United States v. Kenneth Eugene Allen

GILMAN, Circuit Judge,

concurring in the judgment.

Although I agree with the majority’s ultimate conclusion that the district court *977did not err in denying Allen’s motion to suppress, I write separately because my reasoning is not based on the validity of the warrant itself, but rather on the good faith exception to the warrant requirement as established by United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

I agree with the dissent’s position that the warrant in this case was defieiént, but do not share its somewhat apocalyptic sentiments. The key language of the underlying affidavit simply stated that “[defendant] ... unlawfully has in his possession on said premises legend and/or narcotic drugs including Cocaine” and that the informant “while there saw Cocaine in possession of the said [defendant],...” No information was provided as to quantity, storing, or selling. Based on the information provided, the informant may have observed nothing more than Allen possessing one or two rocks of crack cocaine, which could have been quickly consumed. Thus, in the absence of greater specificity, the special judge who issued the warrant in this case could not have had a substantial basis for concluding that a search of Allen’s residence would uncover any illegal drugs. See Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (adopting the “totality of the circumstances” test as the controlling standard in determining probable cause for search warrants).

I therefore agree with the dissent’s conclusion that there was an absence of probable cause to support the issuance of the search warrant in question. See Zurcher v. The Stanford Daily, 436 U.S. 547, 556-57 n. 6, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978) (quoting with approval the following statement: “Search warrants may be issued only by a neutral and detached judicial officer, upon a showing of probable cause — that is, reasonable grounds to believe — that criminally related objects are in the place which the warrant authorizes to be searched, at the time when the search is authorized to be conducted.”) (emphasis added); United States v. McKinney, 143 F.3d 325, 328 (7th Cir.1998) (“A search warrant should not issue except on probable cause that evidence of a crime is currently located at a particular place.”); United States v. Finch, 998 F.2d 349, 352 (6th Cir.1993) (“Probable cause for the issuance of a search warrant is defined in terms of whether the affidavit sets out facts and circumstances which indicate a fair probability that evidence of a crime will be located on the premises of the proposed search.”) (citation and internal quotation marks omitted) (emphasis added).

Despite these deficiencies, however, I believe that Detective Lomenick “acted in objective good faith” when he relied on the warrant. Leon, 468 U.S. at 908, 104 S.Ct. 3405. In Leon, the Supreme Court held that the exclusionary rule does not “bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.” Id. at 905, 104 S.Ct. 3405. The proper test of an officer’s good faith is “whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Id. at 922 n. 23, 104 S.Ct. 3405. Here, Lomenick presented a neutral judicial officer with an affidavit stating that he had information about the presence of illegal drugs at a specific location from a reliable informant that was based on recent, personal observation.

After examining the warrant under the microscope of close legal analysis, I agree with the dissent’s conclusion that the underlying affidavit lacked sufficient specificity to pass constitutional mustei*. I cannot further conclude, however, that the affidavit at issue was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923, 104 S.Ct. 3405 (citations and internal quotation marks omitted); see also United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir.1985) (“Courts cannot make the good faith of an officer *978turn upon whether his reliance on a warrant was misplaced. It is only when the reliance was wholly unwarranted that good faith is absent.”) (emphasis added).

The dissent contends that, were my view to be adopted, “any officer could obtain a warrant on the bare, generalized assertions of an informant secure in the knowledge that even if the warrant was held invalid for a lack of probable cause, the search would be saved by nothing more than the officer’s alleged ‘good faith.’ ” I find this contention to be without merit. As the Supreme Court in Leon emphasized, “the standard of reasonableness ... is an objective one.” Id. at 919 n. 20, 104 S.Ct. 3405 (emphasis added). Thus, the determination of whether the good faith exception applies in a particular case does not depend on the subjective beliefs of the officers involved. See United States v. Maggitt, 778 F.2d 1029, 1035 n. 3 (5th Cir.1985) (“Because the Leon standard is objective, the testimony of the agent who prepared the affidavit ... is not particularly relevant.”); United States v. Gant, 759 F.2d 484, 487-88 (5th Cir.1985) (“[T]he determination of good faith will ordinarily depend on an examination of the affidavit by the reviewing court.”).

Furthermore, the warrant was applied for and issued prior to this court’s decision in United States v. Weaver, 99 F.3d 1372 (6th Cir.1996), in which a panel of this court held that the search warrant in question was defective primarily because the officer’s affidavit did not provide any “underlying factual circumstances to support the informant’s knowledge regarding distribution, nor the detective’s own ‘belief that ... quantities of marijuana were present ‘for the purpose or with the intention of unlawful possession, sale or transportation,’ or even that marijuana would be on the premises when the warrant was executed.” Id. at 1378. Because the Weaver decision — with its clear mandate that the underlying affidavit must include specific information concerning the quantity, storing, or selling of illegal drugs — was handed down after-the judicial officer in .this case issued the warrant, it was all the more reasonable for an officer such as Lomenick to have formed an objective good faith belief that the information supplied by the informant was sufficient under the authority of United States v. Pelham, 801 F.2d 875 (6th Cir.1986), and United States v. Finch, 998 F.2d 349 (6th Cir.1993).

The dissent characterizes this fact as having “little consequence” because “Weaver simply interpreted Leon and applied it to the facts before it; Weaver certainly did not — and in fact could not— change the exceptions to the good faith provision as articulated by the Supreme Court.” These arguments, however, do not diminish my point that an officer should not be expected to predict that warrant practices similar to what the courts have found acceptable in the past will subsequently fail to withstand the analysis of evolving legal decisions.

Although not dispositive, it is also telling that the question of whether the warrant in this case was defective has generated significant debate among the judges of this court. See Leon, 468 U.S. at 926,104 S.Ct. 3405 (“The affidavit ... provided evidence sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause.”); United States v. Taxacher, 902 F.2d 867, 872 (11th Cir.1990) (noting that the Supreme Court’s observation in Leon — that reasonable jurists had disagreed on the issue — was “intended to bolster the Court’s holding that the officer had acted reasonably under the circumstances”).

In sum, I conclude that even though the affidavit in this case did not provide enough detail to establish probable cause, it was sufficient to fit within the “good faith” exception of Leon. The dissent apparently believes that Lomenick’s actions amount to “flagrant misconduct” (United States v. Hove, 848 F.2d 137, 141 (9th Cir.1988)) and therefore the “extreme sanction” (Leon, 468 U.S. at 916, 926, 104 *979S.Ct. 3405) of exclusion should be imposed. Because I disagree, I would affirm the denial of Allen’s motion to suppress, albeit for reasons other than those set forth by the majority.