United States v. John Lesueur, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 2, 2018
• Docket: 17-30128
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 2 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30128

Plaintiff-Appellee, D.C. No. 3:16-cr-00052-TMB-1 v.

JOHN LESUEUR, JR., MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Timothy M. Burgess, District Judge, Presiding

Argued and Submitted June 13, 2018 Anchorage, Alaska

Before: THOMAS, CALLAHAN, and BEA, Circuit Judges.

After the district court denied Appellant John Lesueur, Jr.’s motion to

suppress evidence found at his home following a warrantless police entry, Lesueur

pleaded guilty to a single count of being a felon in possession of a firearm. He

now challenges the denial of his motion to suppress and argues that the

subsequently obtained warrant was not supported by probable cause. Because we

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. agree with the district court that the state magistrate did not clearly err in issuing

the search warrant, we affirm.1 See United States v. Grant, 682 F.3d 827, 832 (9th

Cir. 2012) (reviewing for clear error decision to issue search warrant and giving

“great deference” to an issuing judge’s probable cause finding).

Even assuming, without deciding, that the warrantless entry violated the

Fourth Amendment, we are unpersuaded by Lesueur’s argument that the

subsequently obtained warrant lacked probable cause because it contained certain

facts discovered during the allegedly illegal entry. “The mere inclusion of tainted

evidence in an affidavit does not, by itself, taint the warrant or the evidence seized

pursuant to the warrant.” United States v. Vasey, 834 F.2d 782, 788 (9th Cir.

1987). Rather, “[a] reviewing court should excise the tainted evidence and

determine whether the remaining, untainted evidence would provide a neutral

magistrate with probable cause to issue a warrant.” Id. “An affidavit in support of

a search warrant demonstrates probable cause if, under the totality of the

circumstances, it reveals a fair probability that contraband or evidence of a crime

will be found in a particular place.” United States v. Celestine, 324 F.3d 1095,

1102 (9th Cir. 2003) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)).

Here, the affidavit supporting the search warrant contained only two facts

1 Because the parties are familiar with the facts and procedural history of this case, we do not recount them here.

2 discovered as a result of the warrantless entry: (1) that Lesueur “appeared from the

bedroom area” after officers entered the home; and (2) that an officer “observed

the victim’s cell phone, a handgun and a DVR/camera system in the residence.”

As the district court observed, striking these two portions of the supporting

affidavit does not negate the state magistrate’s determination that the existence of

firearms in the home was fairly probable. Remaining portions of the affidavit gave

the following details, none of which were discovered as a result of the illegal entry:

(1) on the day of the illegal entry, a third party reported to police that Lesueur’s

wife (“E.L.”) was being held against her will by Lesueur; (2) after police

interviewed E.L., she stated that Lesueur had used a pistol to force her to perform

sex acts on him, at several times placing a gun to her head; and (3) E.L. told police

that she purchased a .40 caliber pistol for Lesueur at his request because his felony

conviction prevented him from purchasing one himself. These facts alone were

enough to support the state magistrate’s probable cause determination. Thus, the

absence of the two facts deriving from the illegal entry would not have affected the

magistrate’s decision to issue the search warrant.

Because the search warrant was supported by probable cause, the district

court did not err when it denied the motion to suppress. The judgment of

conviction is

AFFIRMED.