In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-2680

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

IKEITZ GAREY,

Defendant-Appellant.

____________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 01 CR 108—David F. Hamilton, Judge.

____________

ARGUED DECEMBER 5, 2002—DECIDED MAY 15, 2003

____________

Before BAUER, DIANE P. WOOD, and WILLIAMS, Circuit

Judges.

BAUER, Circuit Judge. Defendant-Appellant Ikeitz Garey,

who pleaded guilty to illegally possessing a firearm,

challenges the district court’s denial of his motion to

suppress evidence of weapons seized from his residence

in violation of the Fourth Amendment. Because we agree

with the district court’s conclusion that police seized the

weapons from Garey’s residence in good-faith reliance

upon a validly issued search warrant, we affirm the district court’s ruling.
2 No. 02-2680

1 Mack appears to have determined that Henry, despite his

uncertainty as to the address number, was in fact describing

the residence at 1615, rather than 1617, North Carrollton

Avenue, and included the correct address in his affidavit. Although Garey contends that the discrepancy—insofar as it calls

Henry’s credibility into question—betrays the objective unreason-

(continued...)

BACKGROUND

During the course of an arson investigation in November

1998, law enforcement agents in Indianapolis interrogated

Patrick Henry, who reeked of gasoline at the time of his

detention near the crime scene. Initially denying any

involvement, Henry eventually admitted to throwing two

Molotov cocktails into the firebombed building. According

to Henry, he was living in the garage of an individual

whom he knew only as “Keith” or “Batch” when Batch

and another individual woke him and drove him, at gunpoint, to a building which they then forced him to firebomb under cover—or coercion—of gunshots. Henry described to investigators the house adjacent to the garage

where he had been sleeping on Carrollton Avenue as “the

one that’s at, I hope that’s the right address, that 1617,

it’s a white double. One side is boarded up, the other side

is not. . . . It’s, matter of fact it’s on the east end side

of the street, there’s a parking lot next to it, I mean an

empty lot next to it.”

Following Henry’s interrogation, Detective Michael L.

Mack of the Indiana Police Department prepared a probable cause affidavit stating, inter alia, that Henry had

informed police that a man whom Henry knew as “Batch,”

and with whom Henry was then living in a residence

located “at 1615 North Carrollton Avenue and as described

in the attached Search Warrant,” coerced Henry at gunpoint to throw the Molotov cocktails.1

 On the basis of
No. 02-2680 3

1 (...continued)

ableness of the police officer’s belief that probable cause existed

to search the residence, we regard it as trivial in light of Henry’s

thorough physical description of the house and the fact that

the house was missing several numbers.

2 It appears that Mack also prepared the search warrant which,

along with the affidavit, Judge Miller read prior to issuing the

search warrant.

Mack’s affidavit, Marion County Superior Court Judge Gary

Miller found probable cause and issued a search warrant

which, by its terms, incorporated Mack’s affidavit.2

 The

search warrant authorized police to enter

the north half of a two story double family residence

with white siding and a stone and brick front porch.

The resiodence [sic] has two doors on the west side, two

doors on the east side and one door on the north side.

The south half of the duplex is vacant and boarded.

There is also a white cinder block, one car detached

garage at the rear east side of the residence. There

is a partial numbered address affixed to the front of

the residence. The first and third numbers are “1”,

and [sic] the second and fourth numbers are missing.

The residence is directly south of the duplex to the

north, which bares [sic] the address of 1617/1619

N. Carrollton.

The search warrant further authorized police to search for

any materials that may have been used to make

Molotov cocktails, specifically gasoline and “Big Bear”

brand, 40 ounce beer bottles as alleged by the confidential source as the type that were utilized in a recent

arson/ firebombing . . . . Further, several firearms that

were utilized by the subjects during the commission

of this arson/firebombing, to include [sic] an AK-47
4 No. 02-2680

3 With respect to his issuance of the search warrant, Judge

Miller would eventually testify before the district court as follows:

Prosecution: Sir, on the day that this search warrant was

signed are you sure that you read the affidavit

for probable cause?

Miller: Oh, I’m quite certain.

Prosecution: And, sir, can you tell the Court did you intend

to sign the search warrant?

Miller: Yes.

Prosecution: And did you intend to provide to Detective

Mack a valid search warrant for the residence

that is indicated in the State’s Exhibit Number Two?

Miller: Yes.

Prosecution: Did you find probable cause for the search

warrant that day?

Miller: Yes.

type assault rifle, and blue steel and chrome-plated

semi-automatic handguns[,] are believed to be within

this residence.

Though Judge Miller signed the search warrant, no signed

copy of the affidavit was found on file with the Marion

County court clerk.3

Approximately twenty-four hours after detaining Henry,

officers executing the search warrant encountered Joseph

Wooten and Defendant-Appellant Ikeitz Garey sleeping

inside the residence at 1615 North Carrollton. In addition to an assault rifle, a Molotov cocktail, and “miscellaneous drugs” seized from the house, police recovered two

handguns from the bed in which Garey slept.

In September 2001, Garey was indicted on two counts

of possession of an unregistered firearm and two counts
No. 02-2680 5

4 State arson charges were dismissed after the state court

granted Garey’s motion to suppress evidence seized from 1615

North Carrollton Avenue. Garey subsequently pleaded guilty to

federal arson charges and was sentenced to 60 months’ imprisonment, but his conviction was vacated after the district court

awarded him post-conviction relief pursuant to 28 U.S.C. § 2255.

of firearm possession by a felon.4 Garey then filed—and

the district court denied—a motion to suppress evidence

seized from 1615 North Carrollton, asserting that the

search violated his Fourth Amendment rights insofar as

the police lacked probable cause, the search warrant

notwithstanding. Without making any determination as

to probable cause, the district court concluded that the

search and seizure fell within the scope of the goodfaith exception to the exclusionary rule as articulated in

United States v. Leon, 468 U.S. 897 (1984). Reserving his

right to appeal the district court’s ruling on his motion to

suppress, Garey entered a conditional plea of guilty to

one count of firearm possession by a felon, in violation of

18 U.S.C. § 922(g) (2003), and was sentenced to 84 months’

imprisonment and three years of supervised release.

Garey now appeals the district court’s denial of his motion to suppress evidence seized from the residence at

1615 North Carrollton Avenue.

ANALYSIS

In Leon, the United States Supreme Court established an

exception to the Fourth Amendment exclusionary rule—

which remedies Fourth Amendment violations through

the exclusion from the prosecution’s case-in-chief of evidence obtained as a result thereof—in cases where law

enforcement officers have acted in objectively reasonable

reliance on a search warrant issued by a neutral and

detached magistrate. 468 U.S. at 927 (BLACKMUN, J.,
6 No. 02-2680

concurring in judgment). Writing for a majority of the

Court, Justice White reasoned that the suppression of

evidence obtained through magistrate error inadequately

served to deter law enforcement agents from overstepping the bounds of the Fourth Amendment. Id. at 921

(observing that “penalizing the officer for the magistrate’s

error, rather than his own, cannot logically contribute

to the deterrence of Fourth Amendment violations”). Because the exception is premised on the officer’s goodfaith reliance on the search warrant, its application is

limited in several respects, including the following:

Suppression . . . 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. Franks v. Delaware, 438 U.S. 154, 171 (1978) . . . . Nor would an

officer manifest objective good faith in relying on a

warrant based on an affidavit “so lacking in indicia

of probable cause as to render official belief in its

existence entirely unreasonable.” Brown v. Illinois, 422

U.S. 590, 610-611 (1975) (POWELL, J., concurring in

part); see Illinois v. Gates, 462 U.S. 213, 263-264 (1983)

(WHITE, J., concurring in judgment).

Id. at 923.

As a matter of course, application of the good-faith

exception assumes that the warrant issued in (spite of)

the absence of probable cause. In the instant case, it

appears that the district court made precisely this assumption in its statement that it “need not and does not

decide whether the search warrant was actually supported by probable cause.” United States v. Garey, No. IP

01-108-CR-1 H/F at 12 (S.D. Ind. Apr. 11, 2002) (entry

on defendant’s motion to suppress) (citing United States

v. Fairchild, 940 F.2d 261, 264 (7th Cir. 1991) (assum-
No. 02-2680 7

ing without deciding that affidavit failed to establish

probable cause, but holding that good-faith exception

applied)). Deferring to the district court’s election to confine

its analysis to the issue of the good-faith exception to

the exclusionary rule, cf. United States v. Arch, 7 F.3d

1300, 1302 (7th Cir. 1993), we review its application thereof for clear error, see United States v. Spry, 190 F.3d 829,

834 (7th Cir. 1999) (citation omitted).

In support of his challenge to the district court’s application of the good-faith exception, Garey contends that

(i) Detective Mack’s omission from the affidavit of several

facts surrounding Henry’s statement misled Judge Miller

and (ii) the affidavit supporting the search warrant was

“so deficient on the issue of probable cause that no reasonably minded police officer could have relied upon it in

good faith.” We address each of these arguments in turn.

First, Garey infers that Mack intended to deceive Judge

Miller from the affidavit’s omission of the following information relating to Henry’s statement to police: (i) the

inconsistency between Henry’s initial denial and eventual

admission of his involvement in the arson; (ii) Henry’s

admitted drug use; (iii) Henry’s uncertainty as to the

exact address number of the North Carrollton Avenue

residence; (iv) that Henry did not directly observe gasoline or “Big Bear” brand beer bottles inside the North

Carrollton Avenue residence; and (v) that investigators

informed Henry that only by cooperating with police

could he avoid a lengthy prison term. However, under Leon,

these omissions alone form an insufficient basis upon

which to conclude that Mack misled Judge Miller and

that suppression is thus appropriate. Garey bypasses

the requisite analytical step of demonstrating that the

affidavit contained information that Mack “knew was

false or would have known was false except for his reckless

disregard of the truth,” Leon, 468 U.S. at 923 (citation

omitted). On the contrary, all of the information included
8 No. 02-2680

5 Moreover, any doubt as to Henry’s credibility implicit in various

of these omitted facts—to the extent that we entertain Garey’s

speculation that such doubt would have defeated Judge Miller’s

probable cause finding—is overcome by Mack’s inclusion in the

affidavit of statements Henry made against his penal interest.

See, e.g., United States v. Leidner, 99 F.3d 1423, 1429-30 (7th

Cir. 1996) (approving magistrate’s consideration of informant

as reliable due to statements made against penal interest); United

States v. Barnes, 909 F.2d 1059, 1069 (7th Cir. 1990) (fact

that informant’s statement was made against penal interest

added to credibility).

6 Henry’s statement describes both of these items as instrumentalities of the crime: the beer bottle was used to make a

(continued...)

in the affidavit was the product of Henry’s statement,

rather than Mack’s fabrication. Neither Garey’s argument

nor the record provides this Court with any indication

whatsoever that Detective Mack intentionally or recklessly

deceived Judge Miller.5

Secondly, Garey asserts that no reasonable police officer

could have concluded from the facts contained in the

affidavit that probable cause existed to search 1615

North Carrollton Avenue, since it lacked any reference

either to the instrumentality of the crime or to the nexus

between the crime scene and 1615 North Carrollton Avenue. Although the district court considered and properly

rejected both of these points, we briefly address them here.

With respect to the issue of the affidavit’s silence on the

instrumentality of the crime, we note not only that the

affidavit explicitly mentioned “two Molotov cocktails,” but

also that the search warrant (which, by its terms, incorporated the affidavit) was more specific than the affidavit;

it referred to such items—specifically described in Henry’s

statement—as “ ‘Big Bear’ brand, 40 ounce beer bottles”

and “an AK-47 assault type rifle.”6

 As the government
No. 02-2680 9

6 (...continued)

Molotov cocktail and the rifle was fired at the crime scene

(whether as covering fire or to coerce Henry).

correctly observes, “while this is poor draftsmanship, it

does not mean the affidavit was so lacking in probable

cause that no reasonable law enforcement officer could

have relied on the warrant.”

Nor does Garey’s claim that the affidavit lacked any

nexus between the arson scene and the Carrollton Avenue

residence support the argument that no reasonable officer could have concluded that probable cause existed to

search his residence. The district court’s statement of the

law is correct: “A search warrant may issue even in the

absence of direct evidence linking criminal objects to a

particular site” taking into account the totality of the

circumstances. United States v. Garey, No. 01-CR-108,

p.13 (S.D. Ind. 2002) (citing United States v. Sleet, 54 F.3d

303, 306 (7th Cir. 1995) (upholding search warrant for

home of bank robbery suspect; under totality of circumstances, reasonable to find evidence there)). What police

knew is thus more germane to our assessment of the

reasonableness of an officer’s probable cause belief than

what the affidavit did not make explicit. Police knew that

Henry, whom witnesses had observed smelling of gasoline

while fleeing the scene of an arson fire and gunshots,

claimed to have been living at 1615 North Carrollton

Avenue with an individual who coerced him, at gunpoint, to

throw two Molotov cocktails at the crime scene. Even

assuming, arguendo, that this information forms an

inadequate basis for a magistrate’s legal finding of probable cause, it certainly establishes a nexus between the

crime scene and the place to be searched sufficient to

support a police officer’s reasonable belief that probable

cause exists.
10 No. 02-2680

In short, neither Garey’s motion to suppress nor this

appeal makes the requisite showing “that the officers

were dishonest or reckless in preparing their affidavit or

could not have harbored an objectively reasonable belief

in the existence of probable cause,” Leon, 468 U.S. at 926,

and, as such, the good-faith exception to the exclusionary

rule applies to the evidence seized from 1615 North

Carrollton Avenue.

CONCLUSION

The district court properly applied the good-faith exception to the exclusionary rule in denying DefendantAppellant’s motion to suppress evidence seized from his

residence pursuant to a valid search warrant. AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-15-03