United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 2008 Decided July 11, 2008 

No. 06-3091 

UNITED STATES OF AMERICA, 

APPELLEE

v. 

EMMETT SPENCER, 

APPELLANT

Appeal from the United States District Court 

for the District of Columbia 

(No. 04cr00046-01) 

Beverly G. Dyer, Assistant Federal Public Defender, 

argued the cause for appellant. With her on the briefs was 

A.J. Kramer, Federal Public Defender. 

Matthew E. Price, Attorney, U.S. Department of Justice, 

argued the cause for appellee. With him on the brief were 

Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese III, 

Assistant U.S. Attorney. 
2 

Before: TATEL, BROWN, and KAVANAUGH, Circuit 

Judges. 

Opinion for the Court filed by Circuit Judge 

KAVANAUGH. 

KAVANAUGH, Circuit Judge: This is a Fourth 

Amendment exclusionary rule case. After finding Emmett 

Spencer in his car with drugs, the police obtained a search 

warrant from a D.C. Superior Court judge in order to search 

Spencer’s house. The officers executed the warrant and 

seized heroin, firearms, ammunition, and cash. After he was 

indicted in U.S. District Court for various federal drug and 

gun offenses, Spencer moved to suppress the evidence found 

in his house. He contended that the search warrant was not 

supported by probable cause; that the police affidavit 

supporting the warrant omitted material facts; and that 

probable cause for the search warrant had dissipated between 

the time the warrant was obtained and the time it was 

executed. The District Court rejected Spencer’s arguments. 

We affirm. See United States v. Leon, 468 U.S. 897 (1984). 

I 

 While patrolling a “high drug area,” two D.C. police 

officers saw Emmett Spencer walk back and forth several 

times between a restaurant and his parked car. Warrant at 2, 

Joint Appendix (“J.A.”) 14. The officers ran a check of the 

license plate on Spencer’s car and learned that the car and the 

license plate did not match. Spencer drove away; the officers 

followed and eventually pulled him over. As one officer 

approached the car, he saw a female passenger in the back 

appear to tuck something into the seat. The officer asked 

Spencer and the passenger to step out of the vehicle. The 

officer noticed that Spencer was holding cash crumpled in his 
3 

hand; the officer also saw on the backseat an empty mediumsized ziplock bag with a red apple print on it. When the 

officer searched the vehicle, he found in the backseat another 

medium ziplock bag with a red apple print – but this one 

contained 70 smaller ziplock bags of heroin, packaged in 

bundles of 10. He also found other bags elsewhere in the car, 

one under the backseat and one in the glove compartment, 

both of which contained heroin (the bag in the glove 

compartment also had a red apple print on it). In addition, he 

discovered two more of the same kinds of bags with red apple 

prints in Spencer’s front pockets, although those bags 

contained no drugs. The officer arrested Spencer and the 

passenger. They were charged with possession with intent to 

distribute heroin. See D.C. CODE § 48-904.01(a)(1). 

 A police investigator, relying on information from the 

arresting officer, then sought a search warrant for Spencer’s 

house and submitted a supporting affidavit to a D.C. Superior 

Court judge. The affidavit described the facts and also noted 

that Spencer had a prior conviction for possessing with intent 

to distribute cocaine and a pending case against him for 

possessing heroin. Based on the affidavit, the judge found 

probable cause to believe that Spencer’s house contained 

heroin and other evidence of drug dealing. The judge issued a 

warrant for the police to search the house. The warrant 

required execution within 10 days. 

Three days later, a different D.C. Superior Court judge 

held a preliminary hearing on the initial D.C. drug charge 

against Spencer (that is, the charge based only on what had 

been found in the car). The judge dismissed the drug charge 

against Spencer for lack of probable cause, concluding that 

probable cause to arrest for possession with intent to 

distribute existed only with respect to the female passenger in 

the car. 
4 

One week after the preliminary hearing, the police 

executed the search warrant at Spencer’s house. There, they 

discovered and seized heroin, firearms, ammunition, and cash. 

Based on the evidence found in the house, the 

Government obtained a four-count federal indictment 

charging Spencer with possessing a firearm as a felon, 

possessing ammunition as a felon, possessing with intent to 

distribute heroin, and possessing a firearm in furtherance of a 

drug-trafficking offense. See 18 U.S.C. § 922(g)(1); 21 

U.S.C. § 841(a)(1), (b)(1)(C); 18 U.S.C. § 924(c)(1). Spencer 

moved to suppress the evidence seized from his house. The 

District Court denied the motion. Pursuant to an agreement 

with the Government, Spencer then entered a conditional 

guilty plea, reserving his right to appeal the Fourth 

Amendment issue. See FED. R. CRIM. P. 11(c)(1)(C). The 

court sentenced Spencer to 37 months in prison followed by 

three years of supervised release. 

II 

On appeal, Spencer raises three distinct arguments. First, 

he argues that the police affidavit supporting the warrant did 

not establish probable cause to believe that drugs would be 

found in his house. Second, he argues that the affidavit 

omitted three material facts. Third, he argues that even 

assuming the search warrant was initially valid, probable 

cause dissipated between the time the warrant was obtained 

and the time it was executed because the underlying D.C. 

drug charge was dismissed in the interim. 

As a general matter, Spencer’s contentions run headlong 

into Supreme Court precedents establishing deferential 

judicial review in cases where the police conducted a search 
5 

with a warrant. We briefly review those principles before 

turning to Spencer’s specific arguments. 

The Fourth Amendment provides: “The right of the 

people to be secure in their persons, houses, papers, and 

effects, against unreasonable searches and seizures, shall not 

be violated, and no Warrants shall issue, but upon probable 

cause, supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons or things 

to be seized.” The Supreme Court has applied the 

exclusionary rule to certain Fourth Amendment violations. 

But as the Supreme Court has stated, “the Fourth Amendment 

has never been interpreted to proscribe the introduction of 

illegally seized evidence in all proceedings or against all 

persons.” United States v. Leon, 468 U.S. 897, 906 (1984) 

(internal quotation marks omitted). The “substantial social 

costs exacted by the exclusionary rule for the vindication of 

Fourth Amendment rights have long been a source of 

concern,” and “[p]articularly when law enforcement officers 

have acted in objective good faith or their transgressions have 

been minor, the magnitude of the benefit conferred on such 

guilty defendants offends basic concepts of the criminal 

justice system.” Id. at 907-08. 

Those principles carry particular force when, as here, the 

police obtained a warrant before executing a search. To begin 

with, we give “great deference” to the issuing judge’s 

probable-cause determination. Illinois v. Gates, 462 U.S. 213, 

236 (1982) (internal quotation marks omitted). Even if we 

disagree with the judge’s probable-cause determination after 

giving it “great deference,” that disagreement alone does not 

justify exclusion of evidence. That is because the 

“exclusionary rule was adopted to deter unlawful searches by 

police, not to punish the errors of magistrates and judges.” 

Massachusetts v. Sheppard, 468 U.S. 981, 990 (1984) 
6 

(internal quotation marks omitted). And a police officer is 

ordinarily entitled to rely on the magistrate’s conclusion: “In 

the ordinary case, an officer cannot be expected to question 

the magistrate’s probable-cause determination . . . .” Leon, 

468 U.S. at 921. So long as the officer relied in objective 

good faith on the issuing judge’s determination, reviewing 

courts may not apply the exclusionary rule. Id. at 922-23. As 

a result, the “degree of police deference to the magistrate 

which is perceived by courts as reasonable under Leon 

exceeds significantly that ‘great deference’ owed the 

magistrate by reviewing courts under Gates.” 1 WAYNE R.

LAFAVE, SEARCH AND SEIZURE § 1.3(f), at 97-98 (4th ed. 

2004) (footnote omitted). The basic rule, in short, is that “the 

police, having turned the probable cause decision over to 

another person, . . . are generally entitled to presume that the 

magistrate knows what he is doing.” Id. at 97 (footnote 

omitted). 

 There are a few narrow exceptions to the Leon principle, 

however, two of which Spencer invokes here. Suppression 

remains appropriate if the affidavit supporting the warrant 

was “so lacking in indicia of probable cause as to render 

official belief in its existence entirely unreasonable.” Leon, 

468 U.S. at 923 (internal quotation marks omitted). And 

suppression also remains “an appropriate remedy if the 

magistrate or judge in issuing a warrant was misled by 

information in an affidavit that the affiant knew was false or 

would have known was false except for his reckless disregard 

of the truth.” Id. (citing Franks v. Delaware, 438 U.S. 154 

(1978)). This latter exception also has been held to apply 

under certain circumstances to material omissions, see United 

States v. Johnson, 696 F.2d 115, 118 n.21 (D.C. Cir. 1982) – 

“material” meaning that their “inclusion in the affidavit would 

defeat probable cause.” United States v. Colkley, 899 F.2d 

297, 301 (4th Cir. 1990). 
7 

 According to the Supreme Court, “[w]hen officers have 

acted pursuant to a warrant, the prosecution should ordinarily 

be able to establish objective good faith without a substantial 

expenditure of judicial time.” Leon, 468 U.S. at 924. That 

observation is true here, as Spencer’s arguments plainly do 

not fall within the Leon exceptions. 

First, as to Spencer’s argument about the sufficiency of 

the police affidavit, we must determine whether the affidavit 

was “so lacking in indicia of probable cause as to render 

official belief in its existence entirely unreasonable.” Id. at 

923 (internal quotation marks omitted). We think not. The 

70 small bags of heroin found in the backseat of Spencer’s 

car, the bag of heroin found in the glove compartment, and 

the bags found on Spencer’s person together suggested that 

Spencer was engaged in drug dealing. See Maryland v. 

Pringle, 540 U.S. 366, 372-73 (2003). We have held that 

observations of drug dealing outside the home provide 

probable cause for a warrant to search the drug dealer’s home. 

See United States v. Thomas, 989 F.2d 1252, 1255 (D.C. Cir. 

1993). In general, “observations of illegal activity occurring 

away from the suspect’s residence, can support a finding of 

probable cause to issue a search warrant for the residence, if 

there is a reasonable basis to infer from the nature of the 

illegal activity observed, that relevant evidence will be found 

in the residence.” Id.; see also United States v. Johnson, 437 

F.3d 69, 71-72 (2006). Common experience suggests that 

drug dealers must mix and measure the merchandise, protect 

it from competitors, and conceal evidence of their trade – 

such as drugs, drug paraphernalia, weapons, written records, 

and cash – in secure locations. For the vast majority of drug 

dealers, the most convenient location to secure items is the 

home. After all, drug dealers don’t tend to work out of office 

buildings. And no training is required to reach this 

commonsense conclusion. 
8 

Based on these facts, we agree with the issuing judge that 

there was probable cause to justify the search of the house. 

But even if we didn’t agree, the key point for purposes of our 

Leon review is that we see no plausible basis for finding the 

affidavit “so lacking in indicia of probable cause as to render 

official belief in its existence entirely unreasonable.” Leon, 

468 U.S. at 923 (internal quotation marks omitted). 

Second, Spencer argues that the affidavit supporting the 

warrant misled the issuing judge because it omitted three 

material facts about his arrest. According to Spencer, these 

omitted facts would have suggested that the female passenger, 

and not Spencer, was the drug dealer: (i) the larger ziplock 

bag containing 70 smaller ziplock bags of heroin was in the 

backseat next to the female passenger, not next to Spencer; 

(ii) the female passenger entered Spencer’s car shortly before 

police stopped the car; and (iii) the ziplock bag in the glove 

compartment contained only a small amount of heroin. 

Spencer acknowledges that the affidavit itself did not contain 

any misstatements; rather, the issue is whether these were 

material omissions from the affidavit. 

As to the location of the 70 bags of heroin, we do not 

believe that the affidavit contained an omission; the affidavit 

specifically said the bags were “recovered in the rear seat” 

and that the female passenger appeared to be tucking 

something into the “rear seat area.” Warrant at 2, J.A. 14. 

As to the fact that the female passenger had just entered 

Spencer’s car, we do not see the materiality of the omission. 

That fact would not negate the probable cause to believe that 

Spencer was selling drugs either with or to the passenger. See 

Pringle, 540 U.S. at 373 (“[A] car passenger . . . will often be 

engaged in a common enterprise with the driver, and have the 
9 

same interest in concealing the fruits or the evidence of their 

wrongdoing.”) (internal quotation marks omitted). 

Finally, the fact that the amount of heroin in the glove 

compartment was relatively small was immaterial given the 

amount of heroin throughout the rest of the car. 

According to Spencer, the female passenger was the drug 

dealer, and these three “omitted” facts together would have 

tipped the balance in convincing the issuing judge that 

Spencer was just a buyer and that a search of his house 

therefore was not justified. Spencer might have a point if the 

issuing judge had to believe beyond a reasonable doubt or by 

a preponderance that Spencer was a drug dealer. But the 

standard is probable cause, and we cannot say that the 

“omitted” facts individually or together negate the “fair 

probability” that Spencer was a dealer, not just a buyer. 

Gates, 462 U.S. at 238. 

Third, Spencer argues that even if the officers reasonably 

believed that the search warrant was initially valid and based 

on probable cause, the probable cause dissipated when a 

different D.C. judge dismissed the initial D.C. drug charge 

against Spencer. We disagree. It is true that when officers 

learn of new facts that negate probable cause, they may not 

rely on an earlier-issued warrant but instead must return to the 

magistrate – for example, if the police learn that “contraband 

is no longer located at the place to be searched.” United 

States v. Grubbs, 547 U.S. 90, 95 n.2 (2006). But the 

dismissal here is not such a “fact.” Rather, it was a legal 

conclusion reached by a different judge in a different matter; 

such legal disagreement is hardly surprising given that 

reasonable minds “frequently may differ on the question” of 

probable cause. Leon, 468 U.S. at 914. Assuming it were a 

fact, it was not material because it would not negate probable 
10 

cause. In addition, as Spencer’s counsel correctly 

acknowledged at oral argument, the dismissal of the D.C. 

charge against Spencer would not carry estoppel effect in a 

separate search-warrant proceeding. Cf. Zurcher v. Stanford 

Daily, 436 U.S. 547, 558-59 (1978). 

* * * 

We affirm the judgment of conviction.*

So ordered. 

 *

 In criminal appeals, this Court often receives excellent 

briefing and oral argument from both the Government and the 

Federal Public Defender’s office. The briefing and oral argument 

in this case were particularly thorough and well-done; we thank 

counsel for their efforts.