FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TRAVIS SHANE BARNES,

Defendant-Appellant.

No. 16-30203

D.C. No.

1:15-cr-02061-

LRS-1

OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Lonny R. Suko, District Judge, Presiding

Submitted February 9, 2018*

Seattle, Washington

Filed July 19, 2018

Before: Ronald M. Gould, Richard A. Paez,

and Morgan Christen, Circuit Judges.

Opinion by Judge Paez

 * The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. BARNES

SUMMARY**

Criminal Law

The panel affirmed a conviction for being a felon in 

possession of a firearm, in a case in which the defendant 

argued that the district court erred (1) by denying his motion 

to suppress evidence based on an allegedly invalid arrest 

warrant and (2) by precluding the defendant from presenting 

a necessity defense.

The panel held that the district court’s finding that the 

municipal judge who signed the defendant’s arrest warrant 

must have reviewed the underlying citation as part of her 

“ordinary course of business” was clearly erroneous, where 

there is no record evidence that the municipal court judge 

either received or read a copy of the citation prior to her 

finding of probable cause. The panel therefore concluded 

that the warrant for the defendant’s arrest for the underlying 

trip permit violation was inexcusably infirm and that the 

defendant therefore satisfied his burden of showing judicial 

abandonment by a preponderance of the evidence. 

The panel held that the good faith exception to the 

exclusionary rule applies unless a defendant can show that 

the issuing judge abandoned his or her role and that the law 

enforcement officer knew or should have known of such 

abandonment. The panel concluded that although the 

defendant met his burden of showing judicial abandonment, 

the evidence cannot be suppressed because the officers 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. BARNES 3

executing the infirm warrant were unaware—and had no 

reason to be aware—of any judicial misconduct.

The panel held that the district court did not err in 

denying the defendant’s request to present a necessity 

defense to the jury.

COUNSEL

Nicolas V. Vieth, Vieth Law Offices Chtd., Coeur d’Alene, 

Idaho, for Defendant-Appellant.

Thomas J. Hanlon, Assistant United States Attorney; Joseph 

H. Harrington, United States Attorney; United States 

Attorney’s Office, Yakima, Washington; for PlaintiffAppellee.

OPINION

PAEZ, Circuit Judge:

Travis Barnes appeals his conviction under 18 U.S.C. 

§ 922 for being a felon in possession of a firearm. He argues 

that the district court erred in two respects: first, by denying 

his motion to suppress evidence based on an allegedly 

invalid arrest warrant; and second, by precluding him from 

presenting a necessity defense at trial. We have jurisdiction 

under 28 U.S.C § 1291, and we affirm.

Although the underlying warrant for Barnes’s arrest was 

the product of judicial abandonment, we apply the good faith 

exception to the exclusionary rule and affirm the district 

court’s denial of his motion to suppress evidence. We also 
4 UNITED STATES V. BARNES

conclude that the district court properly barred Barnes’s 

necessity defense because he failed to adequately 

demonstrate that he took possession of the gun in response 

to an imminent threat of death or bodily injury.

I.

On August 17, 2015, a Yakima Police Department 

(“YPD”) officer told fellow Officers Thomas Tovar and J. 

Cordova to keep an eye out during patrol for two wanted men 

in the area, Travis Barnes and his son Raymond Barnes 

(“Raymond”). Officers Tovar and Cordova consulted their 

mobile data terminal, confirmed that there were outstanding 

warrants for both men, and viewed several photographs of 

Barnes and his son to get a sense of their general appearance. 

A little over half an hour later, the officers saw Barnes 

walking along a street, having recognized him by his 

distinctive neck tattoo. Officer Tovar exited his vehicle and 

informed Barnes that there was a warrant for his arrest. 

Although Barnes was initially cooperative and complied 

with Officer Tovar’s request to put his hands behind his 

back, he took off running after he was mistakenly informed 

by Officer Cordova that he was wanted on a “DOC felony 

warrant.” In truth, the felony warrant was for his son, 

Raymond. There was, however, a misdemeanor bench 

warrant for Barnes that was based on his failure to appear for 

arraignment for an alleged trip permit violation1 some six 

months earlier.

 1 A trip permit, or temporary license permit, allows a vehicle owner 

to drive their otherwise unlicensed vehicle on public roadways for three 

consecutive days. See Wash. Rev. Code § 46.16A.320(1)(a), (3). A trip 

permit violation is a gross misdemeanor. See id. § 46.16A.320(6).
UNITED STATES V. BARNES 5

The officers ordered Barnes to stop, to no effect, and 

gave chase. Deputy Marshal C. Smith, who was in the area 

investigating a robbery and had observed Barnes’s 

interaction with Officers Tovar and Cordova, quickly 

realized that Barnes was running in his direction. Deputy 

Smith exited his vehicle and instructed Barnes to stop. 

When Barnes failed to comply, Deputy Smith tased him in 

the back, knocking Barnes down. Officers Tovar and 

Cordova caught up seconds later. Together, the officers 

handcuffed Barnes’s hands behind his back and searched his 

person, eventually recovering a small .22 caliber, silver 

pistol from his front right pocket.

Having previously been convicted of a felony, Barnes 

was arrested and taken into custody. He was subsequently 

charged in federal court with being a felon in possession of 

a firearm in violation of 18 U.S.C. § 922(g)(1). Barnes filed 

a motion to suppress evidence before trial, arguing that his 

arrest was unlawful for a variety of reasons, only one of 

which he reasserts on appeal: that the arrest warrant for his 

failure to appear on the trip permit violation was not 

supported by probable cause.2 The government responded 

to Barnes’s motion to suppress evidence by including in its

opposition a copy of the criminal complaint prepared by a 

 2 A bench warrant for failing to appear at a scheduled hearing is 

invalid if there was no finding of “probable cause to support the 

underlying offense.” State v. Parks, 148 P.3d 1098, 1099 (Wash. Ct. 

App. 2006); cf. United States v. Gooch, 506 F.3d 1156, 1160 n.3 (9th 

Cir. 2007) (acknowledging that under Parks, a bench warrant issued for 

failure to appear is “insufficient where there had never been a prior 

finding of probable cause to arrest the defendant at any time in the 

proceedings.”). Failure to appear in response to a mailed summons is not 

a separate criminal offense under Washington law. See Parks, 148 P.3d 

at 1101 (“[F]ailure to appear is not a crime.”); see also State v. Walker, 

999 P.2d 1296, 1299 (Wash. Ct. App. 2000) (same).
6 UNITED STATES V. BARNES

city prosecutor for Barnes’s alleged trip violation. The 

complaint, dated February 9, 2015, included a stamp where 

the reviewing judge had circled “Yes” to “Probable Cause” 

and signed with her initials on February 13, 2015. The 

government argued that the signed complaint evidenced that 

the misdemeanor arrest warrant was based on a valid judicial 

determination of probable cause.

At an evidentiary hearing, the government called Melissa 

Blackledge, a Department Assistant for the Yakima 

Municipal Court Clerk’s Office, to testify. Blackledge 

testified that although she was not normally involved in 

processing criminal complaints, she was familiar with the 

process. She explained that once the Yakima Municipal 

Court received a ticket or citation, a prosecutor would 

“send[] down a complaint” for a clerk to stamp with 

“probable cause” and “yes” and “no” responses. The 

reviewing judge would then circle either “yes” or “no” to 

probable cause, sign or initial her name, and send the 

complaint back to the clerk to print out a summons. 

Blackledge testified on cross-examination that although the 

prosecutor would forward the complaint for the judge’s 

review, she never saw the prosecutors include a police report 

with the complaint. When asked whether the prosecutors 

would submit an affidavit with the complaint, Blackledge—

who had been with the court for six and a half years—

answered that she wasn’t sure what an affidavit was and that 

she would “have to say no.” On re-direct, Blackledge 

testified that the municipal court judges did not issue 

separate orders finding probable cause, but rather denoted 

their findings of probable cause on the criminal complaint 

itself.

After hearing from the government’s witnesses and 

Barnes, the district court denied Barnes’s motion to 
UNITED STATES V. BARNES 7

suppress. The court did so in part because it assumed, 

without evidence, that the municipal court judge “in the 

ordinary course of business would have reviewed [the 

arresting officer’s] citation containing his certification under 

oath.” The court explained that because it had been the law 

“[f]or forty years . . . that a judicial determination of 

probable cause may not be based on a prosecutor’s 

assessment of probable cause standing alone,” it was 

“extremely difficult to fathom that a Yakima Municipal 

Court Judge would make a determination of probable cause 

based solely on a complaint presented by the prosecutor and 

without reviewing the citation giving rise to the complaint.”

The court added that because Officers Cordova and 

Tovar had acted in good faith reliance on the outstanding 

bench warrant, the good faith exception to the exclusionary 

rule was applicable unless one of the four United States v. 

Leon, 468 U.S. 897, 922–23 (1984) exceptions to the good 

faith exception applied. Unpersuaded that the facts of the 

case implicated any of the four Leon exceptions, including 

judicial abandonment, the court applied the good faith 

exception to the exclusionary rule and denied Barnes’s 

motion to suppress. In so doing, the court noted that 

“suppression of the evidence in this instance would not deter 

future police misconduct.”

Following the district court’s ruling, the parties 

submitted jointly proposed jury instructions and a verdict 

form for the court’s review. The proposed jury instructions 

did not include instructions on a necessity defense. Five 

days before the jury trial, however, counsel for Barnes sent 

the government a copy of a news article describing close to 

two dozen instances of small children accidentally shooting 

themselves or others with unattended firearms. Counsel 

explained in a letter that it was possible he would introduce 
8 UNITED STATES V. BARNES

the article during trial. Based on the letter and news article, 

the government surmised that Barnes would attempt to raise 

a necessity defense and filed a motion in limine to preclude 

any such defense. The government’s assessment proved 

correct: Barnes submitted a proposed jury instruction for a 

necessity defense on the first day of trial.

During a hearing on the proposed defense, the court 

requested that counsel for Barnes make an offer of proof. 

Counsel for Barnes explained that Barnes had been arrested 

by Officers Cordova and Tovar while en route to a nearby 

dumpster to dispose of the gun for safety reasons.

According to trial counsel, Barnes woke up in the 

afternoon after caring for Raymond, who was addicted to 

methamphetamine. When he went to do his son’s laundry, 

Barnes realized that there were multiple strangers in the 

house, including two children around the ages of two to three 

years old and two adults, the latter of whom were “passed 

out.” In the laundry area of Raymond’s residence, there was 

a special “cubbyhole” behind a refrigerator used to conceal 

people from law enforcement. Barnes noticed that the 

refrigerator had been moved and that the hiding spot was 

exposed. As he went to push the refrigerator back into place, 

Barnes allegedly heard something fall to the ground. Shortly 

thereafter, he saw a gun on the floor. Concerned that the 

children, who were awake, would somehow gain possession 

of the gun and injure themselves or someone else, Barnes 

made a split-second decision to take the gun and dispose of 

it. Barnes was arrested in the middle of his walk to a nearby 

dumpster.

The district court concluded that Barnes’s offer of proof 

did not meet the requirements for a necessity or justification 

defense. In particular, the district court determined that the 

proffered evidence fell short of showing that Barnes was 
UNITED STATES V. BARNES 9

responding to an “immediate threat of death or threat of 

bodily injury” or that Barnes had no reasonable legal 

alternative available. Relying on the same reasoning, the 

court later denied Barnes’s renewed request to present a 

necessity defense following the government’s presentation 

of its case as well as his motion for reconsideration.

The jury convicted Barnes of being a felon in possession 

of a firearm. Barnes was sentenced to 41 months’ 

imprisonment followed by three years of supervised release. 

He timely appealed.

II.

We review a “district court’s rulings on motions to 

suppress,” including applications of the good faith exception 

to the exclusionary rule, “and the validity of search warrants 

de novo.” United States v. Underwood, 725 F.3d 1076, 1081 

(9th Cir. 2013). We review the court’s factual findings for 

clear error. See United States v. Grandberry, 730 F.3d 968, 

970–71 (9th Cir. 2013). We review de novo a district court’s 

decision to bar a necessity defense. See United States v. 

Schoon, 971 F.2d 193, 195 (9th Cir. 1991).

III.

A. Validity of the Arrest Warrant

We address first the district court’s assumption that the 

municipal court judge must have reviewed the arresting 

officer’s sworn citation before finding probable cause 

because it would be “extremely difficult to fathom” 

otherwise. We understand the district court’s reluctance to 

consider that a municipal court judge would disregard 

decades of precedent establishing that judges may not rely 

on a prosecutor’s complaint alone to find probable cause. 
10 UNITED STATES V. BARNES

See Gerstein v. Pugh, 420 U.S. 103, 114–19 (1975); 

Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 

564–65 (1971) (concluding that a complaint “alone could not 

support the independent judgment of a disinterested 

magistrate”). We are not, however, at liberty to substitute 

our assumptions for evidence in the record. Moreover, as 

the Supreme Court has recognized, judicial determinations 

of probable cause may not always adhere to the tenets of 

constitutional law. See Leon, 468 U.S. at 916 n.14 

(acknowledging that “there are assertions that some 

magistrates become rubber stamps for the police and others 

may be unable effectively to screen police conduct”); see 

also State v. Hoffman, 25 N.E.3d 993, 1001 (Ohio 2014) (“It 

is clear from the testimony and documentary evidence 

offered at the suppression hearing that Hoffman’s 

misdemeanor warrants were issued without a probable-cause 

determination”); Stewart v. State, 711 S.W.2d 787, 788 (Ark. 

1986) (adopting Leon and concluding that the “conduct of 

Judge Bridgforth was inexcusable” because he signed blank 

arrest warrants without reviewing officer affidavits or 

making a judicial determination of probable cause).

The district court’s assumption that the municipal court 

judge must have relied on something other than the 

prosecutor’s complaint is unsupported by the record and 

does not present a “permissible view[] of the evidence.” 

United States v. Elliott, 322 F.3d 710, 715 (9th Cir. 2003). 

There was no testimony at the suppression hearing that 

Yakima Municipal Court judges were provided with, 

separately retrieved, or were even able to separately 

retrieve—much less that they read—the citations and officer 

reports underlying the criminal complaints as part of their 

ordinary course of business. To the contrary, the only court 

employee to testify at the suppression hearing explained that 

prosecutors regularly submitted complaints for probable 
UNITED STATES V. BARNES 11

cause determinations without attaching police reports or 

affidavits. Blackledge testified that she was not sure what 

an affidavit was. Furthermore, it was the practice of Yakima 

Municipal Court judges to record their probable cause 

determinations on the criminal complaint itself without 

issuing a separate order.

We recognize that the criminal complaint provided the 

citation number for Barnes’s alleged trip permit violation. It 

is therefore theoretically possible that the reviewing judge 

could have separately looked up the citation number, 

retrieved the arresting officer’s sworn statements, and made 

a proper determination of probable cause. Factual findings, 

however, must be rooted in evidence as opposed to 

speculation. See Guam Soc’y of Obstetricians & 

Gynecologists v. Ada, 100 F.3d 691, 698 (9th Cir. 1996) 

(“[A]s judges, we are not permitted to engage in such 

speculation. We are confined to the evidence in the record 

and those inferences that directly follow from that 

evidence.”). Here, there is no evidence that the reviewing 

judge ever retrieved a copy of the criminal complaint—

whether in this case or in others. When trial counsel for 

Barnes requested from Yakima Municipal Court a copy of 

the order finding probable cause and all documents relied on

by the judge to find probable cause, he received a copy of 

the complaint, an order of dismissal, and a copy of the 

docket. He did not receive a copy of the criminal citation.

The government attempts to fill this evidentiary gap by 

arguing that because the criminal complaint was filed in 

Yakima Municipal Court, the reviewing judge must have 

received it. This argument suffers from two critical flaws: 

first, whether the reviewing judge actually receives an 

officer’s citation is separate from the filing of the citation 

with the court; and second, the judge’s receipt of the citation 
12 UNITED STATES V. BARNES

is altogether different from the judge’s review of it. Notably, 

the government never claims in its brief that the municipal 

court judge read or otherwise reviewed the citation. Nor, for 

that matter, could the government credibly advance such an 

interpretation of the evidence.

At best, the record establishes that the Yakima Municipal 

Court received an electronic copy of the citation for Barnes’s 

alleged trip permit violation on February 9, 2015. The

citation included the arresting officer’s sworn statement 

regarding the incident. From there, a prosecutor prepared a 

misdemeanor criminal complaint based on the citation. A 

clerk in the court then stamped the complaint with “probable 

cause” with “yes” and “no” markings and forwarded the 

complaint to the judge for review. Neither the clerk nor the 

prosecutor provided the reviewing judge with a copy of the 

citation and/or the officer’s sworn report. The reviewing 

judge then circled “yes” to probable cause on February 13, 

2015 and signed her initials. Later, a court clerk prepared a 

summons for Barnes, directing him to appear for 

arraignment. When Barnes failed to do so, the court issued 

a bench warrant for his arrest.

On these facts, the district court’s finding that the 

municipal court judge must have reviewed the citation as 

part of her “ordinary course of business,” was clearly 

erroneous. There is no record evidence that the municipal 

court judge either received or read a copy of the citation prior 

to her finding of probable cause. We therefore conclude that 

the warrant for Barnes’s arrest for the underlying alleged trip 

permit violation was inexcusably infirm and that he has 

satisfied his burden of showing judicial abandonment by a 

preponderance of the evidence. See United States v. Jordan, 

291 F.3d 1091, 1100 (9th Cir. 2002) (explaining that a 

defendant must first make a “substantial preliminary 
UNITED STATES V. BARNES 13

showing, by a preponderance of the evidence,” that the 

warrant was infirm in order to prevail on a motion to 

suppress); United States v. Decker, 956 F.2d 773, 777 (8th 

Cir. 1992) (affirming the district court’s decision to suppress 

evidence because the state judge’s failure to read the search 

warrants before signing them rendered both warrants 

defective).

B. Good Faith Exception to the Exclusionary Rule

Ordinarily, the exclusionary rule—a “judicially created 

remedy designed to safeguard Fourth Amendment rights”—

would operate to preclude “the use of evidence obtained in 

violation” of the Fourth Amendment. See Leon, 468 U.S. at 

906. The Supreme Court, however, recognized in Leon a 

“good-faith exception” to the exclusionary rule. Id. at 924. 

Under this exception, “evidence obtained in objectively 

reasonable reliance on a subsequently invalidated . . .

warrant” is not subject to suppression. Id. at 922. In short, 

evidence obtained pursuant to a constitutionally infirm 

warrant may nonetheless be admitted so long as the officers 

acting on the search or arrest warrant were unaware of—and 

had no reason to be aware of—the warrant’s infirmities.

The good faith exception, however, is not without its 

own exceptions. The Court in Leon “identified four 

situations that per se fail to satisfy the good faith exception,” 

because “the officer will have no reasonable grounds for 

believing that the warrant was properly issued.” 

Underwood, 725 F.3d at 1085 (quoting Leon, 468 U.S. at 

922–23). Three of the four situations focus on warrants with 

defects that should be immediately apparent to law 

enforcement officials, such as warrants that are “so facially 

deficient . . . that the executing officers cannot reasonably 

presume it to be valid,” warrants resulting from recklessly or 

knowingly misleading the issuing judge, or warrants that are 
14 UNITED STATES V. BARNES

the product of “bare bones affidavits.” Id. (quoting Leon, 

468 U.S. at 922–23). The fourth situation is “where the 

judge ‘wholly abandons his or her judicial role.’” Id.

(quoting Leon, 468 U.S. at 923) (internal alterations 

omitted). This last situation serves as the basis for Barnes’s 

appeal.

Barnes argues that the good faith exception is 

inapplicable in this instance because the municipal court 

judge wholly abandoned her judicial role by relying solely 

on the prosecutor’s complaint to find probable cause. 

Although we agree with Barnes that the record does not 

suggest that there was judicial review in this instance, we 

join our sister circuits in concluding that the good faith 

exception nonetheless applies unless a defendant can show 

that the issuing judge abandoned his or her judicial role and 

that the law enforcement officers knew or should have 

known of such abandonment.

The Supreme Court did not provide a clear definition of 

judicial abandonment in Leon. Instead, the Court cautioned 

against deferring to magistrates when they have failed to 

perform their “neutral and detached” function by rubberstamping arrest or search warrants for the police. Leon, 

468 U.S. at 914. The Court also cited Lo-Ji Sales, Inc. v. 

New York, 442 U.S. 319 (1979) as an example of judicial 

abandonment and explained that judicial officers who fail to 

act with the requisite “neutrality and detachment . . . cannot 

provide valid authorization for an otherwise unconstitutional

search.” Leon, 468 U.S. at 914, 923. Lo-Ji Sales was an 

extreme case where the judicial officer “allowed himself to 

become a member, if not the leader, of the search party 

which was essentially a police operation.” 442 U.S. at 327. 

Rather than simply sign the warrant authorizing a search of 

an adult bookstore, the judicial officer accompanied law 
UNITED STATES V. BARNES 15

enforcement officials to the store, where he viewed snippets 

of over twenty films and leafed through multiple magazines. 

Id. at 322–23. After determining that the films and 

magazines were obscene, he instructed the officers to seize 

any similar items without providing guidance on what 

constituted a “similar” item. Id. at 327.

We do not think the Supreme Court intended to limit 

judicial abandonment to conduct such as that in Lo-Ji Sales 

and other instances of judicial bias. Our reading of Leon is 

consistent with the Court’s decision in Aguilar v. Texas, 

378 U.S. 108 (1964), abrogated on different grounds by 

Illinois v. Gates, 462 U.S. 213 (1983). There, the Court 

concluded that prior to making a probable cause 

determination, a magistrate “must be informed of some of 

the underlying circumstances” supporting an officer’s 

reliance on an informant tip. Aguilar, 378 U.S. at 114 

(emphasis added). Otherwise, the magistrate cannot be said 

to have acted as a “neutral and detached magistrate.” Id. at 

115 (internal quotation marks omitted).

We therefore join our sister circuits in concluding that a 

defendant may show judicial abandonment through any one 

of the following ways: (1) the magistrate was biased against 

the defendant or otherwise personally interested in issuing 

the warrant; (2) the magistrate functionally occupied a 

different, non-neutral role while making the probable cause 

determination; or (3) the magistrate failed to review the 

requisite affidavits or materials prior to making a probable 

cause determination. See, e.g., United States v. Frazier, 

423 F.3d 526, 537 (6th Cir. 2005) (concluding that the 

record did not support the defendant’s contention that the 

magistrate “issued the warrant without reading the affidavit” 

and therefore that the magistrate did not abandon his judicial 

role); United States v. Koerth, 312 F.3d 862, 869 (7th Cir. 
16 UNITED STATES V. BARNES

2002) (concluding that the judge “complied with the 

requirement of acting as a neutral and detached magistrate” 

because there was no evidence that the judge had failed to 

read or review the affidavit before signing the warrant); 

United States v. Martin, 297 F.3d 1308, 1317 (11th Cir. 

2002) (“It is clear to us that a magistrate judge should read 

the warrant and make his own independent assessment as to 

whether the warrant and its underlying affidavit contain a 

sufficient amount of information to support a finding of 

probable cause. A judge can be said to act as a mere ‘rubber 

stamp’ if he solely relies upon the fact that police officers are 

asking for the warrant.”); United States v. Mueller, 902 F.2d 

336, 340 (5th Cir. 1990) (“Nothing suggests that the 

magistrate had any bias or interest in issuing the warrant, or 

that he dispensed with his neutral and detached position to 

become involved in the evidence-gathering related to 

issuance of the warrant as did the town justice in Lo-Ji 

Sales.”); see also 1 Wayne R. LaFave, Search and Seizure: 

A Treatise on the Fourth Amendment § 1.3(f) (5th ed. 2017) 

(“Though it is far from clear exactly what . . . falls within the 

[judicial abandonment] qualification in Leon, certainly the 

most likely possibility is that mentioned by the Court earlier 

in the Leon opinion: where the magistrate serves merely as a 

rubber stamp for the police.” (internal quotation marks and 

footnotes omitted)).

Where, as here, there is no evidence that the reviewing 

judge consulted any materials other than the criminal 

complaint prior to issuing a finding of probable cause, the 

defendant has met his burden of demonstrating judicial 

abandonment. See Koerth, 312 F.3d at 869. This, however, 

does not end our inquiry.

The Supreme Court emphasized in Leon that the judicial 

abandonment exception to the good faith exception operates 
UNITED STATES V. BARNES 17

“in such circumstances [when] no reasonably well trained 

officer should rely on the warrant.” 468 U.S. at 923. In the 

decades since Leon was decided, the Supreme Court has 

continued to stress that “the exclusionary rule is designed to 

deter police misconduct rather than to punish the errors of 

judges and magistrates.” Id. at 916. In Arizona v. Evans, 

514 U.S. 1 (1995), the Supreme Court explained that 

“[w]here the exclusionary rule does not result in appreciable 

deterrence, then, clearly, its use is unwarranted.” Id. at 11 

(internal quotation marks and alterations omitted). Because 

the “exclusionary rule was historically designed as a means 

of deterring police misconduct, not mistakes by court 

employees,” and there was “no basis for believing that 

application of the exclusionary rule in these circumstances 

will have a significant effect on . . . court clerks [who] are 

not adjuncts to the law enforcement team engaged in the 

often competitive enterprise of ferreting out crime,” the 

Court concluded that “clerical errors of court employees” 

were categorically exempted from the exclusionary rule. Id.

at 14–16; see also Davis v. United States, 564 U.S. 229, 239 

(2011) (summarizing the history of the good faith exception 

and explaining that the doctrine arose from an understanding 

that “punishing the errors of judges is not the office of the 

exclusionary rule” (internal quotation marks and alterations 

omitted)); Herring v. United States, 555 U.S. 135, 142 

(2009) (reiterating that Evans was based, in part, on the 

understanding that “[t]he exclusionary rule was crafted to 

curb police rather than judicial misconduct”); Massachusetts 

v. Sheppard, 468 U.S. 981, 990 (1984) (applying the good 

faith exception even though “[a]n error of constitutional 

dimensions may have been committed with respect to the 

issuance of the warrant,” because “it was the judge, not the 

police officers, who made the critical mistake.”).
18 UNITED STATES V. BARNES

Although this approach to the good faith exception has 

been the subject of considerable scholarly debate,3 we are 

bound to follow the Supreme Court’s directives. We 

therefore conclude, consistent with the Fifth, Sixth, and 

Tenth Circuits, that the exclusionary rule only applies if the 

issuing judge abandoned his or her judicial role and law 

enforcement officers knew or should have known of the 

abandonment. See United States v. Villanueva, 821 F.3d 

1226, 1235 (10th Cir. 2016) (applying the good faith 

exception because the defendant did not “set forth any 

evidence or argument” that the officer “could have, or should 

have, reasonably known about any alleged bias the issuing 

judge might have had”); United States v. Rodriguez-Suazo, 

346 F.3d 637, 649 (6th Cir. 2003) (“Because the focus of this 

[exclusionary] rule is to prevent police misconduct, 

exclusion should be ordered only if the police officer knew 

. . . that the magistrate abandoned his or her neutral and 

detached function.”); United States v. Breckenridge, 

782 F.2d 1317, 1321–22 (5th Cir. 1986) (declining to 

suppress the evidence because the judge appeared to both 

officers to have “fulfilled his duty to act as a ‘neutral and 

detached’ magistrate”); see also LaFave, supra, at § 1.3(f) 

 3 Leon’s conceptualization of the good faith exception to the 

exclusionary rule was predicated in part on the Court’s skepticism that 

ineffective or lawless magistrates was a “problem of major proportions.” 

468 U.S. at 916 n.14. The Court also emphasized that the threat of the 

exclusionary rule could not “be expected significantly to deter” judicial 

officers the same way as it would law enforcement. Id. at 917. 

Following Leon, some scholars noted that the “new rule [would] produce 

a net gain for privacy and the fourth amendment . . . [but] only if 

magistrates do what the Supreme Court expects of them and inquire 

responsibly into the issue of probable cause.” Abraham S. Goldstein, 

The Search Warrant, the Magistrate, and Judicial Review, 62 N.Y.U. L. 

Rev. 1173, 1177 (1987). We expect, as the Leon Court did, that 

magistrate judges will uphold their obligations to independently examine 

proposed warrants for probable cause.
UNITED STATES V. BARNES 19

(“Leon recognizes only deterrence of the police . . . and this 

means that the circumstances showing the magistrate has 

‘wholly abandoned his judicial role’ must have been known 

by (or at least reasonably knowable by) the police.”).

There is no evidence that Officers Cordova and Tovar 

knew or should have known that the arrest warrant was 

infirm, whether in this particular instance or as part of a 

broader Yakima Municipal Court practice. Furthermore, 

neither officer was present when the reviewing judge made 

her determination. Although these are not the only methods 

by which Barnes—or any other defendant—can demonstrate 

officer knowledge, we note that there is nothing in the record 

to support an inference that the officers were aware of any 

judicial misconduct. Accordingly, we conclude that the 

officers acted in good faith reliance on the bench warrant and 

that the district court properly denied Barnes’s motion to 

suppress.

IV.

Barnes next argues that the district court erred when it 

denied his request to present a necessity defense to the jury. 

A defendant is entitled to present evidence on a necessity 

defense and have the jury instructed accordingly once he has 

adequately established—through an offer of proof—that all 

four requisite factors are met: (1) he was “faced with a choice 

of evils and chose the lesser evil”; (2) he “acted to prevent 

imminent harm”; (3) he “reasonably anticipated a causal 

relation between his conduct and the harm to be avoided”; 

and (4) there were “no other legal alternatives to violating 

the law.”4 United States v. Bibbins, 637 F.3d 1087, 1094 

 4 Generally speaking, necessity—typically presented as a situation 

where the actor claims he chose “the lesser of two evils”—is a type of 
20 UNITED STATES V. BARNES

(9th Cir. 2011) (quoting United States v. Arellano-Rivera, 

244 F.3d 1119, 1125–26 (9th Cir. 2001)).

 

justification defense. See 2 Wayne R. LaFave, Substantive Criminal Law

§ 10.1(a) (3d ed. 2017) (“One who, under the pressure of circumstances, 

commits what would otherwise be a crime may be justified by ‘necessity’ 

in doing as he did and so not be guilty of the crime in question.”); see 

also United States v. Biggs, 441 F.3d 1069, 1071 (9th Cir. 2006) 

(“Evidence that a defendant had no reasonable opportunity to avoid the 

use of force is relevant only to a defense of justification, whether labeled 

duress, coercion, or necessity.”). We have, however, tended to treat 

necessity and justification as separate and distinct defenses in felon-inpossession cases. See United States v. Gomez, 92 F.3d 770, 774 n.5 (9th 

Cir. 1996); see also 1A Kevin F. O’Malley, Jay E. Grenig & Hon. 

William C. Lee, Federal Jury Practice and Instructions § 19.02 (6th ed. 

2018) (summarizing the different elements for a justification and 

necessity defense in this circuit). The elements of a justification defense 

are: (1) the defendant acted under unlawful and present threat of death 

or serious bodily injury; (2) “he did not recklessly place himself in a 

situation where he would be forced to engage in criminal conduct”; 

(3) there was no reasonable legal alternative; and (4) “there was a direct 

causal relationship between the criminal action and the avoidance of the 

threatened harm.” Gomez, 92 F.3d at 775 (quoting United States v. 

Lemon, 824 F.2d 763, 765 (9th Cir. 1987)); see also United States v. 

Beasley, 346 F.3d 930, 933 n.2 (9th Cir. 2003) (reciting the same 

elements); 9th Cir. Model Crim. Jury Instr. 6.7 (2010) (same).

We have typically analyzed similar felon-in-possession cases 

raising a necessity or duress defense “in terms of justification” and under 

the justification elements. Gomez, 92 F.3d at 774; see also Beasley, 

346 F.3d at 933. Here, however, Barnes—with his arguments and 

proposed jury instructions—distinctly raised a defense of necessity and 

the district court analyzed Barnes’s offer of proof using the elements of 

a necessity defense. On appeal, the parties argue whether Barnes has 

met the requirements to present a necessity defense, not a justification 

defense. Accordingly, we review Barnes’s evidence to determine 

whether he has sufficiently made out a case for necessity. We conclude 

that he has not, under either the test for necessity or for justification.
UNITED STATES V. BARNES 21

We agree with the district court that Barnes’s offers of 

proof, even when viewed in the light most favorable to him, 

were insufficient to show that he acted to prevent imminent 

harm. “[T]he term ‘imminent harm’ connotes a real 

emergency, a crisis involving immediate danger to oneself 

or to a third party.” United States v. Maxwell, 254 F.3d 21, 

27 (1st Cir. 2001). There is no indication that Barnes acted 

in response to such a crisis. There was no evidence that the 

children had, for instance, already obtained possession of the 

gun or were about to do so. There was no evidence that the 

children were in close proximity to the firearm. At most, 

Barnes removed a dangerous weapon from a house where 

children were present.5 Accordingly, the district court 

correctly denied Barnes’s request to present a necessity 

defense to the jury.6

V.

On the record before us, Barnes has met his burden of 

showing judicial abandonment under Leon. Nonetheless, the 

evidence here cannot be suppressed because the officers 

executing the infirm warrant were unaware—and had no 

reason to be aware—of any judicial misconduct. This result 

 5 Unlike the D.C. Circuit, see United States v. Mason, 233 F.3d 619 

(D.C. Cir. 2000), we do not recognize an “innocent possession” defense 

to felon-in-possession charges. See United States v. Johnson, 459 F.3d 

990, 998 (9th Cir. 2006) (declining to adopt the D.C. Circuit’s reasoning 

in Mason to create an innocent possession defense).

6 We note that even if Barnes’s situation constituted an imminent 

emergency, he had a number of options available to him that did not 

involve taking possession of the gun. He could have, for example, 

removed the children from the house or asked another adult in the house 

to dispose of the firearm. Because there were other legal alternatives 

available, Barnes failed to make the requisite offer of proof to present a 

necessity defense. See Bibbins, 637 F.3d at 1094.
22 UNITED STATES V. BARNES

underscores the critical role that judges play as “the only 

effective guardian of Fourth Amendment rights.” Illinois v. 

Gates, 462 U.S. 213, 275 (1983) (Brennan, J., dissenting). 

When judges fail to uphold that duty, they open the door to 

unjustified intrusions by the state. This, in turn, undermines 

confidence in the judiciary’s ability to safeguard the people’s 

constitutional rights. It is therefore our hope—as it was the 

Supreme Court’s in Leon—that judicial abandonment will 

prove to be an aberration, rather than the norm.

AFFIRMED.