Affidavit failed to show nexus of the property searched to the crime, but good faith exception saved it anyway

The affidavit for the search warrant failed to show any nexus and lacked probable. The court virtually decides this question, but then disavowed deciding it [which is the wrong way to do it] and found that the search was saved by the good faith exception. United States v. Kennedy, 2007 U.S. Dist. LEXIS 54208 (E.D. Va. July 25, 2007):

The affidavit itself does specifically identify the place to be searched and the items to be seized, but is lacking in providing a real nexus to the crime committed. The affidavit explains merely that such items were likely to be found at the home because “persons who commit crimes keep the fruits and instrumentalities of their crimes in their primary residences.” On its own, this is not a sufficient ground for probable cause to believe that contraband or evidence of a shooting will be found there. Furthermore, the Court is troubled by the Government’s explanation that “answers concerning accomplices or other coordinated attacks would have been delayed” if the search was not authorized. (Gov.’s Opp. at 10). The affidavit is devoid of any indication that others may have been involved in the crime or indicating other attacks. Thus, this assertion could not have been the basis for probable cause, leaving the Court to decide if the “nature of the item[s] and the normal inferences of where one would likely keep such evidence” were sufficient to support a showing of probable cause. However, due to the applicability of the good faith exception, the Court need not resolve this issue.

. . .

The Court cannot conclude that the affidavit provided was “bare bones” or so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. While the Court agrees that the four corners of the affidavit leaves a bit to be desired, it names Michael Kennedy, states his exact address and grounds for verification, describes the items to be searched and seized, and states a reason for the search. While the connection between the Kennedy home and the shooting of the officers is somewhat tenuous, the Court cannot conclude that it was so facially deficient as to preclude reasonable reliance upon in it. See United States v. Dickerson, 166 F.3d 667, 694-95 (4th Cir. 1999). Good faith reliance is further strengthened by the fact that the affidavit was reviewed by a Commonwealth’s Attorney prior to submission to the magistrate.

Therefore, the Court finds that it was entirely reasonable for the officers executing the warrant to presume its validity. Accordingly, the Court finds the good faith exception to apply in this instance, and Defendant’s motion will be denied.

Plaintiff’s civil claim for unlawful entry in the face of a consent to enter defense was permitted to go forward because of the factual dispute. It also denied defendant qualified immunity. Also, the backyard qualified as curtilage. Oliver v. Reynolds, 2007 U.S. Dist. LEXIS 54139 (W.D. Ky. July 25, 2007):

In reviewing all four (4) factors collectively, the Court finds that the Plaintiff had a reasonable expectation of privacy in the backyard area of her home, including the back driveway, and therefore, that area is curtilage and is entitled to Fourth Amendment protection. See Daughenbaugh, 150 F.3d at 601 (quoting Dow Chemical Co. v. United States, 749 F.2d 307 (6th Cir.1984), aff’d, 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986)) (holding that “‘[t]he backyard and area immediately surrounding the home are really extensions of the dwelling itself,'” and therefore, an officer’s entrance into the backyard constituted a search in violation of the Fourth Amendment). This finding is consistent with the conclusion of law reached by the McCracken District Court, where the Court in that matter noted that the backyard of the Oliver home “is not impliedly open to the public.”