                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 17-4523


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

LAMARCUS THOMAS,

                    Defendant - Appellant.


Appeal from the United States District Court for the Western District of Virginia, at
Harrisonburg. Michael F. Urbanski, Chief District Judge. (5:16-cr-00001-MFU-JCH-1)


Argued: September 28, 2018                                 Decided: November 8, 2018


Before WILKINSON and HARRIS, Circuit Judges, and William L. OSTEEN, Jr., United
States District Judge for the Middle District of North Carolina, sitting by designation.


Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Wilkinson
and Judge Osteen joined.


ARGUED: Andrea Lantz Harris, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charlottesville, Virginia, for Appellant. Nancy Spodick Healey, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF:
Larry W. Shelton, Federal Public Defender, Christine Madeleine Lee, Assistant Federal
Defender for Appellate Litigation, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Roanoke, Virginia, for Appellant. Leslie Williams Fisher, Child Exploitation & Obscenity
Section, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Rick A.
Mountcastle, Acting United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee.




                                   2
PAMELA HARRIS, Circuit Judge:

       Detective Charles Coleman arrested LaMarcus Thomas on charges of aggravated

sexual battery, and seized a cell phone from Thomas during a search incident to the arrest.

After Coleman obtained a warrant to search the phone, authorities discovered sexually

explicit images and videos involving children.

       Charged with producing child pornography, Thomas moved to suppress that

evidence, arguing that the affidavit submitted with Coleman’s warrant application was

insufficient to establish probable cause for the search. The district court agreed that the

affidavit was deficient, but nevertheless denied Thomas’s motion to suppress under the

good faith exception to the exclusionary rule articulated in United States v. Leon, 468 U.S.

897 (1984). While the affidavit alone did not establish probable cause, the district court

reasoned, additional information known to Coleman was enough to give rise to an

objectively reasonable belief that there was probable cause for the search.

       We agree with the district court that the evidence obtained from Thomas’s phone is

admissible under Leon. Our precedents make clear that in assessing an officer’s objective

good faith in executing a search warrant, we may consider facts known to the officer, but

inadvertently omitted from a warrant affidavit. And under all the circumstances presented

here, Coleman had a reasonable basis to believe there existed probable cause to search

Thomas’s phone. Accordingly, we affirm the judgment of the district court.




                                             I.

                                             3
                                              A.

       In 2014, the police department in Winchester, Virginia received an anonymous tip

that LaMarcus Thomas had sexually abused a minor. Detective Charles Coleman was

assigned to investigate the allegations.

       Coleman began his investigation by contacting the alleged victim’s mother. During

her conversation with Coleman, the mother accused Thomas – who knew her family

through church and often acted as a caretaker for her children – of sexually assaulting two

of her minor sons. The mother also claimed that since the alleged assault, Thomas had

reached out to her several times over the phone, hoping to schedule further visits with her

children.

       Coleman arranged for the two boys to be interviewed, and observed the interviews

from a separate room. Both boys stated that Thomas had put his hand inside their pajamas

and fondled their genitals during a sleepover at a hotel. One of the boys also described

Thomas’s attempts to contact his mother through phone calls and text messages after the

assault, in an effort to arrange further sleepovers.

       Using a telephone number provided by the boys’ mother, Coleman contacted

Thomas and asked him to appear for an interview at the Winchester police station. Thomas

agreed, and during his video-recorded interview with Coleman, he admitted to touching

the boys’ genitals.

       Coleman filed a criminal complaint against Thomas, describing his investigation of

the alleged assaults and requesting two warrants for Thomas’s arrest. The complaint

included the ages of the victims and identified October 11, 2014, as the estimated date of

                                               4
the assaults. Coleman arrived at that date by reviewing records from the hotel the boys

identified as the site of their abuse, which indicated that Thomas had stayed there on

September 16, 2014, and again on October 11, accompanied by two children.

       On January 5, 2015, a magistrate issued two warrants for Thomas’s arrest on charges

of aggravated sexual battery of a minor. Coleman arrested Thomas on the same day, and

during a search incident to the arrest, seized a cell phone from Thomas’s pocket.

       After consulting with state prosecutors, Coleman requested a warrant to search the

phone and submitted an accompanying affidavit. The affidavit explained that Coleman

had obtained two arrest warrants for Thomas on charges of aggravated sexual battery,

based on an investigation in which Thomas had corroborated the allegations against him.

It noted the date – January 5, 2015 – on which the warrants had issued and Coleman had

made the arrest, but it did not include the date on which the offenses were alleged to have

occurred. With respect to the phone, specifically, Coleman averred that based on his

training and experience, it is common for offenders like Thomas to keep “contact items”

from victims – pictures, text messages, voicemails, and the like – on their cell phones. J.A.

208. The affidavit did not reference Thomas’s use of a phone to contact the boys’ mother

after the assaults.

       A magistrate issued a search warrant for the phone on the same day, January 13,

2015. After conducting a forensic analysis of the phone, state authorities discovered

explicit images and videos of Thomas with two minors. Thomas eventually confessed to

sexually abusing the minors and memorializing the abuse on his cell phone.

                                             B.

                                             5
       On January 13, 2016, a federal grand jury in the Western District of Virginia charged

Thomas with six counts of producing child pornography, in violation of 18 U.S.C. §§

2251(a), (e) (2012). Thomas moved to suppress the evidence derived from the search of

his cell phone, arguing that for two reasons, Coleman’s affidavit fell short of establishing

probable cause for the search. First, according to Thomas, the affidavit did not sufficiently

link the phone to the alleged offenses, and thus did not establish probable cause that

evidence would be found in the place to be searched. And second, Thomas argued, there

was a problem with timing and staleness: Even if there were some reason to think evidence

would have been found on his phone at around the time of the alleged offenses, the affidavit

gave no indication of when those offenses occurred, making it impossible for a magistrate

to assess the likelihood that evidence would remain on the phone at the time of the search.

       Following a hearing at which Coleman testified, the district court denied Thomas’s

motion to suppress.     The court agreed with Thomas that the search warrant was

unsupported by probable cause, finding that “while the affidavit contains sufficient facts

supporting the aggravated sexual battery charge, it contains no facts linking that crime to”

the subsequent search of Thomas’s cell phone. J.A. 251. Nevertheless, the court held that

the evidence found on Thomas’s phone was admissible under United States v. Leon, 468

U.S. 897 (1984), because Coleman had an “objectively reasonable belief” that there was

probable cause to execute the search. J.A. 244. Relying on United States v. McKenzie-

Gude, 671 F.3d 452, 459, 460 (4th Cir. 2011), the court reasoned that any gaps in

Coleman’s affidavit could be filled by looking “outside the four corners” of the affidavit,

J.A. 260, and considering “uncontroverted facts known to [Coleman] but inadvertently not

                                             6
presented to the magistrate,” J.A. 244. Here, the court continued, Coleman was aware that

Thomas had phoned the victims’ mother to set up a new encounter with her sons,

“suppl[ying] the missing link between the [] cell phone and the crime of aggravated sexual

battery.” J.A. 260–61. Similarly, any staleness concern was addressed by Coleman’s

knowledge that the assaults occurred – and the phone calls in question were made – around

October of 2014, just a few months before the search was authorized in January of 2015.

       Thomas pled guilty to two counts of producing child pornography, reserving his

right to appeal the district court’s denial of his motion to suppress. The district court

sentenced Thomas to 360 months of imprisonment, followed by a lifetime of supervised

release, and Thomas timely appealed.




                                            II.

       Thomas’s sole challenge on appeal is to the district court’s denial of his motion to

suppress.   In considering the district court’s suppression decision, we review legal

determinations de novo and the court’s underlying factual findings for clear error. United

States v. Guijon-Ortiz, 660 F.3d 757, 762 (4th Cir. 2011). For the reasons that follow, we

agree with the district court that the evidence discovered on Thomas’s phone was

admissible under Leon’s good faith exception to the exclusionary rule. 1


       1
          In light of this holding, we need not consider whether the affidavit was deficient
in establishing probable cause. We intend to cast no doubt on the district court’s decision
in this regard. Rather, by proceeding directly to the question of admissibility under Leon,
(Continued)
                                             7
       The exclusionary rule ordinarily provides that “evidence obtained in violation of the

Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal

search and seizure.” United States v. Kimble, 855 F.3d 604, 610 (4th Cir. 2017) (quoting

United States v. Calandra, 414 U.S. 338, 347 (1974)). In Leon, however, the Supreme

Court recognized a good faith exception to that rule, under which evidence obtained by an

officer who acts in objectively reasonable reliance on a search warrant will not be

suppressed, even if the warrant is later deemed invalid. 468 U.S. at 922. Typically, an

officer’s reliance on a magistrate’s decision to issue a warrant will be deemed objectively

reasonable. Id. But as Leon makes clear, when a supporting affidavit is “so lacking in

indicia of probable cause as to render official belief in its existence entirely unreasonable,”

then an officer cannot be found to have reasonably relied on the resulting warrant, and

suppression remains the appropriate remedy. Id. at 923 (internal quotation marks omitted).

       Thomas argues that this case falls squarely within that limit on Leon. According to

Thomas, the affidavit submitted by Coleman in support of his search warrant application

was so “lacking in indicia of probable cause” that Coleman could not reasonably have

relied on the warrant in searching Thomas’s phone. The government’s primary response

is that even if Coleman’s affidavit was obviously deficient in establishing probable cause

– a point the government does not concede – Coleman reasonably believed in the existence

of probable cause based on his own knowledge of the investigation. And that is enough,


we simply adopt the same analytical approach we have taken in similar cases in the past.
See, e.g., United States v. Bynum, 293 F.3d 192, 194–95 (4th Cir. 2002); cf. Leon, 468 U.S.
at 925 (stating that a reviewing court may proceed directly to the good faith inquiry without
first deciding whether a warrant was supported by probable cause).
                                              8
the government argues, to establish that Coleman executed the search warrant with the

objective good faith required by Leon.

       Like the district court, we agree with the government. The central question in this

case is whether, as the government urges, we can look beyond the four corners of the

affidavit in applying Leon, and consider as well facts known to Coleman but omitted from

the affidavit presented to the magistrate. And as the district court recognized, we already

have answered precisely that question in the affirmative, holding in McKenzie-Gude that

“Leon presents no barrier” to considering “uncontroverted facts” known to an officer but

“inadvertently not presented to the magistrate” in assessing the officer’s objective good

faith. 671 F.3d at 460.

       In McKenzie-Gude, officers executed a residential search warrant that led to the

seizure of weapons from a defendant’s bedroom. Id. at 457. The affidavit supporting the

warrant application included most, but not all, of the facts necessary to show probable

cause that evidence would be found in the place to be searched: It established that the

defendant likely possessed illegal weapons and that he likely possessed them in his home,

and it included the address to be searched – but it failed to state that the defendant lived at,

or had any connection to, the listed address. See id. at 457–58. Despite that obvious

deficiency, we applied the good faith exception under Leon. Id. at 461. While the affidavit

itself lacked any nexus between the place to be searched and the defendant, we reasoned,

that gap could be filled by an uncontroverted fact known to the searching officers –

specifically, that the defendant lived at the address identified in the affidavit. Id. at 458–

60.

                                               9
       As we explained in McKenzie-Gude, that result is entirely consistent with Leon’s

“objective inquiry” into officer good faith. Id. at 460. The key, “objectively ascertainable

question” under Leon is “‘whether a reasonably well trained officer would have known that

the search was illegal’ in light of ‘all of the circumstances.’” Id. at 459 (quoting Leon, 468

U.S. at 922 n.23). Among those circumstances are “specific, uncontroverted facts known

to the officer[],” id. at 460, which necessarily inform the objective reasonableness of an

officer’s determination regarding probable cause, even if they are omitted inadvertently

from a warrant application. And when an officer’s belief in the existence of probable cause

is objectively reasonable, he or she has no reason to second guess the magistrate’s decision

to issue a warrant, and acts in good faith when executing the search. Id. at 459, 461; see

also Leon, 468 U.S. at 920–21.

       Moreover, we reasoned, any other outcome would produce “anomalous result[s].”

McKenzie-Gude, 671 F.3d at 460. Evidence might be suppressed even when “obtained

pursuant to a warrant supported by the affidavit of an officer, who, in fact, possesses

probable cause.” Id. (quoting Bynum, 293 F.3d at 199). And that cost to the criminal

justice system would come without offsetting benefits: When a warrant is invalidated only

because an officer mistakenly omitted information necessary to establish probable cause,

application of the exclusionary rule can have little, if any, deterrent effect. “[W]hen police

mistakes are the result of negligence . . . rather than systemic error or reckless disregard of

constitutional requirements, any marginal deterrence [through application of the

exclusionary rule] does not pay its way.” Id. at 461 (quoting Herring v. United States, 555

U.S. 135, 147–48 (2009)).

                                              10
       The district court correctly applied McKenzie-Gude to the present case, considered

both the affidavit and the facts known to Detective Coleman, and concluded that Coleman

reasonably relied on the warrant to search Thomas’s phone. Although the affidavit did not

contain particularized facts establishing a nexus between the place to be searched –

Thomas’s phone – and the alleged sexual abuse, the court reasoned, Coleman knew that

both the victims’ mother and one of the victims had reported that Thomas used a phone in

furtherance of his criminal conduct, calling the mother to attempt to arrange further

interactions with her sons. And Coleman “reasonably could infer,” the court continued,

that the cell phone seized during Thomas’s arrest was the same phone Thomas had used to

contact the boys’ mother. J.A. 244. Similarly, though Coleman’s affidavit lacked any

information about when the offenses and phone calls occurred, Coleman knew that Thomas

had visited a hotel with his victims and tried to contact their mother less than five months

prior to the search, resolving any staleness issues that otherwise might arise.

       Thomas’s principal argument in response to this straightforward analysis is that

Coleman’s omissions were not “inadvertent” within the meaning of McKenzie-Gude, in

that there is no evidence that Coleman believed (albeit incorrectly) that he had included the

relevant facts in his affidavit. 2 Instead, Thomas argues, Coleman intentionally omitted


       2
         Thomas also argues briefly that unlike the fact omitted from the affidavit in
McKenzie-Gude – the defendant’s address – the information known to Coleman and
considered by the district court was not “uncontroverted.” But as Thomas concedes, it is
indeed uncontroverted that at the time Coleman sought a search warrant and then executed
the search, he knew “Thomas had called the victims’ mother by phone and left her
voicemail or text messages.” Appellant’s Br. at 23. Similarly, Thomas does not contest
that Coleman knew, within a reasonably narrow window, the dates on which the abuse and
(Continued)
                                             11
crucial facts from his affidavit pursuant to a police department policy, which Coleman

described at the suppression hearing as one of limiting newspaper publicity by “put[ting]

no more [probable cause] into the warrant [affidavit] than it takes to obtain the warrant.”

J.A. 74.     And because the court’s decision in McKenzie-Gude was conditioned on

inadvertence, Thomas concludes, we should not go beyond the four corners of the affidavit

here.

         We disagree. Coleman’s error in this case – assuming there was one – was

inadvertent in precisely the same sense as the error in McKenzie-Gude: In neither case did

the error result from the kind of deliberate or bad faith effort to mislead a magistrate that

would render Leon’s good faith exception inapplicable. Cf. Leon, 468 U.S. at 914 & n.12,

923 (“knowing or reckless falsity” in a search warrant affidavit may preclude reliance on

Leon). The police department’s purported policy was not to file deficient affidavits; it was

to file affidavits that included enough, but no more than necessary, to establish probable

cause.

         To the extent Coleman’s affidavit fell short, Coleman was not acting pursuant to

that policy, and there is no other reason to think he was acting deliberately. 3 Rather, any


subsequent calls occurred. This uncontroverted information, along with the information
included in Coleman’s affidavit, is enough to show an objectively reasonable belief in the
existence of probable cause to search the phone seized when Thomas was arrested.
         3
         Indeed, it would be the rare circumstance in which an officer would have any
incentive to deliberately withhold from a search warrant affidavit information known to
him that he believes necessary to establish probable cause. Should an officer do so, the
most likely outcome would be the denial of a search warrant, leaving the officer empty-
handed; the best-case scenario would be the granting of a search warrant that could not
(Continued)
                                             12
error appears to have resulted from a simple miscalculation by Coleman as to how much

of what he knew he needed to include in his affidavit to show probable cause. That is not

the kind of deliberate misconduct that the exclusionary rule was intended to deter. See

Herring, 555 U.S. at 144 (“To trigger the exclusionary rule, police conduct must be

sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable

that such deterrence is worth the price paid by the justice system.”).

       In short, the district court properly considered facts known to Detective Coleman,

but inadvertently omitted from his supporting affidavit, when it applied Leon in this case.

Because Coleman “harbored an objectively reasonable belief in the existence of probable

cause,” Leon, 468 U.S. at 926, under that standard, the district court correctly denied

Thomas’s motion to suppress under Leon.




                                            III.

       For the foregoing reasons, we affirm the judgment of the district court.

                                                                              AFFIRMED




withstand the almost inevitable Fourth Amendment challenge. This is not a case, in other
words, in which we need be concerned that police officers will have some systemic
incentive to avoid the “detached scrutiny of a neutral magistrate.” Leon, 468 U.S. at 913–
14.
                                             13
