CA8: No REP in public areas of a store; telephonic warrant relied on in good faith; tribal judge not shown to not be neutral and detached because she had spoken out on def’s store

Defendant’s convenience store was arguably open, and he didn’t show that it was closed, for an officer to come in and observe synthetic marijuana for sale. He thus did not have a reasonable expectation of privacy. The officer obtained a telephonic warrant from a tribal judge, and he could rely on it in good faith. The defendant failed to show that the judge was not neutral and detached merely because she’d talked about his synthetic marijuana and urged people not to frequent the store. United States v. Long, 2015 U.S. App. LEXIS 14264 (8th Cir. August 14, 2015):

We further agree with the district court that Judge Miner’s knowledge of and involvement in the small tribal community is not the type of conduct that constitutes abandoning her role as a neutral and detached magistrate. See United States v. Heffington, 952 F.2d 275, 279 (9th Cir. 1991) (refusing “to disqualify small-town judges on demand” merely because “judges and police officers in rural counties often know more about the local criminal recidivists [than do] their more urban colleagues”); see also, e.g., United States v. Scroggins, 361 F.3d 1075, 1084 (8th Cir. 2004) (declaring a judge abandons her neutral role when she is so involved in the issuance of a search warrant she “essentially becom[es] a police officer in a robe”).

Long also asserts Judge Miner “wholly abandoned her judicial role” by failing to have Officer Spargur read her the full text of the search warrant. Assuming the warrant was not read, this failure does not suggest Judge Miner “acted as a rubber stamp” for law enforcement. United States v. Decker, 956 F.2d 773, 777 (8th Cir. 1992) (affirming the lower court’s conclusion that a judge abandoned his judicial role because the judge did not read the warrant and “failed to note both that the prosecutor had not signed the warrant and that the warrant did not list the property to be seized” (footnote omitted)). Here, Officer Spargur read Judge Miner the application and affidavit—portions of which are reproduced in the warrant itself—and Judge Miner testified she would have questioned Officer Spargur if the information he provided was not sufficient. Long does not dispute that Judge Miner was given enough information to establish probable cause to search, nor does he contend Judge Miner or Officer Spargur acted in bad faith. Under these circumstances, any failure to have Officer Spargur read the full text of the warrant was not a departure from Judge Miner’s neutral judicial role. See Leon, 468 U.S. at 916 (“[T]he exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.”).

Finally, Long asserts Leon’s good-faith exception does not apply because the procedure used to obtain the warrant was so deficient no reasonable officer would have relied on the warrant. Officer Spargur read Judge Miner the application and “the meat” of the affidavit verbatim, giving Judge Miner enough information to establish probable cause to search, and at the end of the long conversation Judge Miner approved the warrant. Officer Spargur was reasonable in believing the warrant was valid. See United States v. Stonerook, 134 F. App’x 982, 983-84 (8th Cir. 2005) (unpublished per curiam) (affirming the denial of a motion to suppress evidence obtained through a telephonic warrant and rejecting the defendant’s claim “that no reasonable police officer could have relied in good faith on the validity of [a] search warrant” issued in violation of state “law regarding telephonic search warrants”); United States v. Hessman, 369 F.3d 1016, 1018, 1022-23 (8th Cir. 2004) (applying the good-faith exception to a technically deficient warrant obtained by fax); United States v. Richardson, 943 F.2d 547, 548, 550-51 (5th Cir. 1991) (refusing to suppress evidence obtained pursuant to a telephonic warrant that had not met all requirements).