             Case: 16-15069   Date Filed: 04/21/2017   Page: 1 of 6


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 16-15069
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 1:14-cr-00312-WSD-JKL-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

NIGEL MARC GORDON,
a.k.a. Nigel Mark Gordon,

                                                           Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                       ________________________

                               (April 21, 2017)

Before TJOFLAT, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Nigel Marc Gordon appeals his conviction after pleading guilty to being a

felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e),

with the condition that he could appeal the district court’s denial of his motion to

suppress and subsequent motion to reconsider. On appeal, Gordon asserts the

court should have suppressed the evidence against him because the search warrant

issued by Fulton County Magistrate Judge Roy Roberts violated the Fourth

Amendment’s oath or affirmation requirement. Gordon contends that the warrant

violated the Fourth Amendment because Judge Roberts and Detective Derek

Williams failed to comply with the requirement in O.C.G.A. § 17-5-21.1, the

Georgia video warrant statute, that the issuing judge administer the oath on camera

and that the court maintain the video recording. Additionally, Gordon contends

that the exception to the exclusionary rule in United States v. Leon, 468 U.S. 897

(1984), does not apply because Judge Roberts abandoned his judicial role in failing

to administer an oath and the lack of an oath rendered the warrant facially invalid

under Groh v. Ramirez, 540 U.S. 551, 563 (2004).1


1
  In Ramirez, the Supreme Court held a search warrant was facially invalid because it failed to
state with particularity the things to be seized even though the warrant application adequately
described the things to be seized. 540 U.S. at 557. The Supreme Court disagreed with the
officer’s position that the search was nonetheless reasonable because the warrant’s complete
failure to describe any items compelled the Court to treat the search as warrantless. Id. at 558.
While the officer argued that the particularity requirement’s goals were met because he orally
described the items to the defendant when he initiated the search, the Court credited the
defendant’s account that the officer’s description was minimal because the defendant was the
non-moving party. Id. at 563. Thus, the Court held that the search was unconstitutional. Id.


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       The district court did not clearly err 2 in crediting Detective Derek

Williams’s testimony to find that the evidence was seized pursuant to a valid

warrant supported by an oath or affirmation. Moreover, even if the issuing

magistrate judge failed to administer an oath or affirmation, the evidence was

admissible because the detective acted in good faith and objectively reasonable

reliance on the warrant. Accordingly, we affirm.

       Notwithstanding the oath or affirmation requirement, when an officer

obtains a faulty search warrant from a judge in good faith and his reliance on that

warrant is objectively reasonable, the exclusionary rule’s ordinary benefit—

deterring officer misconduct—is minimal and does not justify exclusion. Leon,

468 U.S. at 922–923. The Leon exception does not apply when (1) the affiant

knowingly or recklessly misled the judge issuing the warrant; (2) the judge wholly

abandoned his judicial role; (3) the affidavit supporting the warrant is so lacking in

probable cause that a belief in the existence of probable cause is unreasonable; or

(4) the warrant is so facially deficient that the officer cannot reasonably presume

2
  A ruling on a motion to suppress presents a mixed question of law and fact, on which we
review the district court’s factual findings for clear error and legal conclusions de novo. United
States v. Johnson, 777 F.3d 1270, 1273–74 (11th Cir.), cert. denied, 136 S. Ct. 178 (2015). We
construe all facts in the light most favorable to the party prevailing below. Id. at 1274. A factual
finding is clearly erroneous if, after reviewing all the evidence, we have a definite and firm
conviction that the district court made a mistake. United States v. Creel, 783 F.3d 1357, 1359
(11th Cir. 2015). While the district court cannot base its findings on speculation, it may draw
reasonable inferences from the facts in the record. Id. Further, we review de novo the district
court’s application of the Leon exception, though the district court’s factual findings underlying
its decision are binding on appeal unless clearly erroneous. United States v. Robinson, 336 F.3d
1293, 1295 (11th Cir. 2003).
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its validity. Id. at 923. A judge abandons his judicial role by failing to manifest

neutrality and detachment, such as by participating in the search or by failing to

read and independently assess the information supporting the warrant application.

Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326–27 (1979); United States v.

Martin, 297 F.3d 1308, 1317 (11th Cir. 2002). Further, we look to the totality of

circumstances, including a well-trained officer’s experience and other information

outside of the warrant application, in determining whether a warrant is so facially

deficient that an officer’s reliance on it is objectively unreasonable. Martin, 297

F.3d at 1318–19.

      Here, the district court did not clearly err in determining that the evidence

was admissible because an oath or affirmation supported the warrant. While

recording the oath or affirmation on video would have been helpful, the court held

an evidentiary hearing and was entitled to find Detective Williams credible and

rely on his testimony that Judge Roberts administered the oath before beginning

the recording. Brown, 415 F.3d at 1267. Similarly, the court was permitted to

infer from the video, which began in the middle of Judge Roberts’s and Detective

Williams’s interaction, that Judge Roberts administered the oath before beginning

the recording. Thus, we lack a definite and firm conviction that the district court

committed clear error in finding that Judge Roberts administered the oath or

affirmation. Creel, 783 F.3d at 1359. Moreover, Gordon’s argument that Judge


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Roberts’s failure to record the oath in compliance with Georgia law precluded the

district court’s finding that the evidence was admissible because an oath supported

the warrant is inapposite because Georgia search and seizure law does not control

the admissibility of evidence this case. See United States v. Butera, 677 F.2d 1376,

1380 (11th Cir. 1982) (holding that it is well settled that federal law governs the

admissibility of evidence in federal criminal cases, and complaints that the

evidence was seized in violation of state law are ineffective).

       Further, even if an oath or affirmation failed to support the warrant, the Leon

exception to the exclusionary rule applies in this case. 3 Detective Williams

attempted in good faith to obtain a valid search warrant and reasonably relied on

his experience in believing that Judge Roberts issued a valid video warrant

supported by an oath. Leon, 468 U.S. at 922–23. Moreover, Judge Roberts did not

abandon his judicial role by participating in the search or failing to conduct his

own independent assessment of the information supporting the warrant. Lo-Ji

Sales, Inc., 442 U.S. at 326–27; Martin, 297 F.3d at 1317. The record illustrates

3
  Note that the Eleventh Circuit has not yet addressed whether the Leon exception applies to
prevent the exclusion of evidence seized pursuant to an unsworn warrant in a published opinion.
The other five circuits that addressed this issue uniformly applied the Leon exception. See
United States v. Hessman, 369 F.3d 1016, 1022–23 (8th Cir. 2004) (holding that law
enforcement officers’ reliance on an unsworn and unsigned search warrant was not objectively
reasonable); United States v. Kurt, 986 F.2d 309, 311 (9th Cir. 1993) (holding that exclusion was
inappropriate when the issuing magistrate failed to administer an oath to the officer); United
States v. Moore, 986 F.2d 216, 223 (2d Cir. 1992) (holding that the lack of an oath or affirmation
did not destroy the warrant’s facial validity); United States v. Richardson, 943 F.2d 547, 548,
550–51 (5th Cir. 1991) (reversing a district court’s decision to suppress where the agent failed to
sign the affidavit and the issuing judge did not require an oath or affirmation).
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that Judge Roberts read and independently assessed the information supporting the

warrant application when he reviewed Detective Williams’s affidavit and asked

him follow-up questions before issuing the warrant. Finally, the lack of an oath

supporting the warrant would not render the warrant so facially deficient that

Detective Williams’s reliance on the warrant was objectively unreasonable, given

his typical experience of speaking under oath in the video warrant application

process. Martin, 297 F.3d at 1318–19; compare Richardson, 943 F.2d at 550

(distinguishing a warrant application’s lack of oath or affirmation from facial

deficiencies like the lack of probable cause), with Ramirez, 540 U.S. at 563

(holding warrant’s facial deficiency in failing to state with particularity the items to

be seized rendered an officer’s reliance on the warrant unreasonable).

      In conclusion, because the warrant was supported by an oath when Judge

Roberts swore in Detective Williams during the warrant application, the district

court did not err in denying Gordon’s motion to suppress and motion to reconsider.

Moreover, even if the warrant was not supported by an oath, the Leon exception

applies. Accordingly, we affirm.

      AFFIRMED.




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