The Honorable James M. Rosenbaum, United States District Judge for the District 1

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

____________

No. 96-2613

____________

United States of America, *

 *

Appellee, *

C Appeal from the United

States

v. * District Court for the

C District of Minnesota

James Arthur Taylor, *

also known as Creature, *

 *

Appellant. *

____________

Submitted: December 10, 1996

 Filed: July 10, 1997

____________

McMILLIAN, Circuit Judge.

James Taylor appeals from a final judgment entered in

the District Court for the District of Minnesota upon a 1

jury verdict finding him guilty of aiding and abetting

distribution of cocaine base (also referred to as "crack

cocaine") in violation of 21 
-2-

U.S.C. § 841(a)(1),(b)(1)(A), and 18 U.S.C. § 2,

possession with intent to distribute cocaine in violation

of 21 U.S.C. § 841(a)(1), and being a felon in possession

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

reversal, Taylor argues that the district court erred in

denying his motion to suppress certain evidence. For the

reasons discussed below, we affirm the judgment of the

district court. 

BACKGROUND

The following facts are based upon the evidence

presented by the government at trial and at the

suppression motion hearing. In May 1995, Minneapolis

police officer David Hayhoe received information from a

confidential informant that a person named "Creature" was

selling drugs through a drug runner known as "Dominick."

Officer Hayhoe had prior knowledge through an ongoing

investigation that "Creature" was James Taylor.

"Dominick" was later identified as William Riley. The

informant agreed to make recorded telephone calls to

Riley setting up a crack cocaine purchase from Taylor. 

In the first telephone conversation, the informant

told Riley that he wanted to purchase 2 ounces of crack

cocaine, but Riley told him that he would have to call

back because "James . . . uh . . . Creature" was out

buying a new pager. In the second telephone conversation

Riley contacted the informant to make arrangements for

the sale of the crack cocaine. This second telephone

conversation ended prematurely when Riley was mugged

while using the pay phone. In the third telephone

conversation, Riley contacted the informant again.
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During the conversation, another voice could be heard in

the background on Riley's end. Riley referred to the

voice in the background as "Creature." During this

conversation a meeting time and place were arranged for

the sale of the crack. 

The informant, after being searched by officers to

insure that he did not have any drugs, drove to the

meeting place where surveillance officers were already in

place. 
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A car driven by Taylor soon arrived with Riley as a

passenger. Riley got out of the car and got into the

informant's car. Riley showed the crack cocaine to the

informant, who then signaled the surveillance officers.

The officers arrested both Taylor and Riley and seized 70

grams of crack cocaine from Riley. 

After his arrest, Riley told police that the cocaine

belonged to Taylor. Riley agreed to cooperate by taking

the officers to Taylor's "stash house," where Riley

claimed they had been just prior to the drug sale. Riley

took the officers to a four-plex at 1829 25 1/2 Street

East in Minneapolis. Riley identified Taylor's apartment

as unit #4, located in the upper-right corner of the

building. Riley told the officers that the only person

inside the apartment was Yolanda Jackson, Taylor's

girlfriend. The building had a locked security door and

the officers did not attempt to enter. The building

remained under surveillance while Officer Hayhoe obtained

a search warrant for apartment #4. 

Meanwhile, surveillance officers observed a car

registered to Yolanda Jackson arrive at the building and

a woman exit the car and enter the building. The

officers knew from a prior report of a domestic incident

that Jackson was Taylor's girlfriend. Shortly

thereafter, Officer Hayhoe returned with a search

warrant, which he had obtained from the state court

judge. Later, Jackson exited the apartment building and

began to drive away; the officers stopped her car and

detained her while other officers executed the search

warrant. The officers obtained Jackson's keys and used

them to unlock the security door of the apartment
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building as well as apartment #4. The police discovered

from the occupants of apartment #4 that Taylor and his

girlfriend lived in apartment #3. Officer Hayhoe then

obtained a corrected search warrant for apartment #3.

In the meantime, officers inserted Jackson's keys in

the lock of apartment #3 without actually entering the

apartment. Apparently, Jackson's keys fit the locks of

both apartments #3 and #4, and this information was

relayed to Officer Hayhoe. Also 
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during this time interval, Jackson signed a consent form,

consenting to a search of apartment #3. However, there

was conflicting testimony at trial as to when the consent

form was signed. 

In obtaining the corrected search warrant, Officer

Hayhoe told the state court judge that the police had

stopped Jackson and used her keys to open apartment #4,

the occupants of apartment #4 told the officers that

Taylor and Jackson lived in apartment #3, and Jackson's

keys fit in the locks of both apartments #3 and #4. The

state court judge made some hand-written amendments to

the warrant to specify apartment #3 as the place to be

searched and added a reference to Jackson and her keys,

but he failed to add that the occupants of apartment #4

had informed the police that Taylor and Jackson lived in

apartment #3. 

While searching apartment #3 pursuant to the

corrected search warrant, the officers found 9 ounces of

powder cocaine, baking soda supposedly used to "cook"

crack cocaine, a gun in the hall closet, numerous

documents bearing Taylor's name, and $18,350 in cash in

a hidden compartment in a bureau in the bedroom. All of

these items were referenced in Counts II, III, and IV of

the indictment against Taylor. Taylor was indicted in

Count I for aiding and abetting the distribution of

cocaine base, Count II for possession with intent to

distribute cocaine, Count III seeking forfeiture of

$18,350 as drug related proceeds, and Count IV for being

a felon in possession of a firearm. 

Following his indictment, Taylor moved to suppress
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the evidence obtained in the search of apartment #3 on

the ground that the warrant was not supported by probable

cause. He argued that the good faith exception to the

exclusionary rule did not apply because the information

contained in the warrant was tainted by information

illegally obtained when the police tried Jackson's key in

the lock of apartment #3 before the corrected search

warrant was issued. The magistrate judge recommended

denial of the 
 United States v. Leon, 468 U.S. 897, 918-22 (1984). 2

 The Honorable Franklin L. Noel, Chief Magistrate Judge, the United States District 3

Court for the District of Minnesota.

 The magistrate judge assumed for the purposes of analysis that the trying of the key 4

in the lock constituted a search.

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motion to suppress based on the Leon good faith

exception, and the district court adopted the

2

recommendation. See Brief for Appellant, Addendum at C1-

3

C2 (Transcript of Mar. 5, 1996, Hearing of Pretrial

Motions at 19-20). The magistrate judge found that

Jackson was in custody at the time she signed the consent

form and therefore the consent was invalid. United States

v. Taylor, No. 4:95-CR-87 (Feb. 28, 1996) (report and

recommendation) (hereinafter "slip op."). The magistrate

judge also found that the officers did not search the

apartment until Officer Hayhoe returned with the

corrected search warrant. Slip op. at 12-13. The

magistrate judge reasoned that because the officers

relied in good faith on the search warrant and thereby on

the state court judge's determination of probable cause,

suppression of the seized evidence would be unwarranted.

Id. at 9. The magistrate judge further stated that none

of the four circumstances that negate the Leon good faith

exception was present in this case. Id. at 12.

Additionally, the magistrate judge reasoned that the Leon

good faith exception applies to the trying of the key in

the lock of apartment #3 because the officers were

relying on the validity of the original search warrant.4

Id. at 12. Taylor was convicted on Counts I, II, and IV.

After these convictions Taylor stipulated to Count III,

which was the forfeiture of the proceeds of drug
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transactions. Thereafter, the district court sentenced

Taylor to twenty years imprisonment. This appeal

followed. 
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DISCUSSION

The good faith exception to the exclusionary rule of

evidence

Taylor's sole issue on appeal is whether the district

court erred in denying his motion to suppress evidence

obtained pursuant to the search of apartment #3. Taylor

argues that the search warrant for apartment #3 was not

supported by probable cause, the officers made

misrepresentations to the state court judge, and that the

officers' reliance on the warrant does not fall under the

good faith exception to the exclusionary rule because the

warrant was tainted by the information that Jackson's key

fit the lock of apartment #3. 

Assuming, without deciding, that both search warrants

were invalid for lack of probable cause, we agree with

the district court that the Leon good faith exception

applies in this case. We review the application of the

good faith exception de novo. United States v. LaMorie,

100 F.3d 547, 555 (8th Cir. 1996). "In reviewing the

grant . . . of a motion to suppress evidence on Fourth

Amendment grounds, we are bound by the district court's

findings of fact . . . unless we believe on the basis of

the record as a whole that the District Court clearly

erred." Id. The deferential standard applied when

reviewing determinations of probable cause by the

District Court is "abuse of discretion." Ornelas v.

United States, 116 S. Ct. 1657, 1660-61 n.3 (1996); see,

e.g., United States v. Riedesel, 987 F.2d 1383, 1387 (8th

Cir. 1993) (citations omitted). "We may reverse the

district court's ultimate ruling on the suppression
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motion, however, if the ruling reflects an erroneous view

of the applicable law." United States v. Riedesel, 987

F.2d at 1388; see also United States v. LaMorie, 100 F.3d

at 552. 

In United States v. Leon, 468 U.S. 897, 905 (1984),

the Supreme Court held that the Fourth Amendment

exclusionary rule should not be applied to exclude the

use of evidence obtained by officers acting in reasonable

reliance on a detached and neutral magistrate judge's

determination of probable cause in the issuance of a

search warrant 
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that is ultimately found to be invalid. The officer's

reliance on the magistrate judge's probable cause

determination must be objectively reasonable. Id. at

922-23. Four circumstances exist in which the Leon good

faith exception does not apply and suppression remains

an appropriate remedy: (1) the magistrate judge issuing

the warrant was misled by statements made by the affiant

that were false or made "in reckless disregard for the

truth"; (2) "the issuing magistrate judge wholly

abandoned his [or her] judicial role"; (3) 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," or (4) the warrant is

"so facially deficient . . . that the executing officers

cannot reasonably presume it to be valid." Id. at 923

(citations omitted). 

There is no evidence in the record that Officer

Hayhoe made any misrepresentations to the issuing state

court judge, nor did he make any statements in reckless

disregard for the truth. The only incorrect information

given to the state court judge was that Taylor's

apartment was unit #4 instead of unit #3. At the time it

was given Officer Hayhoe believed this information was

correct. The officers did not search Taylor's apartment

(unit #3) until after a corrected search warrant had been

obtained, even though they had obtained Jackson's written

consent to search. These precautions taken by the

officers demonstrate their good faith in conducting the

search of Taylor's apartment in compliance with the law.

There is no evidence to suggest that any of the other

three exceptions to the Leon good faith exception would

apply to the search of Taylor's apartment. Therefore,
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even if a Fourth Amendment violation occurred, the Leon

good faith exception applies to prevent the exclusion of

evidence obtained from the search of Taylor's apartment

pursuant to the corrected search warrant. 

Fruit of the poisonous tree doctrine

Taylor argues that the good faith exception was

negated in this case because the officers’ successful

attempt to use Jackson's key in the lock of apartment #3

constituted 
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an illegal search for Fourth Amendment purposes, and the

fruit of that search, which was the information that

Jackson's key fit the lock, was used to obtain the search

warrant for apartment #3. Thus, Taylor argues that the

corrected search warrant for apartment #3 was tainted and

invalid because it was fruit of the poisonous tree. The

Eighth Circuit has not decided whether trying a key in a

lock constitutes a search for purposes of the Fourth

Amendment. See United States v. Dickson, 58 F.3d 1258,

1264 (8th Cir.), superseded on other grounds, 64 F.3d 409

(8th Cir. 1995), cert. denied, 116 S. Ct. 747 (1996).

The federal courts of appeals are split on this issue.

See, e.g., United States v. Concepcion, 942 F.2d 1170,

1172 (7th Cir. 1991) (holding that although the owner of

a lock has enough privacy interest in a keyhole to make

the inspection of that lock a "search," the privacy

interest is so small that no probable cause is needed to

inspect it); United States v. Lyons, 898 F.2d 210, 212-13

(1st Cir.)(holding that the insertion of a key into a

padlock was merely a means of identifying ownership

rather than a "search"), cert. denied, 498 U.S. 920

(1990); United States v. DeBardeleben, 740 F.2d 440 (6th

Cir.) (holding that the insertion of a key into a lock

solely for the purpose of identifying ownership does not

constitute a "search"), cert. denied, 469 U.S. 1028

(1984); United States v. Portillo-Reyes, 529 F.2d 844,

848 (9th Cir. 1975)(holding that the insertion of a key

into the door of a car to see if it fit constituted the

beginning of a search because there is a reasonable

expectation of privacy), cert. denied, 429 U.S. 899
 But see United States v. Grandstaff, 813 F.2d 1353, 1358 n.5 (9th Cir.) (suggesting 5

that the Portillo-Reyes case has been undermined by intervening decisions of the

Supreme Court and the 9th Circuit), cert. denied, 484 U.S. 837 (1987).

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(1976). 

5

The officers tested Jackson's keys in the lock of

unit #3 before the corrected search warrant was issued.

Therefore, the corrected search warrant would not apply

to the use of the key in the lock. Assuming, without

deciding, that the testing of the key in the lock

constitutes a search for purposes of the Fourth

Amendment, the only fruit of that search was the

knowledge that Jackson's key fit the locks of both unit

#3 and 
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unit #4. Although that information was given to the

state court judge and handwritten on the corrected

warrant, that information was superfluous to support

probable cause for the search of unit #3 because both the

state court judge and the officers had information from

the occupants of unit #4 that Jackson and Taylor lived in

unit #3. We therefore hold that the Leon good faith

exception applies to prevent the exclusion of the

evidence from apartment #3. 

CONCLUSION

Accordingly, the judgment of the district court is

affirmed. 

A true copy

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.