Minor v. State

BELL, Judge,

dissenting.

The good faith exception1 to the exclusionary rule enunciated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 *721L.Ed.2d 677 (1984) is an established, if not correctly decided or well reasoned, principle applicable to the resolution of Fourth Amendment search and seizure issues. Consequently, and unfortunately, since the petitioner has not raised an issue under Maryland law, it is that principle that must be applied to the resolution of the case sub judice. I say unfortunately because I agree with the. Brennan dissent in Leon, see 468 U.S. at 928-60, 104 S.Ct. at 3430-45, 82 L.Ed.2d at 702-721, and most of the Stevens dissent, see 468 U.S. at 960-61, 966-79, 104 S.Ct. at 3445-46, 3448-56, 82 L.Ed.2d at 722-23, 726-36; the commentators who have criticized the Leon holding, e.g., Wayne R. LaFave, A Treatise on the Fourth Amendment § 1.3, at 46-80 (2d ed. 1987); Steven Duke, Making Leon Worse, 95 Yale L.J. 1405 (1986); Craig D. Uchida et al., Acting In Good Faith: The Effects of United States v. Leon On The Police And Courts, 30 Ariz.L.Rev. 467, 469-472, 475-495 (1988); Jane Campbell Moriarty, United States v. Leon: How Is It Faring In The Thirteen Original Colonies? 18 Search and Seizure L.Rep. 9 (1991). See Lawrence Crocker, Can The Exclusionary Rule Be Saved? 84 The J.Crim.L. & Criminology 310 (1993); Comment, The Fourth Amendment: Death By Interpretation, 24 U.West L.A.L.Rev. 147 (1993); and the State high courts that have rejected its rationale and excluded illegally seized evidence pursuant to state constitutional provisions, e.g. State v. Marsala, 216 Conn. 150, 579 A.2d 58, 62-69 (1990); State v. Guzman, 122 Idaho 981, 992-998, 842 P.2d 660, 671-77 (1992); State v. Novembrino, 105 N.J. 95, 519 A.2d 820, 845-857 (1987); State v. Gutierrez, 116 N.M. 431, 863 P.2d 1052 (1993); People v. Bigelow, 66 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451, 454, 457-458 (1985); Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 888, 892-906 (1991); State v. Oakes, 157 Vt. 171, 598 A.2d 119, 123-*72227 (1991).2 See People v. Sundling, 153 Mich.App. 277, 395 N.W.2d 308, 314-315 (1986) (noting that the Michigan Supreme Court refused to adopt a good-faith exception prior to the Leon decision for essentially the reasons enumerated in the Leon dissents); State v. Grawein, 123 Wis.2d 428, 367 N.W.2d 816, 817-818 (App.1985) (“The State’s request that the Court adopt the Leon good-faith exception flies in the face of controlling Wisconsin law”).

I agree with the determination by the trial court, which the majority assumes to be correct, that the affidavit in this case failed to establish probable cause for the search and seizure. Under Leon, evidence seized pursuant to a search and seizure warrant is admissible, notwithstanding that warrant being deficient, whenever the police executing the warrant act in objectively reasonable reliance on it. 468 U.S. at 913, 104 S.Ct. at 3415, 82 L.Ed.2d at 692. An exception to the exception applies when the police act in reliance on “a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’” Id. at 923, 104 S.Ct. at 3421, 82 L.Ed.2d at 699 (quoting Brown v. Illinois, 422 U.S. 590, 610-611, 95 S.Ct. 2254, 2265-2266, 45 L.Ed.2d 416, 431 (1975) (Powell, J., concurring in part)). The Leon Court acknowledged that an officer relying on such a warrant could not be manifesting objective good faith. Id. Of course,, “the officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable.” Id. at 922, 104 S.Ct. at 3420, 82 L.Ed.2d at 698, citing Harlow v. Fitzgerald, 457 U.S. 800, 815-819, 102 S.Ct. 2727, 2737-2739, 73 L.Ed.2d 396 (1982).

The hearing judge concluded as follows:

*723While the informant in the case before this Court has provided information concerning a stolen motorcycle, there is nothing beyond a “bare conclusion” to place it at 4766 Sands Road. Additionally, the description of the property and those persons living on it does nothing to further the argument that contraband or evidence of a crime will be found at that location. The application is noticeably void of information concerning prior related criminal activity of the suspects, the veracity of the informant and independent corroboration of suspected criminal activity. The court certainly acknowledges that the above-referenced factors need not be present in every warrant application to support its issuance. The fluid “totality of the circumstances” test[3], however, allows weaknesses in one area of the application to be strengthen by a strong showing in another area.

Circuit Court opinion at 8-9. The corroboration that was done was of innocent details and, unlike in Gates, did not involve the verification of accurate predictions of future actions of a third party. Thus, the corroboration in no way tended to establish criminal activity. Moreover, confirming the existence of the address at which the informant says the stolen property is located and its physical description, does not make the commission of a crime or the location of its fruits more probable. Nor does the fact “that a crime fitting the description of the one related by the informant had actually occurred does not constitute probable cause to believe that the anonymous caller was telling the truth.” Bradley v. State, 609 N.E.2d 420, 423 (Ind.1993). In addition, as the majority opinion acknowledges, there is, in this case, at least some ambiguity as to whether the commission of the crime was confirmed. The affidavit averred that the described motorcycle “was stolen from an Annapolis address across from the YMCA,” while the reported corroboration was that a motorcycle of the same description was reported stolen from a specified address, without any indication that it was across from *724the YMCA: in stating the facts, the hearing court noted that “while the motorcycle reported stolen was of the same color, make and model as that described by the confidential source, the affidavit does not contain verification that 26 Woodward Court is ‘across from the YMCA’ in Annapolis.” Circuit Court opinion at 2. The facts that a crime has occurred and the confirmation that it is that crime which prompts the request for a search and seizure warrant are critical to probable cause.

The question then is whether, based on the information in the affidavit a reasonably well-trained police officer would have believed that probable cause existed for the search of the petitioner’s home. Clearly, what a reasonably well-trained police officer knows, or should know, is relevant to the determination of whether that officer’s reliance is “objectively reasonable.” Leon, 468 U.S. at 922, 104 S.Ct. at 3420, 82 L.Ed.2d at 698. See State v. Guzman, 122 Idaho 981, 997, 842 P.2d 660, 676 (1991) (recognizing that “[t]he good faith exception ... places a premium on police ignorance of law” and that “[t]here can be no doubt that the police on the street know [that there are substantial disparities between magistrates as to how much evidence is required to obtain a search warrant] from experience and will use it to their advantage, absent a reason not to do so.”). This is more clearly seen in Leon at 468 U.S. at 923-24, 104 S.Ct. at 3420-22, 82 L.Ed.2d at 699-700, in which the Court, giving its reasons, dismissed the dissents’ criticism of the good faith reliance principle. Whether an officer’s reliance is “objectively reasonable,” of course, requires that we focus on the definition of a reasonably well-trained police officer, on what, in other words, such an officer should know?

A reasonably well-trained police officer is chargeable, first of all, with knowing what the Fourth Amendment prohibits: both unreasonable searches and seizures and the issuance of warrants except on probable cause.4 Thus, he or she should *725know that a warrant cannot authorize an unreasonable search and a search without probable cause cannot be reasonable. See Leon, 468 U.S. at 960-961, 104 S.Ct. at 3445-46, 82 L.Ed.2d at 723. (Stevens, J. dissenting). He or she is also charged with knowledge of what is required for the establishment of probable cause — -the Gates’ totality of the circumstances test. A reasonably well-trained police officer must know, therefore, that the neutral and detached magistrate must be given sufficient information from which it could be found that there is a “fair probability that contraband or evidence of the crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. Moreover, a reasonably well-trained police officer is charged with knowledge that the magistrate must make the probable cause determination on his or her own, using his or her independent judgment; he or she cannot “mere[ly] ratif[y] the bare conclusions of others.” Id. at 239, 103 S.Ct. at 2333, 76 L.Ed.2d at 549. In other words, a reasonably well-trained police officer must know that the affidavit he or she submits has to “provide the magistrate with a substantial basis for determining the existence of probable cause, and ... wholly conclusory statements] ... fail[ ] to meet this requirement.” Id. at 239, 103 S.Ct. at 2332, 76 L.Ed.2d at 549.

Prior to Leon, a reasonably well-trained police officer was well aware that merely because a search was conducted pursuant to a warrant issued by a magistrate did not guarantee that the search would be upheld as reasonable; indeed, that officer was aware that a challenge to the search would result in a reviewing court determining whether the magistrate acted properly in issuing the warrant and the invalidation of the search if he or she were found to have acted improperly. Leon, 468 U.S. at 969-70, 104 S.Ct. at 3450-51, 82 L.Ed.2d at 729 (Stevens, J. dissenting).

*726Finally, a reasonably well trained police officer must be aware of Leon’s teachings. That officer, therefore, knows that, under Gates his or her failure to establish probable cause is not necessarily fatal — because the reviewing court defers to the judgment of the magistrate, in a case it deems doubtful, the reviewing court will find probable cause.5 That officer, *727therefore, now knows that, so long as be or she objectively and reasonably relied on the warrant, the fruits of the search, even though the search be unreasonable, because not based on probable cause, may be admitted. Logically, because it may otherwise be a disincentive for the police to conduct efficient and appropriate investigations, Leon must envision that reasonably well-trained police officers, aware of the flexibility of the Gates probable cause requirements and the further loophole it provides, would not submit an affidavit that he or she knows is borderline, at best, in the hopes that the magistrate will find the issue debatable. Thus, a reasonably well-trained police officer would not submit an affidavit to a magistrate for a probable cause determination that the officer knows, or should know, does not establish probable cause. By the same token, and for the same reason, the reasonably well-trained police officer would not submit an affidavit of which he or she has, or should have, substantial doubt.

I am satisfied that it must have been obvious, even manifest, to a “reasonably well-trained police officer” that the affidavit in this case did not establish probable cause. See Com. v. Edmunds, 586 A.2d at 891 n. 3. As the hearing court found, it contained “nothing beyond a ‘bare conclusion’ ” that the stolen property would be found at the location reported. An affidavit containing nothing more substantial than that is hardly sufficient to pass the threshold required for submitting for a probable cause determination an affidavit purporting to establish probable cause. Since any reasonably well-trained police *728officer aware of Leon would know that,6 objectively, no reasonably well-trained police officer reasonably could rely on it. See Bradley, 609 N.E.2d at 423-24 (no reasonable belief in validity of warrant which misrepresented the reliability of informant and did not provide sufficient evidence to meet the totality of the circumstances test); State v. Huggins, 733 F.Supp. 445, 448 (D.D.C.1990) (affidavit did not provide temporal context for information); United States v. Corrigan, 809 F.Supp. 567 (M.D.Tenn.1992) (same); People v. Reed, 202 Ill.App.3d 760, 147 Ill.Dec. 829, 832, 559 N.E.2d 1169, 1172 (1990) (bare bones, facially overbroad warrant); State v. Diamond, 628 A.2d 1032, 1034 (Me.1993) (affidavit based solely on non-criminal behavior and containing no information from which to corroborate that evidence of criminal activity would be found); State v. Hammett, 784 S.W.2d 293, 297 (Md.App. 1989) (bare bones affidavit).

I dissent.

. Query: is it an exception or intended to be the rule? The Leon majority writes as if it is the latter: "[Suppression of evidence obtained *721pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” 468 U.S. 897, 918, 104 S.Ct. 3405, 3418, 82 L.Ed.2d 677.

. Other states, with statutory exclusionary rules, reject the good faith exception as a matter of statutory construction. See Gary v. State, 262 Ga. 573, 422 S.E.2d 426, 428-29, 430 (1992); State v. Garcia, 547 So.2d 628, 629-630 (Fla.1989); Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548, 554 n. 5 (1985); State v. Carter, 322 N.C. 709, 370 S.E.2d 553, 559-62 (1988); Davis v. State, 831 S.W.2d 426 (Tex.Crim. App.1992).

. The “totality of the circumstances” test was enunciated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

. The Amendment provides:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be *725violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

. Mr. Justice Stevens pointed out, as relevant to the case sub judice, that the totality of the circumstances test is flexible, as well as practical and commonsensical and, given the deference required to be paid the decision of the magistrate in doubtful cases, the State receives the benefit of the doubt. 468 U.S. at 967-68, 104 S.Ct. at 3449-50, 82 L.Ed.2d at 727-728. This formulation, he asserts, gives law enforcement officers all the leeway they need since "[t]o allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.” Id. at 968, 104 S.Ct. at 3450, 82 L.Ed.2d at 728, quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302-1311, 93 L.Ed. 1879, 1891 (1949). Mr. Justice Stevens then said:

Thus, if the majority’s assumption is correct, that even after paying heavy deference to the magistrate’s finding and resolving all doubt in its favor, there is no probable cause ..., then by definition — as a matter of constitutional law — the officers’ conduct was unreasonable. The Court’s own hypothesis is that there was no fair likelihood that the officers would find evidence of a crime, and hence there was no reasonable law enforcement justification for their conduct.

Id. at 968-69, 104 S.Ct. at 3450, 82 L.Ed.2d at 728.

Similar sentiments were voiced by Mr. Justice Brennan, who pointed out:

[G]iven the relaxed standard for assessing probable cause established just last Term in Illinois v. Gates, 462 U.S. 213[, 103 S.Ct. 2317, 76 L.Ed.2d 527] (1983), the Court’s newly fashioned good-faith exception, when applied in the warrant context, will rarely, if ever, offer any greater flexibility for police than the Gates standard already supplies. In Gates, the Court held that '[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of the crime will be found in a particular place.' Id. at 238, 103 S.Ct. at 2332[, 76 L.Ed.2d at 548]. The task of a reviewing court is confined to determining whether 'the magistrate had a “substantial basis” for ... concluding] that probable cause existed.’ Ibid. Given such a relaxed standard, it is virtually inconceivable that a reviewing court, when faced with a defendant’s motion to suppress, could first find that a warrant was invalid under the new Gates standard, but then, at the same time, find that a police officer’s reliance on such an invalid warrant was nevertheless ‘objectively reasonable’ under the test announced today. Because the two standards overlap so completely, it is unlikely that a warrant could be found invalid under Gates and yet the police reliance upon it could be seen as objectively reasonable; *727otherwise, we would have to entertain the mind-boggling concept of objectively reasonable reliance upon an objectively unreasonable warrant.

468 U.S. at 958-59, 104 S.Ct. at 3444-45, 82 L.Ed.2d at 721-722.

State v. Oakes, 598 A.2d 119, 125-26 (Vt.1991) suggests that “[a] further consequence of removing review of the issuing judicial officer’s probable cause determination is that there will be less guidance to these officers as to what constitutes sufficient probable cause. Without such guidance, the incidence of mistakes by issuing judicial officers will increase.”

. It is curious, and troubling, that, although the petitioner does not raise the issue, a search of the house, including in places in which a motorcycle could not possibly fit was authorized by, and conducted pursuant to, this warrant.