United States of America v. Roy L. Norey

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-2406
___________________________
United States of America
Plaintiff - Appellee
v.
Roy L. Norey
Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Springfield
____________
Submitted: January 14, 2022
Filed: April 14, 2022
____________
Before BENTON, SHEPHERD, and STRAS, Circuit Judges.
____________
BENTON, Circuit Judge.
While executing a search warrant on Roy L. Norey’s residence, law
enforcement officers found a handgun and other contraband. Norey was charged
with felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§
922 and 923. He filed a motion to suppress the evidence seized during the search,

-- 1 of 9 --

-2-
which the district court1 denied. A jury later convicted him. He appeals the denial
of his motion. Having jurisdiction under 28 U.S.C. § 1291, this Court affirms.
I.
In 2018, a confidential informant told Springfield, Missouri, police that Norey
was dealing heroin and marijuana there. The informant stated that Norey was
importing heroin from Chicago and selling it at 1042 West College Street,
Springfield. Surveilling the location, Detective Brad Nicholson saw Norey, as well
as many vehicles, coming and going from it. He eventually stopped two vehicles;
one contained “two baggies of marijuana,” and the other contained “a small amount
of marijuana, a digital scale, and a large amount of counterfeit money.”
On October 17, 2018, a woman called the police to report that people at an
apartment at 230 East Montclair Street, Springfield, were selling guns and drugs.
She identified Roy Norey as one of the residents there. She stated that he “carried
drugs and a firearm sometimes.”
After multiple people were shot during a party at the College Street address
on December 23, 2018, Springfield police executed a search warrant on the address
and “seized four firearms, suspected heroin, marijuana, and pills.”
On January 2, 2019, Detective Nicholson surveilled Norey’s apartment at
“230 East Montclair [St.], Apartment 3B, Springfield.” He observed Norey leave
the apartment and stopped Norey’s vehicle. During the stop, Detective Nicholson
smelled “a strong odor of marijuana,” “Norey admitted to recently smoking
marijuana,” and Detective Nicholson “seized a baggie of marijuana from” him.
1 The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.

-- 2 of 9 --

-3-
Based on this information, Detective Nicholson applied for a search warrant
for Norey’s Montclair Street apartment to seize evidence of drug distribution. In
support, he submitted an affidavit, which stated:
• A confidential informant said that Norey was importing large amounts of
heroin, and selling it and marijuana at the College Street address;
• This informant had proven a reliable source of information and been
corroborated in past investigations;
• Surveillance showed many vehicles going to and from the College Street
address;
• A search of one vehicle revealed “two baggies of marijuana.” A search of
another produced “a small amount of marijuana, a digital scale, and a large
amount of counterfeit money”;
• After a shooting at the College Street address, a police search there
recovered four firearms, suspected heroin, and marijuana;
• Shortly after that search, Detective Nicholson began surveilling the
Montclair Street address, where he saw Norey leave. He then conducted a
traffic stop of his vehicle, during which he found a baggie of marijuana.
Norey admitted to recently consuming marijuana; and
• Norey and Natasha Norey were listed as city-utility account holders for the
Montclair Street address.
The affidavit did not reference the October 17, 2018, call.
On January 3, 2019, a state-court judge issued a warrant for the search. That
same day, Springfield police, including Detective Nicholson, conducted a search of
the Montclair Street address. They seized a handgun, ammunition, $16,000, digital
scales, and baggies, among other items.
Norey was charged with felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. §§ 922 and 923. He moved to suppress the evidence from the

-- 3 of 9 --

-4-
Montclair Street search and sought a Franks hearing because the warrant application
had incorrectly stated that Norey was listed on the utility bills for the Montclair Steet
address—when he in fact was not. A magistrate judge held a suppression hearing.
Detective Nicholson testified that, among other things, he surveilled the College
Street and Montclair Street locations “numerous times” and often saw Norey going
to and from both locations. He stated he accidentally typed in the wrong address
when checking the Montclair Street city-utility records, but Norey being listed as an
account holder for Montclair Street would not have surprised him because he often
saw Norey going to and from the location. Detective Nicholson also testified that
the written report for the October 17 call about Norey had “advised residents [at
Montclair Street] are selling drugs and guns in Chicago,” but the report’s written
description was inaccurate and “need[ed] to be corrected.”
The magistrate judge issued a Report and Recommendation finding that the
warrant lacked probable cause but the Leon good-faith exception applied, and that
the application’s incorrect statement about the utility bills was an unintentional
mistake, not a deliberate or reckless falsehood. The district court eventually denied
the motion to suppress, finding both that the warrant was valid and that the Leon
exception applied. After trial, a jury convicted Norey.
He appeals the order denying his motion to suppress.2
2 After this appeal was briefed, Norey sent a letter to the Clerk of Court, which
this Court interprets as a pro se Motion to Appoint Appellate Counsel. He discusses
various issues, but the only ones relevant to his appeal are that his current appellate
attorney: (1) did not appeal the Franks hearing determination or other arguments
raised in the original motion to suppress and rejected by the district court, (2) did not
keep him as abreast of work on the appeal as he would have liked, and (3) did not
file a reply brief. The merits arguments that Norey wanted to raise on appeal,
including the Franks argument and other circumstances in which Leon does not
apply, are unpersuasive and would not change the outcome of this Court’s analysis.
His attorney’s opening brief thoroughly addressed the issue appealed and not filing
a reply brief is common practice for appeals in this Circuit. This Court denies the
Motion as moot.

-- 4 of 9 --

-5-
II.
For denial of a motion to suppress, this Court reviews the district court’s
factual findings for clear error and legal conclusions de novo. United States v.
Faulkner, 826 F.3d 1139, 1144 (8th Cir. 2016). The determination of probable cause
is reviewed de novo. United States v. Augard, 954 F.3d 1090, 1093 (8th Cir. 2020).
For the application of the good-faith exception from United States v. Leon,
468 U.S. 897 (1984), this Court “defer[s] to a finding of good faith unless clearly
erroneous, but” reviews de novo “conclusions about the objective reasonableness of
the officers’ reliance.” United States v. Fiorito, 640 F.3d 338, 344 (8th Cir. 2011).
“Under the Leon good-faith exception, disputed evidence will be admitted if
it was objectively reasonable for the officer executing a search warrant to have relied
in good faith on the judge’s determination that there was probable cause to issue the
warrant.” United States v. Mayweather, 993 F.3d 1035, 1041 (8th Cir. 2021),
quoting United States v. Moya, 690 F.3d 944, 948 (8th Cir. 2012). Thus, when the
exception applies, evidence “seized pursuant to a warrant that lacked probable
cause” is admissible at trial. Fiorito, 640 F.3d at 345.
“[T]his Court ‘may consider the applicability of the good-faith exception to
the exclusionary rule,’” without addressing whether probable cause exists. United
States v. Williams, 976 F.3d 807, 809 (8th Cir. 2020), quoting United States v. Proell,
485 F.3d 427, 430 (8th Cir. 2007). “The good-faith inquiry is confined to the
objectively ascertainable question whether a reasonably well-trained officer would
have known that the search was illegal despite the issuing judge’s authorization.”
Id., quoting Proell, 485 F.3d at 430. To determine whether an officer had “an
objectively reasonable belief in the existence of probable cause,” this Court assesses
“the totality of the circumstances, including information known to the officer but not
presented to the issuing judge.” Fiorito, 640 F.3d at 345 (quotations omitted); see
Herring v. United States, 555 U.S. 135, 145 (2009) (“‘[The] good-faith inquiry is
confined to the objectively ascertainable question whether a reasonably well trained

-- 5 of 9 --

-6-
officer would have known that the search was illegal’ in light of ‘all of the
circumstances.’” (quoting Leon, 468 U.S. at 922 n.23)).
Leon also “identified four circumstances in which an officer’s reliance on a
warrant is not in objective good faith.” Fiorito, 640 F.3d at 345. One such
circumstance occurs when “the affidavit in support of the warrant is ‘so lacking in
indicia of probable cause as to render official belief in its existence entirely
unreasonable.’” Williams, 976 F.3d 807, quoting Leon, 468 U.S. at 923.
On appeal, Norey argues that the good-faith exception does not apply because
the affidavit in support of the warrant was so lacking in “indicia of probable cause
to search for evidence of drug trafficking” at Norey’s apartment that official belief
in the existence of probable cause was entirely unreasonable. Opening Br. at 27.
Specifically, he argues that the affidavit and additional information known to
Detective Nicholson “tended to show Mr. Norey resided at the Montclair address,”
id. at 27, but this is insufficient because the evidence did not show “evidence of drug
trafficking found [at the College Street address] had any connection to” him, “there
was no evidence that known drug dealers or their vehicles were surveilled at the
Montclair address,” and his possession of a small amount of marijuana when he was
leaving his home does not suffice to establish probable cause for drug trafficking,
id. at 28.
Norey is incorrect: Detective Nicholson had an objectively reasonable belief
in the existence of probable cause, and the affidavit contained sufficient indicia of
probable cause, so the good-faith exception applies. First, there is no evidence
Detective Nicholson acted in bad faith, and the issuing judge found that the affidavit
provided a substantial basis to find probable cause to search for evidence of drug
dealing at the Montclair Street address. See Leon, 468 U.S. at 922 (“[A] warrant
issued by a magistrate normally suffices to establish that a law enforcement officer
has acted in good faith in conducting the search.” (quotations omitted)).

-- 6 of 9 --

-7-
Second, the district court agreed with the issuing judge, despite the magistrate
judge’s conclusion that the affidavit did not provide probable cause. See United
States v. Simpkins, 914 F.2d 1054, 1058 (8th Cir. 1990) (“When judges can look at
the same affidavit and come to differing conclusions, a police officer’s reliance on
that affidavit must, therefore, be reasonable.” (quoting United States v. Martin, 833
F.2d 752, 756 (8th Cir. 1987))).
Third, the information known to Detective Nicholson reinforces the objective
reasonableness of his belief in probable cause. The confidential informant had said
Norey was importing large quantities of heroin, and selling heroin from College
Street address. Detective Nicholson saw Norey going to and from that address,
where the informant said Norey distributed drugs. He knew firearms, suspected
heroin, and marijuana had been seized during the search at the College Street
address. He knew a woman had reported Norey was selling guns and drugs, and
staying at the Montclair Street apartment. He also observed Norey frequently going
to and from that apartment, and stopped him when he was leaving the apartment.
Cumulatively, this information—known to Detective Nicholson—shows Norey
engaged in a continuous course of drug dealing, and resided at the apartment. See
Fiorito, 640 F.3d at 345 (stating the totality-of-the-circumstances analysis includes
“information known to the officer but not presented to the issuing judge”).
These facts establish that it was objectively reasonable for Detective
Nicholson to rely on the warrant. Thus, the Leon good-faith exception applies.
Norey counters that there was not a sufficient nexus between his drug
trafficking and this apartment. To be sure, without a nexus between a defendant’s
drug-dealing and the defendant’s residence, evidence of the former does not provide
probable cause for a warrant to search the latter. See United States v. Moya, 690
F.3d 944, 948 (8th Cir. 2012) (“[W]e have not adopted a per se rule . . . that probable
cause to arrest a drug trafficker establishes an inference that . . . evidence of drug
trafficking exists at the trafficker’s residence.” (quotations omitted)); see also United
States v. Carpenter, 341 F.3d 666, 671 (8th Cir. 2003) (stating that “we do not

-- 7 of 9 --

-8-
endorse . . . an inference [of probable cause] without a factual basis to form the nexus
between the residence and the drugs”).
However, the good-faith exception applies even if there is no direct nexus
between a defendant’s continuous course of drug trafficking and his residence
because an officer and an issuing judge may “logically infer that a drug dealer would
store contraband at his residence.” Mayweather, 993 F.3d at 1041; see Carpenter,
341 F.3d at 671-72 (concluding it was not “entirely unreasonable” for officer to
believe affidavit had adequate probable cause—despite lack of nexus between
defendant’s residence and suspected contraband—because “it is logical to infer that
someone in possession of valuable contraband would store that contraband in a safe,
accessible location such as his or her residence”). Because the evidence established
Norey’s continuous course of drug dealing and his residence at the Montclair Street
address, Detective Nicholson and the issuing judge could have logically inferred that
he “stored contraband at [that] residence,” Mayweather, 993 F.3d at 1041. Thus,
the affidavit was not so lacking in indicia of probable cause that official belief in its
existence was “entirely unreasonable.”
Finally, contrary to Norey’s claims, the present affidavit is a far cry from the
bare-bones affidavit found insufficient in Aguilar v. Texas, 378 U.S. 108 (1964). See
Opening Br. at 26-27. Compare Aguilar, 387 U.S. at 109, 114-15 (rejecting bare-
bones affidavit that claimed only a belief that drug-trafficking evidence would be
found because “[a]ffiants have received reliable information from a credible
person,” and provided no basis on which the officers thought the informant credible
or the information reliable), with Affidavit at 2-4, DCD 127 (detailing informant’s
reliability and statements about Norey dealing drugs at College Street; subsequent
search of that address; and surveillance of Montclair Street address, including traffic
stop of Norey).
In sum, the Leon good-faith exception applies. This Court need not address
whether the affidavit provided a substantial basis to find probable cause that drug-
trafficking evidence would be found at the Montclair Street address. See Williams,

-- 8 of 9 --

-9-
976 F.3d at 809 (finding evidence admissible under Leon without “reviewing the
existence of probable cause”); United States v. Ross, 487 F.3d 1120, 1122 (8th Cir.
2007) (“Assuming, without deciding, that the affidavit failed to provide a sufficient
nexus between [defendant’s] residence and the drug conspiracy at issue, the Leon
good-faith exception saves the evidence from suppression under the facts of this
case.”).
* * * * * * *
The district court’s denial of Norey’s suppression motion is affirmed. Norey’s
pro se Motion for Appointment of Counsel is denied as moot.
______________________________

-- 9 of 9 --