IN: Officer’s testimony at suppression hearing undermined SW affidavit, so Herring and Leon did not apply

Suppression hearing testimony contradicted the showing of probable cause in the search warrant affidavit. This was sufficient to defeat the state’s reliance on the good faith exception under Herring and Leon. Hayworth v. State, 904 N.E.2d 684 (Ind. App. 2009):

At issue in this case is the first exception, that is, a magistrate being misled by information in an affidavit. The United States Supreme Court clarified in Herring that to trigger the Fourth Amendment’s exclusionary rule, the “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” 129 S. Ct. at 702. “[T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct or in some circumstances recurring or systemic negligence.” Id. The pertinent analysis of deterrence and culpability is objective; it is not an inquiry into the subjective awareness of the officer. Id. at 703.

We conclude that Detective Southerland’s admissions at the suppression hearing amount to deliberate, reckless, or grossly negligent conduct. Police officers have a duty and obligation of full and fair disclosure of all material facts when applying for a warrant. See Jaggers, 687 N.E.2d at 185 (“In applying Leon, our cases have stressed the importance of accurately presenting all relevant information to the magistrate.”) (emphasis added); see also Dolliver v. State, 598 N.E.2d 525, 529 (Ind. 1992) (finding good faith exception did not apply where a detective “flagrantly misrepresented” the facts in obtaining a search warrant and therefore acted in “reckless disregard of the truth”). And when there is a material omission of fact, this amounts to deliberate, reckless, or grossly negligent conduct. Even the trial court said at the suppression hearing that Detective Southerland’s affidavit made it seem like the informant had personally observed all of these things. Because the State did not follow up with Detective Southerland at the suppression hearing, we do not know from this record what, if anything, the informant personally observed. And as Hayworth points out in her reply brief, the State makes no effort on appeal to explain, reconcile, or justify the discrepancies between Detective Southerland’s affidavit and what the informant actually told him.

In addition, we conclude that Detective Southerland’s conduct is sufficiently deliberate that exclusion of the evidence will meaningfully deter the misconduct and that it is sufficiently culpable that such deterrence is worth the price paid by our justice system. Although, as the Herring Court said, the principal cost is “letting guilty and possibly dangerous defendants go free,” 129 S. Ct. at 701, we find there is “appreciable” deterrence given the importance of a police officer’s full and fair disclosure of all material facts when applying for a warrant and the material omissions of fact here. Id. at 700.