The Ninth Circuit recognizes judicial abandonment under the neutral and detached magistrate requirement, but defendant here still loses. The officers arresting him on the warrant weren’t there when the judicial officer failed to read the papers, and they had no knowledge the magistrate wasn’t neutral and detached. United States v. Barnes, 2018 U.S. App. LEXIS 20007 (9th Cir. July 19, 2018):
We therefore join our sister circuits in concluding that a defendant may show judicial abandonment through any one of the following ways: (1) the magistrate was biased against the defendant or otherwise personally interested in issuing the warrant; (2) the magistrate functionally occupied a different, non-neutral role while making the probable cause determination; or (3) the magistrate failed to review the requisite affidavits or materials prior to making a probable cause determination. See, e.g., United States v. Frazier, 423 F.3d 526, 537 (6th Cir. 2005) (concluding that the record did not support the defendant’s contention that the magistrate “issued the warrant without reading the affidavit” and therefore that the magistrate did not abandon his judicial role); United States v. Koerth, 312 F.3d 862, 869 (7th Cir. 2002) (concluding that the judge “complied with the requirement of acting as a neutral and detached magistrate” because there was no evidence that the judge had failed to read or review the affidavit before signing the warrant); United States v. Martin, 297 F.3d 1308, 1317 (11th Cir. 2002) (“It is clear to us that a magistrate judge should read the warrant and make his own independent assessment as to whether the warrant and its underlying affidavit contain a sufficient amount of information to support a finding of probable cause. A judge can be said to act as a mere ‘rubber stamp’ if he solely relies upon the fact that police officers are asking for the warrant.”); United States v. Mueller, 902 F.2d 336, 340 (5th Cir. 1990) (“Nothing suggests that the magistrate had any bias or interest in issuing the warrant, or that he dispensed with his neutral and detached position to become involved in the evidence-gathering related to issuance of the warrant as did the town justice in Lo-Ji Sales.”); see also 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 1.3(f) (5th ed. 2017) (“Though it is far from clear exactly what … falls within the [judicial abandonment] qualification in Leon, certainly the most likely possibility is that mentioned by the Court earlier in the Leon opinion: where the magistrate serves merely as a rubber stamp for the police.” (internal quotation marks and footnotes omitted)).
Where, as here, there is no evidence that the reviewing judge consulted any materials other than the criminal complaint prior to issuing a finding of probable cause, the defendant has met his burden of demonstrating judicial abandonment. See Koerth, 312 F.3d at 869. This, however, does not end our inquiry.
The Supreme Court emphasized in Leon that the judicial abandonment exception to the good faith exception operates “in such circumstances [when] no reasonably well trained officer should rely on the warrant.” 468 U.S. at 923. In the decades since Leon was decided, the Supreme Court has continued to stress that “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” Id. at 916. In Arizona v. Evans, 514 U.S. 1, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995), the Supreme Court explained that “[w]here the exclusionary rule does not result in appreciable deterrence, then, clearly, its use is unwarranted.” Id. at 11 (internal quotation marks and alterations omitted). Because the “exclusionary rule was historically designed as a means of deterring police misconduct, not mistakes by court employees,” and there was “no basis for believing that application of the exclusionary rule in these circumstances will have a significant effect on . . . court clerks [who] are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime,” the Court concluded that “clerical errors of court employees” were categorically exempted from the exclusionary rule. Id. at 14-16; see also Davis v. United States, 564 U.S. 229, 239, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011) (summarizing the history of the good faith exception and explaining that the doctrine arose from an understanding that “punishing the errors of judges is not the office of the exclusionary rule” (internal quotation marks and alterations omitted)); Herring v. United States, 555 U.S. 135, 142, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009) (reiterating that Evans was based, in part, on the understanding that “[t]he exclusionary rule was crafted to curb police rather than judicial misconduct”); Massachusetts v. Sheppard, 468 U.S. 981, 990, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984) (applying the good faith exception even though “[a]n error of constitutional dimensions may have been committed with respect to the issuance of the warrant,” because “it was the judge, not the police officers, who made the critical mistake.”).
Although this approach to the good faith exception has been the subject of considerable scholarly debate, we are bound to follow the Supreme Court’s directives. We therefore conclude, consistent with the Fifth, Sixth, and Tenth Circuits, that the exclusionary rule only applies if the issuing judge abandoned his or her judicial role and law enforcement officers knew or should have known of the abandonment. See United States v. Villanueva, 821 F.3d 1226, 1235 (10th Cir. 2016) (applying the good faith exception because the defendant did not “set forth any evidence or argument” that the officer “could have, or should have, reasonably known about any alleged bias the issuing judge might have had”); United States v. Rodriguez-Suazo, 346 F.3d 637, 649 (6th Cir. 2003) (“Because the focus of this [exclusionary] rule is to prevent police misconduct, exclusion should be ordered only if the police officer knew … that the magistrate abandoned his or her neutral and detached function.”); United States v. Breckenridge, 782 F.2d 1317, 1321-22 (5th Cir. 1986) (declining to suppress the evidence because the judge appeared to both officers to have “fulfilled his duty to act as a ‘neutral and detached’ magistrate”); see also LaFave, supra, at § 1.3(f) (“Leon recognizes only deterrence of the police … and this means that the circumstances showing the magistrate has ‘wholly abandoned his judicial role’ must have been known by (or at least reasonably knowable by) the police.”).
There is no evidence that Officers Cordova and Tovar knew or should have known that the arrest warrant was infirm, whether in this particular instance or as part of a broader Yakima Municipal Court practice. Furthermore, neither officer was present when the reviewing judge made her determination. Although these are not the only methods by which Barnes—or any other defendant—can demonstrate officer knowledge, we note that there is nothing in the record to support an inference that the officers were aware of any judicial misconduct. Accordingly, we conclude that the officers acted in good faith reliance on the bench warrant and that the district court properly denied Barnes’s motion to suppress.
