (the “Informant”) saw Collins on a porch

outside of a building at a specified address in Philadelphia (the “Building”), and

that according to the Informant, Collins was presently hiding inside an apartment

in the Building. The Building had two separate apartments, one on the first floor

and another on the second floor, accessed by separate doors that open onto a shared

                                        2
porch.      Durham said that the Informant learned from another person (the

“Secondhand Informant”) that Collins entered the first floor apartment at the

Building and that guns were present in that apartment. 1 At the time of the meeting

on August 23, 2006, Lubiejewski believed that the Informant, not the Secondhand

Informant, saw Collins enter the first floor apartment.

         Following the meeting, Lubiejewski began drafting an affidavit in support of

a warrant to search the Building’s first floor apartment. Lubiejewski consulted

with Assistant District Attorney Ann Ponterio regarding his draft affidavit, and she

advised him to obtain additional information regarding the Informant’s reliability.

Lubiejewski contacted task force members regarding the Informant’s reliability,

and he was told that the Informant provided information that led to the arrest of a

fugitive and that the Informant had also been supplying information regarding the

Gang, including the names of Gang members and the methods of its operations.

         Task force members also conducted surveillance of the Building.          On

August 24, 2006, Sergeant Gerald Grdinich, on two occasions, saw the same black

male exit the Building’s first-floor apartment, stand on the porch for a short time,

and then return to the apartment. Grdinich was not able to identify the man but

knew that he was not Collins. 2

         In the afternoon of August 24, 2006, Lubiejewski completed the affidavit in


1
    Lubiejewski did not know the identity or reliability of the Secondhand Informant.
                                           3
support of his application for a search warrant of the Building’s first-floor

apartment and presented it to a bail commissioner.         This affidavit stated, in

pertinent part, that:

        On Wednesday, August 23, 2006, [Lubiejewski] met with members of
        the FBI drug enforcement task force who related that they have a
        reliable informant who advised them that he knows Malik Collins and
        that Collins is presently hiding inside of [the Building]. The
        informant relates that he was present on Thursday 8/17/2006 outside
        of [the Building] and saw the fugitive Malik Collins, standing on the
        front porch of that location for a short period of time and then enter
        the first floor apartment of that duplex through a door on the front
        porch that is at the eastern end of the porch. The informant has also
        spoken to an individual who has on-going contact with Malik Collins
        at this location and this person has said that there are a number of
        guns being stored inside that apartment. (contd)

        The informant has given information in the last month that has led to
        the arrest of a fugitive inside of a location, who was wanted on an
        active arrest warrant. The informant has admitted to being a member
        of the 29th and Thompson Sts. drug organization and has been
        supplying Federal agents with the names of individuals belonging to
        the organization, locations used by the organization and methods of
        operation of the organization.

        *      *        *

        Members of the Philadelphia Police Department and the FBI
        conducted a joint surveillance of [the Building] beginning on the
        evening of 8/23/06 thru the afternoon of 8/24/06, and during that
        period of time, a [black male] was observed twice, looking out of the
        front door, looking in both ways up and down the street and going
        back inside.

(emphasis added).           Lubiejewski never asked Grill or Durham to review his


2
    This man was later determined to be Hicks.
                                            4
affidavit for accuracy prior to presenting it to the bail commissioner. The bail

commissioner found probable cause for the search and issued the warrant.

      On August 25, 2006, police officers and FBI agents executed the search

warrant at the Building’s first-floor apartment and found: three stolen handguns

(two of which were loaded); an assortment of loaded magazines and loose rounds,

a bulletproof vest; and drug paraphernalia. Hicks, who was the only person present

in the apartment, was arrested and indicted on two counts: possession of a firearm

after a prior felony conviction in violation of 18 U.S.C. §§ 922(g)(1) and 924(e);

and possession of body armor after a conviction for a prior crime of violence in

violation of 18 U.S.C. §§ 931 and 924(a)(7).

      Hicks filed a motion to suppress the physical evidence found during the

execution of the search warrant. Hicks argued that the search warrant was not

supported by probable cause and the investigators did not rely on the warrant in

good faith. The District Court held a hearing on the motion. Lubiejewski testified

that, at the time he presented his affidavit to the bail commissioner, he believed

that all of the information in his affidavit was fair and accurate.

      Lubiejewski further testified that he later learned that his affidavit contained

two incorrect statements. First, although the Informant did see Collins on the

porch in front of the Building, he did not witness which apartment door Collins

entered. Instead, it was the Secondhand Informant that saw Collins enter the

                                           5
Building’s first-floor apartment, and the Informant learned this information from

the Secondhand Informant. Lubiejewski explained that the error occurred because

he misunderstood the information relayed by Grill and Durham.                 Second,

Lubiejewski’s affidavit incorrectly stated that the Informant admitted to being a

member of the Gang. Lubiejewski testified that the error was based on his false

assumption that the Informant’s familiarity with the Gang’s members and

operations must have been the result of his status as a member of the Gang.

      After a hearing on the motion, the District Court held that the search warrant

lacked probable cause but that the evidence was not subject to suppression because

the investigators acted in good faith. Hicks was tried before a jury and convicted

on both counts. Hicks appealed the denial of his suppression motion.3

                                  II.     DISCUSSION

                             A.         PROBABLE CAUSE

      The government argues that Lubiejewski’s affidavit contained sufficient

probable cause to support the warrant even after excising the two false statements,

and that the District Court erred in holding to the contrary. A district court’s

findings of fact on a motion to suppress are reviewed for clear error, and its

application of the law to the facts is subject to plenary review. United States v.


3
 The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

                                            6
Brownlee, 454 F.3d 131, 146 n.15 (3d Cir. 2006).

      The task of a court in issuing a search warrant is to “make a practical,

common-sense decision whether, given all the circumstances set forth in the

affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons

supplying hearsay information, there is a fair probability that contraband or

evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S.

213, 238 (1983); see also United States v. Whitner, 219 F.3d 289, 296 (3d Cir.

2000).   The duty of courts reviewing the issuance of a search warrant is to

determine whether the issuing court had a “substantial basis” for concluding that

probable cause existed for the search. Gates, 462 U.S. at 238-39; see also Whitner,

219 F.3d at 296.

      The District Court did not err in concluding that, given the false statements

in the affidavit, there was no substantial basis for determining that probable cause

existed. Lubiejewski’s affidavit, after excising the false statements, essentially

states that, six days earlier, the Informant saw Collins standing outside of the

Building, but that he did not witness which of the Building’s two apartments

Collins entered. Only the Secondhand Informant provided information stating that

Collins entered the first-floor apartment and that Collins stored guns inside that

apartment. The only indicium of reliability for the information provided by the

Secondhand Informant is that this person allegedly has “on-going contact” with

                                         7
Collins.   Lubiejewski’s excised affidavit, considered in its totality, does not

provide a substantial basis for concluding that probable cause existed for the search

of the Building’s first-floor apartment.

      Accordingly, the District Court did not err in holding that the warrant was

not supported by probable cause.

                                 B.        GOOD FAITH

      Hicks asserts that the false statements in Lubiejewski’s warrant affidavit

were made with reckless disregard for the truth, and that consequently, the District

Court erred by applying the good faith exception to the exclusionary rule. A

district court’s determination regarding whether a false statement in a warrant

affidavit was made with reckless disregard for the truth is subject to a clear error

standard. United States v. Brown, 631 F.3d 638, 642 (3d Cir. 2011).

      Generally, where law enforcement officers objectively rely on a warrant in

good faith, courts will not apply the exclusionary rule or otherwise suppress

evidence obtained as a result of an unlawful search. See, e.g., United States v.

Leon, 468 U.S. 897, 922 (1984) (holding that evidence need not be suppressed

where officers objectively and reasonably relied on a subsequently invalidated

search warrant); Herring v. United States, 555 U.S. 135, 147-48 (2009) (finding

that the exclusionary rule does not apply where an unlawful search is caused by

isolated negligence that was not in reckless disregard of the Constitution).

                                             8
      A law enforcement officer who knowingly or recklessly provides false

information in support of a probable cause affidavit does not act in good faith and

that officer’s reliance on any warrant issued based on such false information is not

reasonable.   See, e.g., United States v. Ninety-Two Thousand Four Hundred

Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d 137, 146 (3d Cir. 2002);

United States v. Williams, 3 F.3d 69, 74 n.4 (3d Cir. 1993). A statement is made

with a reckless disregard for the truth when “viewing all the evidence, the affiant

must have entertained serious doubts as to the truth of his statements or had

obvious reasons to doubt the accuracy of the information he reported.” Wilson v.

Russo, 212 F.3d 781, 788 (3d Cir. 2000) (quotation marks and citation omitted).

      The District Court did not clearly err in determining that the law

enforcement officers acted without recklessness. Lubiejewski testified that the

errors were the result of a miscommunication with Grill and Durham, and that he

believed the information in his affidavit was true and accurate at the time that it

was presented to the bail commissioner. Lubiejewski consulted with an assistant

district attorney on several occasions regarding the sufficiency of his affidavit, and

he sought to confirm the information in his affidavit by requesting surveillance of

the Building. Consequently, the District Court did not clearly err in determining




                                          9
that the officers acted without recklessness.4

      Accordingly, we will affirm.




4
  Hicks also contends that the officers did not act with good faith because
Lubiejewski’s affidavit was allegedly so facially inadequate that a finding of
probable cause was unreasonable. See, e.g., Ninety-Two Thousand Four Hundred
Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d at 146. We disagree. On its
face, Lubiejewski’s affidavit was based on information from the Informant, who
was familiar with the operations of the Gang and who had provided reliable
information in the past. The affidavit further stated that the Informant believed
Collins was presently hiding in the Building and that the Informant witnessed
Collins enter the first-floor apartment. Thus, Lubiejewski’s affidavit, on its face,
was not so facially inadequate that a finding of probable cause was unreasonable.
                                          10
