D. Utah. essentially holds that the government wins a suppression issue if it has a search warrant, following Tenth Circuit precedent

Following Tenth Circuit precedent, the District of Utah does not decide probable cause and decides good faith alone finding a “strong basis” for concluding that there was probable cause, essentially holding that probable cause never has to be decided if it is reasonably close. United States v. Olson, 2007 U.S. Dist. LEXIS 58202 (D. Utah August 7, 2007):

Here, Detective Keil’s affidavit presented facts which strongly indicated criminal conduct, and the detective reasonably relied on the judge’s determination that these facts established probable cause. Detective Keil made a good faith effort to comport with the requirements of the Fourth Amendment by applying for a search warrant based on what he perceived to be probable cause. The supporting affidavit was not simply a series of conclusory statements even though–as Mr. Olson points out–the affidavit did not explain why the detectives were investigating either Mr. Olson or the residence, and amphetamine compounds may be legally possessed. See United States v. Rowland, 145 F.3d 1194, 1207 (10th Cir. 1998) (“Despite the affidavit’s failure to demonstrate a sufficient link between the contraband and Rowland’s home for probable cause purposes, the affidavit as a whole was not a bare bones affidavit, containing only conclusory statements and completely devoid of factual support.”); see also United States v. Martinez-Martinez, 25 Fed. Appx. 733, 737 (10th Cir. 2001) (“When determining whether Leon‘s good faith exception applies, the question is not what is absent from the affidavit, but what is present.”).

Comment: As soon as you read that the court is going to decide good faith and not probable cause, you can conclude that the government wins. In the Tenth Circuit, this might as well be known as the “close enough for government work” exception. Clearly, the good faith exception should apply in this case, but the Tenth Circuit’s case law proves the adage that the good faith exception stops any development of the law of probable cause in its tracks. What is or is not probable cause in a search warrant is no longer relevant in the Tenth Circuit. This is like a carnival game where everybody who participates gets a prize, just for paying and trying. But, when Fourth Amendment rights are at stake, that is just plain wrong. The Constitution deserves a higher status in the law than “the government wins just by having a search warrant.” The Fourth Amendment requires probable cause on its face (“… and no Warrants shall issue, but upon probable cause ….”). How can any search warrant without probable cause be sustained? How can any court refuse to even decide whether there was probable cause?

New Jersey’s appellate court held 22 years ago in State v. Novembrino, 200 N.J. Super. 229, 244, 491 A.2d 37, 45 (1985), aff’d 105 N.J. 95, 519 A.2d 820 (1987), just nine months after Leon:

The Leon good faith exception eliminates any meaningful review of probable cause determinations. Long experience with the suppression rule leaves us with the settled conviction that once the police act under cover of a warrant, even though issued without probable cause, as a practical matter their good faith is immune to attack. The Leon good faith exception contemplates that appellate courts defer to trial courts and trial courts defer to the police. It fosters a careless attitude toward details by the police and issuing judicial officers and it even encourages them to attempt to get away with conduct which was heretofore viewed as unconstitutional.