dissenting.
The opinion in this case reverses Nash v. Overholser and State v. Hays and the “review denied” rule, and then, based on that, overturns the Leon “good faith” exception to the exclusionary rule. While I agree with the Court’s decision to overturn the “review denied” rule, see State v. Hays, 115 Idaho 315, 766 P.2d 785 (Bakes, J., dissenting), I dissent from the Court’s deci*999sion to reverse direction on the Leon “good faith” rule.
The Leon “good faith” rule has been followed by the courts of this state since the Court of Appeals decision in the case of State v. Rice, 109 Idaho 985, 712 P.2d 686 (Ct.App.1985). This Court twice affirmed the application of the Leon “good faith” exception to the exclusionary rule, first in State v. Prestwich, 116 Idaho 959, 783 P.2d 298 (1989), and then again in our first opinion in this case issued on November 19, 1990, where we held that, “Leon is the law in Idaho not because of what the Court of Appeals did in State v. Rice, but because of the merits of Leon itself.” Nothing has occurred since 1990 which should change that holding. Even though a majority is now overturning the review denied rule of Hays and Nash, there is no reason to retroactively apply the overturning of the review denied rule so as to affect this Court’s adoption of the good faith rule in State v. Prestwich, an opinion joined in by three justices, who said that, “Leon is the law in Idaho not because of [the review denied rule], but because of the merits of Leon itself.” The merits of the Leon “good faith” rule haven’t changed since this Court approved it in 1990.
Nevertheless, the Court’s opinion today rejects the good faith exception to the exclusionary rule, based upon Article 1, § 17, of the Idaho Constitution. However, the reasons which this Court has given in justifying the application of the exclusionary rule under Article 1, § 17, of the Idaho Constitution are not applicable to this case. In State v. Johnson, 110 Idaho 516, 716 P.2d 1288 (1986), we explained the policy behind the application of an exclusionary rule based on Article 1, § 17, of the Idaho Constitution. The Johnson opinion states:
The primary reason for the good-faith exception, as the Leon Court stated it, is that application of the exclusionary rule would have no deterrent effect where it was the judge who committed the error that invalidated the warrant and not the police officer. Leon, supra [468 U.S. at 918], 104 S.Ct. at 3418. Here, however, the error was not committed by the judge. Rather, the error was committed by law enforcement personnel — the precise group of government officials to whom the exclusionary rule has been directed. Accordingly, Leon's good-faith exception is inapplicable.
110 Idaho at 529, 716 P.2d at 1301 (emphasis in original).
In the present case the law enforcement officer presented his facts to a judge, who issued the search warrant, directing the officer to search for and seize the property. The officer executed the search warrant precisely as the law requires. As was later determined, it was the judge, not the officer, who made an erroneous determination that adequate probable cause had been shown. Excluding the evidence in this case will not serve any deterrent effect to law enforcement officers, the group which our Johnson case said was the focus of the exclusionary rule. Nor will it deter lawbreakers, who will be encouraged — not deterred — from engaging in crime, by application of the exclusionary rule in this case.
As expressed in State v. Johnson, there is a public concern regarding the stability and proper functioning of the judiciary, expressed in that opinion as “we are cognizant of the need to ensure that the judiciary does function,” and that there is an “imperative of judicial integrity.” A continued application of the good faith exception will enhance the public’s confidence in the stability of our judicial institutions. Changing directions after seven years and two prior opinions approving the good faith exception will not enhance the public’s confidence in the stability and integrity of the judiciary. While the public can understand and accept the application of the exclusionary rule when a law enforcement officer violates the law, the public has difficulty understanding the suppression of evidence of a crime merely because it is later determined that a judge made an error in evaluating the evidence in support of a search warrant.
Accordingly, I would vote to affirm the decision of the trial court.