Leon and the Exclusionary Rule
First of all US v. Leon 468 US 897 (1984) was never intended to be an excuse
every time officers execute a defective search warrant. If it were so intended there
would be no such thing as the Fourth Amendment protection. An officer who lacked
probable cause to obtain a search warrant could present his affidavit to a magistrate
who would "sign anything "and then pass the warrant to another officer with no
knowledge of the defective affidavit, loose the suppression hearing, and then assert that
the warrant was executed "in good faith" and still be able to introduce the fruits of the
search. Leon considers several issues, at 923 note 24:
. . . it is necessary to consider the objective reasonableness, not only of
the officers who originally executed the warrant, but also of the officers
who originally obtained it or who provided information material to the
probable cause determination.
So, Leon does not confine itself to the "good faith" of the officers who executed the
search warrant. Leon involves the good faith of the law enforcement officers who:
(a) Obtained the search warrant;
(b) Provided information to the affiant(s)
(c) Executed the search warrant.
Many lawyers confine Leon issues to the "good faith" of the executing officers and this is
simply not how Leon was intended to be applied.
If it is claimed that a defective search warrant was executed in "good faith" it is
appropriate to inquire what facts the affiant knew and failed to include in the affidavit.
See: US V. Taxacher 902 F2d 867,872 (1 lth
cir. 1990); Sims v, State 969 SW2d 657,
660 (Ark. 1998). "Good faith" issues are not confined to the four corners of the affidavit.
See: State v. Varnado 675 So.2d 268, 270 (LA 1996); US v. Marfin 297 F3d 1308,
Cir. 2002). See also: US v. Reilly 76 F.3d 1271, 1280:
1318-196 ( I lth
Good faith is not a magic lamp for police officers to rub whenever they find
themselves in trouble. For the good faith exception to apply, the police
must reasonably believe that the warrant was based on a valid application
of the law to the known facts.
Certain types of defects in warrants are glaring and the "good faith" exception
under Leon is inapplicable. If an anonymous informant's information is uncorroborated
or unverified, the exception is inapplicable. See: US v. Helton 314 F3d 812 (6thcir.
2003). If the affidavit is based on conclusory statements and speculation the
exclusionary rule should be applied. See: State v. Huff 720 P.2d 838, 841 (Wash.
1986): State v. Thompson 369 NW2 363 (N.D. 1985); Mars v. State 482 NE2d 778 (IN
1985). The "good faith" exception does not apply if probable cause has dissipated.
See: People v. Joseph 470 NE2d 1303,1305 (IL 1984).
The burden of proof as to "good faith" issues is by the preponderance of the
evidence. See: Nix v. Williams 467 US 431, (1984).
What is the inquiry for the court to consider whenever an exception to the
exclusionary rule under Leon is sought? Actually it's simpler than most people think.
See: Leon at 926. The test of reasonable reliance is whether the affidavit was sufficient:
. . . to create a disagreement among thoughtful and competent judges as
to the existence of probable cause.
So, if reasonable judges could disagree as to whether there is probable cause to
believe that certain contraband is currently located on the subject premises the
exception to the exclusionary rule applies. If there is no evidence connecting the
contraband to the subject premises except conjecture, surmise and conclusory
allegations (no facts) then the exclusionary rule does apply. Leon was designed to
protect the executing officer from having to make technical legal conclusions before
serving a search warrant. Probable cause can be strong or it can be weak. If it is weak
and the magistrate issues the search warrant it can be served in "good faith". If
probable cause to believe that the contraband is located on certain premises is absent
or speculative "good faith" will not save the search. Again, probable cause can be weak
or strong. Conjecture, conclusory statements and, speculation are not probable cause
at all.