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 i n the District Court for the District of Minnesota upon a 1 jury verdict finding him guilty of aiding and abettin g distributi on 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 i n possession of a firea rm 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 eviden ce. For the
reas ons discussed below, we affirm the judgment of th e district court.

BACKGROUND

The following facts are based upon the evidenc e presented by the government at trial and at th e supp ression motion hearing. In May 1995, Minneapoli s poli ce officer David Hayhoe received information from a confidential informant that a person named "C reature" was selling dr ugs through a drug runner known as "Dominick." Offi cer Hayhoe had prior knowledge through an ongoin g investigation that "Creature" was James Taylor

. "Dom inick" was later identified as William Riley. Th e info rmant agreed to make recorded telephone calls t o Riley setting up a crack cocaine purchase from Taylor.

In the first telephone conversation, the informan t told Riley that he wanted to purchase 2 ounces of crac k cocaine, but Riley told him that he would have to cal l back because "James . . . uh . . . Creature" was ou t buying a new pager. In the second telephone conversation Rile ycontacted the informant to make arrangements fo r the s ale of the crack cocaine. This second telephon e
conv ersation ended prematurely when Riley was mugge d wh ile using the pay phone. In the third telephon e conversation, Riley contacted the informant again

.-3-

During the conversation, another voice could be heard in the b ackground on Riley's end. Riley referred to th e voice in the background as "Creature." During thi s conversation a meeting time and place were arranged fo r the sale of the crack.

The informant, after being searched by officers t o insur e that he did not have any drugs, drove to th e meeting place where surveillance officers wer e already in place.-4-

A car driven by Taylor soon arrived with Riley as a passeng er. Riley got out of the car and got into th e informa nt's car. Riley showed the crack cocaine to th e informant, who then signaled the surveillance officers

. The officers arrested both Taylor and Riley a nd seized 70 grams of crack cocaine from Riley.

After his arrest, Ri ley told police that the cocaine belonged t o Taylor. Riley agreed to cooperate by taking the officers to Taylor's "stash house," where Rile y claimed they had been just prior to the drug sale. Riley took the officers to a four-plex at 1829 25 1/2 Stree t East in Minneapolis. Riley identified Taylor 's apartment
as u nit #4, located in the upper-right corner of th e buildin g. Riley told the officers that the only perso n in side the apartment was Yolanda Jackson, Taylor' s girlfriend . The building had a locked security door and the officers did not attempt to enter. The buildin g remained under surveillance while Officer Hayhoe obtained a search warrant for apartment #4.

Meanwhile, surveillance officers observed a ca r registered to Yolanda Jackson arrive at the building and

a wom an exit the car and enter the building. Th e officers k new from a prior report of a domestic incident that Jackson was Taylor's girlfriend. Shortl y thereafter, Officer Hayhoe returned with a searc h

warra nt, which he had obtained from the state cour t judge. La ter, Jackson exited the apartment building and began to drive away; the officers stopped her car an d deta ined her while other officers executed the searc h

warr ant. The officers obtained Jackson's keys and use d the mto unlock the security door of the apartmen t-5-

building a s well as apartment #4. The police discovered from t he occupants of apartment #4 that Taylor and hi s girl friend lived in apartment #3. Officer Hayhoe the n obtained a corrected search warrant for apartment #3.

In the meantime, off icers inserted Jackson's keys in the lock of apartment #3 without actually entering th e apartment. Apparently, Jackson's keys fit the locks o f both apartments #3 and #4, and this information wa s relayed to Officer Hayhoe. Also-6-

during this time interval, Jackson signed a c onsent form,
cons enting to a search of apartment #3. However, ther e was conflicting testimony at trial as to whenthe consent form was signed.

In obtaining the corrected search warrant, Office r Hayho e told the state court judge that the police ha d stopped Jackson and used her keys to open apartment #4 , th e occupants of apartment #4 told the officers tha t Taylor and Jackson lived in apartment #3, and Jackson' s keys fit i n the locks of both apartments #3 and #4. The stat e court judge made some hand-written amendments t o the warrant to specify apartment #3 as the place to b e searche d and added a reference to Jackson and her keys , but h e failed to add that the occupants of apartment # 4 had inform ed the police that Taylor and Jackson lived in apartment #3.

Wh ile searching apartment #3 pursuant to th e corrected search warrant, the officers found 9 ounces of powd er cocaine, baking soda supposedly used to "cook "
cra ck cocaine, a gun in the hall closet, numerou s documents bearing Taylor's name, and $18,350 in cash i n a hidden c ompartment in a bureau in the bedroom. All of these item s were referenced in Counts II, III, and IV of the indictment against Taylor. Taylor was indicted i n Count I for aiding and abetting the distribution o f
co caine base, Count II for possession with intent t o dis tribute cocaine, Count III seeking forfeiture o f $18,350 as drug related proceeds, and Count IV for being a felon in possession of a firearm.

Fo llowing his indictment, Taylor moved to suppres s-7-

the ev idence obtained in the search of apartment #3 o n the ground that the warrant was not supportedby probable
cause. He argued that the good faith exception to th e excl usionaryrule did not apply because the informatio n cont ained in the warrant was tainted by informatio n illegally obtained when the police tried Jack son's key in th e lock of apartment #3 before the corrected searc h

warr ant was issued. The magistrate judge recommende d denial of theUnited States v. Leon , 468 U.S. 897, 918-22 (1984). 2 The Honorable Franklin L. Noel, Chief Magistrate Judge, t he United States District 3 Court for the District of Minnesota. The magistrate judge assumed for the purposes of analysis th at the trying of the key 4 in the lock constituted a search.
-8- motion to suppress based on the Leon good fait h exception, and the district court adopted th e 2 recommendation. See Brief for Appellant, Addendum at C1

- 3 C2 (T ranscript of Mar. 5, 1996, Hearing of Pretria l Motio ns at 19-20). The magistrate judge found tha t Jackson was in custody at the time she signedthe consent form and therefore the consent was invalid. U nited States

v. Tayl or , No. 4:95-CR-87 (Feb. 28, 1996) (report an d recommendation) (hereinafter "slip op."). Th e magistrate judge also found that the officers did not search th e apartment until Officer Hayhoe returned with th e
co rrected search warrant. Slip op. at 12-13. Th e mag istrate judge reasoned that because the officer s relied in good faith on the search warrant an d thereby on the state court judge's determination of probable cause, suppressio n of the seized evidence would be unwarranted. Id. at 9. The magistrate judge further stated that none of the four circumstances that negate the Leo n good faith exceptio n was present in this case. Id. at 12

. Additionally, the magistrate judge reasoned t hat the Leon good faithexception applies to the trying of the key in the lock of apartment #3 because the officers wer e relying on the validity of the original search warrant. 4 Id. at 12. Taylor was convicted on Counts I, II, and IV. Afte r these convictions Taylor stipulated to Count III , which was the forfeiture of the proceeds of dru g-9-

transactions. Thereafter, the district court sentence d Tayl or to twenty years imprisonment. This appea l followed.-10- DISCUSSION

Th e good faith exception to the exclusionary rule o f evidence

Taylor's sole issue on appeal is whether the distric t
cour t erred in denying his motion to suppress evidenc e obtained p ursuant to the search of apartment #3. Taylor argues that the search warrant for apartment #3 was no t supp orted by probable cause, the officers mad e misrepresentations to the state court judge, and that the officers' reliance on the warrant does not fa ll under the good faith exception to the exclusionary rule because the warrant was tainted by the information that J ackson's key fit the lock of apartment #3.
Assuming, without deciding, that both search warrant s
were i nvalid for lack of probable cause, we agree wit h the dis trict court that the Leon good faith exceptio n appli es in this case. We review the application of th e good faithexception de novo. United States v. LaMorie , 100 F .3d 547, 555 (8th Cir. 1996). "In reviewing th e grant . . . of a motion to suppress evidence on Fourt h Amendment grounds, we are bound by the district court' s findings o f fact . . . unless we believe on the basis of the r ecord as a whole that the District Court clearl y erred ." Id. The deferential standard applied whe n reviewing determinations of probable cause by th e Di strict Court is "abuse of discretion." Ornelas v

. United Sta tes , 116 S. Ct. 1657, 1660-61 n.3 (1996); see, e.g. , United States v. Riedesel , 987 F.2d 138 3, 1387 (8th Ci r. 1993) (citations omitted). "We may reverse th e dis trict court's ultimate ruling on the suppressio n-11-

motion, however, if the ruling reflects an er roneous view of the app licable law." United States v. Riedesel , 987 F.2d at 1388; see also United States v. LaMor ie , 100 F.3d at 552.

In Uni ted States v. Leon , 468 U.S. 897, 905 (1984) , the Supreme Court held that the Fourth Amendmen t excl usionaryrule should not be applied to exclude th e use of evidence obtained by officers acting i n reasonable reli ance on a detached and neutral magistrate judge' s de termination of probable cause in the issuance of a search warrant-12-

that i s ultimately found to be invalid. The officer' s reliance on the magistrate judge's probable caus e dete rmination must be objectively reasonable. Id. a t 922-23. F our circumstances exist in which the Leon good faith exception does not apply and suppression remain s
an a ppropriate remedy: (1) the magistrate judge issuin g the warran t was misled by statements made by the affiant that w ere false or made "in reckless disregard for th e truth"; (2) "the issuing magistrate judge wholl y abandoned his [or her] judicial role"; (3) the affidavit in support of the warrant is "so lacking in indicia o f probable cause as to render official belief in it s exis tence entirely unreasonable," or (4) the warrant i s "so facial ly deficient . . . that the executing officers cannot reasonably presume it to be valid." Id. at 92 3 (citations omitted).

The re is no evidence in the record that Office r Hayh oe made any misrepresentations to the issuing stat e court j udge, nor did he make any statements in reckles s 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 wa s correct. The officers did not search Taylor's apartment (unit #3) until after a corrected search warr ant had been obtained, even though they had obtained Jacks on's written consent to search. These precautions taken by th e offi cers demonstrate their good faith in conducting th e search of Taylor's apartment in compliance with the law. There is no evidence to suggest that any of the othe r three exceptions to the Leon good faith exception woul d appl yto the search of Taylor's apartment. Therefore ,-13-

even if a Fourth Amendment violation occurred, the Leo n good faithexception applies to prevent the exclusion of evid ence obtained from the search of Taylor's apartmen t pursuant to the corrected search warrant.
Fruit of the poisonous tree doctrine

Taylor argues that the good faith exception wa s nega ted in this case because the officers’ successfu l attempt to use Jackson's key in the lock of apartment #3 constituted-14-

an illegal search for Fourth Amendment purposes, and the fr uit of that search, which was the information tha t Jackson's key fit the lock, was used to obtai n the search warrant for apartment #3. Thus, Taylor argues that th e corrected search warrant for apartment #3 was tainted and invalid be cause it was fruit of the poisonous tree. The Eighth Cir cuit has not decided whether trying a key in a lo ck constitutes a search for purposes of the Fourt h Amen dment. 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 fe deral 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 loc k has enough privacy interest in a keyhole to mak e the i nspection of that lock a "search," the privac y interest i s 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 padl ock was merely a means of identifying ownershi p rathe r than a "search"), cert. denied , 498 U.S. 92 0 (1990); Un ited States v. DeBardeleben , 740 F.2d 440 (6th Cir.) (holding that the insertion of a key into a loc k solely for the purpose of identifying ownership does not

cons titute a "search"), cert. denied , 469 U.S. 102 8 (1984); United States v. Portillo-Reyes , 529 F.2d 844 , 848 (9t h Cir. 1975)(holding that the insertion of a ke y into the door of a car to see if it fit constituted th e begin ning of a search because there is a reasonabl e expe ctation of privacy), cert. denied , 429 U.S. 89 9But see United States v. Grandstaff , 813 F.2d 1353, 1358 n.5 (9th Cir.) (suggesting 5 thatth e Portillo-Reyes case has been undermined by intervening decisions of th e Supreme Court and the 9th Circuit), cert. denied , 484 U.S. 837 (1987).
-15- (1976). 5

The o fficers tested Jackson's keys in the lock o f unit #3 before the corrected search warrant was issued

. Ther efore, the corrected search warrant would not appl y to the use of the key in the lock. Assuming, withou t deciding, that the testing of the key in the loc k
cons titutes a search for purposes of the Fourt h Amendm ent, the only fruit of that search was th e knowled ge that Jackson's key fit the locks of both uni t #3 and-16-

unit #4. Although that information was given to th e stat e court judge and handwritten on the correcte d
warr ant, that information was superfluous to suppor t probable cause for the search of unit #3 beca use both the state court judge and the officers had information fro m the occupants of unit #4 that Jackson and Tay lor lived in unit #3. We therefore hold that the Leon good fait h
exce ption applies to prevent the exclusion of th e evidence from apartment #3.

CONCLUSION
Accordingly, the judgment of the district court i s affirmed.

A true copy

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

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