United States of America v. Michael Scott Gumula

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4465
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL SCOTT GUMULA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:11-cr-00105-MR-DLH-1)
Submitted: January 30, 2014 Decided: February 12, 2014
Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Andrew B. Banzhoff, DEVEREUX & BANZHOFF, Asheville, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Melissa L. Rikard, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Michael Scott Gumula entered a conditional guilty
plea, see Fed. R. Crim. P. 11(a)(2), to manufacturing and
possessing with intent to distribute marijuana, in violation of
21 U.S.C. § 841(a)(1) (2012). Gumula preserved his right to
appeal the district court’s order accepting the recommendation
of the magistrate judge and denying his motion to suppress
evidence seized during the search of a residence Gumula was
occupying. Because we conclude the challenged evidence was
admissible pursuant to the good-faith exception to the
exclusionary rule articulated in United States v. Leon, 468 U.S.
897 (1984) (“good-faith exception”), we affirm. See United
States v. Andrews, 577 F.3d 231, 235 (4th Cir. 2009) (explaining
that court may proceed directly to issue of good faith if
defendant challenges both probable cause determination and
application of good-faith exception).
When considering the denial of a motion to suppress,
we review a district court’s legal conclusions de novo, and its
factual findings for clear error. United States v. Guijon-
Ortiz, 660 F.3d 757, 762 (4th Cir. 2011). The evidence is
construed in the light most favorable to the Government, the
prevailing party below. United States v. Perkins, 363 F.3d 317,
320 (4th Cir. 2004). Pursuant to the good-faith exception, when
“an officer act[s] with objective good faith within the scope of

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a search warrant issued by a magistrate,” suppression of the
evidence obtained in the search does not serve the exclusionary
rule’s deterrence objective, as the officer has attempted to
comport with the law. United States v. Perez, 393 F.3d 457, 461
(4th Cir. 2004) (internal quotation marks omitted). Therefore,
“evidence obtained pursuant to a search warrant issued by a
neutral magistrate does not need to be excluded if the officer’s
reliance on the warrant was objectively reasonable.” Id.
(internal quotation marks omitted). “Usually, a warrant issued
by a magistrate suffices to establish that a law enforcement
officer has acted in good faith in conducting the search.”
United States v. Doyle, 650 F.3d 460, 467 (4th Cir. 2011)
(internal quotation marks and alteration omitted).
However, an officer’s reliance on a warrant is not
objectively reasonable:
(1) if 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) if the . . . magistrate wholly abandoned his
judicial role . . . [as a detached and neutral
decision maker];
(3) if the affidavit supporting the warrant is so
lacking in indicia of probable cause as to render
official belief in its existence entirely
unreasonable; and
(4) if . . . 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.

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Id. (internal quotation marks omitted). Gumula argues that all
but the fourth scenario preclude application of the good-faith
exception here. We disagree.
“In challenging a search warrant on the theory that
the officer’s affidavit omitted material facts with the intent
to make, or in reckless disregard of whether they thereby made,
the affidavit misleading,” Gumula must first establish a
deliberate or reckless omission of information. Andrews, 577
F.3d at 238 (internal quotation marks and alteration omitted).
Gumula must then show “that the inclusion of this information
would have defeated probable cause.” Id. at 238-39.
Gumula, however, does neither. Contrary to Gumula’s
suggestion, the fact alone that an affiant officer has omitted
certain facts from his affidavit when applying for a search
warrant cannot establish the requisite deliberateness or
recklessness. United States v. Lalor, 996 F.2d 1578, 1583-84
(4th Cir. 1993); United States v. Colkley, 899 F.2d 297, 300-01
(4th Cir. 1990). Moreover, Gumula fails to propose how the
factual omissions he identifies would have defeated a finding of
probable cause.
We also reject Gumula’s contention that the officer’s
affidavit supporting the challenged warrant was so lacking that
the judicial officer issuing the warrant must have abandoned his
impartiality and no executing officer could have reasonably

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relied on the warrant’s validity. Because Gumula essentially
argues that the affidavit was “grossly insufficient,” his claims
are most appropriately analyzed solely under Leon’s third
exception. United States v. Wellman, 663 F.3d 224, 229 (4th
Cir. 2011). Having carefully reviewed the record, we conclude
that the subject affidavit bore sufficient “indicia of a strong
search warrant application” to justify a reasonable officer’s
belief in the existence of probable cause. Id.
As the affidavit described, Gumula was one of three
individuals implicated in the large-scale, indoor cultivation of
marijuana. Although the evidence directly incriminating Gumula
was scant, months of investigation repeatedly and decisively
tied Gumula’s alleged accomplices to ongoing marijuana
production. Moreover, the affidavit suggested a nexus between
that criminal activity and two adjacent residences in Arden,
North Carolina. Lalor, 996 F.2d at 1582. For a period of
approximately five months, one of Gumula’s suspected associates
paid the electric bills for both residences. Gumula took over
the bill for one of the residences in May 2011. For the next
four months, however, both residences consistently and
inexplicably consumed electricity at a rate five times that of
two similarly sized homes in the same neighborhood. Contrary to
Gumula’s suggestion, such coincidental and anomalous power
consumption was clearly corroborative of marijuana production

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and suggested a connection between Gumula and the other two
suspects. Considering also the remainder of the information in
the affidavit, we conclude that an executing officer could have
reasonably believed that it supplied probable cause. See Lalor,
996 F.2d at 1579-80, 1582-83; cf. United States v. Carpenter,
360 F.3d 591, 593, 596-97 (6th Cir. 2004); United States v.
Clark, 31 F.3d 831, 835 (9th Cir. 1994).
Accordingly, because the district court properly
denied Gumula’s motion to suppress, we affirm the district
court’s judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED

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