Tuesday, August 16, 2011

Officer's Reliance on Warrant Insufficient to Support Good Faith Exception to Exclusionary Rule

In People of the Virgin Islands v. Tydel John, No. 09-4185 (Aug. 15, 2011), the Court holds 2-1 that the good faith exception to the exclusionary rule does not apply — and that evidence must therefore be suppressed — when an officer obtains and executes a warrant for child pornography by means of an affidavit representing that people who commit contact sex offenses against children customarily keep evidence of such crimes, including “photographs,” in their homes.

The facts recited in the warrant application were sufficient to establish probable cause to believe that the defendant had sexually assaulted several children, and that notes evidencing these crimes would be found at his home. The Court reasons that these allegations were “not sufficient to establish — or even to hint at — probable cause as to the wholly separate crime of possessing child pornography.” Critically, the warrant application did not allege the existence of a correlation between contact sex offenses and possession of child pornography, “let alone any evidentiary reason to believe in it.” Accordingly, the warrant affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” The officer's conduct was therefore, “at a minimum, grossly negligent.”

The Court discusses the Supreme Court’s recent decisions in Herring v. United States, 129 S. Ct. 695 (2009), and Davis v. United States, 131 S. Ct. 2419 (2011), to trace the contours of the good faith exception. Ultimately, the Third Circuit quotes Herring for the general rule that “to trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

That test was met here. “Reliance on a warrant affidavit that omits a fact critical to any reasonable belief in the existence of probable cause is the sort of thing we can expect the exclusionary rule to deter: all an investigator must do to avoid exclusion is comply with the well-known duty to spell out the complete factual basis for a finding of probable cause within the affidavit's four corners. And deterring police from submitting (and magistrates from accepting) affidavits that completely omit crucial factual allegations is a preeminently worthy goal. Reckless or grossly negligent conduct is enough to justify suppression, and [United States v. Leon, 468 U.S. 897 (1984)] and its progeny establish that an officer's conduct is sufficiently deliberate and culpable when she relies on a warrant that is as devoid of probable cause as this one.”

Accordingly, the Court affirms an order of the Virgin Islands Supreme Court suppressing evidence (albeit not child pornography) recovered when officers continued their search even after securing the notes which there was probable cause to believe would be found. Chief Judge McKee and Judge Smith joined in the holding.

In dissent, Judge Fuentes explains that he would hold the good faith exception to preempt application of the exclusionary rule under the circumstances. Agreeing with the majority that the warrant application did not establish probable cause to believe that child pornography would be found, the dissent submits that the officer nonetheless acted reasonably when she “submit[ted] a request to a judge asking whether there [was] probable cause for a warrant.… [and] then rel[ied] on that judicial determination to do her job.” Accordingly, application of the exclusionary rule would not achieve a sufficiently beneficial deterrent effect to outweigh its costs.

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