2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-17-2012

USA v. Emory Hicks

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1534

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Recommended Citation

"USA v. Emory Hicks" (2012). 2012 Decisions. Paper 1583.

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 08-1534

_____________

UNITED STATES OF AMERICA

v.

EMORY HICKS,

 Appellant

_____________

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania 

District Court No. 06-cr-00684

District Judge: The Honorable J. Curtis Joyner 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

January 13, 2012

Before: SCIRICA, RENDELL, and SMITH, Circuit Judges

(Filed: January 17, 2012)

 

_____________________

 OPINION

_____________________ 

SMITH, Circuit Judge.

Defendant Emory Hicks is appealing the District Court’s denial of his 

motion to suppress physical evidence because the search warrant executed by the 
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police investigators allegedly lacked probable cause and the investigators did not 

act in good faith. We will affirm. 

I. BACKGROUND

In the summer of 2006, the Philadelphia police and a task force of the 

Federal Bureau of Investigation were searching for Malik Collins, who was wanted 

for, among other offenses, two separate murders in Philadelphia County. Collins 

was suspected of being a member of a drug distribution organization known as the 

Thompson University Gang (the “Gang”), which was based in the area of 29th and 

Thompson Streets in Philadelphia. 

Philadelphia police detective Leon Lubiejewski, who was assigned to Squad 

10 of the joint Philadelphia police/FBI task force, was responsible for seeking and 

arresting murder fugitives. On August 23, 2006, Lubiejewski met with FBI agent 

Nick Grill and Philadelphia police detective Rickie Durham, who were both 

assigned to Squad 2 of the task force, to discuss information they had regarding 

Collins. Grill and Durham told Lubiejewski that on approximately August 17, 

2006, a reliable, confidential informant (the “Informant”) saw Collins on a porch 

outside of a building at a specified address in Philadelphia (the “Building”), and 

that according to the Informant, Collins was presently hiding inside an apartment 

in the Building. The Building had two separate apartments, one on the first floor 

and another on the second floor, accessed by separate doors that open onto a shared 
3

porch. Durham said that the Informant learned from another person (the 

“Secondhand Informant”) that Collins entered the first floor apartment at the 

Building and that guns were present in that apartment.1

Following the meeting, Lubiejewski began drafting an affidavit in support of 

a warrant to search the Building’s first floor apartment. Lubiejewski consulted 

with Assistant District Attorney Ann Ponterio regarding his draft affidavit, and she 

advised him to obtain additional information regarding the Informant’s reliability. 

Lubiejewski contacted task force members regarding the Informant’s reliability, 

and he was told that the Informant provided information that led to the arrest of a 

fugitive and that the Informant had also been supplying information regarding the 

Gang, including the names of Gang members and the methods of its operations. 

 At the time of the meeting 

on August 23, 2006, Lubiejewski believed that the Informant, not the Secondhand 

Informant, saw Collins enter the first floor apartment. 

Task force members also conducted surveillance of the Building. On 

August 24, 2006, Sergeant Gerald Grdinich, on two occasions, saw the same black 

male exit the Building’s first-floor apartment, stand on the porch for a short time, 

and then return to the apartment. Grdinich was not able to identify the man but 

knew that he was not Collins.2

In the afternoon of August 24, 2006, Lubiejewski completed the affidavit in 

 1 Lubiejewski did not know the identity or reliability of the Secondhand Informant. 
4

support of his application for a search warrant of the Building’s first-floor 

apartment and presented it to a bail commissioner. This affidavit stated, in 

pertinent part, that:

On Wednesday, August 23, 2006, [Lubiejewski] met with members of 

the FBI drug enforcement task force who related that they have a 

reliable informant who advised them that he knows Malik Collins and 

that Collins is presently hiding inside of [the Building]. The 

informant relates that he was present on Thursday 8/17/2006 outside 

of [the Building] and saw the fugitive Malik Collins, standing on the 

front porch of that location for a short period of time and then enter 

the first floor apartment of that duplex through a door on the front 

porch that is at the eastern end of the porch. The informant has also 

spoken to an individual who has on-going contact with Malik Collins 

at this location and this person has said that there are a number of 

guns being stored inside that apartment. (contd)

 

The informant has given information in the last month that has led to 

the arrest of a fugitive inside of a location, who was wanted on an 

active arrest warrant. The informant has admitted to being a member 

of the 29th and Thompson Sts. drug organization and has been 

supplying Federal agents with the names of individuals belonging to 

the organization, locations used by the organization and methods of 

operation of the organization.

* * *

Members of the Philadelphia Police Department and the FBI 

conducted a joint surveillance of [the Building] beginning on the 

evening of 8/23/06 thru the afternoon of 8/24/06, and during that 

period of time, a [black male] was observed twice, looking out of the 

front door, looking in both ways up and down the street and going 

back inside.

(emphasis added). Lubiejewski never asked Grill or Durham to review his 

 2 This man was later determined to be Hicks. 
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affidavit for accuracy prior to presenting it to the bail commissioner. The bail 

commissioner found probable cause for the search and issued the warrant.

On August 25, 2006, police officers and FBI agents executed the search 

warrant at the Building’s first-floor apartment and found: three stolen handguns 

(two of which were loaded); an assortment of loaded magazines and loose rounds, 

a bulletproof vest; and drug paraphernalia. Hicks, who was the only person present 

in the apartment, was arrested and indicted on two counts: possession of a firearm 

after a prior felony conviction in violation of 18 U.S.C. §§ 922(g)(1) and 924(e); 

and possession of body armor after a conviction for a prior crime of violence in 

violation of 18 U.S.C. §§ 931 and 924(a)(7).

Hicks filed a motion to suppress the physical evidence found during the 

execution of the search warrant. Hicks argued that the search warrant was not 

supported by probable cause and the investigators did not rely on the warrant in 

good faith. The District Court held a hearing on the motion. Lubiejewski testified 

that, at the time he presented his affidavit to the bail commissioner, he believed 

that all of the information in his affidavit was fair and accurate. 

Lubiejewski further testified that he later learned that his affidavit contained 

two incorrect statements. First, although the Informant did see Collins on the 

porch in front of the Building, he did not witness which apartment door Collins 

entered. Instead, it was the Secondhand Informant that saw Collins enter the 
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Building’s first-floor apartment, and the Informant learned this information from 

the Secondhand Informant. Lubiejewski explained that the error occurred because 

he misunderstood the information relayed by Grill and Durham. Second, 

Lubiejewski’s affidavit incorrectly stated that the Informant admitted to being a 

member of the Gang. Lubiejewski testified that the error was based on his false 

assumption that the Informant’s familiarity with the Gang’s members and 

operations must have been the result of his status as a member of the Gang. 

After a hearing on the motion, the District Court held that the search warrant 

lacked probable cause but that the evidence was not subject to suppression because 

the investigators acted in good faith. Hicks was tried before a jury and convicted 

on both counts. Hicks appealed the denial of his suppression motion.3

II. DISCUSSION

A. PROBABLE CAUSE

The government argues that Lubiejewski’s affidavit contained sufficient 

probable cause to support the warrant even after excising the two false statements, 

and that the District Court erred in holding to the contrary. A district court’s 

findings of fact on a motion to suppress are reviewed for clear error, and its 

application of the law to the facts is subject to plenary review. United States v. 

 3 The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. 

We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
7

Brownlee, 454 F.3d 131, 146 n.15 (3d Cir. 2006). 

The task of a court in issuing a search warrant is to “make a practical, 

common-sense decision whether, given all the circumstances set forth in the 

affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons 

supplying hearsay information, there is a fair probability that contraband or 

evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 

213, 238 (1983); see also United States v. Whitner, 219 F.3d 289, 296 (3d Cir. 

2000). The duty of courts reviewing the issuance of a search warrant is to 

determine whether the issuing court had a “substantial basis” for concluding that 

probable cause existed for the search. Gates, 462 U.S. at 238-39; see also Whitner, 

219 F.3d at 296.

The District Court did not err in concluding that, given the false statements 

in the affidavit, there was no substantial basis for determining that probable cause 

existed. Lubiejewski’s affidavit, after excising the false statements, essentially 

states that, six days earlier, the Informant saw Collins standing outside of the 

Building, but that he did not witness which of the Building’s two apartments 

Collins entered. Only the Secondhand Informant provided information stating that 

Collins entered the first-floor apartment and that Collins stored guns inside that 

apartment. The only indicium of reliability for the information provided by the 

Secondhand Informant is that this person allegedly has “on-going contact” with 
8

Collins. Lubiejewski’s excised affidavit, considered in its totality, does not 

provide a substantial basis for concluding that probable cause existed for the search 

of the Building’s first-floor apartment. 

Accordingly, the District Court did not err in holding that the warrant was 

not supported by probable cause.

B. GOOD FAITH

Hicks asserts that the false statements in Lubiejewski’s warrant affidavit 

were made with reckless disregard for the truth, and that consequently, the District 

Court erred by applying the good faith exception to the exclusionary rule. A 

district court’s determination regarding whether a false statement in a warrant 

affidavit was made with reckless disregard for the truth is subject to a clear error 

standard. United States v. Brown, 631 F.3d 638, 642 (3d Cir. 2011).

Generally, where law enforcement officers objectively rely on a warrant in 

good faith, courts will not apply the exclusionary rule or otherwise suppress 

evidence obtained as a result of an unlawful search. See, e.g., United States v. 

Leon, 468 U.S. 897, 922 (1984) (holding that evidence need not be suppressed 

where officers objectively and reasonably relied on a subsequently invalidated

search warrant); Herring v. United States, 555 U.S. 135, 147-48 (2009) (finding 

that the exclusionary rule does not apply where an unlawful search is caused by 

isolated negligence that was not in reckless disregard of the Constitution). 
9

A law enforcement officer who knowingly or recklessly provides false 

information in support of a probable cause affidavit does not act in good faith and 

that officer’s reliance on any warrant issued based on such false information is not 

reasonable. See, e.g., United States v. Ninety-Two Thousand Four Hundred 

Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d 137, 146 (3d Cir. 2002); 

United States v. Williams, 3 F.3d 69, 74 n.4 (3d Cir. 1993). A statement is made 

with a reckless disregard for the truth when “viewing all the evidence, the affiant 

must have entertained serious doubts as to the truth of his statements or had 

obvious reasons to doubt the accuracy of the information he reported.” Wilson v. 

Russo, 212 F.3d 781, 788 (3d Cir. 2000) (quotation marks and citation omitted).

The District Court did not clearly err in determining that the law 

enforcement officers acted without recklessness. Lubiejewski testified that the 

errors were the result of a miscommunication with Grill and Durham, and that he 

believed the information in his affidavit was true and accurate at the time that it 

was presented to the bail commissioner. Lubiejewski consulted with an assistant 

district attorney on several occasions regarding the sufficiency of his affidavit, and 

he sought to confirm the information in his affidavit by requesting surveillance of 

the Building. Consequently, the District Court did not clearly err in determining 
10

that the officers acted without recklessness.4

Accordingly, we will affirm.

 

 4 Hicks also contends that the officers did not act with good faith because 

Lubiejewski’s affidavit was allegedly so facially inadequate that a finding of 

probable cause was unreasonable. See, e.g., Ninety-Two Thousand Four Hundred 

Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d at 146. We disagree. On its 

face, Lubiejewski’s affidavit was based on information from the Informant, who 

was familiar with the operations of the Gang and who had provided reliable 

information in the past. The affidavit further stated that the Informant believed 

Collins was presently hiding in the Building and that the Informant witnessed 

Collins enter the first-floor apartment. Thus, Lubiejewski’s affidavit, on its face, 

was not so facially inadequate that a finding of probable cause was unreasonable.