                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2464
                                   ___________

United States of America,               *
                                        *
            Appellant,                  *
                                        *    Appeal from the United States
      v.                                *    District Court for the
                                        *    Northern District of Iowa.
Jay Todd Hessman,                       *
                                        *
            Appellee.                   *
                                   ___________

                             Submitted: December 16, 2003
                                Filed: June 1, 2004
                                 ___________

Before WOLLMAN, JOHN R. GIBSON, and RILEY, Circuit Judges.
                          ___________

RILEY, Circuit Judge.

       Jay Todd Hessman (Hessman) was arrested after law enforcement executed a
search warrant at his home. Hessman moved to suppress the evidence seized and also
the statements he later made to law enforcement. The district court granted the
motion and suppressed the evidence and statements. The government appeals the
suppression decision. We reverse.

I.    BACKGROUND
      In March 2000, a confidential informant (CI) called Deputy Todd Suhr (Deputy
Suhr) of the Palo Alto County, Iowa, Sheriff’s Department to report a chemical smell
and a lot of short-term traffic at Hessman’s house. Deputy Suhr periodically
surveilled the house from March through May 2000. On May 13, 2000, Hessman’s
neighbor reported a strong chemical odor coming from the Hessman house. Deputy
Suhr and Deputy Kenley Zwiefel (Deputy Zwiefel) drove past the house and
confirmed a strong odor of ether. The officers also confirmed a high volume of
short-term traffic at the residence, and knew from experience this behavior was
associated with drug trafficking. Deputy Suhr knew one person visiting the house
had previously been involved in drugs, and he also knew Hessman had prior drug
manufacturing convictions.

       That night, Deputy Suhr prepared an application for a search warrant, setting
forth the above information and his experience regarding the manufacture of
methamphetamine. At 11:00 p.m., Deputy Suhr paged a state magistrate, who
returned the page at 11:44 p.m. Deputy Suhr told the magistrate he sought a search
warrant. The magistrate told Deputy Suhr he was in Des Moines, but Deputy Suhr
could fax him the application and warrant. Deputy Suhr asked if he should find
someone else to sign the warrant, but the magistrate declined. The magistrate called
Deputy Suhr again at 11:46 p.m. to give Deputy Suhr the hotel’s fax number. At
12:22 a.m. on May 14, 2000, Deputy Suhr called the magistrate at his hotel room, told
the magistrate he was finished with the application, said he would be faxing it soon,
and gave the magistrate a return fax number. Deputy Suhr faxed the application for
a search warrant, with attached affidavit and a search warrant, to the magistrate at the
hotel at 12:30 a.m. At 12:35 a.m., Deputy Suhr called the hotel to make sure the hotel
received the fax. The magistrate signed the warrant and faxed it back to Deputy Suhr
at 1:02 a.m. The district court found Deputy Suhr had not signed the application, and
the magistrate did not place Deputy Suhr under oath or talk to Deputy Suhr about the
facts supporting the application before signing the warrant and faxing it back to
Deputy Suhr.




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       Deputy Suhr and other officers executed the warrant at approximately 3:20
a.m., seizing a methamphetamine lab and methamphetamine manufacturing
equipment. When officers arrested Hessman (and his wife), an officer read Hessman
his Miranda warnings without questioning Hessman. Later on May 14, Deputy Suhr
personally met with the magistrate, at which time Deputy Suhr was placed under oath
and signed the application. The search warrant and the application and affidavit were
filed in state court on May 15.

       Hessman was booked into the county jail early on May 14 by a non-uniformed
female in a room with an open door. Hessman moved freely inside the booking room,
no uniformed officers were present during most of the process, and only standard
booking questions were asked. Hessman carried on a casual conversation with the
female conducting the booking. Hessman was offered a telephone to call an attorney,
but declined at that early hour. During the booking process, Hessman made several
statements indicating his use of and involvement with methamphetamine. Hessman
called methamphetamine his drug of choice, and berated society for its hypocritical
choices as to which drugs are legal. Hessman noted a prejudice in society because
those involved in his arrest would all have a drink later that day after busting him for
“doing what I can to get . . . methamphetamine without going broke to get it.” A state
court suppressed the evidence seized and Hessman’s admissions, because Deputy
Suhr did not take an oath or affirmation or sign the search warrant application.

       Hessman was later indicted in federal court. Hessman moved to suppress the
fruits of the search and his statements during booking. The federal magistrate judge
recommended the evidence be suppressed because (1) the application for a search
warrant was unsigned and unsworn, and (2) Deputy Suhr’s reliance on the warrant did
not meet the good-faith requirements of United States v. Leon, 468 U.S. 897 (1984),
even though probable cause clearly existed for the issuance of the warrant. The
federal magistrate judge also recommended suppressing Hessman’s statements as
fruits of the illegal search and arrest. Adopting the magistrate judge’s report and

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recommendation, the district court granted Hessman’s motion to suppress. The
government appeals, arguing (1) the evidence seized at Hessman’s house is
admissible under the Leon good-faith exception to the warrant requirement, and (2)
Hessman’s statements are admissible because they were voluntary.

II.    DISCUSSION
       A.    Standard of Review
       When reviewing a suppression order, we review a district court’s factual
findings for clear error and review “its conclusion as to whether the search violated
the Fourth Amendment” de novo. United States v. Newton, 259 F.3d 964, 966 (8th
Cir. 2001). We review de novo the district court’s application of the Leon good-faith
exception. United States v. LaMorie, 100 F.3d 547, 555 (8th Cir. 1996).

        B.    The Leon Good-Faith Exception
        The district court concluded Deputy Suhr could not have reasonably relied on
the search warrant because he was aware the warrant had not been sworn or attested
when it was executed. The government argues Leon’s good-faith exception to the
exclusionary rule precludes suppression of the evidence seized because (1) Deputy
Suhr’s reliance on the warrant was in good faith; (2) the error was the magistrate’s,
not Deputy Suhr’s; (3) it was objectively reasonable to rely on the warrant, because
Deputy Suhr was neither reckless nor dishonest in obtaining it; and (4) the warrant
was supported by probable cause. Conversely, Hessman contends evidence seized
pursuant to a warrant based on an unsigned, unsworn affidavit and application does
not fit within the Leon good-faith exception.

       The Fourth Amendment safeguards “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures”
and mandates that “no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const. amend. IV; see United States v. Ameling,

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328 F.3d 443, 447 (8th Cir. 2003) (Fourth Amendment applies to states through the
Fourteenth Amendment). When a search warrant is not supported by probable cause,
the evidence obtained during the search is generally inadmissible, but an exception
exists for evidence obtained by officers relying “in objective good faith on a search
warrant.” United States v. Koons, 300 F.3d 985, 990-91 (8th Cir. 2002) (citing Leon,
468 U.S. at 922). In Leon, the Supreme Court “created the good-faith exception to
the exclusionary rule.” United States v. Johnson, 78 F.3d 1258, 1261 (8th Cir. 1996)
(citing Leon, 468 U.S. at 922). Under Leon’s good-faith exception, the Fourth
Amendment exclusionary rule is not to “be applied to exclude the use of evidence
obtained by officers acting in reasonable reliance on a detached and neutral
magistrate judge’s determination of probable cause in the issuance of a search warrant
that is ultimately found to be invalid.” United States v. Taylor, 119 F.3d 625, 629
(8th Cir. 1997) (citing Leon, 468 U.S. at 905, 922). The Supreme Court in Leon
explained the rationale behind the good-faith exception as follows:

      It is the magistrate’s responsibility to determine whether the officer’s
      allegations establish probable cause and, if so, to issue a warrant
      comporting in form with the requirements of the Fourth Amendment.
      In 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. “[O]nce the warrant issues, there
      is literally nothing more the policeman can do in seeking to comply with
      the law.” Penalizing the officer for the magistrate’s error, rather than his
      own, cannot logically contribute to the deterrence of Fourth Amendment
      violations.

Leon, 468 U.S. at 921 (alteration in original) (citation omitted).

      “The exclusionary rule is designed to deter police misconduct rather than to
punish the errors of judges and magistrates.” Id. at 916. The Leon rule does not
exclude evidence when an officer’s reliance on a technically sufficient warrant is
objectively reasonable. Id. at 922; United States v. Terry, 305 F.3d 818, 823 (8th Cir.

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2002). The good-faith exception does not apply in four circumstances: (1) when the
issuing judge is misled by information in the affidavit the affiant knows or should
know is false; (2) when the issuing judge completely abandons his judicial role; (3)
when the affidavit includes so little indicia of probable cause that official belief in its
existence is entirely unreasonable; and (4) when the warrant is so facially deficient
that the executing officer cannot reasonably presume it to be valid. Leon, 468 U.S.
at 923; LaMorie, 100 F.3d at 555.

       The Leon Court noted that “[o]ne could argue that applying the exclusionary
rule in cases where the police failed to demonstrate probable cause in the warrant
application deters future inadequate presentations or ‘magistrate shopping’ and thus
promotes the ends of the Fourth Amendment.” Leon, 468 U.S. at 918. The Court
also noted, “[s]uppressing evidence obtained pursuant to a technically defective
warrant supported by probable cause also might encourage officers to scrutinize more
closely the form of the warrant and to point out suspected judicial errors.” Id.
Finding these contentions “speculative,” the Court concluded “suppression of
evidence obtained pursuant to a warrant should be ordered only on a case-by-case
basis and only in those unusual cases in which exclusion will further the purposes of
the exclusionary rule.” Id.

       In a companion case to Leon, Massachusetts v. Sheppard, 468 U.S. 981 (1984),
the Supreme Court applied the Leon exception to the fruits of a search conducted
pursuant to a warrant that was inaccurate due to the issuing judge’s failure to correct
a clerical error. Id. at 988-91. The Court observed, “we refuse to rule that an officer
is required to disbelieve a judge who has just advised him . . . that the warrant he
possesses authorizes him to conduct the search he has requested.” Id. at 989-90. “If
an officer is required to accept at face value the judge’s conclusion that a warrant
form is invalid, there is little reason why he should be expected to disregard
assurances that everything is all right[.]” Id. at 990.



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       We previously found Leon applicable even when a facially obvious error exists
on a warrant. United States v. Thomas, 263 F.3d 805, 808-09 (8th Cir. 2001) (noting
the address on the warrant was different from the address in the affidavit). In
Thomas, we rejected the argument that, because the facial error was the officer’s, the
officer could not reasonably rely upon it. Id. We observed “this is not sufficient to
change the fact that the issuing judicial officer bears the primary responsibility for
ensuring the accuracy of the warrant as the final reviewing authority.” Id. at 809.

       Other circuits confronting similar situations have applied the Leon good-faith
exception to the exclusionary rule. In United States v. Richardson, 943 F.2d 547,
548, 550-51 (5th Cir. 1991), the Fifth Circuit reversed the district court’s decision to
suppress where the agent had not signed the affidavit and the magistrate judge, in a
telephone conversation, did not require an oath or affirmation of the facts in the
affidavit. The court ruled the magistrate judge’s failure to administer the oath was not
a departure from his neutral and detached role, but was an inadvertent mistake. Id.
at 550. Nor had the magistrate judge been misled by false information. Id. Also, the
court observed the lower court’s decision to suppress the evidence was not based on
a finding the affidavit lacked probable cause or was facially deficient in some way.
Id. Thus, the Richardson case did not fall within any of the four situations “to which
the Leon Court envisioned the exclusionary rule would still apply.” Id. The Fifth
Circuit explained the exclusionary rule functions as a judicially created remedy
devised to protect Fourth Amendment rights “through its deterrent effect, rather than
a personal constitutional right of the party aggrieved.” Id. at 550-51 (quoting Leon,
468 U.S. at 906). The exclusionary rule’s deterrent purpose would not be served by
penalizing the officer for the judge’s mistake, because “[t]he rare occasion when a
magistrate accidentally fails to administer an oath cannot be eliminated by
suppressing the evidence in that situation.” Id. at 551 (citing Leon, 468 U.S. at 906).
The court also found it was unlikely police will recklessly or willfully try to evade the
oath or affirmation requirement. Id. According to the Fifth Circuit, “suppressing the
evidence seized in the case will add nothing to protect against an affiant who

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misrepresents the facts to the magistrate, nor will it encourage officers to take their
chances in submitting deliberately or recklessly false information, for they will expect
to be sworn when preparing their warrant applications.” Id.

       Further, in United States v. Kelley, 140 F.3d 596, 604 (5th Cir. 1998), the Fifth
Circuit rejected a “per se rule that an unsigned and undated warrant can never
suffice,” and concluded suppression would not serve a deterrent purpose. The court
relied upon Sheppard and the Supreme Court’s refusal to rule an officer must
disbelieve a judge who has advised the officer, by word and action, that the warrant
the officer possesses authorizes the search requested. Id. at 603 (citing Sheppard, 468
U.S. at 989-90). While noting its decision was not intended to undercut the
importance of the Fourth Amendment requirements, the court held the good-faith
exception applied to the case, because the “objective criteria” for a search warrant,
probable cause, existed. Id.

       Similarly, in United States v. Matias, 836 F.2d 744, 747 (2d Cir. 1988), the
Second Circuit rejected a claim that a warrant was invalid because government agents
applying for the warrant were not placed under oath or formally sworn. An Assistant
United States Attorney (AUSA) recited over the telephone to the federal magistrate
judge facts relayed by a Drug Enforcement Administration (DEA) agent, who was on
the line and confirmed the facts were “truthful to the best of [his] knowledge and
belief.” Id. (alteration in original). The magistrate judge issued the warrant without
placing either the AUSA or the DEA agent under oath. Id. Noting the magistrate
judge’s failure to administer an “oath was obviously an oversight,” the court applied
the good-faith exception and ruled “the agents’ reliance on the facially valid warrant
was clearly reasonable under the circumstances.” Id.; see also United States v.
Callwood, 66 F.3d 1110, 1113 (10th Cir. 1995) (ruling the exclusion of evidence is
not “the appropriate remedy” for the issuing magistrate judge’s failure to administer
an oath to an officer, referring to Leon); United States v. Kurt, 986 F.2d 309, 311 (9th
Cir. 1993) (applying the good-faith exception where a judge instructed a detective to

                                          -8-
change an address on the warrant without administering an oath); United States v.
Moore, 968 F.2d 216, 223 (2d Cir. 1992) (holding “the lack of an oath or affirmation
by the presiding officer did not destroy the warrant’s final validity,” so Leon applies).

       Persuaded by Leon, Sheppard, and the precedent from other circuits, we
conclude the evidence against Hessman should not have been suppressed. If the
Second, Fifth, Ninth, and Tenth Circuits would probably find the Hessman warrant
valid, it is difficult to say Deputy Suhr’s conduct in honoring the warrant was
objectively unreasonable. The error in this case belonged to the issuing magistrate.
Deputy Suhr did not attempt to avoid swearing a formal oath. Applying the
exclusionary rule here would not serve a deterrent purpose, because “[t]he rare
occasion when a magistrate accidently fails to administer an oath cannot be
eliminated by suppressing the evidence in that situation.” Richardson, 943 F.2d at
551.

       Our court has said the failure to fill out completely a warrant application form
is “more a clerical error than an indication of bad faith.” United States v. Curry, 911
F.2d 72, 78 (8th Cir. 1990). The magistrate is the final reviewing official, who “must
shoulder the ultimate responsibility for the clerical error in the warrant.” United
States v. Berry, 113 F.3d 121, 124 (8th Cir. 1997). Deputy Suhr is not expected to
question the magistrate’s judgment as to the warrant’s technical sufficiency. See
United States v. Hyten, 5 F.3d 1154, 1156 n.5 (8th Cir. 1993).

       Deputy Suhr was in contact with the magistrate while the warrant was
considered, and could have signed and sworn to the affidavit had the magistrate
requested. See id. The district court did not find Deputy Suhr’s non-compliance was
intentional or that the defect was the result of bad faith. Instead, the district court
adopted a type of per se rule that an unsigned, unsworn application for a search
warrant could not qualify for consideration under the Leon good-faith exception. We
disagree, and we reject imposing a per se rule. See Kelley, 140 F.3d at 604.

                                          -9-
       Hessman also fails to show any of the four exceptions to the Leon good-faith
rule apply to this case. The first exception is inapplicable because no evidence in the
record indicates Deputy Suhr misled the magistrate. Leon, 468 U.S. at 923. The
second exception is inapplicable because the facts do not show the magistrate was not
neutral and detached, or he wholly abandoned his judicial role, or he acted as a rubber
stamp. See id. Similarly, the fourth exception does not apply because the warrant
was not so facially deficient in failing to particularize the place to be searched or the
things to be seized so that no officer could reasonably rely upon it. Id.

       As to the third exception, applicable when a warrant application does not
contain sufficient indicia of probable cause, id., the federal magistrate judge in this
case found the facts set forth in the application established probable cause.
Hessman’s counsel conceded as much at oral argument. Indeed, the odor of ether,
when coupled with other facts, can establish probable cause. United States v. Ryan,
293 F.3d 1059, 1062 (8th Cir. 2002). We conclude sufficient probable cause existed
to justify the officers’ reliance on the search warrant. Deputy Suhr and Deputy
Zwiefel confirmed reports of a strong smell of ether, noticed a large volume of short-
term traffic at Hessman’s residence, and knew from experience this behavior was
associated with drug trafficking. Deputy Suhr knew one person visiting the house
had been involved in drugs, and also knew about Hessman’s prior convictions for
drug possession and manufacturing. Deputy Suhr’s affidavit was not “so lacking in
probable cause as to render official belief in its existence entirely unreasonable.” See
Leon, 422 U.S. at 923 (citation omitted). Further, Deputy Suhr’s good-faith reliance
on the warrant was objectively reasonable because (1) the state magistrate had made
a probable cause determination, (2) the affidavit provided specific information about
the objects of the search, (3) the affiant, Deputy Suhr, helped execute the warrant, and
(4) the warrant could have been made valid by the addition of Deputy Suhr’s
signature and administration of an oath. See United States v. Shugart, 117 F.3d 838,
845-46 (5th Cir. 1997).



                                          -10-
      C.     Custodial Statements
      The government claims Hessman’s statements made following his arrest are
admissible because probable cause to arrest him existed even without the evidence
obtained during the search. The government claims the taint from any alleged illegal
search was purged by Hessman volunteering statements without questioning by
authorities. Hessman asserts his statements were the fruits of the illegal search and,
due to their temporal proximity to the arrest, must be suppressed. Hessman’s
argument is precluded by our application of the Leon good-faith exception to the
exclusionary rule. See United States v. Flores, 63 F.3d 1342, 1362-63 (5th Cir.
1995). Because we hold the search was legally conducted pursuant to a warrant, there
was no “poisonous tree” from which any poisonous fruit could fall. Further,
Hessman’s statements were made after Hessman received Miranda warnings, and
were expressed without any questioning or prompting by the police. We conclude the
statements should not have been suppressed.

III. CONCLUSION
     We reverse the district court’s grant of Hessman’s motion to suppress and
remand for further proceedings consistent with this opinion.
                      ______________________________




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