CA8: Murray‘s second prong cannot be read literally; redacting tainted information still left probable cause

“Although much of the [warrant] application was tainted and, therefore, not relevant to this analysis, the untainted portions nevertheless are sufficient to support a finding of probable cause. … These circumstances show ‘a fair probability that contraband or similar evidence will be found in the targeted place.’ … As the redacted application demonstrates probable cause, Murray‘s second prong is satisfied.” United States v. Swope, 542 F.3d 609 (8th Cir. 2008):

Swope urges a strictly literal interpretation of the second Murray prong, asking whether the tainted information in any way “affected [the magistrate’s] decision to issue the warrant.” Murray, 487 U.S. at 542. However, no circuit has adopted such a reading, and we decline to do so here. “Invalidating a search warrant because the magistrate was affected in some minor way by tainted information, when the warrant would have been granted even without the tainted information,” United States v. Jenkins, 396 F.3d 751, 758-59 (6th Cir.), cert. denied, 546 U.S. 813, 126 S. Ct. 336, 163 L. Ed. 2d 48 (2005), “would work against the principle that the fruit of the poisonous tree doctrine not be used to place the government in a worse position than it would have been in absent its illegal conduct,” United States v. Dessesaure, 429 F.3d 359, 366 (1st Cir. 2005) (internal marks omitted). Swope’s approach would constitute a per se rule in favor of suppression when the supporting affidavits contain tainted information, thereby undermining the independent source doctrine’s foundational goal of “putting the police in the same, not a worse, position than they would have been in if no police error or misconduct had occurred.” Nix, 467 U.S. at 443. We therefore read the second prong to “signify affect in a substantive manner,” United States v. Herrold, 962 F.2d 1131, 1141 (3rd Cir.), cert. denied, 506 U.S. 958, 113 S. Ct. 421, 121 L. Ed. 2d 344 (1992), i.e., whether removing the tainted information also removes the basis for probable cause.

We note that the phrase from Murray relied upon by Swope was peripheral to Murray’s holding. Other circuits have reasoned that the offhand nature of the phrase-and its easy characterization as dicta-suggests that the Court did not intend for that phrase to displace the practice of redacting problematic information from search warrant application affidavits and analyzing the remainder for probable cause under Franks. See United States v. Markling, 7 F.3d 1309, 1316-17 (7th Cir. 1993); United States v. Restrepo, 966 F.2d 964, 970 (5th Cir. 1992), cert. denied, 506 U.S. 1049, 113 S. Ct. 968, 122 L. Ed. 2d 124 (1993). Although the context in Franks differs from the present context–the affidavit in Franks did not include information derived from a Fourth Amendment violation, but instead included facts that the police fabricated–other circuits have found that difference to be insufficient to justify a departure from the traditional Franks-based redaction analysis. See Dessesaure, 429 F.3d at 366-67 (“Every circuit to consider the question has held that the Court’s instruction in Murray to analyze whether the tainted information affected the magistrate’s decision to issue the warrant did not mean to change the dominant pre-existing approach under Franks.”) (citing cases). Even after Murray, probable cause continues to be the benchmark for evaluating tainted affidavits. See United States v. Hernandez Leon, 379 F.3d 1024, 1027 (8th Cir. 2004) (stating that “[t]he sufficiency of a warrant affidavit which contains information from an unlawful search is evaluated after deleting that information”); United States v. Johnston, 876 F.2d 589, 594 (7th Cir.) (Posner, J., concurring), cert. denied, 493 U.S. 953, 110 S. Ct. 364, 107 L. Ed. 2d 350 (1989) (citing cases and stating that “[l]oads of court[s] of appeals cases” have held that a redaction analysis is the proper test for affidavits containing tainted information).