MEMORANDUM OPINION AND ORDER

WILLIAM L. OSTEEN, JR., District Judge.

As part of an investigation into a fatal shooting, law enforcement sought and received a search warrant from a Magistrate in Rowan County authorizing a search of 1508 Lakewood Drive, Salisbury, North Carolina, on December 4, 2016. (Def.'s Mot. to Suppress, Ex. A, Search Warrant (Doc. 14-1).) The warrant was issued on the application and affidavit of an officer with the Salisbury Police Department. (Id.) Defendant Aaron Darius Holtzclaw ("Defendant") challenged the search warrant on the basis that it fails to establish probable cause for the search. This court previously found that the facts contained in the affidavit underlying the search warrant application "fall short of providing probable cause to search Defendant's alleged residence at 1508 Lakewood Drive for `[c]ell phones, other electronic media devices,"[a]ny weapons, to include handguns,' and `[a]ny clothing that contains blood for the purpose of DNA.'" (Mem. Op. & Order (Doc. 21) at 11 (quoting Mot. to Suppress, Ex. A, Search Warrant (Doc. 14-1) at 4).) This court not only found probable cause absent, but also found that the affidavit failed to provide a nexus between the items to be seized and the property to be searched. (Id.)

The Government contends:

(Government's Resp. to Def.'s Mot. to Suppress ("Government's Resp.") (Doc. 17) at 9 (citing United States v. Leon, 468 U.S. 897, 922 & n.23 (1984)). In response, Defendant argues that "[t]he affidavit supporting the search warrant cannot be saved by the Leon good faith exception." (Def. Holtzclaw's Suppl. Br. ("Def.'s Suppl. Br.") (Doc. 24) at 1.)

I. LEGAL FRAMEWORK

In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court established the good-faith exception to the exclusionary rule.

United States v. DeQuasie, 373 F.3d 509, 519 (4th Cir. 2004) (citations and footnote omitted). Under any of those circumstances, the good-faith exception does not apply, and any evidence gathered pursuant to the deficient warrant must be excluded from trial. United States v. Andrews, 577 F.3d 231, 236 (4th Cir. 2009).

In making a determination as to the good-faith exception under Leon, it is appropriate to look outside an affidavit in determining whether the officer's reliance was objectively reasonable because Leon notes that the good-faith exception is determined "in light of all the circumstances." United States v. McKenzie-Gude, 671 F.3d 452, 459 (4th Cir. 2011); cf. United States v. Bynum, 293 F.3d 192, 197-98 (4th Cir. 2002) (information not presented in affidavit but known to officer about informant's credibility rendered reliance on warrant reasonable).

The burden of proof is on the Government to establish objectively reasonable reliance under Leon. See United States v. Voustianiouk, 685 F.3d 206, 215 (2d Cir. 2012); United States v. Corral-Corral, 899 F.2d 927, 932 (10th Cir. 1990); United States v. Michaelian, 803 F.2d 1042, 1048 (9th Cir. 1986); United States v. Maggitt, 778 F.2d 1029, 1034 (5th Cir. 1985); see also Leon, 468 U.S. at 924 ("When officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time.").

"In the Leon context, we begin with the assumption that there was not a substantial basis for finding probable cause; the only question is whether reliance on a warrant that lacks such a `substantial basis' was nevertheless reasonable." Andrews, 577 F.3d at 236 n.1; see also United States v. Doyle, 650 F.3d 460, 470 (4th Cir. 2011).

I. ANALYSIS

The affidavit in this case establishes that a shooting occurred at the Firewater Restaurant and Lounge on December 4, 2016, and one victim was killed. (Mot. to Suppress, Ex. A, Search Warrant (Doc. 14-1) at 6-7.) Thereafter, the affidavit provides in relevant part:

(Id. at 7-8.)

Defendant contends under Leon that "[t]he affidavit is `so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" (Def.'s Suppl. Br. (Doc. 24) at 1.) The Government contends the affidavit in this case is "far superior to the affidavit upheld by the Fourth Circuit in [United States v. Bynum, 293 F.3d 192 (4th Cir. 2002)]" as the information is less than twenty-four hours old and was corroborated. (Government's Resp. (Doc. 17) at 10-11.) The Government specifically argues that a reasonable officer would rely upon this warrant because the information in the affidavit included:

(Id. at 11.) In assessing whether the good-faith exception applies in this case, this court considers each piece of information identified above.

A. "Suspect"

The statement contained in the affidavit that Defendant "is a suspect1 of the shooting," (Mot. to Suppress, Ex. A, Search Warrant (Doc. 14-1) at 7), is a bare conclusion and contrary to longstanding precedent that an affidavit must contain facts, not belief or suspicion. "Under the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough." Nathanson v. United States, 290 U.S. 41, 47 (1933); accord United States v. Harris, 403 U.S. 573, 578 (1971). "Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others." Illinois v. Gates, 462 U.S. 213, 239 (1983). As Justice Jackson stated in Johnson v. United States:

333 U.S. 10, 13-14 (1948) (footnote omitted). An objective law enforcement officer could not reasonably believe that the use of the term "suspect" provides any fact or circumstance which would allow the magistrate to make an independent determination of probable cause. Instead, the statement that Defendant is a "suspect" simply seeks ratification of the conclusion of the officer or that of the unknown witness.

B. "Multiple Witnesses"

Second, the statement that Salisbury Police obtained information from "multiple witnesses" is similarly vague and conclusory. Even assuming that the term "witness" is suggestive of the individual witness's presence at the scene of the shooting, there is no information provided as to what the "witnesses" might have seen. It is unknown from the affidavit whether the "witnesses" saw the actual shooting, the aftermath of the shooting, or something else entirely. Furthermore, there is no evidence to suggest anything as to the credibility of the witnesses. No fact or other evidence was presented to the magistrate or this court as to whether they were innocent citizens, victims, cooperating informants, or participants in the criminal activity. No fact or other evidence was presented to the magistrate or this court as to whether the witnesses engaged in a face-to-face encounter by law enforcement or were anonymous. If the "witnesses" are victims, then "[i]t is surely reasonable for a police officer to base his belief in probable cause on a victim's reliable identification of his attacker." Torchinsky v. Siwinski, 942 F.2d 257, 262 (4th Cir. 1991) (citation omitted). "[I]f an unquestionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him to criminal liability — . . . rigorous scrutiny of the basis of knowledge [is] unnecessary." Gates, 462 U.S. at 233-34; see also DeQuasie, 373 F.3d at 524-25. However, in other circumstances, a warrant must provide some basis upon which a witness's veracity and basis of knowledge may be determined. A judicial officer's assessment of probable cause based upon the totality of the circumstances must include a review of the "`veracity' and `basis of knowledge' of persons supplying hearsay information." Gates, 462 U.S. at 238. Here, it is not clear whether the witnesses were victims, unquestionably honest citizens, informants, or participants in any criminal activity; what information any "witnesses" provided; or what the witnesses might have seen. It is not clear whether the witnesses purportedly made consistent statements. See United States v. Mayle, 382 F. App'x 329, 330, 332 (4th Cir. 2010) (suggesting that multiple anonymous tips reporting the same thing lends credibility). Nor is there any basis upon which the magistrate, or a law enforcement officer, could determine the veracity or basis of knowledge of any "witnesses" described in the affidavit. And more fundamentally, even if the credibility of the witnesses is assumed to be unassailable for purposes of evaluating the warrant, there is nothing in the warrant to explain what those witnesses saw.

C. Defendant's Presence at Firewater

This court agrees with the Government that the affidavit reflects the fact that the "witnesses" stated that Defendant was present and that fact was confirmed by Defendant's own statement, corroborating Defendant's presence at the scene of the shooting. (Mot. to Suppress, Ex. A, Search Warrant (Doc. 14-1) at 7.) Defendant's presence was further confirmed by the fact that Defendant's vehicle was "shot into during the shooting at Firewater." (Id.) Defendant's "presence" is no more indicative of culpability than that of any of the "witnesses" who were present. Additionally, the Detectives' verification that the vehicle was "shot into" does not provide any fact to suggest Defendant engaged in any criminal activity and simply corroborates Defendant's presence. Even if that fact is suggestive of some activity by Defendant or that Defendant may have been a victim by virtue of the shot into the vehicle, it does not suggest any evidence of criminal activity might be found in Defendant's home. Instead, assuming evidence of criminal activity might be found anywhere, it was limited to the vehicle itself as a result of a bullet "into" the car. "[R]esidential searches have been upheld only where some information links the criminal activity to the defendant's residence." United States v. Lalor, 996 F.2d 1578, 1583 (4th Cir. 1993).

D. "Threats"

While the information as to multiple witnesses identifying Defendant as a "suspect" is conclusory and provides no factual basis upon which to conclude probable cause is present, the information about a threat is a much closer issue under the good-faith exception question of whether an executing officer had reasonable grounds to rely upon the warrant. The warrant itself states:

Nevertheless, as noted above, in making a determination as to the good-faith exception under Leon, it is appropriate to look outside an affidavit in determining whether the officer's reliance was objectively reasonable. Leon notes that the good-faith exception is determined "in light of all the circumstances." McKenzie-Gude, 671 F.3d at 459; cf. Bynum, 293 F.3d at 197-98. In McKenzie-Gude, the Fourth Circuit held "that Leon presents no barrier to holding that the experienced officers in this case, who swore out the affidavit and executed the search, acted with the requisite objective reasonableness when relying upon uncontroverted facts known to them but inadvertently not presented to the magistrate." McKenzie-Gude, 671 F.3d at 460. The court further stated that "we do not believe that a court abandons the objective inquiry required by Leon when it considers the uncontroverted facts known to the officer, which he has inadvertently failed to disclose to the magistrate." Id. In McKenzie-Gude, the district court "received as exhibits the police incident report describing the police investigation of McKenzie-Gude and Ms. Yevsukov's July 27, 2008 letter." Id. at 457. The Fourth Circuit concluded that these facts — the documents in the record containing the undisputed, relevant facts known to the officers prior to the search — "sufficed to establish objectively reasonable reliance on the warrant." Id. at 461.

The Government, the party with the burden of establishing good faith under Leon, has not presented evidence in this case. Neither party has presented any evidence to permit a finding as to the specific information provided by Defendant at his home regarding any threats on social media as alleged in the affidavit. However, at the May 24, 2018 hearing, Defendant introduced a video and audio recording of Defendant's interview by law enforcement as well as that of Sherika Pate ("Pate").3 (Mem. Op. & Order (Doc. 21) at 10 n.3.) A review of the interview of Defendant by this court suggests investigators' suspicion of Defendant's communications relating to the shooting could reasonably have been heightened during this time, but otherwise the interview does not corroborate or explain any "threats on social media." Instead, Defendant in the interview appears to describe the fact that he had been communicating with a former girlfriend by telephone and at one point an unknown male took her phone and asked Defendant why he "shot my bro." Defendant also filed as an exhibit a report of a law enforcement officer, which reflected that Defendant said that "an unknown male" stated to Defendant that he "shot my bro," (Mot. to Suppress, Ex. B, Case Suppl. Report (Doc. 14-2) at 2), which is consistent with Defendant's statements in the interview.

In accordance with McKenzie-Gude, this court must consider the "uncontroverted facts known to the officer, which he has inadvertently failed to disclose to the magistrate." 671 F.3d at 460. This endeavor is complicated in this case for several reasons.

First, no evidence has been presented as to any additional and specific facts known to the officers in relation to any "threats made to [Defendant] on social media." It is not known whether facts available to the officers, and provided by Defendant, would explain why those threats were relevant to any criminal investigation.

Second, after review of all of the evidence presented, including the affidavit, the videotaped interview of Defendant, the audio of Pate's interview, and the memorandum of interview, those additional facts do not further explain the social media threats described in the affidavit, nor does this evidence establish what additional facts the officers might have known and relied upon in relation to the affidavit. With respect to the unknown caller's statement to Defendant, characterized as a threat, Defendant did describe that statement during a face-to-face encounter with law enforcement during the videotaped interview, and, as a result, those facts may have been something an objectively reasonable officer might have known.

However, this court is not able, on this record, to find the interview information obtained from either Defendant or Pate constitutes "uncontroverted facts known to [the officers who swore out the warrant and executed the search] but inadvertently not presented to the magistrate." McKenzie-Gude, 671 F.3d at 460. First, it is not clear that the "executing officers" were aware of or ever considered information gleaned during the interviews. The affidavit submitted in support of the search warrant application concludes with the statement that Defendant "then left willingly with Salisbury Police Detectives to be driven to the Salisbury Police Department to give a statement." (Mot. to Suppress, Ex. A, Search Warrant (Doc. 14-1) at 8.) As a result, the affidavit is clearly written to include information obtained during a discrete period of time, from the shooting until Defendant was driven to the police department. No evidence has been presented to clarify or explain any additional facts obtained by the officers who swore out the affidavit and executed the search during that time which might support a finding of good faith under Leon.

The evidence introduced by Defendant of the interviews of Defendant and Pate arises during the time after Defendant and Pate were taken to the police station. The interviews are conducted from 8:30 until after 10:00, the time the warrant was issued. Although the content of the interviews suggests reasons why law enforcement would be interested in Defendant's communications, at least by telephone, this court is unable to determine what information may be relevant to the Leon analysis as uncontroverted facts known to the officers but inadvertently not presented to the magistrate. See McKenzie-Gude, 671 F.3d at 460. No evidence has been presented that the executing officer participated in the interviews, was aware of any facts obtained during the interviews, or relied upon those facts in any way. The burden of proof is on the Government, not this court, to demonstrate application of the good-faith doctrine.

Furthermore, the statement Defendant described during his interview was made over the telephone of Pate, according to Defendant, and no evidence is presented to explain how that statement might support a threat on social media or, more significantly, why the cell phone might have revealed any relevant information as to the threat on social media. The affiant's experience as contained in the affidavit fails to list any experience with social media or cell phones, (Mot. to Suppress, Ex. A, Search Warrant (Doc. 14-1) at 6), and nothing in the warrant explains what evidence might be found within the cell phones or media devices. Additionally, there is nothing to suggest that threats made to Defendant "on social media" would be stored on "cell phones" or that said phones might be found in the house. While it is reasonable to infer that the nature of some items suggests the item might be found in the home, see Doyle, 650 F.3d at 471, a phone is notably different, and at least one court has persuasively explained why such an inference would not apply to a cell phone, see United States v. Griffith, 867 F.3d 1265, 1273-74 (D.C. Cir. 2017).

This court concludes that, to the extent law enforcement officers had additional information relating to the issue of probable cause or further explaining any threats over social media, the record here does not permit this court to determine what facts or information that may have been. Because the Government bears the burden of proof as to an officer's objectively reasonable reliance upon the warrant, this court is unable to find that the Government has met its burden and the good-faith exception applies in this case.

A "bare bones" affidavit is "one that contains `wholly conclusory statements, which lack the facts and circumstances from which a magistrate can independently determine probable cause.'" DeQuasie, 373 F.3d at 521 (quoting United States v. Wilhelm, 80 F.3d 116, 121 (4th Cir. 1996)). If the conclusory words and phrases are removed from this affidavit — witnesses, suspect, threats — the affidavit contains facts which establish that Defendant was present at Firewater when the shooting took place, Detectives verified that Defendant's car was shot into during the shooting, and Defendant gave inconsistent statements as to the location of his second phone. These facts fall far short of establishing probable cause to search Defendant's home, and an objective law enforcement officer would not have reasonably relied on such a deficient warrant. See Andrews, 577 F.3d at 236 n.1; see also Doyle, 650 F.3d at 470. "[W]here a reasonable officer would know that a probable cause determination could not be rendered without information conspicuously absent from his application for a warrant, reliance on the resulting warrant is not objectively reasonable." Doyle, 650 F.3d at 476.

As explained in Leon and recognized in McKenzie-Gude,

Leon, 468 U.S. at 921 (citation and footnote omitted); see also McKenzie-Gude, 671 F.3d at 461. After review of the interviews, it appears to this court that the officers involved in this case were earnest in their efforts to investigate or, alternatively, allay their suspicions as to Defendant. It may very well be that other information, not presented in this case, might cause this court to reach a different result. Nevertheless, the paucity of factual information and striking conclusions contained in the warrant and this court's inability to determine what facts may have been available to and relied upon by the officers who swore out the affidavit and executed the search preclude the application of the good-faith exception. The search of an individual's home cannot be based on a general allegation of suspicion without facts to support or explain how that suspicion amounts to probable cause to believe that the individual was engaged in criminal activity and that evidence thereof will be found in the individual's home.

III. CONCLUSION

For the reasons outlined herein,

IT IS HEREBY ORDERED that Defendant's Motion to Suppress, (Doc. 14), is GRANTED and evidenced seized as a result of the search is hereby SUPPRESSED.