* The Honorable Edmund A. Sargus, Jr., United Stat es District Judge for the Southern District of Ohio, sitting by designation. NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 05a0037n.06 Filed: January 12, 2005 No. 03-6636 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant,

v. NEAL SCOTT STONE, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY

Before: NELSON and COOK, Circuit J udges; SARGUS, District Court Judge * COOK, Circuit Judge. The United States appeals the district court’s order suppressing evidence seized during a no-knock entry. Defendant Neal Stone argues th at the search warrant wasfacially invalid and unsupported by probable cause and that the exigency required to justify a noknock warrant was lacking. We hold that the no-knock entry did not require suppression because the officer conducted the search in objective good faith. I. Background Detective Tom Roby suspected Stone of selling cocaine and prepared an affidavit and search warrant to present to the local judge. Roby’s affidavit provided information about: (1) Stone’sNo. 03-6636 U.S.A. v. Stone

-2- recent indictment and outstanding arrest warrant for narcotics trafficking; (2) an anonymous tip that Stone was involved in narcotics tr afficking; (3) Roby’s personal observations that Stone lived at the house to be searched; (4) items discovered in th e trash on the curb outside Stone’s residence consistent with narcotics packaging, including pl astic sandwich bags without corners, an empty baking soda box, and a food saver bag that contained white residue and smelled of cocaine; (5) Stone’s criminal background, including a drug trafficking conviction from 1995, several narcotics trafficking arrests, a concealed weapons charge, a nd a history of resisting arrest. That history of resisting arrest—necessitating pepper spray and a choke hold to subdue him one time and a riot baton another—prompted Roby to as k in his affidavit that the j udge authorize a no-knock entry “to ensure officer safety and evidentiary integrity.” Judge Robert Heaton, according to his later-si gned affidavit, reviewed and signed Roby’s affidavit and warrant after explicitly questioning the basis for the no-knock request. Although Judge Heaton’s affidavit confirmed that he ind eed authorized a no-knock entry, the warrant itself lacks any no-knock notation. The signed warrant—which Roby created by cutting and pasting language from a standard form—also l acks other standard language, including statements that the issuing judge finds probable cause and authorizes a search. II. Analysis

A. Standard of Review This court reviews district court suppressi on rulings under a hybrid standard, reviewingNo. 03-6636 U.S.A. v. Stone

-3- findings of fact for clear error and conclusions of law de novo. United States v. Bartholomew , 310 F.3d 912, 919 (6th Cir. 2002). B. The district court inappropriately suppressed the evidence. Stone argues that the judge issued a facially invalid warrant. Though we recognize the obvious shortcomings of the warrant, we decline to address its sufficiency—other than to note that the warrant was issued on the basis of an affi davit which sufficiently set forth probable cause— because regardless of the warrant’s validity, Detective Roby relied upon it in objective good faith. Where an officer conducts a search, relying in objective good faith upon an invalid warrant, the exclusionary rule does not bar the fruits of that search. United States v. Leon , 468 U.S. 897, 905 (1984). Detective Roby relied in good faith upon the warrant here. Judge Heaton stated in his affidavit that he spoke with R oby about his request for a no-knock warrant, that it is not his practice to “specifically denominate a warrant . . . as a ‘ no-knock’ warrant,” and that he intended the warrant here to be no-knock. Given this, Roby reasonably believed in good faith that the warrant was valid. This court recently refused to apply the good faith exception where a warrant similarly failed to provide no-knock authorization on its face. United States v. Smith , 386 F.3d 753, 761-62 (6th Cir. 2004). In Smith , the government attempted to establish good faith through testimony from the police officer who had sought the warrant that it was lo cal practice not to declare no-knock authorization on a warrant’s face. The present cas e, however, more closely resembles United States v. Mattison —the facts of which Smith specifically distinguished from its own—in which the SeventhNo. 03-6636 U.S.A. v. Stone

-4- Circuit upheld a no-knock search, where an assistan t state’s attorney corroborated a police officer’s testimony regarding the local practice of never indicating no-knock authorization on a warrant’s face. 153 F.3d 406, 409-10 (7th Cir. 1998). Here , similarly, Judge Heaton, a disinterested individual with the knowledge of his own routine, stated this was hi s practice. Therefore the police could rely upon Judge Heaton’s warrant in good fa ith, knowing his intention that it be no-knock. Though Smith tempts us to abolish entirely the good faith exception for defective no-knock warrants, we recognize that Leon obligates us to consider the ci rcumstances of each case. 468 U.S. at 922-924. Still, we note that Smith limits the circumstances under which we will find good faith. And we repeat ourselves, and join other courts , in emphasizing that courts would be spared considerable resources if judges always indicat ed no-knock authorization on a warrant’s face. See, e.g., Smith , 386 F.3d at 762; Mattison , 153 F.3d at 410 n.3. Because the facts of this case provide su fficient evidence that the police relied upon a defective no-knock warrant in objective good faith, we reverse the district court’s decision to suppress evidence found in their search.