Search and Seizure - Good Faith / Leon

Heien v. North Carolina, 135 S. Ct. 530 (2014)

A good faith mistake of law by a law enforcement officer does not render an arrest, or detention unreasonable under the Fourth Amendment. Even prior to the decision whether the exclusionary rule should apply, the court must consider that a Fourth Amendment violation requires that the arrest or detention be “unreasonable”. And if the police officer has made an objectively reasonable mistake of law, then the detention of a suspect is not unreasonable. In Heien, the police officer stopped the defendant because he had only one working brake light. Under North Carolina law, cars are only required to have one working brake light. The parties agreed that the officer’s mistake of law was reasonable. The defense claimed, however, that a mistake of law by a law enforcement officer renders a detention unreasonable for Fourth Amendment purposes. The Supreme Court disagreed. For the same reason that a reasonable mistake of fact does not render a detention unreasonable, a detention prompted by a reasonable mistake of law is also not an unreasonable detention.

Arizona v. Evans, 514 U.S. 1 (1995)

Because of a clerical error, a computer showed that there was an outstanding arrest warrant for the defendant. He was arrested and a bag of marijuana was found. The Court holds that the good faith exception to the exclusionary rule applies in this context. Thus, if the police are acting in objectively reasonable good faith in arresting the defendant, a search incident to that arrest will be upheld, even if the arrest was later determined to be invalid because of a clerical error.

Herring v. United States, 129 S. Ct. 695 (2009)

Sheriff’s Deputies in one county were told by a clerk in a neighboring county that there was a warrant for the defendant’s arrest. This was inaccurate. The neighboring county Sheriff personnel had negligently failed to erase the warrant from the computer system when it had been withdrawn. The question in this case is whether Arizona v. Evans, which applies to negligent errors by court personnel also applies in this situation, where the negligence is committed by law enforcement personnel. The Supreme Court held that the exclusionary rule would not be applied in this situation. Excluding the evidence derived from the improper arrest would not deter police misconduct since negligence is not deterred by “punishing” the police. There was no evidence of systematic errors by the neighboring county’s sheriff’s department.

Davis v. United States, 131 S. Ct. 2419 (2011)

A search that was conducted in accordance with the prevailing law (Belton), would not be subject to the exclusionary rule on the basis of Gant, which was decided while the matter was still on direct appeal. The good faith exception to the exclusionary rule applies in this situation.

United States v. Alvarado-Zarza, 782 F.3d 246 (5th Cir. 2015)

A Texas statute requires that a turn signal be activated at least 100 feet prior to making the turn. In this case, the defendant activated his turn signal less than 100 feet prior to changing lanes, but more than 100 feet from where the turn actually occurred. The Texas police officer stopped the vehicle on the basis that the defendant violated the 100-foot rule by failing to activate his signal prior to changing lanes. The Fifth Circuit, in this post-Heien decision held that the officer’s mistake of law (applying the 100-foot rule to the change of lanes, rather than the actual turn) was not reasonable and his possible mistake about whether the turn itself was less than 100-feet from the point that the signal was activated was also not reasonable. The stop of the vehicle was improper and the evidence discovered as a result of the stop should have been suppressed.

United States v. Hill, 776 F.3d 243 (4th Cir. 2015)

The defendant was on supervised release. Nothing in the conditions of his supervised release amounted to a waiver of his Fourth Amendment rights. He was required to allow a probation officer to visit him in his home, and was required to alert the probation officer if he moved. The defendant failed to notify his probation officer when he moved. The officer went to his new house with law enforcement officers and after arresting him for moving without notifying the probation department, the officers brought in a drug-detecting dog. This was an illegal search and the evidence should have been suppressed (unless, on remand, the government could make a showing that the independent source rule applied). Moreover, the good faith exception to the exclusionary rule did not apply.

United States v. Bershchansky, 788 F.3d 102 (2d Cir. 2015)

The agents signed a search warrant application verifying in detail that they wanted to search Apartment 2 at a certain location where the defendant supposedly lived and where his computer IPS address was located. The warrant was issued. When the agents arrived, they realized that the defendant lived in Apartment 1. They searched that apartment. The Second Circuit held that the search was improper and was not conducted in good faith. This was not a case of a mere typographical error.

United States v. Camou, 773 F.3d 932 (9th Cir. 2014)

The defendenat was stopped in his vehicle and charged with smuggling undocumented aliens. He was brought to the police station where he and one of his passengers were questioned. The passenger admitted that they regularly were engaged in smuggling activity. The police seized the defendant’s cell phone and listed it on a property report as seized evidence. Approximately 90 minutes later, the police searched the contents of the phone. The Ninth Circuit held that this was a not proper search incident to arrest search, not a proper exigent circumstances search and not a proper “automobile exception” search. In addition, the court rejected the inevitable discovery doctrine and the good faith exception to the exclusionary rule as reasons not to apply the exclusionary rule.

United States v. Vazquez, 724 F.3d 15 (1st Cir. 2013)

The police told the defendant that with or without her consent, the police were going to search her house. They claimed to have the authority based on the fact that her boyfriend (who the police erroneously believed lived in the house, too) was on parole and subject to a warrantless search. She consented. This was not valid consent, because it amounted to nothing more than acquiescence to a show of authority (the police did not, in fact, have the authority to conduct a warrantles search), rather than free and voluntary consent. The court noted that the officers’ subjective good faith that they had the authority to conduct a warrantless search did not exempt this case from the application of the exclusionary rule. Their good faith was not, according to the First Circuit, reasonable.

United States v. Nicholson, 721 F.3d 1236 (10th Cir. 2013)

The police stopped the defendant’s vehicle or a motor vehicle offense that did not actually occur. In short, the police thought the defendant had made an illegal left turn, when, in fact, there was nothing illegal about the method by which he made the turn. (The law related to which lane a car must enter when making a left turn). This mistake of law on the part of the officer rendered the stop improper and any evidence discovered thereafter should have been suppressed. The Tenth Circuit distinguished mistakes of fact on the part of law enforcement officers which, if reasonable, will not lead to suppression of the evidence.

United States v. Underwood, 725 F.3d 1076 (9th Cir. 2013)

The Ninth Circuit concludes that a state search warrant for the defendant’s house lacked probable cause and also was so deficient, that the Leon good faith exception to the exclusionary rule did not apply. The warrant application simply recited the contents of a related federal search warrant affidavit (which was used to search other conspirators’ houses) and, with regard to the defendant, noted that he had been seen delivering crates to alleged co-conspirators (in a suspicious manner) three months earlier and a personal-use amount of marijuana was observed in his house. Additional conclusory opinions were of no value in establishing probable cause.

United States v. Harrison, 689 F.3d 301 (3rd Cir. 2012)

The Third Circuit noted that if the police make a reasonable mistake of fact (such as whether an apartment is abandonded, as in this case), that does not negate probable cause. A mistake of law, on the other hand, is per se unreasonable.

United States v. Voustianiouk, 685 F.3d 206 (2d Cir. 2012)

The police had a search warrant to search the first floor apartment at a certain address. When they arrived, they realized that the defendant lived in the second floor apartment so they went there and conducted a search. The Second Circuit held that this amounted to a warrantless search that would not be saved by the good faith exception to the exclusionary rule.

United States v. Grant, 682 F.3d 827 (9th Cir. 2012)

The police did not make a colorable claim that a weapon used in a homicide was likely to be found at the defendant’s house. The defendant, who lived in the house was not tied to the homicide and his son, who may have been involved, was not shown to have gone to the defendant’s house, or had the gun brought there. Even the good faith exception to the exclusionary rule did not resurrect this flawed search warrant.

Virgin Islands v. John, 654 F.3d 412 (3rd Cir. 2011)

The defendant was known to have committed child molestation. There was no information to support the claim that there would be child pornography on the defendant’s computer. Issuing a search warrant for the defendant’s computer was not proper and the exclusionary rule applied. The affiant did not allege in the affidavit that there was a known correlation between child molesters and child pornography collectors. The failure to set forth this critical fact in the affidavit rendered the affidavit so lacking in probable cause that no reasonable officer could have relied on the warrant. The court explained that a magistrate may not infer a correlation between child abuse and the presence of evidence on a computer. That is a fact that must be averred in the affidavit. And when it is omitted, the court may not invoke the good faith exception to the exclusionary rule and assume that the officer was aware of this “fact.”

United State v. Doyle, 650 F.3d 460 (4th Cir. 2011)

The search warrant in this case failed to allege that pictures possessed by the resident of a house were pornographic and failed to allege when – or where – the pictures were possessed. This warrant lacked probable cause and did not even survive a good faith Leon review. The probable cause basis of the warrant provided, the following: “Three minor children have come forward and stated that [Doyle] has sexually assaulted them at the Doyle residence. One victims [sic] disclosed to an Uncle that Doyle had shown the victim pictures of nude children.” This description failed to state that the “nude pictures” were pornographic (i.e., lewd depictions) and because there was no statement of when these events occurred, the information was stale (the court noted that the notion of staleness when it comes to computer evidence is rarely a basis to deny a search warrant, but in this case, there was no indication of when the pictures existed). In addition, the statement does not indicate where the pictures were shown to the child, so there was scant basis for believing that the evidence sought by the search warrant would be located at the residence, though the appellate court did not base its ultimate conclusion on this flaw in the warrant. With regard to the absence of probable cause, the court also noted that evidence of child molestation does not automatically authorize the search for child pornography.

United States v. Master, 614 F.3d 236 (6th Cir. 2010)

The defendant lived in Coffee County. The police believed that he lived in Franklin County. A Franklin County judge issued a search warrant. The Sixth Circuit held that if a state judge does not have authority under state law to issue a search warrant for a particular location, the execution of the warrant violates the Fourth Amendment and the evidence must be suppressed, even in a federal court. This is not a case, like Virginia v. Moore, 553 U.S. 164 (2008), in which the violation does not implicate the Fourth Amendment and only violates a state law. However, the Sixth Circuit also concluded that pursuant to Herring, the lower court must weigh the cost of suppression against the benefit of deterrence. Because the officers apparently believed that the property was located in the county where the judge was located, they acted in good faith and if this is satisfactorily established at a hearing, the exclusionary rule should not apply.

United States v. Davis, 598 F.3d 1259 (11th Cir. 2010)

When the defendant’s car was searched, Gant had not yet been decided, and the search was valid under then-prevailing law in the Circuit (interpreting Belton to authorize a car anytime there was an arrest of the driver). The question in this case, is whether a pre-Gant search is subject to suppression if the case is brought to court post-Gant. In other words, if the search was lawful when it was conducted, but subsequent changes in the law rendered it unlawful, should the exclusionary rule be applied. The Eleventh Circuit concluded that the exclusionary rule does not apply in this situation, relying on Illinois v Krull, 480 U.S. 340 (1987) and Herring v. United States, 129 S. Ct. 695 (2009). CERT GRANTED and the United States Supreme Court affirmed. 131 S. Ct. 2419 (2011).

United States v. Cha, 597 F.3d 995 (9th Cir. 2010)

The police seized the defendant’s house and held it for twenty-four hours (not allowing the defendant to enter), while a search warrant was obtained. This was too long and the evidence obtained from the search that was conducted thereafter should have been suppressed, even though it could not be said that the search or the discovery of the evidence was the “fruit” of the illegal seizure. The court also rejected the government’s effort to extend the Herring good faith exception to the exclusionary rule to this situation.

United States v. Pena-Montes, 589 F.3d 1048 (10th Cir. 2009)

The police pulled over the car in which the defendant was a passenger because the officer could not see a license plate on the car. Upon approaching the car, the officer saw a dealer plate displayed in the rear window. The officer thought the car might be stolen, because the driver had no paperwork establishing his ownership, but after calling in the VIN number, the officer found no report that the car was reported stolen. Nevertheless, the officer questioned the defendant – the passenger – and decided that his answers to various questions were suspicious and eventually, he was arrested. The police later determined that he was an illegal alien. The Tenth Circuit held that the continued detention of the occupants of the car was not legal. Once the officer saw the dealer tag, there was no basis for detaining them. The officer’s testimony that dealer tags are limited circumstances in which a driver test-drives a car was legally incorrect. The officer’s mistake of law (as opposed to mistake of fact) could not justify the continued detention of the vehicle’s occupants. The court remanded the case to the lower court to assess the extent to which the exclusionary rule would apply in this case (i.e., excluding evidence of the defendant’s identity and status as an illegal alien).

United States v. Clarkson, 551 F.3d 1196 (10th Cir. 2009)

In this Tenth Circuit decision, decided one week prior to the decision in Herring, the Tenth Circuit held that if a drug-sniffing dog is not properly trained, but a police officer relies in good faith on the statement of another officer that the dog is properly trained, the evidence will be subject to the exclusionary rule, because a police officer’s reliance on another police officer who provides erroneous information is not covered by Arizona v. Evans. Again, however, this decision was issued prior to Herring.

United States v. Hodson, 543 F.3d 286 (6th Cir. 2008)

The fact that the defendant was indisputably a child molester did not provide probable cause to believe that there was child pornography on his computer. The officer, moreover, could not have executed the warrant in good faith, because the application contained virtually no information that would have supported the search for pornography.

United States v. Valadez-Valadez, 525 F.3d 987 (10th Cir. 2008)

The Tenth Circuit holds that stopping a vehicle because it is proceeding 10 mph below the speed limit is not a valid traffic stop in the absence of evidence that the defendant is obstructing or impeding the flow of traffic. In this case, the officer was laboring under a mistake of law (as opposed to a mistake of fact) about whether the defendant’s speed must be impeding the flow of traffic before an offense is being committed. A mistake of law does not justify a stop which is not legally permissible. “An officer’s failure to understand the plain and unambiguous law he is charged with enforcing is not objectively reasonable.”

United States v. West, 520 F.3d 604 (6th Cir. 2008)

Two search warrants were issued in this case. The first was devoid of probable cause, because it contained bare bones assertions about the defendant (all of which were based on hearsay statements that the affiant learned from other officers and individuals). The warrant also failed to link any criminal activity on the part of the defendant with the location that the police wanted to search. The warrant did not even satisfy the Leon good faith standard. The second warrant set forth facts that an informant told the affiant that the defendant confessed to a murder and the body could be found in a well at a certain location; the warrant sought authorization to search the defendant’s van. The affiant, however, failed to reveal that the informant was serving time in federal custody and that the police went to the location where the body was supposedly located and found nothing – not even a well.

United States v. Rice, 478 F.3d 704 (6th Cir. 2007)

The Leon good faith exception to the exclusionary rule does not apply to Title III wiretap cases. Because suppression is a statutory remedy, the court-made exception to the court-created exclusionary rule in other search cases, does not apply. In this case, the warrant application contained misrepresentations and recklessly-made false statements which, when corrected, negated the necessity requirement for a wiretap. The court also upheld the trial court’s finding that various boilerplate representations about alternative methods were not useful in a wiretap application.

United States v. Luong, 470 F.3d 898 (9th Cir. 2006)

The linchpin of the basis for obtaining the search warrant was an unverified tip that someone arriving on a plane from overseas was a chemist who was involved in methamphetamine manufacturing. The affidavit did not even identify who the suspect was. There was insufficient probable cause to support the issuance of a search warrant and the affidavit was so lacking in probable cause that Leon did not apply. The Ninth Circuit also held that where a search warrant application is so lacking in probable cause, the court would not consider any supposed oral communications made by the affiant to the issuing magistrate in deciding whether Leon would resurrect the warrant.

United States v. McPhearson, 469 F.3d 518 (6th Cir. 2006)

The bare bones search warrant stated that a person was arrested in front of his house and that he had drugs in his pocket was so deficient in setting forth probable cause that drugs could be found in the house that even the good faith exception to the exclusionary rule could not resurrect the search.

United States v. Washington, 455 F.3d 824 (8th Cir. 2006)

The police pulled the defendant over because his windshield was cracked. A gun was found and the defendant was prosecuted for being a felon in possession of a firearm. Driving with a cracked windshield, however, is not a violation of Nebraska State law. Therefore, the stop of the defendant was unlawful and the discovery of the gun was a fruit of the illegal stop. The government’s argument that the officer acted in good faith was rejected: The mistake of law was not objectively reasonable. The question is not whether the officer subjectively believed that the law was being violated, but whether, from an objective point of view, a belief that the law was being violated was reasonable.

United States v. Herrera, 444 F.3d 1238 (10th Cir. 2006)

A state administrative law permitted the inspection of any vehicle weighing over 10,000 pounds. The police officer in this case believed that the defendant’s pickup truck weighed over 10,000 pounds and stopped the vehicle to perform an inspection. Actually, the truck did not weigh over 10,000 pounds. The officer’s mistake of fact rendered the search unlawful. In contexts of searches other than administrative searches, a reasonable mistake of fact does not render a search unlawful. But with regard to administrative searches, because the exception to the warrant requirement is based on the “target’s” acquiescence to being searched by engaging in the administratively regulated activity, the officer’s mistake of fact cannot be used as a basis for obviating the requirement of probable cause. In short, the defendant, by driving a vehicle that did not weigh over 10,000 pounds, did not knowingly engage in activity that was pervasively regulated.

United States v. Cole, 444 F.3d 688 (5th Cir. 2006)

The defendant stopped at a stop sign just shy of the cross walk, but over the solid white line. He claimed that this did not violate Texas law. The government argued that the traffic stop was valid regardless of the actual Texas law, because the officer, in good faith, thought that the law required the defendant to stop before the solid white line. The Fifth Circuit held that a good faith mistake as to the law was not a cure for an invalid stop.

United States v. Hython, 443 F.3d 480 (6th Cir. 2006)

The search warrant application revealed that a controlled purchase of cocaine occurred at the target location, but nowhere in the warrant did the affiant reveal when this controlled purchase occurred. Therefore, the information in the warrant application was stale and there was no probable cause to search the premises. Moreover, the Leon good faith exception did not apply. In reaching the Leon conclusion, the Sixth Circuit noted that whether an officer could objectively rely on the warrant as being valid, the court held that the inquiry is limited to the four corners of the affidavit. Thus, what the affiant actually knew (but did not recite in the affidavit) cannot be considered in the good faith analysis.

United States v. Angelos, 433 F.3d 738 (10th Cir. 2006)

Though the FBI and the AUSA intended to get a search warrant that would have allowed the agents to search the defendant’s car and house (and there was, in fact, probable cause to search both the car and the house), they mistakenly submitted a search warrant that only identified the car as the target of the search. Searching the house was therefore impermissible. Moreover, because the search warrant clearly only authorized the search of the car, the good faith exception to the exclusionary rule did not apply.

United States v. Frazier, 423 F.3d 526 (6th Cir. 2005)

When deciding whether an invalid search warrant may be resurrected under the good faith Leon rationale, the Sixth Circuit previously held (Laughton, below) that only information in the affidavit may be considered in making the good faith determination. In this case, however, the court extended Laughton and held that other information actually conveyed to the magistrate by the affiant may also be considered in evaluating the affiant’s good faith.

United States v. Laughton, 409 F.3d 744 (6th Cir. 2005)

The fact that the officer knew more facts than he recited in the warrant application is not relevant to the good faith analysis. The question to be decided in assessing whether the warrant which is facially invalid could be rescued by Leon is whether a reasonable officer would have believed in the validity of the warrant and the existence of probable cause, not whether the officer in this case actually had sufficient information which he simply did not recite in the application. The Eleventh Circuit reached a contrary result in United States v.Martin, 297 F.3d 1308 (11th Cir. 2002)

United States v. Gonzales, 399 F.3d 1225 (10th Cir. 2005)

The defendant’s car was searched after it was involved in a car accident. Ammunition was found, but no gun. A search warrant was issued, but the application never explained the basis for searching the specific location that the affiant wanted to search. The search warrant failed not only to establish probable cause, but also failed the good faith standard. “For good faith to exist, there must be some factual basis connecting the place to be searched to the defendant or suspected criminal activity.”

United States v. Gourde, 382 F.3d 1003 (9th Cir. 2004) REVERSED BY EN BANC COURT – 440 F.3d 1065 (9th Cir. 2006).

The FBI learned about a website that permitted members to download child pornography. Defendant Gourde was determined to have been a member of the web site for two months. The FBI obtained a search warrant, claiming that any member would have had access to the child pornography. The affiant offered various expert opinions about the M.O. of child pornographers on the internet. The Ninth Circuit held that there was no probable cause to search the defendant’s house and seize his computers based on this information. Moreover, Leon did not apply, because no officer could have relied in good faith on this warrant. There was no information that Gourde had actually downloaded any files from the website, though the FBI acknowledged that it had the capability of determining whether he did prior to the time the search was executed. See also United States v. Weber, 923 F.2d 1338 (9th Cir. 1990). REVERSED BY EN BANC COURT.

United States v. Chanthaxouxat, 342 F.3d 1271 (11th Cir. 2003)

The police pulled over the defendant’s car because the officer believed that the defendant was in violation of a municipal law that required an inside rear view mirror. Actually, there was no such law. This rendered the stop illegal and the officer’s good faith did not rescue the government. An officer’s good faith mistake of fact may support a stop, but a mistake regarding the law cannot support an illegal stop and the evidence derived from the stop must be suppressed.

United States v. Parker, 373 F.3d 770 (6th Cir. 2004)

The magistrate who issued the search warrant in this case was a part-time employee of the local jail in an administrative capacity. She did not qualify as a “neutral and detached magistrate” as required by the Fourth Amendment and the Leon good faith exception to the exclusionary rule did not apply. Among other reasons, the judge had an interest in the outcome of the proceedings because of her work as the chief lieutenant deputy jailor for financial matters including the collection of fees and billings for housing inmates and for trying to secure the financial stability of the jail. See Tumey v. Ohio, 273 U.S. 510 (1927).

United States v. DeGasso, 369 F.3d 1139 (10th Cir. 2004)

Though the police were justified for other reasons in stopping the defendant’s vehicle, one of the purported justifications was invalid. The police officer mistakenly believed that the defendant was violating a local law which regulated the use of fog lamps on cars. The highway patrol officer mistakenly believed that the use of fog lamps was improper during daylight hours unless the weather conditions required their use. Actually, the use of fog lamps is only outlawed if they are used in lieu of regular headlights during the nighttime. The Tenth Circuit held that even though the officer acted in good faith, this was not a valid basis for stopping a car and is not excused by the officer’s supposed good faith.

United States v. Hammond, 351 F.3d 765 (6th Cir. 2003)

Because of the Franks v. Delaware violations that tainted the search warrant, the court concluded that the officer could not have acted in good faith in executing the search warrant. “The number of falsehoods and half-truths told are substantial and reflect, at the every least, a reckless disregard for the truth.”

United States v. Conner, 127 F.3d 663 (8th Cir. 1997)

The police received a tip that two burglars were at a motel. Six officers went to the motel and went to the room in front of which the burglars' car was parked. The police knocked on the door and yelled, "Open up." When one of the defendants opened the door, the police observed (through the open door) various coins (they knew a coin collection had been stolen in the burglary). The officers pulled their weapons and arrested both defendants. They then obtained a search warrant on the basis of what they observed in the room. The trial court correctly granted a motion to suppress. Though the police did not enter the room in order to see the coins, when they ordered the occupants to open the door, and thereby gained the ability to see in the room, this amounted to a search. Demanding that the occupants open the door did not amount to a consent search and there were no exigent circumstances necessitating the immediate entry into the room. The search pursuant to the search warrant was not salvaged by Leon, because the information contained in the application (the observations that were gained through the illegal entry), negate the existence of good faith. Finally, the officers would not have inevitably discovered the evidence, because absent the illegal entry, no other investigatory effort was underway to obtain a search warrant for the motel room.

United States v. Moreno-Chaparro, 180 F.3d 629 (5th Cir. 1998)

A border patrol agent improperly stopped the defendant’s car. The government urged the court to recognize that the agent acted in good faith. However, there are only three good faith exceptions to the exclusionary rule, reliance on a statute found to be unconstitutional; reliance on an outdated computer-generated warrant report; and reliance on a search warrant issued by a magistrate. Application of the good faith exception to the exclusionary rule to a warrantless stop of a vehicle without an articulable suspicion or probable cause is not proper.

United States v. Fuccillo, 808 F.2d 173 (1st Cir. 1987)

The search warrant in this case authorized the seizure of cartons of women’s clothing, the contents of those cartons, without identifying the contents of the cartons, and control slips identifying the stores intended to receive those cartons. The vice with this warrant was the failure to specify what types of clothing were subject to seizure – that is what clothing was believed to have been stolen and thus within the parameters of the search warrant affidavit. The Court holds that the warrant was overbroad on its face and that the good faith exception did not apply because of the obvious infirmity of the warrant.

United States v. Reilly, 76 F.3d 1271 (2d Cir. 1996)

The police entered the defendant’s property and observed marijuana growing in a cottage. Armed with this information, the police went to a magistrate and acquired a search warrant. The district court granted the motion to suppress and the Second Circuit affirmed. First, the court held that the cottage was within the curtilage of the property and the initial search was unlawful. The court then held that the subsequent efforts of the police to secure a search warrant did not trigger the good faith exception to the exclusionary rule. The police failed to reveal essential facts to the magistrate about their prior conduct, and the layout of the property when they obtained the search warrant. The court also cited numerous cases – but did not explicitly adopt this view – holding that the good faith exception should never apply where the police obtain a search warrant with evidence that was obtained during a warrantless and unlawful search.

United States v. Wilhelm, 80 F.3d 116 (4th Cir. 1996)

The affidavit in support of the search warrant relied entirely on the statements of a tipster who the affiant/officer had never met and who was not known to be reliable. The unsupported conclusions of the officer that the informant was reliable, mature and a concerned citizen were not sufficient, since the officer had no basis for asserting that the tipster was either reliable, mature, or concerned. The affidavit was so defective that the good faith exception to the exclusionary rule did not apply.

United States v. Weaver, 99 F.3d 1372 (6th Cir. 1996)

An informant went to the defendant’s house with $100 of government money to attempt to buy marijuana. The government agents did not provide surveillance, or in any other way corroborate the informant’s statement that he did, in fact, buy the marijuana at that location. This information did not support the issuance of a search warrant. Nowhere in the affidavit did the affiant disclose where the marijuana was kept or stored, the quantity of marijuana in the house, or any other particularized information that would have supported the belief that there was currently marijuana on the property. Also, the affidavit did not provide any information about the informant’s reliability, other than boilerplate language about his being reliable in the past. For example, the affidavit did not say that the informant’s past reliability related to drug cases. Finally, the corroboration of innocent details, such as the name on the utilities records for the residence, was meaningless. The court also held that when a police officer supplies a bare bones affidavit which is insufficient, and then executes the warrant himself, he cannot rely on the good faith exception to the exclusionary rule. Here, the officer attempted no meaningful corroboration of the informant’s information and conducted no other independent investigation, other than learning the identity of the occupant of the residence. The unlawful search, therefore, was not saved by Leon.

United States v. Leake, 998 F.2d 1359 (6th Cir. 1993)

An unknown tipster informed the police that marijuana was in the defendant’s basement. The tip was not “rich” in detail; he did not identify the occupants by name; he failed to state when he “smelled” the marijuana in the house; and no future conduct was accurately predicted, as in Gates. Also, the corroboration of the tip was virtually meaningless. The court held that Leon did not rescue this search.

United States v. Bowling, 900 F.2d 926 (6th Cir. 1990)

After obtaining a search warrant in good faith, officers learned that certain facts contained in the affidavit were not correct and would have cast a doubt on the existence of probable cause. The Sixth Circuit holds that in such circumstances the appropriate course of action is for the agents to return to the Magistrate and obtain a new warrant if the Magistrate feels that probable cause still exists. In this case, prior to executing the search warrant, other law enforcement officers obtained the subject’s consent to search the property and did not find any of the evidence and contraband which the agents had stated were present on the property in their search warrant application. The court goes on to hold that such a search does not pass the Leon test of good faith. The law was clear that probable cause must exist both when the warrant is applied for and when it is executed. The officers knew that probable cause was questionable when they executed the warrant and thus they did not act in objective good faith.

United States v. Baxter, 889 F.2d 731 (6th Cir. 1989)

A police officer applied for a search warrant stating that a confidential informant had advised him that drugs were at a certain location. In fact, there was no confidential informant, but rather an anonymous phone caller. The anonymous caller had not, contrary to what the police officer stated in the affidavit, provided any reliable information in the past. The Sixth Circuit holds that this constitutes a Franks violation and under Leon, there is no good faith exception to the exclusionary rule in cases where the police officer intentionally makes misstatements in the search warrant affidavit.

United States v. Fletcher, 91 F.3d 48 (8th Cir. 1996)

The factors upon which the government relied in support of the detention of the defendant’s luggage at an airport were not sufficient. However, having detained the bags, the officers then obtained a search warrant and the good faith exception to the exclusionary rule applied. The court held that if facts are learned during an illegal detention that are then used to acquire a search warrant, the Leon good faith rule may still apply. “The relevant inquiry is whether the facts surrounding reasonable suspicion are close enough to the line of validity that the police officers were entitled to a belief in the validity of the warrant and the existence of reasonable suspicion.”

United States v. O’Neil, 17 F.3d 239 (8th Cir. 1994)

The defendant and his brother arrived at a bus station in Minnesota from a source city, Chicago. The defendant and his brother walked immediately and briskly to the exit and were carrying athletic type bags. The brother had both of the bus tickets; the defendant, when confronted by drug agents, began sweating profusely. The police seized the bag, and the defendant immediately stated that it contained cocaine. The police brought the bag to a canine dog which alerted. The magistrate then issued a warrant. The appellate court held that the seizure was not supported by an articulable suspicion. The government then argued that because there was a warrant to support the search, the good faith exception to the exclusionary rule should apply. The Eighth Circuit disagreed: if the evidence presented to a magistrate is derived from an unlawful warrantless search, then the government cannot rely on the good faith exception, even if the warrant is issued by a neutral and detached magistrate. In this case, however, the defendant’s confession was independent of the seizure.

United States v. Decker, 956 F.2d 773 (8th Cir. 1992)

After making a controlled delivery of drugs to the defendant’s house, the police went to a magistrate to obtain a search warrant for the home. The form used for the search warrant, however, referred to stolen property and only allowed the search of the package. The judge testified at the suppression hearing that he really never looked at the warrant; he simply listened to the officer explain why he thought the UPS package contained drugs. In this context, the judge was a mere “rubber stamp” and as such the government failed to show that the issuing judge was a neutral and detached magistrate. The officers could not act in good faith in reliance on this warrant.

United States v. Weber, 915 F.2d 1282 (9th Cir. 1990)

The defendant’s house was searched pursuant to a search warrant which was directed at the presence of obscene material in the defendant’s home. The search warrant, however, allowed officers to search for a wide variety of magazines and advertising materials, none of which was backed up by probable cause. The only evidence against this defendant was the fact that a couple of ads addressed to him apparently depicted child pornography. The affiant’s statement about the “proclivities of pedophiles” did not support a wall-to-wall search of the house. The affidavit simply did not support a search for child pornography in general. The court rejected certain aspects of the warrant as “rambling boiler-plate recitations designed to meet all law enforcement needs.” Finally, the court concludes that the good faith exception to the exclusionary rule did not apply. The court’s amended decision, 923 F.2d 1338, did not alter the result.

United States v. Hove, 848 F.2d 137 (9th Cir. 1988)

In the affidavit in support of the search warrant, the police officers failed to link the suspect with the residence which was sought to be searched. This inadvertent failure to link the suspect to the premises rendered the affidavit insufficient and the officers could not have relied on it in good faith in searching the premises. This absence of good faith exists even though the officer in fact knew the link between the suspect and the residence.

United States v. Washington, 797 F.2d 1461 (9th Cir. 1986)

Sections of the federal warrant in this case which authorized the seizure of documents showing an employer/employee relationship between persons named and unnamed and evidence of defendant’s association with anyone did not meet the particularity requirement of the Fourth Amendment. Furthermore, the search warrant was so facially deficient that officers could not have acted in “objectively reasonable” reliance upon them.

United States v. Scales, 903 F.2d 765 (10th Cir. 1990)

Leon does not apply to searches which were not performed in reliance on a warrant. Police officers seized a defendant’s luggage and held it for seven hours prior to having it sniffed by a drug detection dog. It took another fourteen hours to obtain a search warrant. Because the pre-sniff detention was too long, the police could not rely on the “good faith exception” to the exclusionary rule.

United States v. Ellis, 971 F.2d 701 (11th Cir. 1992)

A search warrant directed the police to the wrong address. When they arrived there, the occupant told them where to go to find the target location. Because the information in the warrant did not adequately describe the place to be searched, the warrant failed the particularity test. Furthermore, the officers did not execute the warrant in good faith, because the officers did not actually know the correct location (such as those cases where the warrant simply has a typographical error, but the officer knew the correct location to be searched). Here, uncertain where the defendant lived, the officers simply accepted the word of the occupant of the first house.

United States v. Taxacher, 902 F.2d 867 (11th Cir. 1990)

In judging whether the good faith exception to the exclusionary rule applies, the question is whether a police officer’s belief in the existence of probable cause underlying a search warrant was objectively reasonable from the viewpoint of a reasonable officer, not a reasonable jurist.