Defendant was arrested for drug dealing outside his apartment building. A search incident produced a set of keys. The police tried the keys on the apartment door until they worked. They didn’t enter but used the facts they’d developed plus that key fitting to get a warrant for the apartment. The use of the key in the door of an apartment was a “search” under the Fourth Amendment. It was not de minimus. However, that did not mean that the search under the warrant was invalid. The court concludes after much thoughtful analysis and surveying cases from elsewhere that the good faith exception should still apply even though one of the facts was obtained by a search in violation of the Fourth Amendment. (The court also finds that the Davis good faith exception is not applicable.) United States v. Bain, 2017 U.S. App. LEXIS 20032 (1st Cir. Oct. 13, 2017). This is an interesting opinion for its thoughtful and full analysis without any corner cutting:
The government argues in the alternative that no suppression should result because the officers who searched unit D relied in good faith on the magistrate’s issuance of a warrant, even though the affidavit contains information obtained in violation of the Fourth Amendment. In support of this argument, the government points to United States v. Leon, 468 U.S. 897 (1984). Under Leon, evidence obtained from a search conducted “in objectively reasonable reliance on a subsequently invalidated search warrant” need not always be excluded. See Id. at 922. Although the existence of a warrant issued by a magistrate will usually establish this form of good faith, “in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.” Id. at 922-23 (footnote omitted). The Leon court provided examples of four such circumstances: (1) “if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth,” Id. at 923 (citing Franks v. Delaware, 438 U.S. 154 (1978)); (2) “where the issuing magistrate wholly abandoned his judicial role,” Id.; (3) when an affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” Id. (quoting Brown v. Illinois, 422 U.S. 590, 610-611 (1975) (Powell, J., concurring in part)); and (4) when, “depending on the circumstances of the particular case, a warrant [is] so facially deficient–i.e., in failing to particularize the place to be searched or the things to be seized–that the executing officers cannot reasonably presume it to be valid.” Id. We review the application of the good-faith exception de novo. See United States v. Baez, 744 F.3d 30, 33 (1st Cir. 2014).
Here, we have a circumstance not expressly addressed in Leon: the warrant affidavit forthrightly discloses facts that establish probable cause, but one of the facts essential to establishing probable cause (the result of the key turn) was obtained as a result of an unconstitutional search. We encountered a very similar circumstance in United States v. Diehl, 276 F.3d 32 (1st Cir. 2002). In Diehl, the defendant sought suppression of evidence “seized pursuant to a facially valid warrant.” Id. at 34. As in this case, the warrant affidavit contained a report that an officer had previously approached the searched location and this report “was necessary to establish the probable cause justifying issuance of the warrant.” Id. at 35, 41-42. Anticipating Jardines, this court concluded that the officer’s earlier visit to the location was an unconstitutional search because it involved a warrantless trespass on the curtilage of the residence. See Id. at 38, 41. Nevertheless, we concluded that Leon’s good faith exception applied. In so ruling, we focused on the accuracy and completeness of the manner in which the information supporting the warrant was conveyed to the magistrate issuing the warrant. Placing the burden on the government, Id. at 42, we asked whether the affiant’s recitation of the facts was infected “with an intentional misrepresentation, or one made with reckless disregard of the truth,” so as to mislead the magistrate. Id. We asked as well whether, by omission or error, the description “[took] away from the issuing court the ability to decide” the curtilage issue for itself. Id. at 42-43. We also asked whether enough information was given to the issuing judge to determine whether the officer who invaded the curtilage acted “in such bad faith as to preclude a warrant.” Id. at 43. Finally, we noted the possibility that snow cover may have misled the officers as to the contours of the curtilage, which would further negate any inference of bad faith. Id. All in, we found the case to present “‘a penumbral zone’ within which an inadvertent mistake would not call for exclusion.” Id. (quoting Leon, 468 U.S. at 925 n.26).
Diehl’s application of the Leon good-faith exception finds company in the majority of circuits that have considered the question posed by reliance on a warrant that is itself tainted by the results of an unconstitutional search. See, e.g., Hopkins, 824 F.3d at 733; United States v. Ganias, 824 F.3d 199, 222-23 (2d Cir. 2016) (en banc); United States v. Massi, 761 F.3d 512, 528 (5th Cir. 2014); United States v. McClain, 444 F.3d 556, 565-66 (6th Cir. 2005). At least two circuits have disagreed with this majority view, see, e.g., United States v. McGough, 412 F.3d 1232, 1239-40 (11th Cir. 2005); United States v. Wanless, 882 F.2d 1459, 1466-67 (9th Cir. 1989), as have a few commentators, see, e.g., 1 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 1.3(f) (5th ed. 2016) (stating that “there is good reason to doubt” whether the plurality rule is correct); Craig M. Bradley, The “Good Faith Exception” Cases: Reasonable Exercise in Futility, 60 Ind. L.J. 287, 302 (1985) (“When the magistrate issued the warrant, he did not endorse past activity; he only authorized future activity …. [T]he function of the magistrate is to determine ‘whether a particular affidavit establishes probable cause,’ not whether the methods used to obtain the information in that affidavit were legal.” (quoting Leon, 468 U.S. at 914)). Diehl would seem to suggest that the minority position takes too cramped a view of what magistrates do, and accords too much relevance to a distinction that may have no bearing on the presence or absence of good faith. Diehl, 276 F.3d at 42-43. Be that as it may, this case presents no reason to deviate from Diehl’s interpretation of Leon. Under Diehl, good faith reliance on a warrant procured and issued in good faith saves the fruits of a warranted search from suppression.
So, we turn to the question of good faith. Unlike in Diehl, the invasion of the curtilage in this case could not be said to be the result of the officer’s misapprehension of the facts. Here, any misapprehension was purely a misapprehension of the law. Diehl offers no direct guidance on how to define the point at which such a misapprehension equates with the bad faith that would negate reliance on the warrant. Pointing to United States v. Hopkins, 824 F.3d 726 (8th Cir.), cert. denied, 137 S. Ct. 522 (2016), the government says that we should find the Leon good faith exception applicable because the key-turn was “close enough to the line of validity to make the officers’ belief in the validity of the warrant objectively reasonable.” Id. at 733. Bain declines to argue that we should not employ Hopkins’s formulation. Rather, he argues that the officers’ conduct here fails to qualify under that formulation. Hopkins’s focus on objective reasonableness seems to align with Leon’s repeated references to reasonableness. This alignment, coupled with Bain’s failure to contest the application of Hopkins, leads us to employ Hopkins’s formulation, albeit by assuming rather than deciding that such a formulation is the proper one for measuring the officer’s good faith.
Applying this formulation, we conclude that the police could rely in good faith on the search warrant in this case. As we have explained, our decisions in Lyons and Hawkins did not clearly classify the turning of a key in an apartment lock as being a reasonable search. Warrants, though, make a difference. Once the magistrate issued a warrant, the relevant question was no longer whether clear precedent blessed the search upon which the warrant was based in part. Rather, the question became whether precedent pointed enough in that direction to allow an objectively reasonable officer informed about the law to conclude (erroneously, as we have now explained) that he could turn a key in the lock of unit D on the basis of a reasonable suspicion short of probable cause.
We think that reasonable officers informed about the law (prior to the issuance of this opinion) could have so concluded. Indeed, the Massachusetts Supreme Judicial Court had so concluded, holding that only reasonable suspicion was required for just such a search. See Alvarez, 661 N.E.2d at 1302. So, too, as we have noted, did the Seventh Circuit in Concepcion, and it did so on grounds not directly rejected in Jardines. See Concepcion, 942 F.2d at 1172-73. Given the facts known to the officers at the time they tried the keys, it was reasonable to suspect that turning the key on the lock to unit D would lead to evidence of Bain’s drug dealing. There was good reason to believe Bain was residing, at least temporarily, in one of the apartments accessible through the front door of 131 Laurel Street: He had been seen there previously both during the day and late at night, and he walked out that front door right before his arrest. His keys, in turn, did not work in the doors of two other units, leaving a fifty percent chance that they would fit unit D. As we will discuss in the next section, there was a nexus between Bain’s drug dealing and the location where he was residing. Given the presence of reasonable suspicion, and given the state of the law prior to today’s decision holding the key turning to constitute an unlawful search, checking the keys on the door to unit D was sufficiently close to the line of validity that the police could rely in good faith on the search warrant.