US v. Michael Gumula, No. 13-4465 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4465 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL SCOTT GUMULA, Defendant -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 Before AGEE and Circuit Judge. FLOYD, Circuit Decided: Judges, and February 12, 2014 HAMILTON, Senior Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael plea, see Fed. Scott R. Gumula Crim. P. entered a 11(a)(2), conditional to guilty 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 evidence seized judge during occupying. Because admissible pursuant and the we denying search conclude to the his of the a motion to residence challenged good-faith suppress Gumula was evidence was 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 defendant may proceed challenges directly both to issue of good faith probable cause determination if 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 Ortiz, 660 F.3d 757, 762 (4th Cir. 2011). States v. Guijon- The evidence is construed in the light most favorable to the Government, the prevailing party below. 320 (4th Cir. 2004). United States v. Perkins, 363 F.3d 317, Pursuant to the good-faith exception, when an officer act[s] with objective good faith within the scope of 2 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). evidence obtained pursuant to a search warrant Therefore, issued by a neutral magistrate does not need to be excluded if the officer s reliance on the warrant was objectively (internal quotation marks omitted). reasonable. Id. Usually, a warrant issued by a magistrate suffices to establish that a law enforcement officer has acted United States v. in good Doyle, faith 650 F.3d in conducting 460, 467 the (4th search. 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 . . judicial role . decision maker]; . . magistrate wholly abandoned his . [as a detached and neutral (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. 3 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 deliberate or reckless omission of information. a 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 warrant from cannot recklessness. his affidavit establish the when applying requisite for a search deliberateness or 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 4 could have reasonably relied on the warrant s validity. Because Gumula essentially argues that the affidavit was grossly insufficient, his claims are most appropriately exception. analyzed solely under Leon s third 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 months tied scant, Gumula s production. of investigation alleged repeatedly accomplices decisively ongoing to and marijuana 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. four months, however, both residences For the next consistently and inexplicably consumed electricity at a rate five times that of two similarly sized homes in the same neighborhood. Gumula s suggestion, consumption was such clearly coincidental corroborative 5 of and Contrary to anomalous marijuana power production and suggested suspects. a connection between Gumula and the other two 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, denied Gumula s motion court s judgment. facts and materials legal before because to the suppress, district we court affirm the properly district We dispense with oral argument because the contentions are adequately this and argument court presented would not in the aid the decisional process. AFFIRMED 6

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