*3 FERGUSON, Circuit Judge: pected suspect known as chemist” a was arriving at Angeles Los International Air- government appeals the District (LAX) port up and “set[ ] manufacture] suppressing order Court’s evidence seized methamphetamine”; flight that a arrived Appellee Tung from Thai Luong’s resi- 1; at LAX on August police and fol- storage dence and locker. The District lowed Jao to a hotel. Court held that the did not Luong’s have cause to search res- The affidavit detailed the continuous idence, suppression and that of the fruits surveillance of Jao after his arrival appropriate of this search was because August day hotel as follows. On “good exception to faith” hotel, after Jao arrived at the an Asian appeal, govern- rule did not On apply. male, Luong, later identified as arrived at sup- ment concedes search was not the hotel and went into Jao’s hotel room. ported cause but contends later, Luong Several minutes Jao and left the warrant contained room, sufficient indi- car, got into Luong’s and drove cia of cause to render the offi- they to a restaurant where ate lunch. cers’ reliance on the warrant objectively They then left the restaurant and drove to agree We with the reasonable. District They a residence. entered the residence Court that the warrant this case was so walked and back and forth several times lacldng in indicia cause that a between the yard. front door and the back reasonably well-trained officer could not later, Several hours Luong Jao and left the have on relied faith. We there- residence and Depot drove a Home suppression affirm the fore order. They store. entered the store with Jao
carrying high pressure a red Luong hose. employee asked an “how to insert a I. new BACKGROUND adapter fitting Luong into his hose.” then A. The Warrant Search purchased a adapter small fitting, and he 1, 2003, agents August On Drug Jao drove back to the residence. Offi- (DEA), Enforcement Administration cer Fishburn concludes her affidavit conjunction Angeles with local Los police stating that she recognized the hose as a officers, an investigation initiated of Chun- common tool used pump with a vacuum Jao, male, Ying Taiwanese after Jao during production methamphet- arrived in Angeles Los flight from amine. Hong Kong. The day, next agents surveilling After residence anoth- sought warrant to search the residence hours, agents er seven prepared of Appellee Thai Tung with Luong, whom submitted the magis- to a state affidavit
Jao had met earlier day. judge, trate who issued a warrant
Officer Lori Fishburn of Monterey Luong’s search residence for evidence of Department Park Police swore out the af- methamphetamine manufacturing. a.m. on stances into its determination whether signed at 2:45 warrant was search the officers relied on the warrant agents executed August later, Officer at the 5:45 a.m. faith. Fishburn testified three hours residence, under hearing pressure that she was time During the search the warrant because she be- prepare of a metham- evidence officers discovered Luong fixing documents re- lieved Jao and were broken laboratory and phetamine lab, commu- by Luong. drug which could threaten the storage unit rented lated to a nity or fire if explosion with a chemical an additional war- The officers obtained unit, lab became functional. Officer Fishburn storage which contained rant for the *4 printing in also cited technical difficulties pounds methamphetamine. sixty-eight warrant, in faxing typing and and Proceedings and Federal B. in State a warrant due to broken thumb and
Court sprained acknowledged wrist. She on cross-examination, however, that other in state Luong indicted California was to members of her team were available suppress to the evidence court. He moved type for her and that she could have con- residence during the search of his seized typing tinued herself. sup- storage superior unit. The court and and dismissed pressed evidence government argued also that where on that the warrant indictment the basis is not sworn evidence of cause and lacked conveyed orally out in an affidavit but is to exclusionary rule not to the did may by magistrate, considered later court affirmed appellate The state apply. in determining courts whether the officers dismissal. superior comb’s in faith. Officer Fishburn tes- acted that she tified before the District Court indicted in fed- Luong subsequently was on the spoke magistrate judge with the to manufacture conspiring court for eral preparing or three times while phone two intent methamphetamine with possess conversations, During the affidavit. these in of 21 to distribute violation U.S.C. sworn, nor which were neither recorded 846; manufacturing possessing § magistrate that the DEA’s she told the intent to distribute methamphetamine with Kong possibly office initiated wire- 841(a)(1); Hong § in of 21 violation U.S.C. may have the source of the tap, which been manufacturing maintaining place in Los relayed to the DEA information elementary near methamphetamine with in- 856(a)(1) that was identified Angeles; Jao §§ in violation of 21 U.S.C. school passed as he formation from the sup- Luong filed a motion and 860. Angeles; in Los that through customs contending the warrant press, fact that divulge the DEA did not want to was not supported search his residence case; and that wiretap in there was a this cause, officers could and that the observed counter-surveil- agents had in good on the not have relied warrant investigation. driving during their lance was so faith because the affidavit she not testified that had Officer Fishburn cause as to render in her affidavit included this information objectively existence official belief its rushed, “it been but because she had unreasonable. have been there.” should hearing on The District Court held to factor Court declined January The District Luong’s motion on inquiry the additional into the government argued that the court should testified that Officer Fishburn presence exigent circum- information factor orally conveyed magistrate. quired, remedy to the for Fourth Amendment vi she olations, found that warrant Court reasoned that The Court where police conduct is Luong’s supported “pursued complete home was not search faith,” underlying and that the the rule’s deterrent function by probable cause lacking in “loses much of its Id. proba- was indicia force.” affidavit so objectively (quoting it was not rea- S.Ct. 3405 v. Pel ble cause that tier, 531, 539, rely on sonable for an officer the war- S.Ct. (1975) (internal Accordingly, the L.Ed.2d 374 quotation rant that issued. Court omitted)). such, marks suppressing an order the evidence As the Court con issued Luong’s storage residence and cluded that rule should seized from government’s appeals locker. The now bar introduction of evidence acting order. obtained officers ob jectively reasonable reliance a search II. STANDARD OF REVIEW subsequently invalidated. 918-21, 104 Id. at S.Ct. 3405. review de novo whether
We
*5
exception
exclusionary
faith
to the
Court stressed that the
applies to this search. United
rule
States
objective
faith test
anis
one. We ask not
(9th Cir.1988).
137,
Hove,
v.
848 F.2d
139
believed,
what
executing
the
officer
or
believed,
could have
but “whether
rea
III. DISCUSSION
sonably well trained officer would have
issue,
a search
For
warrant to
the
illegal
known that the search was
despite
requires
Fourth Amendment
that there be
magistrate’s
authorization.”
Id. at
cause,
“probable
by
af
supported
or
Oath
922,
23;
We anonymous tip static details in does not then affidavit and Officer Fishburn’s Clark, F.3d constitute corroboration.” two factors the other consider case, Therefore, at this for the taken into account argues should be tip given any weight, DEA’s to be determining applicability established, at a mini affidavit should have pressure case: time exception this mum, a reasonable inference Jao is experienced while Fishburn that Officer tip the chemist identified and that warrant, indi- and additional preparing the in fact Jao. Other agents identified that Officer Fishburn cia of wise, any predictive fails to provide but magistrate to the orally conveyed information about Jao —let alone the affidavit. failed to include her Morales—
“range required details” Sufficiency the Affidavit A. The police during for the to corroborate their surveillance. for the Leon established apply, the officer’s affidavit Here, reasonably although we can argu colorable must establish least Jao flew to infer from the affidavit that Leon, 468 ment for cause. See 1, 2003, Angeles August Los the affida Hove, 3405; identify “suspected vit Jao as the fails framed Supreme F.2d at 140. The Court suspect as a chemist.” The affida known the affidavit “suf whether inquiry as (for ex suspect vit neither describes among disagreement ficient to create ample, by physical description), name or *6 to the judges and as thoughtful competent Jao, upon nor the basis which as identifies Leon, 468 of cause.” existence any passenger arriving opposed other 3405; 926, States United targeted. day, that was identified and The Cir.1994) (9th Fowlie, 1059, 1067 24 F.3d v. a for to set forth factual basis affidavit fails omitted). (internal The quotation marks allegations to the contained linking Jao meet here fails to this threshold affidavit presence the the mere a tip. Beyond that this showing. Unlike other affidavits any pre on it also lacks plane, chemist good faith upheld has under the Circuit information, the occurrence of dictive see, Hug e.g., v. exception, United States verify tip. would which Clark, (9th Cir.2002); 1039 gins, 299 F.3d argues Although government that Fowlie, 1059, 831; F.3d 31 F.3d from comings goings and Luong and Jao’s appreciable contains no instant affidavit a theo- backyard support the house to cause. methamphetamine was ry production that garage, affidavit does underway in the deficiency A the affida critical (let evidence) allege as not alone set forth tip is it an unverified vit that relies on are methamphetamine operations that theory for lynchpin its yards, or held, commonly up in residential repeatedly As have set we cause. accessible any weight, Luong’s garage that was accorded anonymous tip backyard. affidavit does through some to be provide must basis “officers Clark, officers vacuum not assert that saw is true.” 31 F.3d tip lieve that the residence, such a only that ‘range pump at the must include “[T]he commonly high pres- used with details,’ pump future actions predict and it must evidence that cor There is also no suspect subsequently sure hose. by the are backyard from the v. the hose was obtained police.” roborated (9th additional Morales, 1070, despite seven garage, Cir. or the 252 F.3d or— fitting pur- judge, owing printing faxing prob- hours of surveillance —that Depot was taken into But even after chased at Home ever lems. the warrant was signed nighttime service was author- backyard.
ized, the officers waited three hours before Exigent B. Circumstances facts, executing the warrant. these Given any we conclude that exigencies confront- two government raises additional ing do the officers this case not alter our regarding the arguments application good overall conclusion that faith ex- faith in this case. The first ception apply. does not argument concerns relevance exi- gent circumstances the good inqui- C. Extrinsic Evidence of Probable ry. While the concedes that Cause per- Officer Fishburn’s affidavit is far from Finally, government argues that we fect, argues it exigency once the may consider evidence of facts con- situation and technical difficulties tained in the affidavit to demonstrate that that Officer encountered are Fishburn tak- the officers acted in gov- faith. The account, en into objectively was reason- authority ernment relies on from other rely able for the officers to on the warrant support circuits to this argument, includ- This issued. Court first held in Unit- ing United States v. Legg, 18 F.3d ed v. States Weber that it would consider (4th Cir.1994) 243-44 (considering oral un- any pressure time the affiant was recorded answers to magistrate’s ques- under in determining applicability of objectively tions to establish reasonable exception. 923 F.2d warrant), reliance (9th Cir.1990); see also United States (5th Cir.1985) Maggitt, 778 F.2d Ramos, (9th 1346, 1355, n. 18 dicta). (allowing same Cir.1991) (considering omission of certain facts from apply- affidavit reasonable when case, On the facts of this where the ing faith exception,, given affiant’s underlying entirely affidavit is *7 constraint), time overruled on other probable cause, reject indicia of we grounds Ruiz, by United States 257 government’s invitation to look to facts (9th Cir.2001). F.3d 1030 orally conveyed to in magistrate order generate theory to colorable proba of Though this Court takes time pres clearly ble cause. Leon unequivocally account, sure into do facts here not states that when the affidavit itself is en application favor of an exception based on tirely cause, lacking in indicia of probable exigency. all, First the officers waited be cannot said that the officer acted in surveilling seven hours after Jao and good in relying faith on a warrant Luong Depot at Home to obtain the war That precise issues. is the situation we rant, even though trip the two men’s to have in this case. Home Depot was the last observation re corded in the officers’ affidavit. re repeatedly With This has Court held that spect to the technical difficulties encoun necessary data to probable “[a]ll show affidavit, tered in typing the we note that cause for the issuance a search warrant Officer Fishburn testified that she could must be contained within the four corners have continued typing despite her a given hand of written affidavit under oath.” injury or Gourde, asked a 1065, member of her team to United States v. 440 F.3d (9th type Cir.2006) (en for agents banc) her. The complained also (quoting 1067 delay a in getting Anderson, 174, to warrant the United States v. 453 F.2d
905 Cir.1971) (internal (9th exception faith to the exclusion- quotation good 175 omitted)). ary affidavit it- rule. Where the marks cause, it probable lacks all self good that the faith explained While Leon foregoing unduly undermine
would
in
circum-
apply
does not
certain
exception
probable
indicia
to
extrinsic
permit
rule
stances,
is “so
including when the affidavit
unsworn,
through
presented
cause
be
in indicia
cause as
Related to
colloquy.
oral
unrecorded
entire-
official belief in its existence
render
requires
also
the Constitution
foregoing,
923,
unreasonable,”
at
104
ly
468 U.S.
“by
established
cause be
Illinois, 422
(quoting
Brown v.
S.Ct.
unsworn,
If
unre-
or affirmation.”
Oath
2254,
590, 610-611,
may
which
not be
colloquies,
corded oral
(1975))
J.,
(Powell,
concurring
L.Ed.2d 416
cause, are ad-
to establish
used
that “all of the
part),
in
it also stated
faith,
consti-
good
to establish
missible
including whether
circumstances—
standards
prudential
tutional
previously
had
been
application
warrant
be under-
showing
cause will
rejected
magistrate may
aby
different
—
effect,
exception
faith
good
mined.
good
inquiry.
faith
considered”
Amendment
the Fourth
would swallow
2254,
Moreover,
Id.
n. 23.
S.Ct.
rule.
discussing
the deterrent effect
rule,
explained
fall
Leon
facts of this case
Given
explicitly
generally
able to
situation
officer
should be
police
squarely within
good rely
judge’s probable
cause determi-
as one in which
identified Leon
magistrate’s
not
“it is the
re-
apply,
not
we need
nation because
faith
does
the offi-
exception sponsibility
faith
determine whether
inquire further. The
probable cause.”
allegations
case.
cer’s
establish
apply
not
this
does
Agent
3405. Because
Id. at
S.Ct.
IV. CONCLUSION
superior
provided the
court
Fishburn
support
with additional facts
judge
against Luong was
Because
evidence
determination,
probable cause
“colorable”
prob-
based on
without warrant
obtained
Hove,
see United
cause,
because the
able
(9th Cir.1988),
Agent
and because
does
requirement
exception to the
judge’s probable
relied on the
Fishburn
AFFIRM the
accordingly
we
apply,
objective
determination
the District Court.
decision of
excep-
faith, I
apply
would
*8
exclusionary
of the
application
tion to the
CALLAHAN,
dissenting.
Judge,
Circuit
district court’s
here and reverse the
rule
Leon,
v.
because
States
I dissent
United
suppression order.
897,
3405,
82 L.Ed.2d
468
of
that extrinsic evidence
(1984),
au-
have held
precedent,
own
We
our
may
when
pressure
be considered
support a
time
our
circuits
thority from
sister
faith
good
the Leon
determining whether
may be
holding
extrinsic evidence
that
a deficient “bare
applies to
exception
the
determining whether
considered when
of
affidavit. See
application
to the
bones”
good
exception
faith
(9th Cir.1991).
Weber,
F.2d
the
exclusionary
applies.
rule
When
the
Weber,
extrinsic
here,
In
we considered evidence
considered
suf-
evidence is
extrinsic
the affidavit to de-
corners of
objec-
to the four
probable cause and
ficient indicia of
was obtained
the warrant
termine whether
on the search war-
good faith reliance
tive
ultimately determined
reasonably.
of
We
support
application
to
the
rant exists
complete
lacking
probable
had
control
in
that
cause as to render
search,
timing of
over the
and accord- official belief in its
entirely
existence
un-
held that the warrant was not rea-
reasonable
ingly
under Leon. The Sixth Circuit
sonably
Although
obtained under Leon.
on
relied
Leon’s instruction to lower courts
not
Weber did
address
court’s consider-
to consider all of the
circumstances
de-
faith,
known
termining
ation of information
to both the
an officer’s good
“includ-
magistrate supporting
ing
affiant and
application
whether
had
probable
good previously
rejected
cause determination in the
been
a different
equation,
faith
the case
nevertheless sig- magistrate,” explaining
that
considering
nificant
rejected
because the extrinsic evidence in
magistrate
whether another
had
where,
here,
affidavit,
Weber was considered
like
probable cause
a court necessari-
ly
the affidavit lacked an indicia of
beyond
would have to look
the four
cause. Id. at 1346 (describing affidavit as
of
corners
the affidavit. Id. at 534.
being
kind of
“the
‘bare bones’ affidavit
In
Legg,
F.3d
”).
that is deficient under Leon
(4th Cir.1994),
243-44
the Fourth Circuit
Hove,
we concluded that the
that
if
affidavit held
even
an affidavit
any
lacked
was so
probable cause,
there
indicia of
contemporaneous
Leon good
faith
to
oral
cause statements made to
exclusionary
was
applicable.
judge
rule
not
signed
who
the warrant could be
Hove,
140. We also declined
considered in applying
Leon’s
faith
to consider additional facts
exception.
known to the
The Legg
rejected
court
conveyed
magistrate
officer but not
to
argument
defendant’s
language
reviewing
when
the affidavit
concluding
for indicia
that the
faith ex
Leon—
However,
probable cause.
ception
we did not
base
rule does not
our declination on
deficiency
apply when the
supporting
affidavit
affidavit, but rather we
that the
reasoned
warrant lacks sufficient indicia
additional facts could not be considered
categorically limited
cause—
because the Leon
solely
itself,
test “is
inquiry
based
on
to the warrant
because Leon
presented
facts
magistrate,”
did not address whether an officer’s reli
“Leon
not
does
extend ...
on
allow the
ance
statements to magistrate,
only
consideration
facts known
conjunction
affidavit,
to an
awith deficient
could
presented
officer
not
to the magis-
be reasonable.
Id. at
n.
prevents
trate.” Id. While Hove
us from Fourth Circuit
reasoned
because the
considering facts
known
the officer
analysis
but
focuses on the reason
presented
magistrate,
to the
it never-
ableness of the
on
officer’s reliance
implies
warrant,
theless
totality
consideration
addi-
of the circumstances
tional facts known to both the affiant and
should
considered in determining this
judge
be appropriate
would
in the Leon
reasonableness.
Id. The
acting
officer was
analysis
when faced
reasonably
with a
Legg
“bare
because he
relying
was
—even
bones” affidavit.
all
provided
information he
to the
*9
magistrate, both in
orally,
the affidavit and
Other circuit courts have
according-
held
when he executed the warrant.
at
Id.
244.
ly.
In
Frazier,
United States v.
423 F.3d
(6th
Cir.2005),
535-36
the Sixth
I find
Cir-
the Fourth and Sixth Circuits’
may
cuit held that a court
reasoning
consider infor-
compelling
agree
their
with
mation that the affiant told
magistrate
holdings
that facts known to both the affi-
but did not include in the affidavit
ant
judge
when
and the
may be
considered
determining whether the
affidavit was
analysis,
so Leon’s
regardless of
by police observation
deficiency.
route corroborated
affidavit’s
of the
the extent
cause),
support
are also
to
Legg
in Frazier and
established
holdings
The
our
tip’s reliability.
and Hove because
by Weber
supported
appropriate
it is
to
recognize
cases
tip,
The
in addition to
surveillance of
undertak-
evidence when
consider extrinsic
residence,
Luong’s
Luong and Jao at
determination, “de-
good faith
ing a Leon
driving,
pur-
and the
counter-surveillance
any
of
of
indicia
spite
complete lack
fitting at
adaptor
of the hose
chase
Hove,
affidavit.”
cause
“a
Depot, provided
Home
colorable show-
(internal quotation marks
at 140
848 F.2d
ing
probable cause” that evidence of
of
Weber,
at
omitted);
923 F.2d
see also
methamphetamine manufacturing might be
our
cir-
I
follow
sister
Accordingly, would
Hove,
Luong’s
at
found
residence.
consider the oral statements
cuits and
Therefore,
Fishburn
Agent
F.2d at 140.
superior
provided to the
Agent Fishburn
by
objectively
rely-
was not
unreasonable
during
preparation
judge
court
ing
superior
judge’s probable
court
making
good faith deter-
warrant when
cause determination.
Leon.
mination under
sum,
to
superior
court
Agent Fishburn told
designed
to
un-
exclusionary rule
save
the information
that she obtained
judge
constitutionally obtained evidence from
to
flying
he
a chemist
Jao —that was
about
would not
suppression
suppression
when
LAX to
via
manufacture
the United States
Leon, 468
police
deter
misconduct. See
wiretap initi-
methamphetamine —from
907-13,
Here,
DEA —that in metham- to assist
to the United States phetamine production supported America, UNITED STATES —was activity future an accurate corroboration Plaintiff-Appellee, activity and out the criminal carry v. Specifi- valid. may be deemed therefore PETERS, Defendant- Brett Andrew trip overseas cally, Jao’s Appellant. “significant future activ- type States is 06 50508. No. Gates, contemplated under Illinois ity” 225-27, 2317, 76 462 U.S. Appeals, Court (1983) (anonymous letter de- L.Ed.2d Ninth Circuit. scribing buy drugs, coupled with travel 16, 2006. Argued and Submitted Nov. travel, predicted estab- corroboration 12, 2006. Filed Dec. cause), and United States lished (9th Diaz-Rosas, *10 (informant’s Cir.1994) vehicle’s travel