FILED

United States Court of Appeals

Tenth Circuit

May 10, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 09-3212

JERMALL CAMPBELL, a/k/a “L,”

Defendant-Appellant.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 6:07-CR-10142-JTM-1)

 

Paul S. McCausland, Young, Bogle, McCausland, Wells & Blanchard, P.A.,

Wichita, Kansas for Defendant-Appellant.

James A. Brown, Assistant United States Attorney (and Lanny D. Welch, United

States Attorney, with him on the brief), Topeka, Kansas for Plaintiff-Appellee.

 

Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.

 

BALDOCK, Circuit Judge.

 

A jury convicted Defendant Jermall Campbell of possessing ammunition as a

convicted felon in violation of 18 U.S.C. § 922(g)(1). Law enforcement seized the

ammunition during a warrant search of Defendant’s Wichita, Kansas home.
1

 Defendant also moved to dismiss the Section 922(g)(1) charge on the grounds

that the statute exceeded Congress’s Commerce Clause authority because the

intrastate possession of ammunition does not impact interstate commerce and cannot

support criminalizing simple possession. The district court summarily dismissed this

argument. While we review “challenges to the constitutionality of a statute de

novo,” we also are bound by the holdings of previous panels unless and until they

overruled by a rehearing of this Court en banc or the Supreme Court. Yes On Term

Limits, Inc. v. Savage, 550 F.3d 1023, 1027 (10th Cir. 2008); see also In re Smith,

10 F.3d 723, 724 (10th Cir. 1993). In United States v. Patton, 451 F.3d 615, 620,

623, 636 (10th Cir. 2006), we acknowledged the apparent alteration in the Supreme

Court’s Commerce Clause jurisprudence in light of Gonzales v. Raich, 545 U.S. 1

(2005), United States v. Morrison, 529 U.S. 598 (2000), and United States v. Lopez,

514 U.S. 549 (1995). Nonetheless, we followed the older Supreme Court precedent

directly on point, Scarborough v. United States, 431 U.S. 563 (1977), “which held

that Congress intended a felon-in-possession statute to prohibit possession of any

firearm that moved in interstate commerce” and “assumed that Congress could

constitutionally regulate the possession of firearms solely because they had

previously moved across state lines.” Patton, 451 F.3d at 634. Thus, we concluded

Congress does have the authority under the Commerce Clause to prohibit felons’

intrastate possession of bulletproof vests that had once traveled in interstate

commerce. Id. at 620, 636; see also United States v. McCane, 573 F.3d 1037, 1047

(10th Cir. 2009) (rejecting the argument that Section 922(g) surpasses Congress’s

authority under the Commerce Clause); United States v. Urbano, 563 F.3d 1150,

1154 (10th Cir. 2009) (same). Because we are bound by Scarborough and Patton’s

holdings, we reject Defendant’s Commerce Clause challenge to Section 922(g)(1)’s

(continued...)

2

Defendant challenged the search with a motion to suppress and a request for a

hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). After conducting an

evidentiary hearing, the district court denied Defendant’s motion to suppress,

concluding (1) probable cause existed to support the warrant, (2) the officers

involved in the preparation of the affidavit supporting the warrant did not

deliberately mislead or act with reckless indifference to the truth, and, otherwise, (3)

law enforcement relied in objective good faith upon the warrant.1

 Defendant appeals.
1

(...continued)

prohibition of felons’ intrastate possession of ammunition that once traveled in

interstate commerce. 

3

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district’s denial

of Defendant’s motion to suppress.

I.

The crux of this case is the affidavit supporting the warrant which authorized

the search of Defendant’s home in May 2007. Ron Goodwyn serves as a narcotics

detective with the Sedwick County Sheriff’s Office and as a Task Force Officer

assigned to work with the Drug Enforcement Administration and the Gang Task

Force, which was composed of federal, state and local law enforcement officers. As

part of his work as Task Force Officer, he prepared the 120-page affidavit which

describes the evidence of the Crip street gang and its subsets’ activities in Wichita

gathered by law enforcement over the last decade. Detective Goodwyn explained

that as a result of his participation in this investigation, he learned that members of

the Crips generally conduct their illegal activities with other known members of the

Crips and individuals closely associated with the gang. He further explained that the

Crips have a history of using violence to maintain control over the drug trade in

Wichita. Based upon his experience and training, he also averred that like

individuals engaged in legal business enterprises, Crip gang members maintain

records such as address books, letters, outstanding accounts registers, profits
4

generated and other indicia of their enterprise. Specifically, Detective Goodwyn

identified as Crip gang members thirty-three individuals “through investigative

methods such as reviewing of police reports, information gathered by the [WPD]

gang officers, interviews of gang members and associates, surveillance, phone

records, and undercover operations utilizing confidential informants.” Detective

Goodwyn asserted he had probable cause to believe these individuals were engaged

in “on going and continued patterns of violations” of numerous laws, including but

not limited to, conspiracy to distribute narcotics, continuing criminal enterprise,

maintaining drug involved premises, felon in possession of a firearm, money

laundering, and violent crimes in aid of racketeering. The affidavit identified fifteen

different residences to be searched for evidence such as firearms, ammunition,

telephone records, gang paraphernalia, and other indicia of gang activity. 

In addition, Detective Goodwyn described the information law enforcement

received from three cooperating witnesses known as CW #1, CW #2, and CW #3.

All three witnesses are “documented” members of the Crips or one of its subsets

operating in Wichita and claim to possess personal knowledge of the history and

activity of these gangs. The affidavit then provided ninety-seven pages of specific

examples of alleged Crip street gang association and criminal activity. As to

Defendant in particular, the affidavit provided the following:

• Defendant lives at 2331 N. Green.

• Defendant is associated with the Neighborhood Crips street gang.

• On July [31], 1997, while executing a search warrant on 1320 N.
2

 “The Goodwyn Affidavit states that this incident occurred in 1991, but this

is an obvious typographical error when viewed in the time line the affidavit sets

forth.” United States v. Campbell, Memorandum and Order Denying Motion to

Suppress and Dismiss, No. 07-CR-10104-MLB, 2007 WL 2155657, at *2 n.5 (D.

Kan. July 25, 2007) (Doc. #27) (unpublished).

5

Indiana, which was the residence of Curtis Profit, an alleged

Neighborhood Crips gang member, [D]efendant was inside the

residence at the time.

• On October 4, 2000, [D]efendant was stopped in a vehicle at 19th and

Green Streets and a plastic baggie containing a small amount of cocaine

was located in the vehicle. Defendant was convicted of possession of

paraphernalia in municipal court.

• On October 24, 2000, officers responded to a call of shots fired at

1247 N. Platt, the residence of James Jones. Officers found shell

casings in the street and discovered that the Jones’ residence had been

shot at. Defendant was inside the residence. The victims were

allegedly uncooperative with officers.

• On November 24, 2000, Tanisha Webb reported that several black

males entered her house at 2504 E. 8th Street and began shooting.

Three victims were hit by gunfire, two of whom were allegedly

members of the Folk street gang. Marteaus Carter and James Jones

were arrested and convicted of aggravated battery for the shooting,

which was allegedly in retaliation for the shooting of Lucas Wade on

November 23, 2000. While officers were searching for Marteaus Carter

after the shooting, they stopped a vehicle associated with him, which

was driven by [D]efendant.

• On March 2, 2001 [D]efendant was stopped in a vehicle at 17th and

Minnesota Streets and arrested for a traffic warrant. Officers located

a baggie of crack cocaine under the passenger seat where Derrick

Waite, allegedly associated with the Neighborhood Crips, was seated.2

• On October 10, 2001, [D]efendant was gambling at 1906 E. 24th

Street when he, Carlos Adair, allegedly a Neighborhood Crip, and

Tyrone Adair were robbed at gunpoint of six hundred dollars. This

residence was rented by Tommy Williamson, also allegedly a

Neighborhood Crip, at the time. Williamson lived at another address,

1716 N. Bluff. At around 1900 to 1930 hours, someone shot at the

house at 1906 E. 24th Street. At 2025 hours, the house was set on fire.

At 2040 hours, someone shot at Tommie Williamson’s other house at

1716 N. Bluff. At 2340 hours, Terry Carter a.k.a. Terry Gasper, a
6

Blood, was shot while visiting his girlfriend at 1642 N. Estelle. A 9mm

shell casing was recovered which matched the 9mm used at 1716 N.

Bluff. At 2358 hours, Andre Walker, a Blood, was approached by

defendant, Gregory Epps, Carlos Adair and Tyrone Adair. As Walker

drove away, his vehicle was shot at several times and he was struck in

the back. On October 11, 2001, [D]efendant was arrested at 1332 N.

Spruce and a 12 gauge shotgun was found in the residence. He was

charged with aggravated battery for the shooting of Andre Walker,

arson for the fire at 1906 E. 24th Street, and possession of a firearm by

a felon for the shotgun. He pled guilty to arson and criminal possession

of a firearm.

• On June 19, 2003, officers stopped a vehicle driven by [D]efendant at

9th and Green Streets. Lonnie Wade, an alleged Neighborhood Crip,

was in the vehicle.

• On July 2, 2006, David Barney was shot and killed while walking in

the area of 100 N. Spruce. Confidential Witness # 3 (“CW # 3”) stated

that [D]efendant shot and killed David Barney and that CW # 3 was

present when it occurred.

United States v. Campbell, Memorandum and Order Denying Motion to Suppress and

Dismiss, No. 07-CR-10104-MLB, 2007 WL 2155657, at *1–*2 (D. Kan. July 25,

2007) (Doc. #27) (unpublished) (“Order”).

According to the affidavit, CW #3 is a “documented member” of the

Neighborhood Crips (NHC), a subset gang of the Crips, who has personal knowledge

of its activities based upon his conversations with NHC members and associates,

observations of NHC members and associates, and his own participation in some of

NHC’s criminal activities. The affidavit averred that “[m]uch of the information

provided by CW #3 has been verified and deemed reliable through independent

investigation such as police reports, recorded conversations, letters, interviews,

telephone records, surveillance, undercover narcotics purchases and evidence
7

recovered in the execution of search warrants.” Record on Appeal (ROA), vol.1,

pt.2, at 303. In addition, the affidavit revealed that at the time CW #3 was in

custody awaiting trial for possession of a firearm by a felon and indicated his desire

to receive a reduced sentence in exchange for his cooperation. 

Detective Goodwyn concluded that based on the facts he described, his

experience, and training, he had probable cause to believe firearms, ammunition,

telephone records, gang paraphernalia, and other evidence of gang activity would be

found in Defendant’s residence and that:

[T]hese items will link members of the Crips and its sets, identified in

this affidavit, and other known and unknown co-conspirators, to the

distribution of narcotics, the collection of narcotics proceeds, the illegal

possession and sale of firearms, and the laundering of monetary

instruments. In addition, I have probable cause to believe that

[Defendant’s] residence . . . will contain valuable evidence of other

criminal activities associated with the Crips and its sets, and that this

evidence will establish membership and/or association within the

criminal enterprise known as the Crips in violation of 18 U.S.C. § 1962

[Racketeer Influenced Corrupt Organizations Act (RICO)]. 

ROA, vol.1, pt.2, at 403.

After the federal magistrate signed the search warrant for Defendant’s

residence, Detective Goodwyn and other law enforcement officers executed the

search on May 1, 2007. During their search of Defendant’s residence, officers

retrieved .25 and .22 caliber ammunition, cartridge rounds, miscellaneous

documents, and cell phones, among other items. Subsequently, a Fifth Superseding

Indictment charged Defendant and nineteen other individuals with RICO violations.
8

Specifically, Count 5 charged Defendant with possessing ammunition as a felon in

violation of 18 U.S.C. § 922(g)(1).

Prior to trial, Defendant moved to suppress the evidence obtained during the

search of his home and requested a hearing pursuant to Franks v. Delaware, 438 U.S.

154 (1978). Defendant contended the affidavit supporting the warrant did not

provide probable cause and the good-faith exception to the exclusionary rule did not

apply because the affidavit (1) deliberately or recklessly omitted material facts and,

(2) lacked sufficient indicia of probable cause as it (a) failed to establish a nexus

between the items sought and his residence, (b) presented stale information, and (c)

relied on an unreliable confidential informant. 

The district court conducted an evidentiary hearing on Defendant’s motion.

The court heard testimony from Detectives Reid, Chisolm, and Fatkin, all of whom

had some involvement in the WPD’s Barney homicide investigation. Detectives

Relph and Goodwyn, both of whom were assigned to the Gang Task Force, also

testified. At the conclusion of the hearing, Defendant additionally orally argued the

WPD’s behavior in preparing the affidavit constituted systemic negligence,

precluding the application of the good-faith exception, because the affiant, Detective

Goodwyn, had no personal knowledge of Defendant, relied entirely on others for his

information, and, as a result, omitted material information.

The district court ultimately denied Defendant’s motion in its entirety

explaining:
1

 In United States v. Campbell, No. 07-CR-10104-MLB, 2007 WL 2155657 (D.

Kan. July 25, 2007) (unpublished), the Government charged Defendant with

possessing ammunition as a felon in violation of 18 U.S.C. § 922(g)(1). Law

enforcement discovered the ammunition that constituted the basis of that charge in

Defendant’s home pursuant to the same 2007 search warrant and affidavit presently

at issue. Prior to trial, Judge Belot denied Defendant’s motion to suppress. But

Judge Belot ultimately granted the Government’s motion to dismiss the case without

prejudice. The Government later indicted Defendant again for the same offense and

that case is now before us on appeal. The district court explained that out of an

abundance of caution it refused to conclude collateral estoppel required it conform

its ruling to that of Judge Belot’s, but incorporated by reference Judge Belot’s

analysis. We therefore cite Judge Belot’s order denying Defendant’s motion to

suppress the evidence seized pursuant to the 2007 warrant and affidavit here only

because the district court provided Judge Belot’s analysis as the explanation for its

holding. 

9

[T]he court finds that nothing seriously undermines good faith on the

part of law enforcement. Further, there was nothing that would indicate

deliberately misleading information, or information provided to the

magistrate with reckless indifference to the truth. 

United States v. Campbell, Order Denying Motion to Suppress and Request for a

Franks Hearing as to Jermall Campell, No. 07-CR-10142-JTM, at *4 (D. Kan. Feb.

13, 2009) (Doc. #1037). The district court also incorporated by reference District

Court Judge Belot’s analysis and conclusion that the affidavit provided a substantial

basis for the magistrate to determine probable cause existed and that, in any case, the

officers who executed the search relied in good faith upon the warrant.1

 Judge Belot

explained:

The Goodwyn Affidavit supporting the search warrant was not so

lacking in indicia of probable cause that the executing officer should

have known that the search may have been illegal despite the

magistrate’s authorization. The executing officer could reasonably have

believed that the evidence of [D]efendant’s gang association,
10

[D]efendant’s criminal history, and the fruits of investigation into CW

#3’s allegations, along with officers’ knowledge concerning the types

of evidence generally maintained in the home by members of gangs,

sufficiently linked criminal activity with [D]efendant’s residence. The

affidavit here is not so lacking in indicia of probable cause that the

executing officers should have known the search was illegal despite the

issuing judge’s authorization.

Campbell, Order, No. 07-CR-10104-MLB, 2007 WL 2155657, at *1 (July 25, 2007).

II.

Defendant appeals the adequacy of the probable cause supporting the search

of his home on many grounds. He also argues Leon’s good-faith exception to the

exclusionary rule does not apply because the affidavit (1) deliberately or recklessly

contained false information and omitted material facts, (2) so lacked indicia of

probable cause as to render official belief in the existence of probable cause

unreasonable, and (3) compiled information in a systemically negligent manner. We

follow the lead of wise panels before us and bypass the troublesome issue of whether

probable cause supported the search warrant for Defendant’s home because we

conclude the executing officers acted in good-faith reliance upon the warrant. See

United States v. Quezada-Enriquez, 567 F.3d 1228, 1230 (10th Cir. 2009) (“We do

not address the thorny issue of whether the search warrant for Quezada-Enriquez’s

house was supported by probable cause because we conclude that officers executed

the search in good faith.”); United States v. Potts, 586 F.3d 823, 832 (10th Cir. 2009)

(“We have previously taken this approach of assuming a deficiency without deciding

the issue and applying Leon.”).
11

A.

 When we review a district court’s denial of a motion to suppress, we “view the

evidence in the light most favorable to the [G]overnment and uphold the district

court’s factual findings unless clearly erroneous.” United States v. Roach, 582 F.3d

1192, 1200 (10th Cir. 2009). “‘The credibility of witnesses, the weight to be given

evidence, and the reasonable inferences drawn from the evidence fall within the

province of the district court.’” United States v. McKissick, 204 F.3d 1282, 1296

(10th Cir. 2000) (quoting United States v. Long, 176 F.3d 1304, 1307 (10th Cir.

1999)). Whether the good-faith exception applies is a question of law, however,

which we review de novo. Roach, 582 F.3d at 1200. 

If a warrant is not supported by probable cause, the evidence seized pursuant

to the warrant “need not be suppressed if the executing officer acted with an

objective good-faith belief that the warrant was properly issued by a neutral

magistrate.” United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000) (citing

Leon, 468 U.S. at 922). When an officer searches pursuant to a warrant, Leon

generally requires we presume the officer acted in good-faith reliance upon the

warrant. United States v. Harrison, 566 F.3d 1254, 1256 (10th Cir. 2009); United

States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985). “It is only when [an

officer’s] reliance was wholly unwarranted that good faith is absent.” Cardall, 773

F.2d at 1133. But this presumption is not absolute. Harrison, 556 F.3d at 1256. As

we have reiterated many times, a warrant subsequently determined to lack probable
12

cause demands suppression of the resulting evidence in at least four situations:

(1) when “the issuing magistrate was misled by an affidavit containing false

information or information that the affiant would have known was false if not for his

‘reckless disregard of the truth’”; (2) “when the ‘issuing magistrate wholly

abandon[s her] judicial role’”; (3) “when the affidavit in support of the warrant is ‘so

lacking in indicia of probable cause as to render official belief in its existence

entirely unreasonable’”; and, (4) “when a warrant is so facially deficient that the

executing officer could not reasonably believe it was valid.” Danhauer, 229 F.3d at

1007 (quoting Leon, 468 U.S. at 923). Recently, the Supreme Court in United States

v. Herring, 129 S. Ct. 695 (2009), appears to have described another situation in

which Leon would not apply—when the warrant’s flaw results from recurring or

systemic police negligence. The Court explained “the exclusionary rule serves to

deter deliberate, reckless, or grossly negligent conduct, or in some circumstances

recurring or systemic negligence.” Herring, 129 S. Ct. at 702. But when police error

is the result of negligence, “rather than systemic error or reckless disregard of

constitutional requirements,” the exclusionary rule does not serve its purpose and,

therefore, does not apply. Id. at 704. 

B.

We first address Defendant’s argument that the issuing magistrate was misled

by the deliberate or reckless omission of material facts from the affidavit. Defendant

claims the following facts were deliberately or recklessly omitted from the affidavit:
13

• An eyewitness to the Barney murder identified to the WPD two people she called

P and J as the perpetrators of the Barney murder. 

• Another individual informed the WPD that Barney’s life had been threatened by a

drug dealer, someone other than Defendant, the night before Barney was murdered.

• CW #1 told WPD that CW# 3, a known gang member, took the Barney murder

weapon to CW #1, another known gang member, the morning after the murder.

• CW #1 told WPD the gun used to murder Barney belonged to Elton Profit, Jr.,

a.k.a. “PJ” another gang member.

• Defendant had only lived at the place searched for a short period of time. He lived

at a different residence at the time of the murder and had been in prison during the

interim period between the murder and the search.

See Aplt. Opening Br. at 21–22.

1.

First, Defendant contends the omissions resulted because Detective Goodwyn

admittedly had no personal knowledge of the information presented in the affidavit

concerning Defendant. Detective Goodwyn testified at the Franks hearing he relied

entirely on the information provided by other law enforcement officers. ROA, vol.3,

pt.1, at 149, 150. He stated he did not personally review any specific gang

information to confirm that Defendant was in fact a gang member. Id. at 151.

Detective Goodwyn also testified that before signing the affidavit he did not read the

debriefings of either CW #1 or CW #3. Id. at 152. Furthermore, he never reviewed

the WPD’s file on the Barney murder. Id. at 149–150, 152. 

Defendant also relies on the testimony of Detective Relph, a detective with the

WPD assigned to the Gang Task Force, who debriefed CW #1 and CW #3. He

testified everyone on the Task Force was assigned specific targets and that Defendant

was his assigned target. Id. at 140. Detective Relph assisted in the preparation of
14

the affidavit and, specifically, had been asked to verify the affidavit’s sections

describing CW #1 and CW #3’s statements. Id. at 126–27. Detective Relph testified

that CW #3 stated that he drove Defendant to Barney, witnessed Defendant shoot

Barney, and then drove Defendant away from the scene. Id. at 138. Detective Relph

stated he was not asked to review the WPD Barney murder file as part of the

affidavit’s preparation, nor did he do so of his own accord. Id. at 127. Detective

Relph explained he spoke with Detective Fatkin, the lead WPD detective on the

Barney homicide. Id. at 127. Detective Relph admitted that he knew at some point

in time prior to the affidavit’s submission to the magistrate that Detective Fatkin was

looking for two people, known as “P” and “J”, in connection with the Barney murder.

Id. at 128. Detective Relph testified CW #1 told him that the gun that shot Barney

belonged to Elton Profit, Jr., who was later determined to use “Papa Joe” and “PJ”

as aliases. Id. at 125. Detective Relph also stated that CW #1 told him that Lonnie

Wade and his brother, CW #3, brought that gun to him after the murder. Id. at 133.

Detective Relph stated that it was known among the task force that CW #1 had stated

that the gun that shot Barney belonged to Elton Profit, Jr. also known as “PJ.” Id.

at 125, 126. But, Detective Relph testified he did not tell Detective Goodwyn that

individuals known as “P” and “J” had been identified as suspects in the Barney

murder. Id. at 129. He explained he did not relay this information “[b]ecause we

had never identified P and J and the thought that P and J may be PJ, it may be but

then again, it may not be.” Id. at 129. And, whether Detective Relph relayed to
2

 At the hearing, Defendant’s counsel directed Detective Relph to review the

WPD’s debriefing summary of the CW #3’s interviews. Defendant’s counsel asked:

Q. Now go down 11 lines from the top, please. And there’s a sentence

that starts [CW #3] stated he assumed that L got rid of the gun. Is that

what [CW #3] told you?

A. Yes.

Q. Was that consistent with what [CW #1] told you about who got rid

of the gun?

A. No, sir.

Q. Did [CW #1] tell you that Lonnie [Wade] and [CW #3] brought the

gun to him?

A. Yes.

Q. Did you provide these debriefings to Detective Goodwyn when he

was preparing his warrant application?

A. During that period of time, you know, we were having debriefings,

did I – I can’t tell you the exact date that we have – that we would have

talked about what [CW #3] had said.

Q. All right. Do you recall if you sat down with him and went over

these paragraphs about what is in the summary concerning [CW #3]?

A. Did I go over this with Detective Goodwyn?

Q. Yes.

A. No, sir.

ROA, vol.3, pt.1, at 133–34. According to the presentence report, one of

Defendant’s street aliases is “L.”

15

Detective Goodwyn that CW #1 stated Lonnie Wade and his brother, CW #3, brought

him the Barney murder weapon is not evident from hearing testimony.2

Detective Fatkin, the lead WPD detective on the Barney murder investigation,

also testified at the hearing. Terrika Holt told him she witnessed the Barney murder.

Id. at 94. Detective Fatkin explained that she told him she saw two males—one

drove the vehicle and the other shot Barney. Id. at 94. She said that she had ridden

in a car with these same two men before the murder and believed them to be
16

brothers. Id. at 92, 94. According to Detective Fatkin, she repeated what she had

seen and described the two assailants to an individual named Lavirgil Jones shortly

after the murder because she did not know the two men’s names. Id. at 92.

Detective Fatkin testified Holt told him that Jones told her, based on her description

of the two men, that she had seen “P” and “J.” Id. 

Defendant argues this testimony reveals the police acted at least with reckless

indifference to the truth. Defendant asserts the officers Detective Goodwyn relied

upon failed to report the entire results of the Barney murder investigation and other

material facts described above to Detective Goodwyn as a result of their reckless

indifference to the truth. He maintains that the magistrate was consequently misled

by the collective efforts of the law enforcement officers who collaborated in

preparing the affidavit.

2.

We exclude evidence discovered pursuant to a search warrant when (1) a

defendant proves by a preponderance of the evidence “the affiant knowingly or

recklessly included false statements in or omitted material information from an

affidavit in support of a search warrant and (2) . . . after excising such false

statements and considering such material omissions . . . [we conclude] the corrected

affidavit does not support a finding of probable cause.” United States v.

Garcia-Zambrano, 530 F.3d 1249, 1254 (10th Cir. 2008) (citing Franks, 438 U.S. at

155–56); see also McKissick, 204 F.3d at 1297 (explaining that the opponent to a
17

search warrant bears the burden of proving by a preponderance of the evidence that

the affidavit supporting the warrant contained deliberate or reckless false information

or material omissions). Notably, we hold the Government “accountable ‘for

statements made not only by the affiant but also for statements made by other

government employees which were deliberately or recklessly false or misleading

insofar as such statements were relied upon by the affiant in making the affidavit.’”

Garcia-Zambrano, 530 F.3d at 1258 n.6 (quoting United States v. Kennedy, 131 F.3d

1371, 1376 (10th Cir. 1997)); see also Leon, 468 U.S. at 923 n.24 (admonishing that

in applying the good-faith exception “[i]t is necessary to consider the objective

reasonableness, not only of the officers who eventually executed a warrant, but also

of the officers who originally obtained it or who provided information material to the

probable-cause determination”); McKissick, 204 F.3d at 1297 (“The standards of

deliberate falsehood and reckless disregard set forth in Franks apply to material

omissions, as well as affirmative falsehoods.”). But negligence or innocent mistakes

are insufficient to justify the exclusion of evidence. United States v. Artez, 389 F.3d

1106, 1116 (10th Cir. 2004)). As the Supreme Court first explained in Franks v.

Delaware, 438 U.S. 152, 170 (1978), the rule of exclusion does not extend “beyond

instances of deliberate misstatements, and those of reckless disregard, leav[ing] a

broad field where the magistrate is the sole protection of a citizen’s Fourth

Amendment rights, namely, in instances where police have been merely negligent in

checking or recording the facts relevant to a probable-cause determination.”
18

On appeal, we review the district court’s ultimate determination that the

corrected affidavit supports a finding of probable cause de novo “but accept the

district court’s factual findings unless clearly erroneous.” Garcia-Zambrano, 530

F.3d at 1254 (citing United States v. Avery, 295 F.3d 1158, 1167 (10th Cir. 2002)).

In particular, we review only for clear error the district court’s determinations

“regarding the truth or falsity of statements in the affidavit and regarding the

intentional or reckless character of such falsehoods.” Id. “We will not reweigh the

evidence presented to the district court, second guess the district court’s credibility

assessments, or question ‘reasonable inferences’ the district court drew from the

evidence.” Avery, 295 F.3d at 1167. The Supreme Court has explained that where

“the district court’s account of the evidence is plausible in light of the record viewed

in its entirety” we may not reverse it, even if we are convinced that we would have

made a different decision as the trier of fact. Anderson v. City of Bessemer City,

470 U.S. 564, 574 (1985). “Where there are two permissible views of the evidence,

the factfinder’s choice between them cannot be clearly erroneous.” Id.

3.

After hearing testimony from five witnesses and receiving twenty-four

exhibits, the district court denied Defendant’s motion to suppress, explaining that

“there was nothing that would indicate deliberately misleading information, or

information provided to the magistrate with reckless indifference to the truth.” Our

review of the record reveals this is not a clearly erroneous view of the facts. We
19

caution that the police may not insulate one officer’s deliberate or reckless

misstatement or material omission simply by relaying it through an officer-affiant

personally ignorant of its falsity or existence. See Franks, 438 U.S. at 163 n.6

(“[T]he Court took as its premise that police could not insulate one officer’s

deliberate misstatement merely by relaying it through an officer-affiant personally

ignorant of its falsity.”); see also Kennedy, 131 F.3d at 1258 (explaining that “the

government is held accountable for statements made not only by the affiant but also

for statements made by other government employees which were deliberately

misleading insofar as such statements were relied upon by the affiant in making the

affidavit”). The district court in this case, however, could have permissibly

concluded that the less than seamless communication among members of the Gang

Task Force and the WPD resulted from negligence rather than reckless indifference

to the truth or a deliberate intent to deceive the magistrate. The case is not, as

Defendant seems to suggest, that no one verified the information contained in

Detective Goodwyn’s affidavit. Instead, different members of the Gang Task Force

were assigned targets. Part of that assignment included verifying all of the

information contained in the affidavit about that target. Detective Relph testified at

the evidentiary hearing that Defendant was his assigned target and that he verified

the information in the affidavit relating to Defendant. Defendant’s suggestion that

no one involved in the preparation of the affidavit consulted the Barney homicide

detectives is simply incorrect. Detective Relph testified that he spoke with Detective
20

Fatkin, the lead detective on the Barney homicide case. ROA, vol.3, pt.1, at 127.

Other than the existence of the omissions themselves, we conclude Defendant has not

revealed or provided any evidence in the record of an intent to mislead or

recklessness on the part of the officers. Consequently, Defendant has failed to meet

his burden of proof. 

Moreover, we are not convinced that the omitted facts Defendant recites would

have altered the magistrate’s probable-cause determination. See Garcia-Zambrano,

530 F.3d at 1254 (explaining that we exclude evidence procured pursuant to a

affidavit containing false statements or material omissions only once we conclude

that “after excising such false statements and considering such material omissions

. . . the corrected affidavit does not support a finding of probable cause”). First, we

must keep in mind that the question is not whether the affidavit established probable

cause to believe that evidence of the Barney murder would be found in Defendant’s

home. Rather, the question is whether the affidavit presented probable cause to

believe evidence of the criminal activities of, and Defendant’s membership in, the

criminal enterprise known as the Crips and its subsets in violation of RICO would

be found in Defendant’s home. ROA, vol.1, pt. 2, at 403. Therefore, that a witness

identified two men as Barney’s assailants whom she had been told were named “P”

and “J” but in fact could not name herself or that another witness heard a man other

than Defendant threaten Barney the night before his murder is not nearly as

significant as Defendant argues. In addition, that CW #3, a gang member, brought
21

the Barney murder weapon, which allegedly belonged to another gang member, to

CW #1, also a gang member, after the murder is not inconsistent with CW #3’s

statement that he saw Defendant shoot Barney and then drove Defendant away from

the scene. If anything, taking those two pieces of information together suggests this

murder was part of the Crips’ criminal activity and Defendant was involved. Second,

regarding the other omissions Defendant mentions, Judge Belot aptly explained:

[T]he fact that [D]efendant was incarcerated for a period of time the

Goodwyn Affidavit covers would’ve been obvious to the issuing

magistrate judge as the Goodwyn Affidavit alerted the magistrate judge

of [D]efendant’s guilty plea to arson and criminal possession of a

firearm. The convictions surely are obvious in their implication for

imprisonment. Finally, the fact that [D]efendant had lived in his

residence for a ‘short period of time’ does not change the fact that the

evidence for which the search warrant was issued is likely to be kept in

the home, wherever the home may be.

Campbell, Order, No. 07-CR-10104-MLB, 2007 WL 2155657 at *7 (July 25, 2007).

For these reasons, we cannot say the district court clearly erred in concluding the

police did not deliberately or recklessly omit material facts. 

C.

Defendant argues the affidavit so lacked indicia of probable cause that the

executing officers’ belief in its existence was entirely unreasonable, precluding the

application of Leon’s good-faith exception, because it failed to establish he was

involved in any criminal activity or establish a nexus between the evidence sought

and his home, presented solely stale evidence, and improperly relied on a

confidential informant. As we have explained, we generally presume officers
22

executed a search warrant in objective good faith. United States v. Henderson, 595

F.3d 1198, 1201 (10th Cir. 2010). This presumption, however, does not apply when

the warrant was “‘based on an affidavit so lacking in indicia of probable cause as to

render official belief in its existence entirely unreasonable.’” Id. (quoting Leon, 468

U.S. at 923). Officers’ reliance is only “‘entirely unreasonable’” when the affidavit

is “‘devoid of factual support.’” Id. at 1201–02 (quoting Cardall, 773 F.2d at 1133)).

1.

To support his argument the affidavit fails to establish his involvement in

criminal activity or establish a nexus between the evidence sought and his home,

Defendant argues the only specific reference to his being associated with a gang, the

Neighborhood Crips (NHC) in particular, is in a parenthetical on the page that lists

the affidavit’s targets: “(3) Jermall L. Campbell, b/m, DOB 12/23/1981 (NHC).” 

The affidavit stated the WPD had identified Defendant and thirty-three other

individuals as gang members “through investigative methods such as reviewing of

police reports, information gathered by the [WPD] gang officers, interviews of gang

members and associates, surveillance, phone records, and undercover operations

utilizing confidential informants” without stating which specific method or facts led

the WPD to believe Defendant is a member of the NHC. ROA, vol.1, pt.2, at 295.

Defendant asserts the rest of the affidavit’s references to him do not demonstrate he

was associated with the NHC. He claims most of the affidavit’s references to him

do not report criminal activity perpetrated by him. The few that do, he maintains
23

concern minor drug offenses. Although Defendant concedes three of the affidavit’s

eight references to him mention drugs, he argues those three do not demonstrate he

possessed drugs or engaged in their distribution. Moreover, he asserts nothing in the

affidavit suggests that his arson and firearms possession convictions were Crips

related. As to CW #3’s statement that Defendant shot Barney, Defendant contends

the statement is unsubstantiated and, regardless, the affidavit does not indicate CW

#3 claimed the murder was gang related. Even assuming some of his past acts were

demonstrably gang related, Defendant argues evidence of past gang membership, by

itself, does not support a reasonable suspicion of a crime. 

In addition, Defendant argues the affidavit provided no basis to infer police

would find evidence of criminal conduct at his home. Defendant notes the police had

information that CW #3 delivered the Barney murder weapon to CW #1 just after the

murder in July 2006. As a result, Defendant claims, police could not reasonably

expect to find at his home the only specific physical evidence of the murder

mentioned in the affidavit. Furthermore, Defendant asserts the affidavit notably

lacked any observations of drug trafficking or other criminal activity outside or

inside Defendant’s home. 

Officers’ reliance on a magistrate’s issuance of a warrant is only “‘entirely

unreasonable’” when the affidavit is “‘devoid of factual support.’” Henderson, 595

F.3d at 1201–02 (quoting Cardall, 773 F.2d at 1133). An affidavit is not devoid of

factual support “if it ‘establishe[s] a minimally sufficient nexus between the illegal
24

activity and the place to be searched.’” Id. at 1202 (quoting United States v.

Gonzales, 399 F.3d 1225, 1230–31 (10th Cir. 2005)). This minimal nexus

requirement does not require that “hard evidence or ‘personal knowledge of illegal

activity’ link a Defendant’s suspected unlawful activity to his home.” United States

v. Biglow, 562 F.3d 1272, 1279 (10th Cir. 2009). On the contrary, an affidavit

establishes a sufficient nexus when it “‘describes circumstances which would warrant

a person of reasonable caution’ in the belief that ‘the articles sought’ are at a

particular place.” Id. (quoting United States v. $149,442.43 in U.S. Currency, 965

F.2d 868, 874 (10th Cir. 1992)). “[F]actors relevant to our nexus analysis include”

but are not limited to “(1) the type of crime at issue, (2) the extent of a suspect’s

opportunity for concealment, (3) the nature of the evidence sought, and (4) all

reasonable inferences as to where a criminal would likely keep such evidence.” Id.

Furthermore, magistrates may permissibly rely on law enforcement officers’ opinions

regarding where contraband or evidence may be kept. Id. And, as we have said

before, “it is merely common sense that a drug supplier will keep evidence of his

crimes at his home.” United States v. Sanchez, 555 F.3d 910, 914 (10th Cir. 2009)

(“[W]hen police officers have probable cause to believe that a suspect is involved in

drug distribution, there is also probable cause to believe that additional evidence of

drug-trafficking crimes (such as drug paraphernalia or sales records) will be found

in his residence.”).

As we stated at the outset, we make no conclusion as to whether the affidavit
3

 In Roach, we considered a probable cause challenge to a search authorized

by the same warrant and supporting affidavit at the heart of this case. Of course,

Roach addressed the constitutionality of an entirely different search of another

individual’s home. We therefore do not suggest we are bound by Roach’s

conclusions as to the legal consequences of the specific facts presented in that case.

We cite it solely for its relevant and precedential legal reasoning.

25

established a sufficient nexus to support probable cause in this case. Rather, we

bypass that inquiry and conclude the good-faith exception applies. In United States

v. Roach, 582 F.3d 1192, 1202, 1203 (10th Cir. 2009), we concluded an affidavit did

not articulate facts sufficient to establish actual probable cause to believe a defendant

lived at the location searched because the affidavit only stated: “‘[O]fficers have

verified that the individuals listed below live at the following addresses, through

investigations, which included checking for utilities information, driver’s license

records, real estate records, [WPD] records, tax records, social security records, U.S.

Postal Service records, interviews and/or surveillance’” without revealing “which of

these methods was, in fact, used by police to connect [the defendant] to the premises

[searched].”3

 Nonetheless, we applied the good-faith exception, explaining the

affidavit established a “minimal nexus” because the affidavit declared the police had

verified the defendant lived at the premises searched through one of the various

means listed, thereby providing adequate indicia of probable cause. Id. at 1204.

Likewise, Detective Goodwyn stated in his affidavit the WPD had verified

Defendant’s gang membership through at least one of the specific investigatory

methods listed. Detective Goodwyn’s affidavit also provides other statements
26

besides the parenthetical and general statement regarding the WPD’s verification of

Defendant’s gang membership to support its conclusion that probable cause existed

to believe evidence of Crips’ membership and criminal activity would be found in

his home. The affidavit documents eight incidents of Defendant’s criminal activity,

association with known gang members, or connection with drugs, and, in one

instance, participation in murder. Thus, “[t]he executing officer could reasonably

have believed that the evidence of [D]efendant’s gang association, [D]efendant’s

criminal history, and the fruits of investigation into CW #3’s allegations, along with

officers’ knowledge concerning the types of evidence generally maintained in the

home by members of gangs, sufficiently linked criminal activity with [D]efendant’s

residence.” Campbell, No. 07-CR-10104-MLB, 2007 WL 2155657, at *8 (July 25,

2007). In light of all the facts presented in the affidavit and the reasonable

inferences therefrom, we too cannot say the affidavit is devoid of factual support

and, consequently, lacked indicia of probable cause such that the executing officers

should have known that the search was illegal despite the magistrate’s authorization.

Therefore, the officers executing the warrant reasonably relied on the magistrate’s

authorization. 

2.

Defendant also argues the affidavit lacks indicia of probable cause sufficient

to justify the executing officers’ reliance because it presents only stale information.

He contends the affidavit reports an unrelated series of incidents taken from police
27

reports four to ten years old. Defendant additionally notes he served a prison

sentence from September 15, 2006 to January 3, 2007 and his family had only

resided at the target residence for a few months, making it unlikely police would find

any contraband or evidence of prior criminal activity at the residence. 

In rejecting Defendant’s argument that the affidavit presented stale

information, the district court incorporated Judge Belot’s explanation that: 

The Goodwyn Affidavit alleges ongoing gang association, and

establishes [D]efendant’s participation in street gang activity over a

period of years. The search warrant sought, among other things, the

type of information (i.e., records of transactions, gang paraphernalia)

that are maintained in a residence over a lengthy period of time. The

Goodwyn Affidavit also, however, alleges [D]efendant’s involvement

in the recent murder of David Barney in July 2006, which ties

[D]efendant to recent criminal activity. 

Campbell, Order, No. 07-CR-10104-MLB, 2007 WL 2155657, at *5 (July 25, 2007)

(citations omitted).

Information’s staleness “depends upon ‘the nature of the criminal activity, the

length of the activity, and the nature of the property to be seized.’” United States v.

Ricarrdi, 405 F.3d 852, 860–61 (10th Cir. 2005) (quoting United States v. Snow, 919

F.2d 1458, 1460 (10th Cir. 1990)). “‘[O]ngoing and continuous activity makes the

passage of time less critical when judging the staleness of information upon which

a search warrant is based,’ . . . because evidence of a longstanding pattern of

repeated activity makes it less likely that the activity has ceased within a short time

frame.” Roach, 582 F.3d at 1201 (quoting United States v. Mathis, 357 F.3d 1200,
28

1207 (10th Cir. 2004)). In addition, “otherwise stale information may be refreshed

by more recent events.” United States v. Cantu, 405 F.3d 1173, 1178 (10th Cir.

2005). We need not decide whether the affidavit’s information on Defendant was so

stale as to not support probable cause because we conclude the affidavit provided

sufficiently recent information to support the executing officers’ reliance on the

magistrate’s authorization. In Roach, we concluded Detective Goodwyn’s affidavit

presented stale information as to a different defendant because the most recent

evidence of gang-related criminal activity by that defendant occurred approximately

five years prior to the search. Roach, 582 F.3d at 1202. Regardless, we noted that

the defendant’s “past course of criminal conduct [which the affidavit recounted] was

unusually long,” spanning nearly ten years. Id. at 1204. We explained in light of

that fact and: 

[T]he dearth of cases in our circuit holding that particular information

was so stale as to vitiate probable cause, an officer with reasonable

knowledge of the law might have concluded, until today, that [the

defendant’s] decade-long involvement in gang-related crimes logically

meant that he would continue to be involved in such crimes and to

retain evidence of them at his residence. Moreover, the affidavit

demonstrated that many of his past associates continued to be involved

in such crimes, which adds at least some weight to such a conclusion.

. . . We conclude that the officers’ reliance was in good faith despite

the staleness of the evidence.

Id. (citations omitted). Similarly, Detective Goodwyn’s affidavit recounts alleged

gang-related activity and other criminal activity by Defendant spanning nearly nine

years. The affidavit also alleged Defendant’s involvement in a murder less than a
29

year before the magistrate issued the warrant. The officers searched Defendant’s

home pursuant to this warrant in May 2007; we did not issue Roach and its guidance

on what constitutes stale information until 2009. Given these facts and the reasoning

of Roach, even assuming the affidavit’s information was so stale as to not establish

probable cause with regard to Defendant, we conclude the affidavit’s information

nonetheless provided sufficient indicia of probable cause to justify the officers goodfaith reliance. 

3.

Defendant lastly contends the affidavit lacked indicia of probable cause

because the affidavit fails to establish CW #3’s veracity, reliability or basis of

knowledge and that this failure is fatal to the application of the good-faith exception

because CW #3’s accusation provided the most recent allegation of criminal activity

by Defendant. Defendant also asserts CW #3’s admitted involvement in the Barney

shooting and desire for a lower sentence in a separate criminal case provide obvious

motives to fabricate. Moreover, the affidavit did not disclose CW #3’s complicity

in disposing of the murder weapon, which Defendant argues cuts against his

reliability and veracity. 

Veracity, reliability, and basis of knowledge are extremely relevant factors in

deciding whether a tip can support probable cause. Quezada-Enriquez, 567 F.3d at

1233 (citing Illinois v. Gates, 462 U.S. 213, 230 (1983)). Generally, “[w]e evaluate

whether these factors as revealed by the facts in the affidavit create ‘a fair
30

probability that contraband or evidence of a crime will be found in a particular place’

on consideration of the totality of circumstances.” Id. (quoting Gates, 462 U.S. at

238). As a result, “a deficiency in one factor may be compensated for by a strong

showing of another.” Id.

In Quezada-Enriquez, we were presented with the question of whether a

confidential informant’s tip that he had seen the defendant with a gun that the

defendant kept in his vehicle and home supported probable cause. The informant

told an Alcohol, Tobacco, Firearms and Explosives (ATF) agent “that [the defendant]

was an undocumented immigrant of Mexican nationality; described [the defendant]’s

age and physical appearance; identified the make, model, and license of his vehicle

. . .; and provided the address of his residence.” Id. at 1230–31. The affidavit

supporting the search warrant of the defendant’s home averred “this informant was

‘a credible and reliable ATF documented confidential informant (CI), who is not

working off criminal or other charges and who’s [sic] information in the past has led

to the seizure of various quantities of illegal narcotic substances, amounts of U.S.

currency, firearms and ammunition.’” Id. at 1231. The affidavit provided no other

information about the informant or his information. We explained that “although not

explained in particular detail in the affidavit, this informant apparently had a track

record of reliability and some indication of veracity.” Id. at 1234. The affidavit

stated that the informant “was receiving no benefit for providing information and had

provided accurate information about criminal activity on past occasions.” Id.
31

Therefore, regardless of the fact that the affidavit did not describe the informant’s

basis of knowledge or if the police corroborated the tip, we concluded the affidavit

was not so lacking in indicia of probable cause as to render the executing officers’

reliance on the warrant unreasonable. Id. at 1235. 

In the case at hand, in contrast to Quezada-Enriquez, the affidavit did set forth

CW #3’s basis of knowledge. The affidavit states he admitted to being present when

Defendant shot Barney. “[A] firsthand observation is entitled to greater weight than

secondhand information.” Quezada-Enriquez, 567 F.3d at 1233. Furthermore, the

affidavit also states CW #3 is a documented NHC street gang member, which

Defendant does not dispute, and has “personal knowledge” of the facts in his

statements to the WPD based upon his direct conversations with members and

associates of the NHC, his observations of members and associates of the NHC, and

his admitted participation in some of the NHC’s criminal activities which he

describes. It fully discloses the fact CW #3 desired a lower sentence in a separate

criminal case in exchange for his cooperation, but had not yet been provided a

benefit for his cooperation. And, though the affidavit did not provide specifically

how law enforcement verified or deemed reliable CW #3’s statement that Defendant

killed Barney, it did represent that much of CW #3’s “information has been verified

and deemed reliable through independent investigation such as police reports,

recorded conversations, letters, interviews, telephone records, surveillance,

undercover narcotics purchases and evidence recovered in the execution of search
32

warrants.” ROA, vol.1, pt.2, at 303. The affidavit thus provided some information

about CW #3’s reliability, veracity, and basis of knowledge.

Additionally, we must again point out that we are not presented with whether

the affidavit provided indicia of probable cause to believe evidence of the Barney

murder would be found at Defendant’s residence. Instead, we must determine

whether the affidavit as a whole provides indicia of probable cause to believe

evidence of Defendant’s participation in the Crips criminal enterprise would be

found in his home. The affidavit did not rely solely on CW #3’s statement that

Defendant shot Barney to establish probable cause to believe evidence of Crips’

criminal activity would be found in Defendant’s home. Were the facts otherwise we

might have to grapple with the troublesome reality that the affidavit does not provide

any specific evidence of CW #3’s reliability or veracity, preventing the magistrate

from independently determining whether his accusation supports probable cause and,

thus, perhaps, failing to provide sufficient indicia of probable cause to justify

officers’ good-faith reliance upon the warrant. But as the case stands, CW #3’s

statement that he witnessed Defendant shoot Barney in conjunction with the

affidavit’s statements that much of CW #3’s information had been verified through

traditional investigative techniques and the affidavit’s other facts indicating

Defendant’s involvement in gang activity over nearly nine years reveal the affidavit

was not devoid of factual support. We therefore conclude the affidavit provided

sufficient indicia of probable cause to justify the executing officers’ good-faith
33

reliance upon the magistrate’s issuance of the search warrant.

D.

Defendant also maintains the affidavit’s flaws resulted from law enforcement’s

systemic negligence, thereby precluding the application of Leon’s good-faith

exception to the exclusionary rule. No one officer undertook the task of verifying

the evidence offered in support of the search warrant application or determining

whether material information had been omitted. Admittedly, Detective Goodwyn did

not have personal knowledge of any of the affidavit’s assertions involving

Defendant. He relied on other law enforcement officers to supply him information.

Defendant asserts no one asked the lead WPD detective on the Barney murder about

his investigation. As a result, the affidavit did not inform the magistrate that two

WPD officers knew an eyewitness had identified two other suspects as the Barney

assailants or that an individual reported a man other than Defendant threatened

Barney the night before he was murdered. Defendant asserts this constitutes

systemic negligence on the part of the Gang Task Force and the WPD. We disagree.

Defendant has demonstrated at most a single instance of an arguably negligent

breakdown in communication among the WPD. He has not demonstrated what the

Supreme Court appears to have indicated is required—“recurring or systemic

negligence.” Herring, 129 S. Ct. at 702, 704 (explaining that “the exclusionary rule

serves to deter deliberate, reckless, or grossly negligent conduct, or in some

circumstances recurring or systemic negligence,” but when police error is the result
34

of negligence, “rather than systemic error or reckless disregard of constitutional

requirements,” the exclusionary rule does not serve its purpose and, therefore, does

not apply) (emphasis added). Moreover, the case is not, as Defendant seems to

suggest, that no one in the Task Force or WPD had the task of verifying the

information contained in Goodwyn’s affidavit. Instead, hearing testimony revealed

different members of the Gang Task Force were assigned targets. Part of that

assignment included verifying all of the information contained in the affidavit about

that target. Detective Relph testified that Defendant was his assigned target and that

he verified the information in the affidavit relating to Defendant. Contrary to

Defendant’s suggestions, it is also not the case that no one involved in the

preparation of the affidavit consulted the Barney homicide detectives. Detective

Relph testified that although he did not review the Barney murder file, he spoke with

Detective Fatkin, the lead detective on the Barney homicide case. ROA, v.3, pt.1,

at 127. Detective Relph explained that as a result of his conversation with Detective

Fatkin he was aware of an eyewitness’s identification of two individuals she thought

were named “P” and “J” as the Barney assailants. Id. at 142. However, Detective

Relph testified he believed the eyewitness’s report, relayed to him by Detective

Fatkin, that one young man drove the get-away vehicle and another shot Barney was

consistent with CW #3’s statement that he drove Defendant to and from the scene

and that Defendant shot Barney and with CW #1’s statement that CW #3 brought him

the Barney murder weapon. Id. at 143. Furthermore, nothing in the testimony even
35

suggests the Task Force or WPD had a policy or practice of failing to verify

information contained in other affidavits. We therefore find nothing in the record

suggests the kind of recurring or systemic negligent conduct by law enforcement

occurred that precludes the application of the good-faith exception to the

exclusionary rule.

The judgment of the district court is hereby AFFIRMED.