W.D.Va.: SW issued without PC was “rubber stamped” by state judge; GFE did not apply

The search warrant in this case was issued without probable cause, not even close. The state judge who signed off on the search warrant can only be found to have “rubber stamped” the search warrant, so the good faith exception did not apply. Motion to suppress granted. United States v. Lester, 2009 U.S. Dist. LEXIS 29631 (W.D. Va. April 1, 2009)*:

Despite the government’s assertion to the contrary, I find that the Supreme Court’s holding in Herring is not particularly relevant to the facts of this case — other than to demonstrate the current Court’s disfavor of the application of the exclusionary rule. See also Hudson v. Michigan, 547 U.S. 586, 591 (2006) (exclusionary rule applicable “only where its deterrence benefits outweigh its ‘substantial social costs'” (quoting Leon, 486 U.S. at 907). In Herring, the law enforcement officers acted in good faith upon what was only minutes later determined to be false information. In this case, the search warrant at issue sought to seize evidence of the crime of distribution of a controlled substance. Both the officer who obtained the warrant, Skeens, and the officer who executed the warrant, Owens, admitted that they knew the elements of the crime of distribution of a controlled substance. Both admitted that they were familiar with the contents of the Affidavit–Skeens because he drafted it and Owens because he read the Affidavit before he executed the search warrant. Both admitted, although Skeens did so reluctantly, that the Affidavit did not establish probable cause that the crime of distribution of a controlled substance had been committed by anyone, anywhere. Perhaps, most shockingly, both men asserted that they believed that the warrant was a valid warrant because they had presented similarly deficient affidavits on numerous occasions to Virginia state court magistrates, including Magistrate Mitchell, and had been issued warrants to search for evidence of the distribution of controlled substances. Based on the facts of this case, the court is left to only one conclusion–the magistrate simply “rubber stamped” the bare bones Affidavit presented to him.

I do not mean to suggest that the officers involved in the search at issue in this case acted in subjective bad faith. This court is acutely aware of the impact that the distribution of oxycodone and other narcotic painkillers is having on the residents of Southwest Virginia. This court also is aware of the difficulties local law enforcement agencies face as they battle this ever-increasing problem. I cannot under Leon, however, find that the officers’ reliance on this warrant was objectively reasonable.

The fact that defendant was in a vehicle for 15 seconds before his arrest made him a “recent occupant” and made the vehicle subject to search incident. United States v. Patterson, 2009 U.S. Dist. LEXIS 29655 (M.D. Pa. April 8, 2009).*

Police were called to defendant’s partner’s suicide, and they were investigating and treating the home as a crime scene. Defendant consented to the entry, and the resulting search warrant for the computer was valid. United States v. Filipowski, 2009 U.S. Dist. LEXIS 29388 (D. Vt. April 3, 2009).*

Defendant’s encounter with the officer was purely consensual and led to his consent. People v. Scheffer, 224 P.3d 279 (Colo. App. 2009).*