                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-5254



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MICHAEL JAMES THOMPSON,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:06-cr-00034)


Submitted:   January 31, 2008             Decided:   February 8, 2008


Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Michael A.
DeFranco, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Michael James Thompson pleaded guilty to a violation of

18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000), felon in possession of a

firearm.    Thompson’s plea agreement was conditioned upon his right

to appeal the district court’s decision denying his motion for

suppression of evidence.    The firearm serving as the basis for the

conviction was found at Thompson’s leased residence while officers

were searching for a weapon used in a murder unrelated to the

federal offense or Thompson. On appeal, Thompson contends that the

district court erred in finding that probable cause existed to

support issuance of the warrant and that a Fed. R. Crim. P. 41

error invalidated the search.     Finding no error, we affirm.



                                   I.

            On June 5, 2005, Sesaley Hunter was killed in a drive-by

shooting in Durham, North Carolina.       Durham Police Investigator

Steven     Vaughan   received   information    from   two   confidential

informants (CI 1 and CI 2) regarding details of the shootings and

location of the firearm used in the murder.           Detective Vaughan

applied for a search warrant and attached his affidavit in support

of probable cause to issue the warrant.       The affidavit states that

on July 26, 2005, Vaughan interviewed CI 1, who described the

weapon involved in the murder as a large weapon that looked like a

rifle with wooden parts and that the weapon was located in the


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front      passenger    area    of    the   vehicle     used     in   the    murder.

Eyewitnesses to the crime reported that a right side passenger

fired the shots and that the sound of shots was very loud, louder

than the sound of a handgun.

             The affidavit states that on August 3, 2005, Vaughan

interviewed CI 2 regarding the Sesaley Hunter murder.                       CI 2 had

detailed knowledge of the murder weapon.               CI 2 showed Vaughan the

residence where the weapon had been hidden and gave instructions on

how   to    locate     the   weapon   and   other     firearms    and     controlled

substances.        CI 2 stated that the murder weapon was located “under

the house by accessing the crawl space door at the rear of the

residence” and would be found “under old lawn equipment and wrapped

in a white cloth.”       (J.A. 22).      CI 2 described the murder weapon as

a “long gun.”         (Id.).    CI 2 stated that he or she had seen the

stored murder weapon, additional weapons, and drugs in the house.

CI 2 also described the location of additional firearms and illegal

controlled substances in the single bedroom of the residence.                      The

affidavit stated that CI 2 “had provided reliable information in

the   past    on    numerous    occasions.”      (J.A.    22).        Finally,     the

affidavit     included       Vaughan’s    statement    that,     “based     on   [his]

training and experience[,] firearms are relatively expensive and/or

not easy to come by, [and] persons who possess firearms because of

the expense involved tend to keep them for extended periods of




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time.”    (Id.).        The magistrate signed the application for the

warrant on the same day, August 16, 2005.

               The search was executed on August 17, 2005. Thompson was

the only person present in the residence at the time of the search.

Officers secured the residence by throwing “flash bang” grenades

through    the     windows,   detained   and   handcuffed   Thompson,    and

conducted the search. During the search, the officers found a Colt

.38 caliber special revolver under a seat cushion in the living

room.    The gun was unrelated to the murder.

               Detective Vaughan testified at the evidentiary hearing on

the motion to suppress that he attempted to serve a copy of the

search warrant on Thompson the day he was arrested; however,

Thompson had already posted bond before he was served.            Thompson

did not receive a copy of the warrant or inventory prior to his

incarceration.       Vaughan testified that he and Thompson planned to

meet the next day regarding Thompson’s cooperation in the murder

investigation.       Vaughan intended to deliver a copy of the search

warrant and inventory at their meeting, but Thompson did not show

up for the meeting.       Vaughan waited for thirty minutes and left the

location. Thompson later called Vaughan and said that he no longer

wanted to cooperate in the murder investigation.            Vaughan stated

that he had no other way to contact Thompson and he did not want to

leave    the    items   posted   at   Thompson’s   residence   because   the

affidavit contained sensitive information that could undermine the


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investigation   if    it    fell   into   to   the   wrong   hands.    Vaughan

testified that he made “more than a half dozen” unsuccessful

attempts to serve Thompson at the residence.

            On August 22, 2005, Vaughan appeared before a Durham

magistrate and executed the return on the search warrant.              Vaughan

signed the return stating under oath that he left a copy of the

inventory   with     “the   person   named     below.”       Vaughan   and   the

Government admitted that, contrary to his statement, Vaughan had

not left a copy of the search warrant or inventory with Thompson.

Vaughan actually served a copy of the search warrant and inventory

on Thompson six months later, in February 2006, when the United

States Attorney’s Office adopted the case for federal prosecution.

Thompson maintained residence at the searched apartment for the two

months subsequent to the search.

            The district court held a hearing on Thompson’s pro se

motion to suppress evidence.              The court found that there was

probable cause to support the warrant, and that even if there was

not, the good faith exception to the warrant requirement applied.

At the first hearing, defense counsel raised the issue of whether

Fed. R. Crim. P. 41 was violated, thereby invalidating the search

warrant. Counsel later filed a motion raising non-constitutional

and constitutional issues regarding the failure to comply with Rule

41.   The court held a supplemental hearing on the issue of whether

there were federal officers involved in the search.              The district


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court, in a memorandum opinion and order, held that the officers

executing the warrant were local, and not federal, officers.1

Because there was no federal involvement in the execution of the

search warrant, the district court found that Rule 41 did not

apply. The district court also ruled that Thompson’s argument that

the failure to timely serve the warrant violated Fifth Amendment

due process rights failed.



                                  II.

           Thompson argues that the search warrant was not supported

by   probable   cause.   He   contends   that   the   CI   tips    were   not

sufficiently corroborated and that a tip on its own may not be

sufficient.     Specifically, Thompson alleges that the information

from CI 2 was not timely because the informant did not state the

last time that he or she saw the evidence in the house.           He asserts

that based on the “vague information” from the CIs, the police were

required to conduct an independent investigation to establish

probable cause.    The Government argues that there is no need for

independent corroboration by law enforcement because there was a

fair probability that the evidence would be found.                Therefore,

probable cause existed.




      1
      Federal officers were present at Thompson’s residence during
the search, but they were there on unrelated business and had no
part in the execution of the warrant.

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           This court reviews the district court’s factual findings

underlying a motion to suppress for clear error, and the district

court’s legal determinations de novo.             Ornelas v. United States,

517 U.S. 690, 699 (1996); United States v. Rusher, 966 F.2d 868,

873 (4th Cir. 1992).        The evidence is construed in the light most

favorable to the prevailing party below. United States v. Seidman,

156 F.3d 542, 547 (4th Cir. 1998).

           In reviewing the propriety of issuing a search warrant,

the   relevant    inquiry    is    whether,   under   the   totality    of   the

circumstances, the issuing judge had a substantial basis for

concluding that there was probable cause to issue the warrant.

Illinois v. Gates, 462 U.S. 213, 238 (1983).            The facts presented

to the issuing judge need only convince a person of reasonable

caution that contraband or evidence of a crime will be found at the

place to be searched.        Texas v. Brown, 460 U.S. 730, 742 (1983).

Appellate courts accord great deference to the district court’s

findings of probable cause in relation to warrants.                  Gates, 462

U.S. at 236.

           Thompson argues on appeal both that the search warrant

was not supported by probable cause and the evidence is not

admissible under the good faith exception to the exclusionary rule.

When a party challenges both the probable cause determination and

the application of the good faith rule, this court will ordinarily

address   the    good   faith     determination    first,   unless    the    case


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involves the resolution of a novel question of law necessary to

provide guidance to police officers and magistrate judges.                       See

United States v. Legg, 18 F.3d 240, 243 (4th Cir. 1994).

           If a warrant is found to be defective, the evidence

obtained   from    the   warrant       should   be   suppressed     “only    on   a

case-by-case     basis   and   only     in   those   unusual    cases   in   which

exclusion will further the purposes of the exclusionary rule.”

United States v. Leon, 468 U.S. 897, 918 (1984).               The Supreme Court

reasoned, “[i]n 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.”

Id. at 921.

           Evidence seized pursuant to a defective warrant will not

be   suppressed    unless:     (1)    the    affidavit   contains    knowing      or

reckless falsity; (2) the magistrate acts as a rubber stamp for the

police; (3) the affidavit does not provide the magistrate with a

substantial basis for determining the existence of probable cause;

or (4) the warrant is so facially deficient that an officer could

not reasonably rely on it.           United States v. Wilhelm, 80 F.3d 116,

121 (4th Cir. 1996); United States v. Hyppolite, 65 F.3d 1151, 1156

(4th Cir. 1995). The crucial element determining probable cause is

“whether it is reasonable to believe that the items to be seized

will be found in the place to be searched.”                    United States v.




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Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993).           Information must link

criminal activity to the place to be searched.           Id. at 1583.

            Thompson contends that the good faith exception should

not apply in this case because the issuing magistrate merely rubber

stamped the application and the supporting affidavits were so

lacking in indicia of probable cause as to render official belief

in   its   existence   entirely   unreasonable.        Here,   CI   2’s   past

reliability was known to the officer. See United States v. Miller,

925 F.2d 695, 699 (4th Cir. 1991).               The informant met with

Detective Vaughan, showed him the location of the residence, and

was known to be a credible informant.            The affidavit contained

numerous details about the location and presence of the murder

weapon and contraband items.         CI 2 stated that he or she had

personally observed the murder weapon and illegal narcotics at

Thompson’s residence and specifically where they could be found.

As in Lalor, the informant provided very specific facts about the

items present and their location.        See Lalor, 996 F.2d at 1581.

            Although the affidavit did not indicate on what date CI

2 had last seen the evidence or knew of its presence on the

property,    Vaughan   averred    that   based   on    his   experience   and

training, firearms are not quickly disposed of due to their value.

In upholding a search warrant that was not supported by a statement

that a potential murder weapon was known to be stored in a

residence, but found during a search, this court has observed that


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it is reasonable to assume that individuals store weapons in their

homes.   See United States v. Anderson, 851 F.2d 727, 729 (4th Cir.

1988).

            We conclude, viewing the totality of the circumstances,

see   Gates,      462   U.S.    at    230,    232,   that      there   was   a   “fair

probability” that the murder weapon and evidence would be found at

Thompson’s residence.          Id. at 238.      Thus the warrant was valid and

supported    by    probable     cause.        Even   if   the    warrant     were   not

supported    by    probable     cause,       there   is   no    evidence     that   the

magistrate merely rubber stamped the warrant application or that

the warrant was so facially deficient that an officer could not

reasonably rely upon it.             See Leon, 468 U.S. at 923.



                                         III.

            Rule 41(f)(3) of the Federal Rules of Criminal Procedure

requires an officer who has executed a search warrant to either

“give a copy of the warrant and a receipt for the property taken to

the person from whom . . . the property was taken” or “leave a copy

of the warrant and receipt at the place where the officer took the

property.”     “[B]y its own terms, Rule 41 applies only to federal

search warrants involving ‘a federal law enforcement officer.’”

United States v. Clyburn, 24 F.3d 613, 616 (4th Cir. 1994) (quoting

Fed. R. Crim. P. 41).          Thompson claims that the officers executing




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the search warrant violated his Fifth Amendment due process rights

and failed to comply with Fed. R. Crim. P. 41(f)(3).

            This court has held that “[t]here are two categories of

Rule 41 violations: those involving constitutional violations, and

all others.”   United States v. Simons, 206 F.3d 392, 403 (4th Cir.

2000). Ministerial violations of Rule 41, such as failing to leave

either a copy of the search warrant or a receipt of items seized,2

are non-constitutional.     Id.; see also United States v. Hurwitz,

459 F.3d 463, 472 (4th Cir. 2006) (holding that Fourth Amendment

does not require officers to leave copy of search warrant with

property     owner   following      warrant’s       execution).         Such

non-constitutional violations justify suppression only where the

defendant is prejudiced by the violation or there is evidence that

the violation was deliberate.       Hurwitz, 459 F.3d at 472 n.6.

            In this case, there was no evidence that Detective

Vaughan    deliberately   failed    to   leave    the   search   warrant    at

Thompson’s   residence.     Instead,     the     evidence   showed   that   he

attempted several times to deliver the warrant and inventory to

Thompson.    The Government conceded that Vaughan did not leave a

copy of the warrant and inventory with Thompson and that Vaughan’s

checked box on the return was inaccurate. Furthermore, there is no

indication that Thompson was prejudiced by the lack of a copy of


     2
      These requirements currently appear in Fed. R. Crim. P.
41(f)(3). At the time this Court issued Simons, these requirements
appeared in Fed. R. Crim. P. 41(d).

                                   - 11 -
the    warrant    or    that    Vaughan’s      failure   was    intentional    or

deliberate.      Cf. United States v. Pangburn, 983 F.2d 449, 455 (2d

Cir. 1993) (finding no prejudice where search and seizure would not

have   been   different        if   officers   had   complied    with   Rule   41

requirements).         Accordingly, we find that the district court

properly denied Thompson’s motion to suppress on this basis.



                                        IV.

              We affirm Thompson’s conviction.           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




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