concurring:
I agree with the majority that this case may properly be resolved under the good faith exception to the exclusionary rule, and so I concur. I write separately because, unlike the majority, I would reach the question of whether probable cause to issue the warrant existed in this ease and would conclude that it did not.
United States v. Moore, 968 F.2d 216, 222 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 480, 121 L.Ed.2d 385 (1992), demonstrates that we may decline to decide the probable cause question in eases in which the good faith exception applies. That procedure, however, should be used only when the court is genuinely uncertain about whether probable cause exists. Courts of appeals are the final deciders of the law in the vast majority of cases of this sort. This means that we owe a duty to define the boundaries of probable cause, so that affiants submitting applications for warrants, issuing magistrates, reviewing courts, and the executing officers on whose good faith we rely may have appropriate guidance. And these boundaries are best set, not by abstract statements, but by case-by-case decisions in real situations.
In this case, there was no probable cause. The supposedly coded conversations are fully consistent with the conduct of legitimate business. Cancekno was employed in construction, and conversations about decks and chimneys are natural for one in that line of work. The idea that the parties were talking in code rests on very little more than a prejudgment, not itself based on probable cause, that since one of the parties was, on reliable information, a drug dealer, they had to be talking about drugs. But in deciphering a possibly coded conversation to evaluate probable cause to search one party’s premises, the code key cannot be supplied simply by the fact that the other party is a drug dealer. Even drug dealers engage in some legitimate transactions. The prosperous ones may put decks and chimneys on their houses. The fact that drug dealers buy things from people outside the trade means that such outside people will at times talk with drug dealers, and do so unknowingly. But talking to a drug dealer does not, by itself, make one’s home subject to search.
I do not suggest a per se rule under which intercepted conversations, alleged to be in code, could never, standing alone, give rise to probable cause. There may be conversations that are so incoherent, or in which the choice of words is sufficiently implausible, that they give rise to probable cause to believe that the terms used were merely a subterfuge to disguise a conversation about drugs. But while the conversations intercepted in this case include a fair amount of stammering and rambling speech, there is nothing inherently *810illogical about them. They are in fact not that different from many a conversation between a hapless customer and an earthy building contractor. In the absence of evidence that more directly tied Cancelmo, and not the person with whom he was speaking, to drug-related activity, it was improper for the magistrate to issue a warrant in reliance on the intercepted phone calls.
Judge Jacobs, who would not reach the issue of probable cause for a variety of reasons, nevertheless is of the view that there was no probable cause for the reasons I have stated.
Because I agree with the majority’s analysis of the good faith exception, I concur in the majority’s opinion on that issue and in the result that the majority reaches.