United States of America v. Alejandro Cisneros-Mayoral

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4391
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALEJANDRO CISNEROS-MAYORAL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-225)
Argued: February 2, 2005 Decided: March 29, 2005
Before WILKINSON and KING, Circuit Judges, and Samuel G. WILSON,
United States District Judge for the Western District of Virginia,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Eric David Placke, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina,
for Appellant. Angela Hewlett Miller, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee. ON BRIEF: Louis C. Allen, III, Federal
Public Defender, Greensboro, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Appellant challenges the district court’s application of
United States v. Leon, 468 U.S. 897 (1984), to render admissible
evidence seized pursuant to a search warrant whose validity on
probable cause grounds was later called into doubt. We find no
error in the district court’s application of Leon and accordingly
affirm.
I.
On May 22, 2003, state police officers searched the residence
of appellant Alejandro Cisneros-Mayoral in Winston-Salem, North
Carolina. Their search was conducted pursuant to a warrant that
had been issued by a magistrate earlier that day. In the
application for that warrant, a detective with the Winston-Salem
Police Department had recounted the events that had cast suspicion
on appellant. “During the month of May,” the application
explained, a “confidential informant” had told the detective that
appellant was selling drugs from his home. The detective had
visited Cisneros-Mayoral’s abode to investigate the tip. At the
front door, the detective “smelled a strong odor of freshly cut
marijuana coming from the residence.” He detected the same smell
within the apartment after appellant allowed him to enter. The
detective was familiar with the odor, the application stated,
because of his extensive police experience. The application

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neglected to specify which day in May the visit to Cisneros-
Mayoral’s residence had occurred. It also failed to mention that,
shortly before seeking the warrant, the detective had returned to
the residence and once more detected the odor of marijuana.
During the search, officers recovered two firearms, one of
which had its serial number removed. Appellant admitted that the
weapons belonged to him. When pressed about his immigration status
later in the investigation, Cisneros-Mayoral conceded to a federal
agent that he was present in the United States illegally.
Appellant was indicted for possession of firearms as an
illegal alien, see 18 U.S.C § 922(g)(5) (2000), and possession of
a firearm from which the manufacturer’s serial number had been
removed, see § 922(k). He moved to suppress the evidence seized
during the search on Fourth Amendment grounds. The district court
denied this motion and appellant entered a conditional guilty plea
on the first count, reserving the right to appeal the suppression
issue. Cisneros-Mayoral now appeals.
II.
The district court concluded that, even if the search were
unsupported by probable cause, the officers’ reliance on the
warrant satisfied the good-faith standard of United States v. Leon,
468 U.S. 897 (1984). We review this application of Leon de novo.
See United States v. DeQuasie, 373 F.3d 509, 520 (4th Cir. 2004).

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Under Leon, the fruits of a search conducted pursuant to a
warrant -- even a warrant later deemed unsupported by probable
cause -- may not be suppressed unless “a reasonably well trained
police officer would have known that the search was illegal despite
the magistrate’s authorization.” Leon, 468 U.S. at 922 n.23. An
officer “will have no reasonable grounds for believing that the
warrant was properly issued,” however, and the fruits of the search
will remain subject to suppression, under four conditions that the
Leon Court described:
(1) “the magistrate . . . 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”;
(2) the magistrate acted as a rubber stamp for the
officer and thus “wholly abandoned” his detached and
neutral “judicial role”;
(3) the affidavit 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 -- i.e.,
in failing to particularize the place to be searched or
the things to be seized -- that the executing officers
cannot reasonably presume it to be valid.”
Id. at 923 (citations omitted); United States v. Bynum, 293 F.3d
192, 195 (4th Cir. 2002). The foregoing rubric recognizes that,
because judicial officers have “no stake in the outcome of
particular criminal prosecutions,” the prospect of exclusion of
evidence “cannot be expected significantly to deter them.” Leon,
468 U.S. at 917. By creating a safe harbor for warranted searches,

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subject to the four enumerated exceptions, Leon promotes law
enforcement’s reliance on the warrant process and avoids
“[p]enalizing the officer for the magistrate’s error.” Id. at 921.
It is undisputed that the search at issue here occurred
pursuant to a duly issued warrant. The fruits of that search will
therefore be admissible under Leon unless one of the four
exceptions described in the case applies. Appellant concedes that
the first exception is inapplicable because there is no indication
that the investigating detective included any falsehoods in the
warrant application. Appellant contends that the remaining three
exceptions set forth in Leon do apply, however, and that the search
of his residence was accordingly improper.
Appellant’s reliance on Leon’s fourth exception, which
concerns a warrant’s facial characteristics, is misplaced. In
applying that exception, courts have looked to whether the warrant
provided the executing officer with sufficient indication of the
task required of him. See United States v. Towne, 997 F.2d 537,
549 (9th Cir. 1993). Here, the warrant and attached affidavit
plainly identify the place to be searched -- appellant’s residence
-- and the items sought -- marijuana and associated paraphernalia;
indeed, appellant does not claim otherwise.
Cisneros-Mayoral’s reliance on Leon’s two remaining exceptions
is similarly unavailing. Warrants based on uncorroborated tips
from “unknown, unavailable” informants, United States v. Wilhelm,

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80 F.3d 116, 123 (4th Cir. 1996), may be “so lacking in indicia of
probable cause as to render official belief in its existence
entirely unreasonable.” Leon, 468 U.S. at 923 (citation omitted).
But here the investigating detective followed up the tip by
visiting Cisneros-Mayoral’s apartment. His detection of the odor
of marijuana there only corroborated the informant’s allegation
that appellant was using his residence to traffic in narcotics.
And the detective’s provision of this information to the magistrate
elevated the warrant application beyond the “bare bones” status
that we have previously condemned, see Wilhelm, 80 F.3d at 121, and
supplied the issuing magistrate with adequate information to make
a probable cause determination. Indeed, other courts have deemed
drug odor sufficiently indicative of criminal activity to support
probable cause. See, e.g., United States v. Sweeney, 688 F.2d
1131, 1137-38 (7th Cir. 1982). Mindful of this precedent, we can
hardly conclude that the warrant application was “so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Leon, 468 U.S. at 923 (citation
omitted).
Further, there is no indication that the magistrate neglected
his proper role as a “detached and neutral” arbiter by acting as a
rubber stamp for the police’s request. Id. at 921. Rather, the
magistrate properly performed his function in the investigative
process by assessing the evidence before him and determining

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probable cause to the best of his ability. Thus, even if we apply
hindsight to render this determination incorrect, Leon requires
that the fruits of the ensuing search remain admissible.
Appellant protests that, because the application failed to
specify the particular date in May of the first visit to his
residence, good faith reliance under Leon should be disallowed.
However, even if we assume that this visit occurred on the first
day of the month, the passage of some three weeks between the visit
and the issuance of the warrant would not necessarily render the
information gained during this visit stale. We have emphasized
that “[t]he vitality of probable cause cannot be quantified by
simply counting the number of days between the occurrence of the
facts supplied and the issuance of the affidavit.” United States
v. McCall, 740 F.2d 1331, 1336 (4th Cir. 1984) (quoting United
States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972)). And we
have joined several other courts in emphasizing that findings of
staleness become less appropriate when the instrumentalities of the
alleged illegality tend to be retained, see United States v.
Farmer, 370 F.3d 435, 439-40 (4th Cir. 2004), as they do in drug
trafficking.
Thus, the district court may well have been correct to
conclude that the warrant application would have supported probable
cause had the date of the first visit to appellant’s residence been
specified. At least we cannot conclude that it would be “entirely

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*We therefore find it unnecessary to address appellant’s
contention that his admissions to the investigating officers were
fruits of the poisonous tree.
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unreasonable” for the investigating officers to infer the probable
presence of drugs and paraphernalia in appellant’s apartment from
the detective’s visit earlier in the month, even if that visit is
deemed to have occurred three weeks prior. In the absence of such
a conclusion, however, Leon requires that the fruits of the ensuing
search remain admissible. See 468 U.S. at 923.
Finally, Cisneros-Mayoral urges us to fault the detective for
neglecting to mention that he had returned to the residence on the
same day he sought a warrant and again detected the smell of
marijuana. But we have already held that, when an affidavit
otherwise satisfies Leon, “a court should not refuse to apply the
Leon good faith exception just because the officer fails to include
in [the] affidavit all of the information known to him supporting a
finding of probable cause.” Bynum, 293 F.3d at 198-99.
Appellant’s argument must therefore fail.
III.
For the foregoing reasons, we find no error in the district
court’s application of Leon.* The judgment of the district court
is therefore
AFFIRMED.

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