CA10: One officer’s mistake not insulated under Leon and Evans

Good faith exception could not be applied to the officer’s good faith belief that the drug dog was well trained without proof that the dog was. Also, one officer’s mistake applies to all of them, and an officer cannot rely on the mistakes of another to invoke the good faith exception [not to mention it was a warrantless search and why should Leon apply to a warrantless search?]. United States v. Clarkson, 551 F.3d 1196 (10th Cir. January 6, 2009):

In declining to extend the Leon good-faith exception to mistakes made by law enforcement personnel, this court has relied on the Leon Court’s statement that the purpose of the exclusionary rule is to deter police misconduct. Herrera, 444 F.3d at 1249-51. That “[t]he Supreme Court has never extended Leon’s good-faith exception beyond circumstances where an officer has relied in good faith on a mistake made by someone other than the police” provides additional support for this court’s continued reliance on the Leon Court’s stated purpose of the exclusionary rule and continued refusal to extend the good-faith exception to mistakes by law enforcement. Id. (emphasis added).

The Supreme Court’s decision in Arizona v. Evans, 514 U.S. 1, 15-16 (1995), further reinforces confinement of the good-faith exception. There, in determining whether to apply the good faith exception to an illegal search, the Court explicitly distinguished court employees from law enforcement personnel for purposes of the Leon good-faith exception. Id. at 14-15. The Court again recognized “that the exclusionary rule was historically designed as a means of deterring police misconduct.” Id. at 14. The Court went on to explain that excluding evidence based on a court employee’s clerical error would not deter improper conduct, since unlike police officers, “court clerks are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime, they have no stake in the outcome of particular criminal prosecutions.” Id. at 15 (citation omitted). The Court then created an exception to the exclusionary rule for clerical errors of court employees and remanded the case for a determination of whether a court clerk or a member of law enforcement had made the mistake in question. See id. at 16. Thus, the Court was willing to apply the good-faith exception only where a neutral third party, not a law enforcement member, was responsible for the error leading to the Fourth Amendment violation. See also Illinois v. Krull, 480 U.S. 340, 349-50 (1987) (extending Leon’s good-faith exception where officers conducting a search relied in good faith on a statute’s regulatory scheme permitting warrantless administrative searches, when the statutory regulatory scheme was later declared unconstitutional).

Here, any mistake on which Officer Sutera relied was made by a fellow officer. Were the good faith exception to apply in this circumstance, the improper police conduct of conducting a search with an untrained or unreliable dog would not be effectively deterred. Such a rule would minimize motivation for police officers to ensure a dog is actually trained or reliable before deploying it. Allowing the good-faith exception to apply in this situation would therefore contravene the purpose of the exclusionary rule. See James v. Illinois, 493 U.S. 307, 311 (1990) (“[The exclusionary rule is the] principal mode of discouraging lawless police conduct. Without it the constitutional guarantee against unreasonable searches and seizures would be a mere form of words.” (alteration and quotation omitted)). The district court thus erred in concluding Officer Sutera’s reasonable reliance on Oso’s [the dog’] reliability warranted a finding of probable cause and declining to rule on whether Oso was qualified. On remand, the district court should determine whether Oso was trained or otherwise reliable. While successful completion of a training course and a current certification would be satisfactory, we do not exclude the possibility that reliability can be established by other evidence.