                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4758


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

EDD A. HICKS,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    James R. Spencer, Chief
District Judge. (3:08-cr-00039-JRS-1)


Submitted:   July 16, 2010              Decided:   September 9, 2010


Before DAVIS and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Charles D. Lewis, Richmond, Virginia, for Appellant.      Neil H.
MacBride, United States Attorney, Jessica A. Brumberg, Assistant
United States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Edd    A.     Hicks        conditionally         pleaded         guilty           under

Federal    Rule    of     Criminal      Procedure       11(a)(2)        to    one    count       of

knowingly,       intentionally,         and     unlawfully        possessing         with       the

intent to distribute five grams or more of cocaine base, in

violation     of     21     U.S.C.       § 841      (2006).            In     entering           the

conditional guilty plea, Hicks reserved his right to appeal the

denial of his suppression motion, which challenged the efficacy

of   an   “all     persons”    search         warrant      for    an    apartment.              The

district court found that probable cause supported the warrant

and that, in the alternative, the good faith exception announced

in United States v. Leon, 468 U.S. 897 (1984), applied.                                           On

appeal,    Hicks     argues    that       the      district       court      erred    in       both

rulings.     We affirm.

             In    addressing      the     denial       of    a     motion     to     suppress

evidence, we review the district court’s findings of historical

fact for clear error, “giving due weight to inferences drawn

from those facts by resident judges and local law enforcement

officers.”        Ornelas v. United States, 517 U.S. 690, 699 (1996).

We review de novo the ultimate legal conclusion.                                    Id.         And,

“[b]ecause the district court denied the motion to suppress, we

construe    the     evidence       in    the       light     most      favorable          to    the

Government.”        United States v. Perkins, 363 F.3d 317, 320 (4th

Cir. 2004).

                                               2
              The Fourth Amendment ensures that citizens are “secure

in    their    persons     .     .    .    against       unreasonable       searches      and

seizures.” U.S. Const. amend. IV.                        “[R]easonableness requires

probable cause and a warrant unless one of the exceptions to the

warrant requirement applies.”                 Doe v. Broderick, 225 F.3d 440,

451 (4th Cir. 2000); see Katz v. United States, 389 U.S. 347,

357    (1967).       The   magistrate        issuing       the     search   warrant      must

“make a practical, common-sense decision whether, given all the

circumstances set forth in the affidavit . . . 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).       “The probable-cause standard is incapable of precise

definition or quantification into percentages because it deals

with    probabilities          and        depends     on     the     totality      of     the

circumstances.”        Maryland v. Pringle, 540 U.S. 366, 371 (2003).

For that reason, in reviewing the sufficiency of a supporting

affidavit, this Court avoids applying “‘hypertechnical’ scrutiny

. . . lest police officers be encouraged to forgo the warrant

application process altogether.”                    United States v. Robinson, 275

F.3d 371, 380 (4th Cir. 2001) (quoting Gates, 462 U.S. at 236).

              The search warrant in this case was an “all persons”

warrant,      that   is,    it       authorized      a     search    not    just    of    the

apartment but of all persons in the apartment as well.                             In Owens

ex rel. Owens v. Lott, 372 F.3d 267 (4th Cir. 2004), we adopted

                                              3
the   majority    view    that     “an      ‘all     persons’       warrant      can        pass

constitutional muster if the affidavit and information provided

to    the   magistrate         supply       enough       detailed        information         to

establish    probable     cause       to    believe      that     all    persons       on   the

premises at the time of the search are involved in the criminal

activity.”       Id.     at    276.        We     explained       that    “all     persons”

warrants presented a “probable cause issue[] rather than [a]

particularity problem[].”             Id.        Accordingly, “as long as ‘there

is good reason to suspect or believe that anyone present at the

anticipated      scene    will     probably         be     a     participant’      in       the

criminal     activity         occurring         there,     ‘presence        becomes         the

descriptive fact satisfying the aim of the Fourth Amendment.’”

Id. (quoting State v. De Simone, 288 A.2d 849, 851 (N.J. 1972)).

            The facts in this case established that, on December

28, 2006, Officers Ralph Mills and Wayne Graves and Sergeant

Greer Gould of the Richmond Police Department’s Focus Mission

Team * were patrolling the 2200 block of Parkwood Avenue.                                     At

around 10:15 pm, Officer Mills observed an individual riding a

bicycle without his helmet.                The officers attempted to stop the

individual, but he fled on the bicycle.                           The officers turned

their car around to pursue the bicyclist and lost sight of him

for   approximately      one     minute      when     he       turned    down    the    alley

      *
        The Focus Mission Team is primarily responsible                                     for
street-level narcotics dealing and illegal firearms.


                                             4
behind the 2300 block of Parkwood Avenue.                            While the officers

circled back and started driving down the alley, Officer Mills

saw an individual standing with a bicycle on the upstairs porch

of   an       apartment     building      in   the       alley.      The   officers       were

uncertain if it was the same individual or bicycle they had been

pursuing.        When this individual saw the officers, he immediately

entered the apartment and closed the door.

                Officer Mills remained in the alley to watch the back

door,     while    Sergeant       Gould    and     Officer        Graves   walked    to    the

front door of the apartment.                     As Officer Mills waited in the

alley, three individuals exited the back door onto the porch and

headed toward the back stairs.                       When they saw Officer Mills,

they froze in place; one of the three then turned his back to

Officer Mills and began manipulating something in his fingers

over      a    couch   on   the    porch.          The    three     next   reentered      the

apartment.        Sergeant Gould subsequently radioed Officer Mills to

inform him that the apartment’s owner had granted consent to

enter the apartment.              Officer Mills ascended the back stairs and

examined the couch, where he found what appeared to be crushed

crack cocaine scattered in plain view.                      Officer Mills seized the

items and informed Sergeant Gould of the discovery.

                Thereafter, Officer Mills left the scene and prepared

a search warrant affidavit while Sergeant Gould, Officer Graves,

and several additional officers secured the apartment.                              Based on

                                               5
the affidavit, which recounted the facts above, the magistrate

judge authorized a warrant permitting a search of “the entire

residence located in 2325 Parkwood Avenue Apartment C and all

persons located therein.”                During the subsequent search of the

apartment and “all persons” there, the officers recovered, inter

alia, 9.291 grams of cocaine base on Edd Hicks.

              We    elect     to    exercise         our       discretion            to   proceed

directly      to   whether        the   Leon       good       faith       exception       applies

without    first     deciding       whether        the    warrant         was     supported      by

probable cause.          See United States v. Legg, 18 F.3d 240, 243

(4th Cir. 1994).            “Generally, evidence seized in violation of

the    Fourth      Amendment       is    subject         to    suppression            under    the

exclusionary rule,” United States v. Andrews, 577 F.3d 231, 235

(4th   Cir.     2009),      the    purpose     of    which          is    “to    deter      future

unlawful police conduct,” United States v. Calandra, 414 U.S.

338, 347 (1974).            The deterrence objective, however, “is not

achieved through the suppression of evidence obtained by ‘an

officer acting with objective good faith’ within the scope of a

search warrant issued by a magistrate.”                         Perez, 393 F.3d at 461

(quoting Leon, 468 U.S. at 920); see United States v. Mowatt,

513    F.3d   395,    404    (4th       Cir.   2008).           Thus,          the   Leon     Court

instructed that “a court should not suppress the fruits of a

search    conducted      under      the    authority           of     a       warrant,    even    a

‘subsequently        invalidated’        warrant,        unless          ‘a    reasonably      well

                                               6
trained officer would have known that the search was illegal

despite    the    magistrate’s      authorization.’”         United    States    v.

Bynum, 293 F.3d 192, 195 (4th Cir. 2002) (quoting Leon, 468 U.S.

at 922 n. 23).

              The Leon Court cautioned that an officer’s reliance on

a     warrant    would   not      qualify     as   “objectively      reasonable,”

however, in four circumstances:                where (1) probable cause is

based    on     statements   in    an   affidavit    that   are   knowingly      or

recklessly false; (2) the magistrate fails to perform a neutral

and    detached    function    and      instead    merely   rubber    stamps    the

warrant; (3) the affidavit is so lacking in indicia of probable

cause as to render official belief in its existence entirely

unreasonable; or (4) the warrant was so facially deficient that

the executing officer could not reasonably have assumed it was

valid.     United States v. Gary, 528 F.3d 324, 329 (4th Cir. 2008)

(internal quotation marks omitted) (citing Leon, 468 U.S. at

914-15).

              Having reviewed the record, we conclude that none of

the four circumstances listed in Leon are applicable in this

case and, moreover, as in United States v. Lalor, 996 F.2d 1578,

1582 (4th Cir. 1993), “two judicial officers have determined

that the affidavit provided probable cause to search.”                    Id. at

1583.     Accordingly, even assuming the district court erred in

finding that the “all persons” warrant was supported by probable

                                          7
cause, the district court correctly determined that the evidence

was still admissible under the Leon good faith exception.

              For   the    foregoing    reasons,   we    affirm   the   district

court's judgment.           We dispense with oral argument because the

facts   and    legal      contentions   are   adequately    presented    in   the

materials     before      the   court   and   argument    would   not   aid   the

decisional process.

                                                                        AFFIRMED




                                         8
