United States v. Kevin McClain George Brandt Jason Davis

response appel and the of the appellees, it an issue concur, Perhaps it. as I see cir petitions on lant thereto. The been raising consider should that defense original panel mem culated not remand. * judges also to all other of the bers but service, active than a regular court less in favor of majority of whom have voted Accordingly, peti rehearing en banc. for tions have been returned decision. petitions of the Upon consideration America,

UNITED STATES response concludes Plaintiff-Appellant, fully issues raised therein were considered original submission and decision upon case, requests for of the and each of Brandt; McCLAIN; George Kevin addition, rehearing is therefore denied. Davis, Defendants- Jason Judge Boggs penulti has revised the Chief Appellees. concurring paragraph opinion mate of his No. 04-5887. 2, 2005, and the decision of December with revised copies of that decision and the Appeals, Court of United States concurrence are attached hereto.** Circuit. Sixth March MARTIN, Jr., F. Circuit BOYCE MOORE, COLE, whom Judge, with Anderson, Attorney, Asst. U.S. Robert CLAY, dissenting Judges, join, Circuit Office, Nashville, TN, Attorney’s U.S. rehearing the denial of en banc. from Gannon, Department Thomas M. already the Fourth Amendment Because Section, Divi- Criminal Appellate Justice piece than a of Swiss more holes has DC, sion, Plaintiff-Appel- for Washington, adds an panel’s and the decision cheese lant. hole, errantly-fired cannon-ball sized other Gaines, Eldridge, Irvine & Richard L. denying from the Court’s decision I dissent Strianse, Knoxville, TN, Gaines, Peter J. panel’s en banc. The decision rehearing Nimmo, White, Tune, R. Price Entrekin & (1) errors: It misunder makes several Nimmo, Nashville, TN, Nimmo, Hoehn & rationale of stands Defendants-Appellees. for exception to the good-faith States v. rule announced United BOGGS, Judge; Before: Chief 82 L.Ed.2d GIBBONS, Circuit BATCHELDER (2) (1984); ignores It this Circuit’s Judges. opinion pub in an particularly precedent, decision days lished ten before ORDER Davis, in this see (3) (6th Cir.2005); It over F.3d 345 upon the court matter comes before This cir magnitude purported states the rehearing, sugges petitions banc, It relies split; cuit rehearing en filed tion for ** * opinion appears Note: The revised partic- Editor’s Judge Daughtrey herself from recused ruling. ipation in this precedents heavily drug in United States v. was involved in (8th White, Cir.1989), 890 F.2d 1413 Unit importation into the United States. Kiser, (8th ed F.2d 418 States Cir. Police then persons witnessed several ar- Fletcher, 1991), and United States v. 91 riving at leaving the residences and (8th Cir.1996), ignores F.3d 48 fact but packages, small as well as two individuals severely decisions those have been Miami, leaving Angeles on to flights Los by Eighth undermined limited other and drug city. known source decisions, such Circuit United States v. as pair, upon returning, S.Ct. 3405. The (8th O’Neal, Cir.1994); 17 F.3d 239 were discovered with small amounts of adopting Circuit’s under facts, marijuana. Id. On the basis of these precedent, correctly mined it fails to prepared the officers an affidavit request- it, by using internally logic, inconsistent warrant, ing by a search had it reviewed leading wrong to the result. For all of Deputy Attorneys, several District reasons, these decision incor a magistrate. submitted to Id. The rect and it undermines both the purposes magistrate facially then issued a valid of exclusionary good-faith rule and the warrant, the searches were con- exception, I and therefore dissent from the ducted, large and the officers discovered Court’s decision not to rehear the case en quantities drugs of and other evidence suf- banc. charge ficient to the defendants with con- spiracy possess to and distribute cocaine I. other various counts. Id. Exception A. Leon & The Good-Faith sup- defendants filed a motion to Leon, Supreme Court addressed press which granted part by “question whether the Fourth Amend- district court. Id. at 104 S.Ct. 3405. exclusionary ment rule should be modified The court concluded that the affidavits so as not to the use in prosecu- bar were insufficient probable to establish by tion’s case chief of evidence obtained cause magistrate had erred acting officers in reasonable reliance on a by issuing the Id. A warrants. divided issued warrant detached and affirmed, panel of the Ninth agree- Circuit magistrate ultimately neutral but found to ing that probable the affidavit lacked cause Leon, unsupported by probable be cause.” magistrate and that the erred issuing 468 U.S. at S.Ct. The case the warrant. Id. at 104 S.Ct. 3405. police, arose using when confidential in- The Ninth gov- Circuit also declined the formant, began two investigating individu- request recognize good- ernment’s suspected drug trafficking. als Id. at faith exception rule. During investiga- S.Ct. govern- 104 S.Ct. 3405. The tion the conducted surveillance of certiorari, petition ment filed a for ex- three residences and discovered that cars pressly declining to seek review over the parked at the visiting residences and cars present- cause determination and belonged the residences pre- individuals “[wjhether ing only question viously possession marijua- arrested for Fourth Amendment na. Id. A check of one of the individual’s should modified probation so not to bar the records led the to Alberto reasonable, who admission of evidence seized in previous likewise had a arrest drug charges, good-faith and at the time reliance a search warrant arrest, prior had subsequently information that is held to be defective.” posture Supreme ignore Id. It was in this inclined to or subvert the Fourth Amendment or that lawlessness among the case. Court reviewed these requires application actors good-faith To determine whether the ex- exclusion”). Thus, extreme sanction of exist, ception ought to the Court deter- any purpose, the exclusion of unlaw- “weight that it must the costs and ] mined fully obtained evidence “must alter the prose- the use in the preventing benefits of behavior of individual law enforcement of- inherently in cution’s case chief of trust- policies ficers or the departments.” their in worthy tangible evidence obtained reli- 918, Id. at 104 S.Ct. 3405. With these ance on a search warrant issued balanced, factors the Court determined magistrate detached and neutral that ulti- that “suppression of evidence obtained at mately is found to be defective.” Id. pursuant to a warrant should be ordered 907, In weighing 104 S.Ct. 3405. the costs only case-by-case on a basis and in benefits, recognized and the Court those unusual in cases which exclusion will “substantial social costs” of the exclusion- further the ary because of its interference with objec- rule.” Id.1 when the remedial truth-seeking judge functions of and tive of the Fourth Amendment will be jury. (citing v. Payner, Id. served, appropriate exclusion is the reme- 727, 734, 2439, 447 U.S. 100 S.Ct. 65 dy. expected When no deterrence can be (1980)). Further, L.Ed.2d 468 when offi- to suppression, society result from then faith, good granting cers act in defendants ought not be forced to the cost of bear exclusionary privilege that in a results exclusion. windfall undermines and “offends basic The Court found that when act officers justice concepts system.” of the criminal objective good-faith in reliance on the de- Powell, 465, (citing Id. Stone v. magistrate, suppression terminations of a 3037, (1976)). 96 S.Ct. 49 L.Ed.2d 1067 expected, “cannot be and should not be high Because of the societal cost of exclu- applied, objectively to deter law reasonable “[cjlose sion, the Court determined activity.” enforcement Id. at paid attention” must be to the “remedial acknowledges sup- S.Ct. 3405. Leon objectives” and purposes behind the exclu- pression of evidence based the errors of sionary rule. 104 S.Ct. 3405. magistrate serves no deterrent objective

The remedial of the exclusion- conduct, upon police officers’ and there- rule, ary pure simple, deterring and fore, justified in suppression is not those police misconduct. Id. 104 S.Ct. approach recognizes circumstances. This 3405. The rule is not designed punish “[rjeasonable may frequently minds judges magistrates. errors of and question particu- differ on the of whether a (noting cause,” that “there sug- exists no evidence lar probable affidavit establishes gesting therefore, that judges magistrates police rely, are and when officers highly point posture sought play It is relevant to out the Amendment and then nice af- investigated of Leon. Officers and accumulat- terwards. Leon controls our decision when ed facts which believed amounted to magistrates objective rely err and officers probable They prepared cause. an affidavit good-faith. purport It does not to address the presented magistrate agreed. it to who issue of error. To extent that it The warrant was later found to be invalid does, Leon's clear command that after relied upon the officers remedy is the it will deter miscon- if magistrate’s executed conclusions and duct, police error controls here to deter the McClain, search. Leon was not a like that occurred. where the officers first violated the Fourth

objective good-faith, illegality nothing on a detached and thus deter.” magistrate’s 920-21, neutral determination 468 U.S. at S.Ct. cause, a court later finds but way, “[pjenalizing Stated another the offi- error, magistrate’s error, conclusions to be magistrate’s cer rather than punishment own, inflicted offi- logically his cannot contribute to the society purpose. cers serves no deterrence of Fourth Amendment viola- are, course, exceptions There to this tions.” Id. at (empha- S.Ct. 3405 guard against rule to abuse.2 added). sis Furthermore, very clearly And, Court finally, applying these principles Peltier, noted in United States itself, suppress- the Court found that 531, 539, 45 L.Ed.2d 374 evidence, ing the on the magistrate’s based (1975): erroneous determination that the facts in cause, probable the affidavit purpose

The deterrent of the exclusion- established ary necessarily purpose would serve no deterrent on assumes that willful, police. The police engaged police nothing in or at had done very wrong nothing illegal. They least and had con- negligent, conduct which has deprived right. the defendant of some ducted lawful surveillance and submitted By magistrate this information to a refusing gained to admit evidence as who deter- conduct, probable a mined that cause hope result such the courts existed for a 925-26, particular to instill in those search warrant. investigating S.Ct. officers, They 3405. counterparts, properly or their future then executed the greater degree a warrant and incriminating of care toward the discovered evi- Leon, therefore, rights presents of an accused. the official dence. Where pursued quintessential good-faith action in complete good exception case— faith, however, conduct, proper police error, a magistrate’s deterrence rationale objective good-faith loses much of its force. and police reliance on magistrate’s In determination. these of the rule are circumstances, magistrate’s where the de- served “it where can be said that the law erroneous, termination is later found to be knowledge, enforcement officer had or suppressing the nothing evidence will do may properly charged knowledge, be with conduct, police deter because the did that the search was unconstitutional under anything not do unlawful. 542, the Fourth Amendment.” Id. at good-faith S.Ct. 2313. B. The Panel Misconstrues Leon particularly appropriate is an “when offi- objective cer acting good with faith Starting has at the beginning, Leon is not a judge obtained search warrant from a directly point or even in this case. As magistrate above, scope.... acted within its demonstrated Leon a addressed sit- cases, In most such there no police entirely uation of police investiga- lawful First, Texas, 108, 111, 1509, magistrate a deference to "does not 378 U.S. 84 S.Ct. Third, preclude inquiry (1964)). knowing into the reviewing or reckless 12 L.Ed.2d 723 falsity magistrate's finding affidavit which that deter courts will not defer to a Leon, 914, probable mination was based.” cause where affidavit does not Delaware, (citing 104 S.Ct. "provide magistrate Franks v. with a substantial U.S. 98 S.Ct. determining proba 57 L.Ed.2d 667 basis for the existence of (1978)). Second, Gates, magistrate (quoting must ble remain cause.” Id. Illinois v. 213, 239, neutral and detached and cannot serve aas U.S. 103 S.Ct. 76 L.Ed.2d 527 (1983)). rubber-stamp police. (citing Aguilar for the case, conducted a warrantless on a good-faith reliance culminating tion presumptively determination unconstitutional search magistrate’s erroneous the search existed to issue probable Payton cause of the defendant’s home. v. New (1) is, a lawful York, That there was warrants. (2) for a war- application an

investigation, (1980). This is a clear Fourth L.Ed.2d 639 (3) rant, determination that magistrate’s by police Amendment violation officers. case and probable affidavit contained pay Leon instructs us to attention” “[c]lose (4) issued, searches con- were the warrants objectives” of the exclu- to the “remedial objective reliance on good-faith ducted rule, in those sionary (5) determination, and magistrate’s can cases where the of deterrence magis- later determination court’s Leon, 908, 918, furthered. 468 U.S. at determining that the facts trate erred in precisely This is such a 104 S.Ct. 3405. cause. the affidavit amounted not, was, It a case where case.3 did not ever violate acting objective good “an officer faith on a They simply relied law. from a has obtained search warrant however, error. this magistrate’s and acted its judge magistrate or within (1) warrantless there was first 920-21, 104 scope.” Id. at S.Ct. home, then of the defendant’s respect further errs this the infor- based on additional surveillance rationale— acknowledging the deterrence illegal as a result of mation obtained by paying lip failing service to it—but to search, rely- application a warrant and Instead, discuss its relevance to this case. obtained as a ing entirely on the evidence police provides decision illegal search and the result of the first magic lamp. their de- panel’s therefrom. The fruits obtained any further than Leon going Without account for this crucial and cision fails to itself, suppressed should have between Leon determinative difference during illegal us. obtained and the case before the evidence pan- the defendant’s home. The search of is the crucial error The second courts, notes, however, many as have el instructs, Leon distinguish, failure to as “wrinkle,” exists—recon- that an additional by judges magistrates, and between errors tree doc- ciling poisonous the fruit of the by police officers. The deter- and errors States, trine, see Nardone v. United holds, rationale, applica- is not rence 266, 84 L.Ed. 307 60 S.Ct. by judges magistrates. ble to errors States, (1939); Segura v. United occurs, however, police misconduct When 796, 804, 82 L.Ed.2d 599 apex. rationale is at its the deterrence (1984), This good-faith exception. with the magic lamp “Good faith is not from the obtained is because evidence whenever find them- officers to rub warrantless search unconstitutional Reilly, States v. selves trouble.” United Cir.1996). (2d sur- In used to conduct additional this home was 76 F.3d Furthermore, greater degree of counterparts, a squarely within their future this case fits rights pur- of an accused.” deterrent care toward the "[t]he Peltier’s statement that necessarily 95 S.Ct. 2313. In this as- U.S. at pose of the home, willful, engaged search of the defendant's warrantless sumes that the against which the Fourth negligent, the "chief evil” very conduct which or at the least negli- protects, very right. By is at the least deprived Amendment the defendant of some has not, likely gent, than reckless. This gained and more refusing to result admit conduct, requires type precisely the of case which hope to instill in of such the courts officers, evidence. investigating of the tainted particular or in those -in an ultimately veillance and affidavit search or seizure.” Id. at 358 n. 1282; seeking Imperial (citing Reilly, a warrant to search 123 United Bishop, 924 n. 2 properties Point five other identified States (9th Cir.2001)). through investigation and surveillance.4 mind, turn helpful With this Additionally, though binding upon precedent precedent our and other courts’ us, given a district court in this Circuit has reconciling these two doctrines. thoughtful persuasive consideration to nearly circum- this issue identical

II. is, a prior stances —that warrantless of a home where evidence is seized A. This Court’s Precedent and later used to obtain a search warrant. panel claims an that this is issue consideration, After its the district court impression in That first this Court. is not held that the evidence be suppressed must Davis, my take on it. good-faith exception and the did not apply. (6th Cir.2005), a publish 430 F.3d 345 case Meixner, See United States v. 22, 2005, days prior ed on November ten (E.D.Mich.2001). F.Supp.2d publication, this case’s we addressed the Meixner, conducted a warrant- prior issue of whether warrantless less search of the defendant’s home. The search, pur search tainted the subsequent government presumption did not rebut the warrant, suant to of the defendant’s car unconstitutionality proved no more subsequent or whether the search warrant possibility than that there awas mere underlying cured the constitutional viola emergency. See United States v. Uko- tion. held that We “search of [the madu, (6th Cir.2001). 236 F.3d 333 Re- vehicle was tainted defendant’s] viewing the court noted that “where search, [prior] illegal and thus the search a search warrant is declared invalid be- warrant was insufficient to overcome this cause of a technical defect or an adverse constitutional defect.” Id. at 357-58. The magistrate’s probable reassessment of a remedy illegally “remove [the decision, cause the deterrent effect is so seized from evidence] the affidavit when justified.” remote that its cost cannot be considering whether there is still sufficient Meixner, 1076; F.Supp.2d id information to probable establish cause.” (‘Where in evaluating proba- the mistake (citing Reilly, Id. United States 76 F.3d by magistrate, ble cause is made not (2d Cir.1996) (discussed n. 2 1282-83 officer, ... excluding evidence infra)).5 Finally, though government misconduct.”). will not deter future argue point, did not we noted our “agree[ment] with the numerous other cir The court properly interpreted also here, cuits that have that good- held the Leon in panel contrast to the exception faith inapplicable noting is where a war “[t]he decision itself dealt part only rant was secured in on the an basis of with search warrants that were tech- which, piece paper, This is to mean therefore that the magic even with a lamp, probable obtained from the search of the home cannot constitute should cause. be stricken from the affidavit. Because the determined, agree, This, course, district court and I all assumes that the other evi- remaining of the evidence was fruit of the exceptions dence satisfies one of the to the tree, poisonous sup- poisonous evidence must be indepen- fruit of the tree doctrine — attenuation, source, pressed. viewing the search warrant dent or inevitable discov- essentially ery. without the fruits reveals a blank stances, good exception the Leon faith can or which were issued nieally deficient quite apply not still when the warrant affidavit relies of affidavits that did the basis in proba- on evidence obtained violation of the up to later examination measure reconcile attempt It did not Fourth Amendment.” ble cause. (6th McClain, exception faith newly-announced good 307-08 Cir. 2005). poisonous ‘fruit tree’ doc- It is true that the Ninth and Elev (citations Wong in

trine stated Sion.” enth Circuits have held omitted). properly The district court also does not these circum would fur- focused on whether decisions, stances. The Second Circuit’s ther the interests however, are much closer to the Ninth and is, the evi- suppressing rule —that whether Eighth Eleventh than the Circuits —the “In police misconduct. dence would deter Second Circuit has not held that evidence officerj’s unlawful conduct [the this circumstances. is admissible .these the information which went supplied Rather, merely declined to hold that has cause determina- heart of the the evidence never admissible these discovery was officer]’s tion .... [The upon circumstances. The circuit entry into a during made a warrantless the, panel may conceivably rely which home, entry presump- that was private Circuit; but, Eighth Circuit Eighth Further, since there tively unreasonable. cases relied have been limited and expectation privacy heightened is a And, undermined its other decisions. dwelling physical and a intrusion one’s own applying even Circuit’s under chief evil’ addressed into one’s home ‘is the precedent, panel mined still should Amendment, the exclusion- by the Fourth opposite have reached the conclusion. ary emerges as an effective deter- Moreover, failed to consider or (internal at 1077-78 citations rent.” authority additional from other discuss omitted). courts that have considered the issue here. statements

Because this Court’s in Meixner are i. Second Circuit’s Decisions Davis and the decision one cannot overrule correct and by discussing I will start the Second panel, of another the McClain decisions decisions, which, contrary to the only by failing to acknowl- panel erred characterization, my support posi cases, the but conclud- edge and address tion and undermine theirs. The Second reasoning is ing otherwise. The analysis extensive Circuit’s most scrutiny. not suspect and does withstand Reilly, came in United States v. issue (2d Cir.1996) that the (noting F.3d III. magic “[g]ood [exception] is not Magni- A. The Panel Overstates the lamp police officers to rub whenever Purported CircuiUSplit tude the trouble”). Reilly they find themselves in and the Most Extreme Posi- Adopts search onto the de involved warrantless any tion Circuit protected curtilage. into property fendant’s police officers observed and addressing the Id. The panel The claims that a mari what believed be poisonous tree doctrine and the smelled fruit of the They then juana growing operation. exception, the Ninth and Elev good-faith evidence, magistrate while warrant from a sought'a enth Circuits have excluded pri- disclosing circumstances of their “have some the Second and Circuits but disclosing not that, search and some circum or warrantless held at least under magistrate a warrant issued but later found to be aspects. other issued defective, Leon, conducted, at warrant, S.Ct. the search was simply innocently had in- marijuana. officers discovered vestigated based on warrant later found that the initial later held Circuit Second invalid, to be the evidence would accord- curtilage search was onto warrantless Reilly, 76 at ingly be admitted. and therefore property of the defendant’s “But it to admit thing is one evidence Amendment. Id. at violated the Fourth innocently rely obtained officers who then, court 1279. The issue before the was invalid on warrants later found due to panel issue that was before the the same entirely It an magistrate’s error. differ- this case. ent matter when the officers are them- ordered the evidence The Second Circuit ultimately responsible selves for the de- upon suppressed, relying part precisely Id. This is fects the warrant.” magis- to the officers’ failure to disclose the distinction I have discussed above prior all of their trate the circumstances precisely this controls case what the But, “an the court found illegal search. panel appreciate. fails to The case here not why reason Leon d[id] additional involved that the exclu- misconduct in that case. Id. at shield the evidence” sionary according- rule seeks to deter and pre- That on the reason based ly, should be applied. here: “The issuance of cise circumstances Moreover, Reilly distinguished court premised was itself on materi- the warrant prior one if its decisions in United States today’s prior al in a search that obtained (2d Thomas, Cir.1985), 757 F.2d 1359 illegal.” Id. The holding makes clear was upon again which once relies. upon relies court noted—and the Thomas, however, support lends no holding] “not this statement —that it was panel’s disposition. That case involved that the fruit of searches can never sought officer who a warrant based the basis for a search warrant (1) three factors: a canine sniff outside of police subsequently use faith.” Id. (2) apartment, defendant’s reliance on added). (emphasis speculate It did an informant’s tip defendant was a arise, might when those circumstances but (3) dealer, narcotics the defendant question noted that it need not reach had acted suspiciously when arrested the because Leon commands courts exclude previous day. Id. at 1366. The Second case-by-case on a basis (2) Circuit held that neither nor sup- where “exclusion will further the (1), ported probable cause and that rule.” 1280-81 sniff, canine violated the Fourth Amend- (quoting S.Ct. Nevertheless, ment. Id. at 1366-67. (“We 3405); id. take that caution serious- permitted court found that Leon the evi- today than to ly go no further hold dence be admitted. Id. at 1368. This that factual legal entirely and situation is dif- by of the are served exclusion evidence Reilly by ferent from addressed in or that case.”). particular this here. Until Thomas was decid- a clear distinc- ed, Second Circuit drew no court in the Second Circuit had held tion, above, that as discussed that canine sniffs violated the Fourth (cit- Because the ex- appreciate. Reilly, here fails to Amendment. 76 F.3d at 1281 Place, 696, clusionary designed ing rule is to deter 462 U.S. 707, 2637, goal misconduct and this is not furthered 103 77 L.Ed.2d 110 S.Ct. by (holding suppression gener- of evidence obtained under that a canine sniff is “sui

545 ” the Fourth Amend ing more clear under typical intrusive than a is “much less search”)). Thus, “unequivocally it estab unlike the officers ment than in the case Reilly proposition very unlike the officers ‘[a]t lishes in Thomas the officer panel, Amendment] core the Fourth stands [of before reason to any significant have “did not man to retreat into his own right of a he had done was uncon- that what believe and there be free from unreasonable home ” (citing Reilly, 76 F.3d at 1281 Payton, 445 stitutional.” governmental intrusion.’ 1368). Thomas, admit- F.2d at When 757 Silver- 590, (quoting 100 1371 U.S. S.Ct. evidence, ex- the Second Circuit ting the States, 505, 511, man v. United 365 U.S. 81 nothing [was] stated that plicitly “[t]here (1961)); Se 679, L.Ed.2d 734 S.Ct. 5 have or should have the officer could more Case, 914, 915, mayne’s Rep. 5 Coke 77 sure circumstances be done under these (K.B.1604) (“the 194, house Eng. Rep. 195 (quoting legal.” be his search would every one is to him as his castle and 1368). Thomas, 757 F.2d at fortress, against as well as his defence violence, repose”); as for his injury and credibly It cannot in this case. Not so Blackstone, 4 on a Commentaries conducting William argued that the officers be (1765-1769) (not- England the Laws of 223 the defendant’s warrantless England partic- that “the law of has so ing reason” to believe significant had “no home immunity regard doing might uncon- ular and tender they were that what castle, house, Reilly styles that it his and the of a man’s The officers stitutional. never it to be violated with every reason in the world and will suffer here had officers claim not to No officer could potentially, impunity”). to know that their search principle.6 understand this illegal. There is noth- emphatically, if not 31, 39, 2627, that, po, U.S. 99 S.Ct. 61 L.Ed.2d telling if the offi- 443 is the fact 6. Likewise (1979). 343 their warrant- cers in this case had conducted home, pursuant to a state less search arrived at the defen- had the officers unconstitutional, statute, yet Su- not declared in this case and conducted dants' home requires suppression preme precedent pursuant Court to a state statute warrantless search so, authorizing 468 U.S. at 912 n. do used the of the evidence. See them to had held, however, (“We 8, in order to obtain 104 S.Ct. 3405 discovered warrant, requires suppres- Supreme Court’s exclusionary rule later search requires suppressing that evidence. precedent carried sion of evidence obtained searches statutes, requires the same yet logic decisions pursuant declared un- of those out Furthermore, constitutional, Murray v. Unit- outcome here. purporting authorize 2529, 533, States, 487 U.S. 108 S.Ct. probable cause ed and seizures without searches (1988), directly warrants.’’) while not (citing v. Illi- L.Ed.2d Ybarra or search 85, 338, nois, my point, credence to conclusion lends 444 U.S. 100 S.Ct. L.Ed.2d There, Rico, required officers (1979); here. 442 U.S. is Torres v. Puerto 238 465, warrantless, 2425, (1979); illegal entry a ware- into Al- made a 61 L.Ed.2d 1 99 S.Ct. States, They appeared to be observed what 413 U.S. house. v. United meida-Sanchez contraband, (1973); premises, left the and obtained L.Ed.2d 596 Sibron 93 S.Ct. York, "[t]he Court noted that search warrant. The v. New therefore, York, (1968); question, whether the Berger ultimate v. New L.Ed.2d fact a pursuant to warrant was in S.Ct. 18 L.Ed.2d 1040 (1967)). genuinely independent source of the informa- Suppression appropriate in these tangible evidence at issue here. This decisions in- tion "[t]hose circumstances because terms, which, agents’ if the have been the case would not their own volved statutes prompted warrant was to seek the under circumstances decision authorized searches entry, during initial or they seen satisfy warrant what had the traditional which did not entry during was obtained requirements of if information probable-cause Magistrate his and affected Michigan DeFillip- presented to the Fourth Amendment.” here, ing directly applicable to the case a review Second With decisions, it is evident that do not Ninth Circuit held that the officer’s “con- by majori- the result support reached ducting an warrantless search and in ty, generous even their most terms. in in including evidence found this search Rather, applying the Second Circuit’s deci- in an support an affidavit of warrant is unequivocal- to the facts here results sions activity rule was in ly suppression of the evidence. The meant to deter.” Id. good-faith exception does not here. Finally, reject- the court addressed

ii The Ninth Circuit’s Decisions the panel ed an additional basis that relied Likewise, the has reached Ninth Circuit upon here —that the unlawful search was opposite the correct conclusion—the con- factor, magistrate. disclosed to the This by panel. clusion reached United reasoned, persuasively the court does not (9th Vasey, States v. sanitize the taint. Cir.1987), was that court’s first review of magistrate’s presented A role when Vasey, Reilly, the issue. like and the support evidence to a search warrant is panel, case before officer weigh the evidence to determine conducted initial warrantless gives probable whether it rise to cause. and later used evidence from that search magistrate evaluating A appli- warrant in support an affidavit of a search war- part cation based in on evidence properly rant. Id. at The court seized 788-89. interpreted inapplicable Leon and found it in a simply warrantless search is not in these circumstances. Id. at 788. That a position legality to evaluate the of that is, fact that “[t]he Officer Jensen conduct- Typically, applications search. warrant ed warrantless search of the vehicle requested are and authorized under se- Vasey’s which violated Fourth Amendment Moreover, vere time constraints. war- rights precludes any good reliance on the applications rant are considered without Thus, exception.” faith unlike hearing the benefit of an adversarial presented lawfully where the officer ob- evidentiary which the appli- basis tained evidence to a magistrate, neutral might challenged. Although cation magistrate finding erred encourage magistrates we to make all cause, evidence established possible attempts to that a ensure war- in Vasey the evidence that was included in legal relying rantless search was before ^lawfully the affidavit was obtained. search, on the fruits of that we are “The constitutional error made mindful of the on a magis- limitations magistrate officer in this fact-finding ability trate’s in this context. as in Leon. The it very Leon Court made magis- therefore conclude that a We ap- clear that the should protect trate’s consideration does not (i.e. ply should not during from exclusion evidence seized apply) if the exclusion of evidence would under a warrant if that warrant alter the behavior of individual law en- was based on evidence seized in an un- policies forcement officers or the of their department.” Id. at 789. in a hold- Accordingly, constitutional search. independent justifies decision issue the warrant.” there is no source that evidence, 108 S.Ct. 2529. The Court the evi- found admission of the and therefore this Murray, dence admissible in because of the requires suppression case of the evidence. here, however, independent source rule—

547 exclusionary apply. should not and will then the rule must applied not to the facts of this case. interpretation This is the correct of Leon conjunction poison- with the fruit of the 789-90; see also United States v. Id. doctrine, by ous tree and the erred (S.D.W.Va. Gray, F.Supp.2d 653 reaching not the same 2004) conclusion. (“Regardless of an officer whether or confessed the circumstances concealed Hi. The Eleventh Circuit’s Decision search, predicate he should bear responsibility any illegality occurring The Eleventh Circuit has reached the prior to issuance of the A warrant. same conclusion Second and Ninth magistrate’s chambers is not confessional McGough, Circuits. United States v. expiate in which an officer can constitu (11th Cir.2005), 412 F.3d 1239-40 by tional in a admitting sin his actions here, similar facts to the case the Eleventh application.”).

well-drafted warrant that good-faith exception Circuit held The Ninth Circuit re-affirmed its conclu- apply. McGough does not too involved a Wanless, sions in United States entry warrantless into a defendant’s home (9th Cir.1989). F.2d See also and the use of information obtained there- Reed, United States v. 15 F.3d 933 in in an affidavit for a search warrant. (9th Cir.1994) (holding that observations objec- The court held that “it was not an during prior illegal made search should tively activity reasonable law enforcement not have affidavit for been included but rather entry the officers’ unlawful into warrant). The court Wanless McGough’s apartment that led to offi- [the noted is now fundamental “[i]t request for a cer’s] search warrant. evidence which is obtained as a direct re- situation, such a the search warrant affida- may sult of an search and seizure vit was tainted with evidence obtained as a probable not be used to cause for establish warrantless, prior, of a presumptive- result subsequent search.” F.2d at 1465 ly entry personal unlawful into a dwelling.” 782; (citing Vasey, Meixner, 1070; (citing F.Supp.2d (9th Roberts, 747 F.2d Cir. 1271; Wanless, Reilly, 76 F.3d 1984); States, Wong Sun v. United 371 1459). is, Because these facts—that 471, 487-88, 9 L.Ed.2d permitted the officers were not “[b]ecause (1963)). rejected The court also McGough’s apartment to enter under these government’s suggestion good- circumstances, without a warrant faith exception apply simply should be- consent,” without his the Court found the misrepre- cause the affidavit contained no exclusionary applicable. rule Id. at 1240. again sentations. The court held that good-faith exception applica- was not fact that requesting mere the officer “[t]he ble such circumstances. the warrant truthful about the evidence adopting here erred support he submits in of the warrant Each of the rationale these cases. pursuant insufficient.... [T]he acknowledged cases above discussed the warrant would be valid if the by magistrates difference between errors evidence, alone, legally standing obtained by police Find- misconduct officers. was sufficient to establish cause.” ing misconduct officers Wanless, 882 F.2d at 1466-67. con- those cases—conduct that the Circuit, sistent with the Second the Ninth proper- courts rule is meant to deter —the Circuit has held that if will ly suppressed the evidence. These cases alter the behavior of individual law en- or departments, properly apply forcement officers their good-faith exception, light of their statute later declared to be unconstitu- tional.” too decline to extend the respective goals, proper and accord a re- We holding of Leon to cases in which the the Fourth Amendment. The spect for cases, faith cannot here, however, good pre- of officer cited these but sumptively established the existence or adequately distinguished neither them aof search warrant valid on its face. explored reasoning. explore their I addi- DEA agents Because the were not act- contrary tional decisions ing in on a warrant reliance search when holding below.

they luggage seized the and held it for Authority Contrary iv. Additional hours, twenty-four more than Leon does the Panel’s Decision ratify their actions. (internal omitted). citations

The Tenth Circuit addressed this has Scales, issue as well. United States v. The Seventh Circuit has likewise (10th Cir.1990), 903 F.2d the court weighed and held that “evidence discov- prior considered whether seizure pursuant ered to a warrant will be inad- support could be used in a warrant if missible the warrant was secured from a probable cause determination for the issu- judicial through illegally officer the use of of a ance search warrant. The court an- acquired information.” United States v. swered, Second, Ninth, (7th Cir.1991) as have the Oakley, 944 F.2d Circuits, Eleventh as well as this Court in (citing Silverthome Lumber Co. v. United Davis, negative. Specifically in the and States, 385, 391-92, correctly, the court held that: Wanless, (Holmes, J.); 64 L.Ed. 319 1465).7 882 F.2d at specific holding of Leon does not

apply to the facts of this nor is the Several state courts have addressed the rationale it present behind here. When issue and determined that agents the DEA seized the suitcase and exception apply does not in these circum- twenty-four held for more than hours I stances. have found no state court deci- warrant, obtaining before agreeing sion with the here. The acting pursuant were not to a warrant Supreme of Court Ohio has reached the subsequently deemed invalid. The “ille- same conclusion aforementioned gality” arguably which existed here was appeal. federal courts State v. Car- not a function of agents’ good faith ter, 69 Ohio St.3d 630 N.E.2d 355 reliance on a presumptively valid war- (1994), the court addressed whether the Moreover, rant. the search of the suit- good-faith exception could where the case after the search warrant was issued officers conducted an illegal search of the prevent does not us from evaluating the car and used the evidence defendant’s agents’ prior behavior to that time. seized in an affidavit to obtain observed, As the Ninth Circuit has the warrant for the defendant’s home. The “Supreme applied Court has court properly so- undertook an examination ‘good called faith’ to the exclu- of properly Leon and con- sionary to searches designed conducted cluded that the rule is to deter misconduct, in good faith reliance on a warrant or a rather than the errors is, correctly excluding poisoned 7. The Seventh Circuit also noted fruit —to determine necessarily entirely that the warrant is not whether sufficient evidence exists to establish invalid. The courts must then review the Oakley, cause. 944 F.2d at 386. warrant without the untainted evidence—that 355; 782; magistrates. Vasey, Id. at 362. In N.E.2d judges Wan- less, 1459; Scales, 765). 903 F.2d and to effectuate the these circumstances the court concluded that The Arizona Supreme Court has also “good exception apply faith does not the inapplicable held that Leon is in these DeWitt, a search warrant is issued on the where In circumstances. State v. 184 464, 9, (1996), Ariz. an 910 P.2d 14-15 the basis of evidence obtained as result of Court held that: Vasey, illegal (citing search.” Id. 364 determined Having already Wanless, that the 782; 1459; [of- 882 F.2d 834 F.2d entry ficers]’ warrantless and search 765). Scales, Supreme The constitutionally impermissible, were clearly pur- Court of Ohio understood the warrant, follows that the search which appreciated of pose the distinc- very agents’ relied on these observations tions that the here failed to. The cause, to show probable was invalid. important court that stated is to note “[i]t up good The state cannot set the faith Supreme Court in Leon was will- when, here, exception the warrant ing provide good-faith exception upon police which the claim relied rule where the officer in good faith was obtained as a direct heeds the command of the Fourth Amend- unjustified result of their own warrant- approval ment and seeks the of a detached entry. less magistrate conducting before a search. In Hicks, 533, See also State v. 146 Ariz. 707 Leon, officers had not violated (Ct.App.1985), P.2d 331 on other affd in attempting Fourth Amendment Hicks, grounds sub nom. Arizona v. 480 acquire probable the needed cause neces- 321, 1149, 107 S.Ct. 94 L.Ed.2d 347 sary proper for the issuance the search (1987). There, the Arizona court held that Carter, In warrant.” Id. at 364. and all of subsequent Leon “does not hold that a however, supra, the cases discussed illegal warrant validates an earlier search. officers violated the Fourth Amend- first prior Police officers cannot launder their illegally ment and then used that seized by presenting unconstitutional behavior evidence to a search obtain warrant. magistrate.” the fruits of it to a circumstances, directly applicable these to 333. here, decision is Maryland Special Appeals The Court of remedy.8 Supreme required “in has held that the case of antecedent recently Court of Ohio also re-affirmed Fourth Amendment violation which con- Buzzard, in holding Carter’s State v. the ‘fruit application, tributes to a warrant (2005), App.3d Ohio 839 N.E.2d 469 poisoned ‘trumps’ tree’ doctrine holding that “where search warrant is ‘good officer’s faith’ reliance under Leon.” issued on the basis of evidence obtained as State, Fitzgerald Md.App. search, good-faith a result of an (2003). People A.2d Ma- exception apply.” does not Id. at 473-74 Cal.Rptr.2d chupa, Cal.4th Carter, (1994), (citing 630 872 P.2d 114 the California Su- Ohio St.3d Interestingly, probable illegally Supreme provided cause was Court of Ohio obtained, "Segura Segura implies also and Leon were decid- decision in that noted Supreme unpurged illegality irreparably taints ed the United States Court on the such an day. Although directly illegally same Leon does not the search warrant when evidence obtained, specific deterrence ra- confront the issue of whether evidence should and thus the suppressed upheld by suppres- be tionale Leon dictates that when information Carter, granted.” 630 N.E.2d at 363. affidavit for the search warrant that could sion preme held that based Leon’s deterrent the court dis Court rationale, good tinguished faith the facts before it and noted exception did not it, the case before “the warrant was to a warrant issued after the judge not invalid because the made an entry, made an without a warrant or con- error in cause. sent, his assessment premises onto the defendant’s Instead, the warrant was invalid because plain drugs observed view. Su- conducted an officers unlawful search preme Court of Idaho has also held that [the defendant’s] home submitted inapplicable the tainted fruit of this unlawful search to by focusing these circumstances on the magistrate the warrant application.” concluding deterrence rationale Id. at 652. The court reasoned that Leon Segura trumps such circum- i.e., poses different factual Johnson, stances. State v. 110 Idaho circumstances — lawful, unlawful, opposed con (1986). 716 P.2d 1298-1300 therefore courts should look to duct—and Louisiana of Appeal Court has concluded of the rule and Scull, the same. v. State 639 So.2d good-faith exception to determine the re (La.Ct.App.1994) 1245 (crediting deterrent sult of particular case before it. Id. purpose holding rule and Looking to its of deter that Leon does not save a warrant when conduct, ring unlawful con court the predicate search violates the Fourth cluded, in line with the courts discussed Amendment). above, good exception “that faith Numerous federal district courts have inapplicable pursuant to evidence obtained applicable also found that Leon is not to a warrant invalidated on the basis of an these v. circumstances. See United States (citations illegal predicate search.” Id. (E.D.Tex. McQuagge, F.Supp. 787 657 omitted). 1992) (holding that Leon “does not further, Discussing court stated that when, inas this the evidence neces cases in which a “[u]nlike warrant is invali- sary support magistrate’s finding error, magistrate’s dated due to a invalida- obtained”), illegally cause is aff'd resulting illegal tion from an predicate Mallory, sub nom. United States v. 8 search involves clear error on the part of (5th Cir.1993) (table); F.3d 23 United enforcement, law the recurrence of which Villard, States v. F.Supp. significantly will be deterred exclusion.” (D.N.J.1988) (holding “Leon did not added). at (emphasis The court admissibility address of evidence recognized illegal also predicate seized under warrant that was based search in the case before was warrant- prior illegal information obtained in a less search defendant’s home—“a Further, search. it would be inappropri clear violation of the Fourth Amendment.” reasoning ate and inconsistent with the good Leon to extend the faith situation.”).

such a v. United States The court step went one further and (S.D.W.Va.2004), Gray, F.Supp.2d discussed whether an officer’s truthfulness engaged the district court in a lengthy and in an underlying affidavit can cure the cogent analysis and also reached the same constitutional violation. The Second Cir- conclusion as the courts discussed above. in Reilly suppressed cuit here, (1) Gray, like the case a prior involved two reasons: untruthful- officer’s affidavit, warrantless and unconstitutional search of ness in the prior the defendant’s home. Reilly, The district court search. at 1279-80. suppressed Reviewing the evidence. the The Ninth that truthful- Circuit has held decisions, relies, which the the search. affidavit does save in the ness that: court here stated The district also that the have been undermined —and in- the officer of whether supported The issue decisions are likewise not of the circum- magistrate formed Leon—I shall discuss the cases and then predicate search surrounding stances why they support pan do not explain application of the is irrelevant el’s ultimate conclusion. These decisions An officer who exception. White, include States v. United cir- about the magistrate to tell a fails (8th Cir.1989), Kiser, surrounding predicate cumstances (8th Cir.1991), 948 F.2d 418 and United necessarily acting bad is not (8th Fletcher, 91 States v. F.3d 48 Cir. be- trying something to hide faith or 1996). these The decision undermines process application cause the warrant O’Neal, I cases is United States which explain an officer to required has never discuss infra. in the how the evidence specificity Conversely, an affidavit was obtained. (and O’Neal) White, Kiser, Fletcher, in- predicate render a officer cannot TerryAke stops airports or volved bus simply by telling magistrate lawful cases, In each of the the terminals. Regardless about the search. the truth they suspi- believed that had reasonable or con- an officer concealed of whether activity afoot and cion that criminal was predi- of the the circumstances fessed Terry stops. In each it conducted search, responsibili- cate he should bear subsequently deteimined a review- illegality occurring prior to ty any for ing upon by court that the facts relied the magis- A of the warrant. the issuance insufficient to rea- officers were establish not a confessional trate’s chambers is Nevertheless, suspicion. sonable the expiate can constitution- which officer the Eighth Circuit held that evidence ob- in a by admitting his actions well- al sin Terry stop, of the which tained as a result The evi- application. warrant drafted used to obtain a warrant to search the if officer was remains tainted even the dence origins. its pursu- admits was admissible luggage, defendants’ good-faith exception. ant to the reason- Gray, F.Supp.2d at 653. This Contrary panel’s to the ing persuasive. is Fletcher, example, the officers reject suggestion reasoning, I would the had facts that believed amount some affidavits truthfulness of officers’ to detain the de- suspicion to reasonable dis- underlying taint. I have can cure in order to execute a luggage fendant’s au- persuasive the numerous cussed above Fletcher, 91 luggage. canine sniff of the fundamentally contradicting thorities dog The then alerted and F.3d at 49. undermining panel’s conclusion here. information to obtain a officers used this great more needs to be said on the Little Id. The bag. inside the warrant authority. decision weight of held that Eighth district court and Circuit not nor does even simply persuasive, rea- be, did not amount to light particular of the numerous facts attempt conflicting is, decisions. not there was suspicion sonable —that to conduct the canine suspicion reasonable

IV. Nevertheless, the court determined sniff. Eighth A. Decisions Circuit’s enough” to rea- facts were “close that the that the evidence should suspicion sonable Al only Eighth Circuit. That leaves at 52. Id. Eighth suppressed. Circuit’s though I believe court, sulting warrant should be excluded.” According to the Fletcher added). the facts sur- inquiry (emphasis “relevant is whether The court also noted are ‘close rounding suspicion reasonable clearly can behavior “[i]f validity’ to the line of enough be sanitized the issuance of a search to a belief in police officers were entitled deterrence, warrant, then there will be no validity of the warrant and the exis- protective and the aims of If suspicion.... tence of reasonable severely if not impaired, rule will be elimi- question, the presents case such a ‘close’ nated.” Id. to the exclusion- Leon ary Id. at 51 rule should be considered.” States v. Conner C. United 1413). White, (citing Without reviewing of the Eighth At district court in the least one recognizing rule or the distinction between totality applied Circuit has error, magistrate’s per and a police errors jurisprudence this area instructions, the court stated that Leon’s quite to a factual situation similar to gray indeed area “[t]his case is within Conner, McClain. (also noting that both Leon.’’ White (N.D.Iowa 1996), the court F.Supp. 821 Kiser were “so close line addressed a situation offi- where validity application as to warrant unlawfully cers accessed and entered the (“While ”); see also id. at 52 neither (which, defendant’s motel room like war- supported finding case of reasonable home, presumptively rantless search of a suspicion, both were close to the line of va- unconstitutional), and later used the evi- cases, lidity.”). addressing These er- during dence seized the warrantless search Terry stops, roneous fail to accord the in application. a search warrant Id. at exclusionary of rule its due purpose 853. respect. White, Kiser,

The court noted that B. States v. United O’Neal “Terry-like investiga- Fletcher all involved airports stops tive at and bus terminals Eighth Another Circuit case has under- suspicion.” conducted without reasonable holdings mined in and limited White Thus, that court concluded progeny. and its In States v. United confronting the “factual situation the court (8th O’Neal, Cir.1994), F.3d 239 quite is dissimilar from the circumstances again Terry stop court addressed a presented the Fletcher-White line of led to a warrant to search the defendant’s “significant” at It cases.” Id. 852. was to bag. reviewing A court later determined the district court that the “Fletcher-White bag that the detention of the was based on authority line of has never been extended Here, suspicion. less than reasonable beyond presented the factual scenario Leon, court considered the of Terry-type investiga- each of those cases: noted that nor how- “[n]either White stops tive conducted without reasonable ever, unqualified application.” are their Conner, suspicion.” Id. at 853. In howev- at 242 n. Bringing Id. its decisions closer er, pre- the court was with a confronted in line with the courts reviewed above— sumptively unconstitutional search of the though entirely Eighth not Circuit —the resulting defendant’s hotel room “and the held the method which evi- “[i]f application inclusion in the search supporting dence a search warrant is warrant clearly illegal, seized is then even under of information tainted the unconstitu- ... entry.” evidence obtained under the re- tional Id. error, own, Nevertheless, the court found even trate’s rather than his cannot cases line of could logically if Fletcher-White to contribute the deterrence of violations.”). in all Fourth Amendment contexts But, Fourth Amendment (as being limited to the reason- opposed to when the misconduct officer’s cases), of the facts of suspicion able line own, of anywhere not close to the were Conner by suppression, served and Leon does validity applica- line of as to warrant apply. not 104 S.Ct. 3405. good-faith exception. tion of the Id. The Eighth very The Circuit’s clearly cases Payton Supreme decision in Court’s involved police suppres- misconduct and prevent years history hundreds of sion evidence would deter officers believing officer from that a warrantless committing from the same Fourth Amend- dwelling search of a is almost constitution- again.9 ment O’Neal, violations The Fletcher- applying al. Id. court nothing White line of cases do found that the warrantless search of the deter “clearly illegal police weakly motel room was be- officers from conducting supported good-faith exception havior” and the did Terry fact, stops. the decisions have apply. opposite effect of encouraging officers to take chances detriment Fourth D. Eighth Problems with the Circuit’s privacy Amendment interests. Approach and the Panel’s Eighth Circuit’s decisions this area also great weight authority, effectively suspicion lower reasonable I agree, opposite which reaches the conclu- standard and have the effect admitting Eighth my opin- sion from the Circuit. evidence seized little more than an ion, the Eighth approach, which officer’s faith hunch. On the other apparently adopted errone- —but hand, suppressed had the Circuit ously applied to properly apply the —fails the evidence in line with the other courts good-faith excep- rule and the above, the discussed effect would be to tion. Whether admit or exclude—the Terry deter officers from conducting stops very holding core of Leon’s down —comes specific unless the could “point officers suppressing to whether the evidence will which, together and articulable facts taken “alter the of behavior individual law en- facts, rational inferences those with from policies forcement officers or the of their reasonably stops. Terry warrant” the Leon, 918, departments.” at 468 U.S. 104 Ohio, 1, 21, 1868, 392 88 20 U.S. S.Ct. a reviewing S.Ct. 3405. When court later (1968). L.Ed.2d 889 erred, a magistrate sup- determines that Furthermore, even the White-Fletcher pressing the will no pur- evidence serve of of line cases involves a violation police because there is no pose unlawful 921, rights by conduct to deter. 104 individual’s Fourth Amendment S.Ct. Regardless (“Penalizing magis- police 3405 the officer for the officers. of whether the Kiser, O’Neal, (from Following thing and Fletcher— sonable do a law enforcement despite police where evidence was admitted perspective) conduct a The worst is search. error, police the result is that the have little thing happen says is a the can later court comply incentive to with the Fourth Amend- suspicion, officer did not have reasonable but contrarily, ment and have an incentive to gets prosecution the evidence still in and the stops Terry conduct on weaker facts. Basical- If moves forward. this set of incentives com- ly, perspective from the officer's after plies Mapp and deterrence the White, long as are as somewhere in the rationale is eviscerated. ballpark, suspicion reasonable the rea- 554 faith, any can at all “[t]he

officers had bad deterrent be no doubt that a warrantless “clearly person’s search of a home is of the ille- necessari gal” any on of interpretation based the ly engaged assumes the Payton, Fourth Amendment. See willful, at con very negligent, or the least 586, 1371; U.S. at 100 S.Ct. United States has of deprived duct which defendant Court, District U.S. By right. refusing to admit some evidence 297, 313, 92 S.Ct. 32 L.Ed.2d 752 conduct, gained as of such result (1972) (“[Pjhysical home is entry of the hope to in those particular courts instill against wording chief evil which the officers, or in future investigating their directed.”); Fourth Amendment is Cool- counterparts, greater degree of care to idge Hampshire, v. New Peltier, rights accused.” ward the of an 474-75, L.Ed.2d S.Ct. at offi (1971) (“[A] search on a carried out sus- cases, in the line of as cers White-Fletcher pect’s per premises without a warrant is se McClain, were, very at the well as least unreasonable, unless the can show negligent, suppressing evidence carefully it falls within one of the of the serves exceptions defined set based rule and does harm to the good-faith no ”). presence ‘exigent circumstances.’ exception. much. panel acknowledges But reasons, not adopt For these I would then, panel cites White effect Eighth precedent. Circuit’s illegal predicate was “close y. White, validity,” to the line of enough incomprehensibly then if I adopt Eighth Even were to somehow concludes that the same “[t]he is however, position, Circuit’s contra- —which McClain, true here.” 430 F.3d at 308. To nearly the reasoning every dicts other conclusion, reach this fantastic it must re- court to proper appli- address the issue—a internally logic sort to inconsistent cation of that in this position case still First, subjective beliefs of the officers. results in of the evidence illogical acknowledge that the search good-faith exception apply. does A unconstitutional, here presumptively was proper application enough” but legal. also “close to be When precedent conducted the district presumptively unconstitutional, a search is Conner, court in F.Supp. 821. When placed government burden illegal predicate was a search of to demonstrate an to the rule dwelling place clearly the defendant’s —a bring the search within the Fourth requires suppres- search —O’Neal Coolidge, Amendment. See 403 U.S. at sion of the and the good-faith panel explicitly 91 S.Ct. 2022. The exception apply. panel, does not how- acknowledges legal these standards and ever, relegated to a but citation O’Neal see correctly rejected then government’s the despite being factually its on all fours with justifications the initial search. McClain. McClain, at 304-06. Neverthe- O’Neal, course, less, held “[i]f panel then somehow concludes method which evidence supporting that this same presumptively unconstitu- clearly illegal, search, search warrant is seized is a search tional described ... then even under Leon against evidence ob- “chief evil” which the Fourth resulting tained under the should adopted, warrant Amendment was was somehow 242 n. enough” legal good- be excluded.” 17 F.3d at 6. There that the “close such apply. enough validity” faith would How a to the line of to be consti- goes presumptively from unconsti- tutional. enough to close is not clear to me tutional Thomas, Finally, panel cites from I is in error. and believe Circuit, the Second and claims that “[tjhere is even more indefensible about nothing What was indeed more that Of- panel’s prior conclusion that the ficer Murphy war- ‘could have or should have rantless search of the home was “close done under these circumstances to be sure ” enough validity” McClain, to the line of is that legal.’ his would be subjective Thomas, must resort to the officer’s be- at (quoting F.3d 757 F.2d at 1368). liefs to reach such a conclusion. No one misinterprets This both the Second reasonably argue any can officer analysis Circuit’s and is also incorrect. wouldn’t know that a warrantless search of The focus of the Second inquiry— Circuit’s person’s presumptively home is unconsti- on what more could have been done—is on panel certainly tutional. The does not dis- the officer who conducts the first fact, pute McClain, this and in undermines its own search. the first officers reviewing legality conclusion. plenty could have done to make sure that residence, the search of pan- legal. McClain, McClain’s their search was See testimony J., el notes that “the officers’ own F.3d at (Boggs, concurring in the suppression hearing judgment) at the reveals that (noting that “the could offieer[s] they objective had no basis for their con- have taken other action.... could [H]e tried, not, burglary being cern that a committed have but did to determine who McClain, at McClain’s residence.” attempt owned the house and to contact added). Thus, (emphasis him supposed about intruder. He panel explicitly concedes that there nowas could have set aup barricade around the objective basis for the officers to believe any house waited for intruder to leave. that their warrantless search of the simply home Or he could have until waited he Nevertheless, majority was lawful. judge had located a sign who would warrant”). justifies by stating Likewise, the search that it found search even if the “no evidence officers knew wishes to focus on the officer who violating ultimately warrant, were the Fourth Amendment.” requested the there is added). (emphasis Id. at 308 plenty The officers’ more he could have to bring done beliefs, however, subjective simply are ir- the search within the Fourth Amendment. foremost, relying upon justify relevant and them to a First and he could avoided subjective wrong. search is “If using gained as a result of the test, protections alone were the presumptively earlier officers’ unconstitu- Fourth Amendment evaporate, would and tional search of the home his affidavit people per- would be ‘secure in their for the search warrant. He could have sons, houses, effects,’ papers, in investigated sufficiently and obtained evi- Ohio, police.” the discretion of the independent Beck v. dence that was either from an 89, 97, attenuated, 13 L.Ed.2d source or which would have (1964). That there no evidence of established cause. A distortion bad faith or intentional support panel’s violation of the of Thomas does not Fourth Amendment is irrelevant I Although conclusion. believe error, approach outcome this case. The reliance subjective Second, on the officers’ a grave adopt reasoning beliefs is would the Seventh, Tenth, logically Ninth, and fundamental error. It is also and Eleventh Cir- cuits, courts, inconsistent to conclude that the state search numerous district and Davis, objectively yet unreasonable “close as well as this Court’s decision affirm Accordingly, I would suppressed. ap- applying even judgment suppressing district court’s of the evi- suppression leads to proach the evidence. in this case. dence evi- society suppressing to The cost VI. I easy one to stomach. dence is not an discussed, I be- For all of the reasons It would be anyone. it no more than like seriously panel’s decision is lieve that accept to in this difficult particularly the evidence suppress I would in error. walk drug dealers would where several i.e., visual observa- the officer’s seized— structure, But, in our constitutional free. illegal search. during predicate tions— society a cost that must bear. remedy to delete this evi- proper our respect is a corresponding benefit application. dence from the warrant and the deter- rights Fourth Amendment case, however, al- the district court this effect would rent that all of the additional ready determined This is the officers’ misconduct. derivative of the warrant was evidence ought that has been struck. We balance thus, poisonous illegal search and the Court’s enforce it. I dissent from to Severing illegal officers’ fruit.10 this case to correct decision not to rehear subsequent of the home from the Amend- fundamental Fourth applying good-faith surveillance error. ment subsequent surveillance is exception to the apply To unacceptable an outcome. also exception to fruits of good-faith essence, follow-

illegal search—in because decid-

ing illegality, the initial the officers good-faith nice—would have the play ed America, UNITED STATES poison- the fruit of the exception swallow Plaintiff-Appellant, initial illegal tree doctrine. Fruits of ous essentially always gathered conduct are Likewise, did, good faith. McCLAIN; George Brandt, III; Kevin excep- attempting good-faith Davis, Defendants- Jason by determining, perhaps fruits

tion to the Appellees. scale, sliding magical on some whether No. 04-5887. illegal search was a little bit predicate Appeals, United States Court (i.e., enough the line of “close Sixth Circuit. illegal, amount or real- validity”), middle ly illegal assuming it can be said —even Argued: July degrees of Fourth varying that there are 2, 2005. Decided and Filed: Dec. me as an Amendment violations—strikes March As Revised adjudication, method of unprincipled judicial compe- one that is not within the fruits, therefore, All must be

tence. discovered,” Williams, have been Nix 10. The district court found no indication 431, 444, indepen any came from an 104 S.Ct. 81 L.Ed.2d 377 Co., source, Silverthorne Lumber (1984). dent see exceptions none of these would 392, 40 S.Ct. or that the unlawful U.S. at included in the search save the other evidence dissipate became "so attenuated as to application, of the evidence warrant and all taint,” Nardone, suppressed. must be inevitably "would or that the evidence

Case Details

Case Name: United States v. Kevin McClain George Brandt Jason Davis

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 31, 2006

Citation: 444 F.3d 537

Docket Number: 04-5887

Court Abbreviation: 6th Cir.