1

The Honorable David S. Doty, United States District Judge for the District of

Minnesota, affirming the Report and Recommendation of the late United States

Magistrate Judge John H. Mason.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-3288

___________

United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States 

v. * District Court for the District 

* of Minnesota.

Glenn Brian Carpenter, *

*

Defendant-Appellant. *

___________

Submitted: February 11, 2003

 Filed: September 2, 2003 

___________

Before WOLLMAN, RICHARD S. ARNOLD, and MELLOY, Circuit Judges.

___________

MELLOY, Circuit Judge.

Defendant-Appellant Glenn Brian Carpenter appeals the district court's1

adverse ruling on his motion to exclude evidence seized during the warranted search

of a residence. We affirm.
2

I.

On January 31, 2002, officer Andy Shoemaker of the Minnesota Gang Strike

Force applied for and received a state warrant to search the residence of Christine

Jean Fleischauer for drugs, paraphernalia, weapons, records, and related items. In

his affidavit to support the application, Officer Shoemaker described information

received from a Confidential Reliable Informant (CRI), his reasons for believing the

CRI to be reliable, and the steps taken to verify the CRI's information. Shoemaker

explained that he and other members of the Strike Force had used the CRI on

"numerous previous investigations," that the assistance of the CRI had led to an arrest

and conviction for drug possession and distribution, that other confidential informants

had corroborated previous information from the CRI, that no information previously

provided by the CRI had been shown to be false, and that he considered the CRI's

information to be reliable. 

According to Shoemaker's affidavit, the CRI reported that an adult white

female named Christie, whom the CRI knew and with whom the CRI had a

relationship, was currently in possession of an amount of methamphetamine "in

excess of an amount that would be considered 'personal use.'" The CRI described

Christie's age, height, weight, and hair, said that she had a history of narcotics

possession and use, and reported that she had numerous prior narcotics-related arrests

and convictions. Although Officer Shoemaker stated in his affidavit that the CRI had

a relationship with Christie that would place him or her in a position to have detailed

knowledge concerning Christie's drug dealings, the CRI could not provide Christie's

last name or address. Further, the CRI did not explain specifically how he or she

knew that Christie was in possession of methamphetamine. Finally, the CRI did not

specifically state that the methamphetamine was at Christie's residence. 

Officer Shoemaker checked the Ramsey County, Minnesota, records for arrests

of white females named Christie. He obtained color booking photos from which the
3

CRI identified Christie as Christine Jean Fleischauer. He researched Fleischauer's

criminal record, confirmed the CRI's report of prior convictions, found her address

via the internet, and confirmed her address with the Ramsey County Probation Office,

where she was on probation for narcotics violations.

On the night of January 31, officer Shoemaker, accompanied by other officers,

executed the warrant at Fleischauer's residence. Fleischauer was home at the time

with another male, not Carpenter. During execution of the warrant, Carpenter arrived

at the residence and let himself in using his own key. Upon Carpenter's entry, officers

immediately secured him and seized a plastic shopping bag that he carried. Officers

felt hard objects in the bag, searched the bag, discovered two cell-phone boxes,

opened the boxes, and discovered 443.9 grams of methamphetamine along with

$3,000 and a digital camera. Having found these materials, the officers placed

Carpenter under arrest, conducted a search incident to arrest, and seized numerous

small bags of methamphetamine from his pants pockets.

After the filing of federal charges, Carpenter moved to suppress the evidence

seized from his bag and pockets. A hearing was held before a magistrate judge who

found that Carpenter had a privacy interest in the Fleischauer residence and,

therefore, standing to challenge the warrant. The magistrate judge further found the

warrant to be supported by probable cause. In the alternative, he held the seized

evidence admissible under United States v. Leon, 468 U.S. 897 (1984), because

officer Shoemaker relied in good faith upon the warrant and because his reliance was

objectively reasonable. Finally, the magistrate judge held that the seizure and search

of Carpenter's bag and its contents were justified under Terry v. Ohio, 392 U.S. 1

(1968), as a necessary precaution to ensure officer safety.

Carpenter filed objections to the magistrate judge's report and recommendation.

In particular, he argued that the warrant application and the CRI's statement did not

provide information to suggest Fleischauer's residence as the location where drugs
4

would be found, that the CRI was unreliable and inconsistent in that he or she claimed

to have a relationship with Fleischauer yet did not know Fleischauer's name, that the

drug quantity was not described with adequate specificity, and that the CRI did not

explain a factual basis for the belief that Fleischauer possessed drugs. The district

court rejected Carpenter's attack on the warrant and affirmed the magistrate judge's

findings of probable cause and objectively reasonable reliance. 

Carpenter subsequently entered a conditional guilty plea and reserved the right

to appeal the denial of his suppression motion. On appeal, Carpenter argues that the

warrant was not supported by probable cause and that the “good faith” exception of

Leon should not apply because the warrant and warrant application were so severely

infirm that the officer's reliance was not objectively reasonable. Carpenter does not

argue the Terry issue on appeal. We affirm.

II.

Under United States v. Leon, supra, the question of whether an officer's

reliance on an issued warrant was objectively reasonable is a question of law.

Accordingly, "[w]e review the district court's conclusion regarding the objective

reasonableness of the officer['s] reliance on the . . . validity of the warrant de novo."

Id.

We assume that the multiple alleged infirmities with the warrant application,

viewed collectively, are sufficient to demonstrate an absence of probable cause.

Illinois v. Gates, 462 U.S. 213, 230-31 (1983) (stating that the test of whether a

warrant is supported by probable cause requires analysis of the totality of the

circumstances); United States v. Morales, 923 F.2d 621, 623-24 (8th Cir. 1991)

(stating that in the assessment of probable cause, "we do not evaluate each piece of

information independently; rather, we consider all of the facts for their cumulative

meaning."). We may proceed with our analysis based on this assumption because, as
5

instructed by the Court in Leon, ". . . courts [may] reject suppression motions posing

no important Fourth Amendment questions by turning immediately to a consideration

of the officers’ good faith." Leon, 468 U.S. at 925.

The Court in Leon determined that "the exclusionary rule is designed to deter

police misconduct rather than to punish the errors of judges and magistrates," and that

"there exists no evidence suggesting that judges and magistrates are inclined to ignore

or subvert the Fourth Amendment or that lawlessness among these actors requires

application of the extreme sanction of exclusion." Id. at 916. Accordingly, the Court

drew a clear distinction between the motivations of detached, neutral magistrates and

those of partisan enforcement officers who are "'engaged in the often competitive

enterprise of ferreting out crime.'" Id. at 914 (quoting United States v. Chadwick, 433

U.S. 1, 9 (1977)). Having drawn this distinction, the Court held that the exclusionary

rule could be modified to permit the admission of evidence seized by officers who act

in objectively reasonable, good faith reliance upon issued warrants. Id. at 922. This

holding demonstrated the Court's view that a neutral magistrate's intervention in the

"competitive enterprise of ferreting out crime" provides adequate protection of Fourth

Amendment rights in many cases. The Court noted that exceptions would be few

when it stated that:

"searches pursuant to a warrant will rarely require any deep inquiry into

reasonableness," Illinois v. Gates, 462 U.S., at 267, . . . (WHITE, J.,

concurring in judgment), for "a warrant issued by a magistrate normally

suffices to establish" that a law enforcement officer has "acted in good

faith in conducting the search." United States v. Ross, 456 U.S. 798,

823, n.32, . . . (1982).

Leon, 468 U.S. at 922 (extended internal citations omitted). 

In addition, the Court provided detailed guidance to define those limited

situations in which reliance on a warrant could not justify suspension of the "extreme
6

sanction of exclusion." Id. at 916. Two of the Court's enumerated situations illustrate

the nature of the shortcomings that must exist to merit a departure from Leon's

general rule of admissibility. First, "[s]uppression . . . remains an appropriate remedy

if the magistrate or judge in issuing a warrant was misled by information in an

affidavit the affiant knew was false or would have known was false except for his

reckless disregard of the truth." Id. at 923. Here, there is no allegation that Officer

Shoemaker lied. Further, the facts do not demonstrate recklessness on his part.

Officer Shoemaker described the steps he took to verify the CRI's information, his

own past experience with the CRI, the Strike Force's past experience with the CRI,

and the past reliability of the CRI's information. United States v. Wright, 145 F.3d

972, 974-75 (8th Cir. 1998) ("The statements of a reliable confidential informant are

themselves sufficient to support probable cause for a search warrant. . . . The

reliability of a confidential informant can be established if the person has a history

of providing law enforcement officials with truthful information."); United States v.

Tyler, 238 F.3d 1036, 1039 (8th Cir. 2001) (corroboration of minor, innocent details

may support finding of probable cause). 

Second, suppression remains an appropriate remedy where "the issuing

magistrate wholly abandoned his judicial role." Leon, 468 U.S. 923. In such a case,

the issuing magistrate does not serve as a neutral and detached actor, but rather as a

"'rubber stamp for the police'" and "'an adjunct law enforcement officer.'" Id. at 914

(quoting Aguilar v. Texas, 378 U.S. 108, 111 (1964) and Lo-Ji Sales, Inc. v. New

York, 442 U.S. 319, 326-37 (1979) (other internal citations omitted)). Here, the

issuing magistrate did not "wholly abandon[] his judicial role." Leon, 468 U.S. at

923. 

The third situation described by the Court merits further examination. Where

a warrant is "based on an affidavit 'so lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable,'" an officer cannot "manifest

objective good faith in relying on [the] warrant." Leon, 468 U.S. at 923 (quoting
7

Brown v. Illinois, 422 U.S. 590, 610-11 (1975) (Powell, J., concurring in part))

(emphasis added). Carpenter alleges that the present affidavit was so lacking. We

disagree. 

"Entirely unreasonable" is not a phrase often used by the Supreme Court, and

we find nothing in Leon or in the Court's subsequent opinions that would justify our

dilution of the Court's particularly strong choice of words. In this case, three

detached and neutral judicial officers (the issuing magistrate, the federal magistrate

judge, and the district judge) found there to be, at a minimum, a substantial basis for

finding probable cause based on the affidavit. Gates, 462 U.S. at 236; United States

v. Mahler, 141 F.3d 811, 813 (8th Cir. 1998) (setting forth deferential standard of

review for probable cause determinations which requires a reviewing court to uphold

finding where the better-situated, issuing judge possessed a substantial basis for

finding probable cause).

Here, none of the alleged infirmities that Carpenter relies upon presents such

a glaring error or clear deficiency under our cases as would render a belief in the

existence of probable cause entirely unreasonable. Viewing the cumulative effect of

these infirmities, as we must, we see a series of unrelated shortcomings that may

demonstrate an absence of probable cause. We also see, however, that the cumulative

effect of the information set forth in the affidavit provides an adequate basis for

finding that Officer Shoemaker's reliance was reasonable.

The first alleged infirmity with the affidavit involved Officer Shoemaker's

characterization of the drug quantity. Although he failed to articulate an estimated

quantity in measurable units, it was not objectively unreasonable for him to believe

that the description, "an amount greater than personal use," was adequately specific.

There was not a complete omission of reference to quantity. Rather, Officer

Shoemaker chose to describe quantity in functional, rather than numerical, terms. We

have not clearly defined a degree of specificity or manner of description that is
2

 The affidavit in Aguilar provided:

Affiants have received reliable information from a credible person and

do believe that heroin, marijuana, barbiturates, and other narcotics and

narcotic paraphernalia are being kept at the above described premises

for the purpose of sale and use contrary to the provisions of the law.

8

required to properly set forth a drug quantity for the purpose of establishing probable

cause, nor do we believe it wise to do so. To place rigid constraints on the manner

in which quantity must be described would unnecessarily focus on an isolated factor

and inappropriately depart from the applicable totality of the circumstances standard.

Accordingly, while greater detail concerning drug quantity would have been

preferable as a means to lend further indicia of reliability to the CRI's information,

it was not objectively unreasonable for Officer Shoemaker to believe that the quantity

reference was sufficient.

The second alleged infirmity involved Officer Shoemaker's failure to set forth

a more detailed factual basis for the CRI's statement that Fleischauer possessed drugs.

All that the affidavit stated in this regard was that the CRI had a relationship with

Christie "where [] the CRI could know such detailed information regarding 'Christie's

narcotic's [sic] dealings.'" Carpenter argues that the CRI's statement is an

unsupported conclusion expressed through the affiant and that the Supreme Court

rejected this type of unsupported statement in Aguilar, 378 U.S. at 114-15. While we

agree with Carpenter's assertion that the present case is somewhat analogous to

Aguilar, we do not find the similarities so complete as to make Officer Shoemaker's

belief in the existence of probable cause entirely unreasonable. In Aguilar, unlike the

present case, there was no information to explain why the officer believed the

informant to be reliable, no information to demonstrate that the informant had

knowledge of innocent facts related to the suspect, no description – numerical or

functional – of drug quantity, and no statement as to the existence of a relationship

between the CRI and the suspect that would explain the CRI's knowledge.2

 Aguilar,
Aguilar, 378 U.S. at 109. 

9

378 U.S. at 109; see also Tyler, 238 F.3d at 1039 (corroboration of minor, innocent

details may support finding of probable cause); Wright, 145 F.3d at 974-75 ("The

statements of a reliable confidential informant are themselves sufficient to support

probable cause for a search warrant. . . . The reliability of a confidential informant can

be established if the person has a history of providing law enforcement officials with

truthful information."). Because, under Leon, we do not conduct a de novo review

of the probable cause determination, we need not parse this distinction more finely.

It is sufficient to note that Carpenter raises a close question concerning a legal

deficiency. On such issues, officers may reasonably rely on the judgment of the

issuing magistrate. We note, in addition, that Aguilar, as a rule of law standing on its

own, has been superseded by the Gates “totality of the circumstances” approach.

The third potential infirmity with the affidavit relates to the issuing magistrate's

inference that there was a "fair probability that contraband or evidence of a crime

[would] be found" at the Fleischauer residence even though the affidavit did not

present facts to indicate the existence of a nexus between Fleischauer's residence and

the suspected contraband. Gates, 462 U.S. at 238 (defining "fair probability" standard

for determining probable cause). While we do not endorse such an inference without

a factual basis to form the nexus between the residence and the drugs, United States

v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000) ("We agree, of course, that there must be

evidence of a nexus between the contraband and the place to be searched before a

warrant may properly issue."), we cannot say that it was entirely unreasonable for

Officer Shoemaker to believe that such an inference was permissible. As a matter of

common sense, it is logical to infer that someone in possession of valuable

contraband would store that contraband in a safe, accessible location such as his or

her residence. Given the common sense appeal of this inference, and its acceptance
3

To illustrate the fineness of the legal distinction that Carpenter argues Officer

Shoemaker should have recognized, we note that we previously approved a similar

inference where few additional facts existed to provide the requisite nexus with the

suspect's residence. United States v. Allen, 297 F.3d 790, 794 (8th Cir. 2002). In

Allen, the only additional fact to connect criminal activity to the residence was the

statement of a cooperating witness who informed officers that the suspect had certain

equipment for the production of methamphetamine "in his possession or at his

residence." Id. at 793 (emphasis added). Given the fine distinction between

Allen and the present case, we cannot say that it was entirely unreasonable for Officer

Shoemaker to rely on the issuing magistrate's willingness to infer the requisite nexus.

10

by the issuing magistrate, it was not entirely unreasonable for Officer Shoemaker to

believe the inference to be permissible.3

The final potential infirmity with the affidavit, as alleged by Carpenter, lends

little or no strength to his attack on the reasonableness of Officer Shoemaker's

reliance. Carpenter argues that the CRI's statements were unreliable at best and

contradictory at worst because the CRI claimed to have had a relationship with

Fleischauer but did not know her last name. We see no internal conflict in the CRI's

statements. The term relationship is a flexible term. The fact that the CRI knew

Fleischauer only as "Christie" provides insight as to the narrow extent and casual

nature of the relationship, but it does not undermine the credibility of the CRI's claim

as to the existence of a relationship, nor does it contradict Officer Shoemaker's other

claims regarding the CRI's reliability. Of course, more detailed information as to the

nature of the relationship would have better explained the source of the CRI's

information. However, any shortcomings in this regard are not of the magnitude that

would make Officer Shoemaker's reliance entirely unreasonable.

Viewing the collective effect of these alleged infirmities, Carpenter argues that

our holding in Herron, 215 F.3d at 814, instructs that we must find Officer
11

Shoemaker's reliance entirely unreasonable. Herron, however, is distinct in that the

affidavit at issue in that case was uniquely infirm in a manner dissimilar from the

present affidavit. In Herron, the affidavit to support the warrant focused suspicion

of illegal activity solely on a separate suspect who actually was the investigation's

primary suspect. Id. at 813. The only connections between Herron and the primary

suspect were, according to the affidavit, wholly innocent: (1) the primary suspect was

Herron's relative, (2) the primary suspect had been staying at Herron's farm to help

harvest corn on one prior occasion when officers delivered an earlier, poachingrelated citation to the primary suspect, and (3) Herron was also a relative and

associate of the primary suspect's father. Id. In Herron, after officers discovered

marijuana growing at the primary suspect's farm, they learned that Herron had prior

convictions for growing marijuana and applied for a warrant to search the Herron

farm. Therefore, the affidavit stated only that Herron had prior convictions for

cultivating marijuana and that he had, on one known occasion, associated with a

relative who had recently been found growing marijuana. The affidavit contained no

information tending to show that Herron "had ever been seen at the site of the

marijuana cultivation, and he was not shown to have been associated with the

[primary suspect] in past marijuana dealings." Id. at 814. Further, the officers who

drafted the Herron affidavit used a copy of the affidavit previously used for the

primary suspect and merely substituted a description of the Herron property. All

conclusions about the likely location of marijuana and other evidence were

unchanged from the original affidavit that was used for the primary suspect's

property. In fact, the affidavit did not even contain a complete reference to the

Herron property. Looking at the totality of the circumstances, we held that it was not

objectively reasonable for the executing officers to rely on the Herron affidavit

because, "[t]he problem [was] not a technical legal deficiency; the affidavits simply

[did] not say very much about Mr. Herron or his residence." Id. at 814 (emphasis

added). 
12

By contrast, in the present case there were indicia of reliability to support the

officer's belief in the reliability of the CRI. The CRI, who had proven reliable in the

past, had specifically stated that Fleischauer possessed drugs. Officer Shoemaker

verified numerous innocent facts provided by the CRI and relied on the judgment of

the issuing magistrate who was better situated than Officer Shoemaker to address any

problems. Looking at the totality of the circumstances, we do not find the cumulative

effect of the numerous potential legal deficiencies sufficient to make Officer

Shoemaker's belief in the existence of probable cause entirely unreasonable.

The remaining exception described by the Court in Leon, although raised by

Carpenter, is not applicable in the present case. This exception relates to alleged

infirmities with the warrant itself rather than the affidavit behind the warrant. Where

a warrant is sufficiently facially deficient, for example, where it "fail[s] to

particularize the place to be searched or the things to be seized . . . executing officers

cannot reasonably presume it to be valid." Leon, 468 U.S. at 923. The warrant in this

case specifically identified the residence as the location to be searched. Further, the

warrant listed the drugs and related items as the items to be located. There was no

ambiguity on the face of the warrant, much less fatal ambiguity that would have made

execution of the warrant objectively unreasonable.

The decision of the district court is affirmed.

A true copy.

Attest.

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT