United States v. Henry

1

UNITED STATES OF AMERICA v. LEROY HENRY, JR., Appellant

No. 21-3254

United States Court of Appeals, Third Circuit

April 4, 2023

NOT PRECEDENTIAL

Argued: December 6, 2022

On Appeal from the United States District Court for the Virgin Islands (D.C. Civ. Action No. 3:20-cr-0005-001) District Judge: Honorable Robert A. Molloy

Matthew A. Campbell, Esq. [ARGUED] Office of Federal Public Defender Counsel for Appellant

Delia L. Smith, United States Attorney Meredith J. Edwards Adam Sleeper Office of the United States Attorney

St Thomas, VI 00802 Kenneth A. Polite, Jr., Assistant Attorney General Lisa H. Miller, Deputy Assistant Attorney General Kevin J. Barber, Esq. [ARGUED] United States Department of Justice Counsel for Appellee

Before: CHAGARES, Chief Judge, GREENAWAY, JR., and FISHER, Circuit Judges.

OPINION ^[*]

GREENAWAY, JR., CIRCUIT JUDGE

On December 25, 2019, the Federal Bureau of Investigation ("FBI") office of St. Thomas received an anonymous tip through Crime Stoppers, a community service that allows citizens to anonymously report a crime or criminal activity to law enforcement, that Leroy Henry Jr. ("Henry"), a convicted felon, was carrying an unregistered firearm. The tipster shared the specific location of the firearm, "the interior of his center console between the driver [and] passenger seat of his Infiniti car has a secret compartment that lifts out. And he keeps a loaded handgun in there." App. 142. When asked if Henry had plans to use the weapon, the tipster responded, "[y]es, revenge for brother's death." Id.

On January 10, 2020, FBI Task Force Officer Richard Dominguez ("TFO Dominguez") obtained a search warrant from a magistrate judge to search the car that purportedly belonged to Henry. The affidavit in support of the search warrant included information received from the tipster and asserted that the agents had independently corroborated the following: Henry's brother had been shot and killed by an unknown shooter on December 21, 2019, Henry had a 2013 prior conviction for possession of an unlicensed firearm in the Virgin Islands, Henry did not have a valid license to possess a firearm in the Virgin Islands, Henry was the registered owner of a 2007 Infiniti M35, and the target vehicle was parked outside of Henry's residence.

On January 14, 2020, TFO Dominguez and other agents executed the search warrant. When arrested, Henry agreed to accompany the agents to the FBI office. In the course of a search of Henry's car conducted at the FBI office, agents found a loaded firearm and two magazines of ammunition in a secret compartment in the vehicle's center console. Simultaneously, TFO Dominguez read Henry his Miranda rights. Henry confirmed that he understood those rights. During the interview, Henry admitted to his prior felony conviction, conceded that he knew that he was not permitted to have a firearm, and admitted that he possessed the firearm.

Henry was indicted in short order on two counts-being a felon in possession of a firearm and being a felon in possession of ammunition-in violation of 18 U.S.C. § 922(g)(1).

a. DNA Testing and Pre-Trial Motion to Suppress

In March 2020, law enforcement conducted DNA testing to determine whether DNA samples from the firearm matched Henry. Four technicians, working under the direction of forensic examiner Jaclyn Garfinkle, performed the pre-analysis steps of the laboratory process: extraction, quantification, amplification, and separation. Garfinkle analyzed the data generated from the pre-analysis steps and prepared the lab report. She found DNA from three individuals from the sample taken from the firearm and concluded that it was 78 septillion times more likely than not that Henry was one of those three people.

Before the trial, Henry filed a motion to suppress the evidence seized from his car.^[1] Henry argued that the search warrant was not supported by probable cause due to the anonymous nature of the tip. The Government contended that the good faith exception to the exclusionary rule applied. The District Court found that the tip did not provide probable cause sufficient for the search warrant. The District Court noted that the information provided was too easily predicted to establish the tipster's reliability and could not establish that the tipster had a "special familiarity" with Henry. App. 18. However, the District Court agreed with the Government's alternative argument and found that the good faith exception to the exclusionary rule did apply as "it would be unrealistic here to conclude that TFO Dominguez should have recognized, questioned, and correctly applied the nuances of the anonymous tip corroboration doctrine." App. 21.

b. DNA Testimony and Confrontation Clause

At trial, the Government called Garfinkle as a witness and offered her as a DNA expert. During voir dire, Garfinkle stated that while she had supervised the DNA testing, she did not execute the "actual manual steps in the laboratory." App. 432. The four lab technicians conducted these steps. Based on Garfinkle's statement, the defense moved "to exclude the DNA testimony in its entirety" because its admission would violate the Confrontation Clause. App. 446. The District Court granted the motion because Garfinkle "was not physically present when the testing was conducted." App. 448. During his case-in-chief, Henry presented witnesses who testified that other people occasionally used Henry's Infiniti. In response, the Government called as rebuttal witnesses three of the four technicians who conducted the DNA testing; however, Lily Wong, the absent technician, was on maternity leave. The District Court found that Wong's absence presented no violation of the Confrontation Clause. The technicians testified on the DNA collection and preparation. Garfinkle testified on overseeing the DNA testing process and her analysis of the testing conducted.

Henry was found guilty of Count One, firearm possession, and not guilty of Count Two, ammunition possession. He was sentenced to 33 months of imprisonment followed by two years of supervised release. This timely appeal follows.

II. JURISDICTION

The District Court had jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C. § 1612.

We have jurisdiction under 28 U.S.C. § 1291.

III. DISCUSSION

a. The District Court Did Not Err in Denying Henry's Motion to Dismiss i. Standard of Review

We start with Henry's argument that the District Court erred in denying his motion to dismiss. We review the factual findings of the District Court for clear error and its legal conclusions de novo. United States v. Werdene, 883 F.3d 204, 209 (3d Cir. 2018). As the good faith exception applies, we do not need to determine whether the warrant was supported by probable cause. See, e.g., United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars &Fifty-Seven Cents, 307 F.3d 137, 145 (3d Cir. 2002).^[2] ii. The Search Warrant for Henry's Car Survives Scrutiny Based on the Good Faith Exception to the Exclusionary Rule

The exclusionary rule is applied "only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule" to ward against unreasonable searches and seizures by law enforcement. United States v. Leon, 468 U.S. 897, 918 (1984). Courts must perform a "rigorous" test to measure the "deterrence benefits of exclusion" against "substantial social costs." Davis v. United States, 564 U.S. 229, 237-38 (2011).

The good faith exception buttresses this test.^[3] The good faith exception prevents suppression of evidence when the executing officers acted in "good faith" or "objectively reasonable reliance" on a "subsequently invalidated search warrant." Leon, 468 U.S. at 922. Thus, in instances where an officer acted illegally but "in the objectively reasonable belief that [his] conduct did not violate the Fourth Amendment.... [the exclusionary rule] should not be applied[] to deter objectively reasonable law enforcement activity." Id. at 918-19. Further, the exclusionary rule is only implemented when law enforcement conduct is "deliberate, reckless, or grossly negligent." Herring v. United States, 555 U.S. 135, 144 (2009).

Accordingly, the test to determine if the good faith exception applies is "whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Leon, 468 U.S. at 922 n.23; see also United States v. Loy, 191 F.3d 360, 367 (3d Cir. 1999). "[A]ny defects in the warrant" and "the officer's conduct in obtaining and executing the warrant and what the officer knew or should have known" are both evaluated by courts. United States v. Franz, 772 F.3d 134, 147 (3d Cir. 2014). Courts must recognize that law enforcement officers do not have an expert grip on the law and are not "expected to question the magistrate's probable-cause determination." Leon, 468 U.S. at 921. See also Malley v. Briggs, 475 U.S. 335, 346 n.9 (1986) ("It is a sound presumption that the magistrate is more qualified than the police officer to make a probable cause determination, and it goes without saying that where a magistrate acts mistakenly in issuing a warrant but within the range of professional competence of a magistrate, the officer who requested the warrant cannot be held liable." (internal quotation marks and citation omitted)).

There are four instances, however, where the good faith exception does not apply:

(1) where the magistrate judge issued the warrant in reliance on a deliberately or recklessly false affidavit;

(2) where the magistrate judge abandoned his or her judicial role and failed to perform his or her neutral and detached function;

(3) where the warrant was based on an affidavit so lacking in indicia of

...