CA9: PC was so lacking for two tracking warrants that GFE does not apply

Probable cause for two tracking warrants was so completely lacking that it was unreasonable to rely on them, and the good faith exception does not apply. United States v. Lopez-Zuniga, 2018 U.S. App. LEXIS 33096 (8th Cir. Nov. 26, 2018):

On appeal, the government has abandoned its argument that probable cause supported the first warrant; it argues only that the good-faith exception saves evidence obtained from the issuance of the first warrant from suppression. We disagree. Lopez-Zuniga makes only a brief appearance in the affidavit in support of the first warrant application, and the only information about him is that he dropped off someone appearing to be Garcia-Jimenez at his apartment and then days later picked him up to go to a restaurant and mall. The first affidavit does not connect Lopez-Zuniga to any of Garcia-Jimenez’s suspected illicit activities. As the magistrate judge in this case said, if this amounts to probable cause, “then anyone who drops a drug trafficker off at the trafficker’s residence and travels with the trafficker for innocent activity, such as the trafficker’s grandmother or mere acquaintance, would be subject to search.” We agree, and we think the warrant was so lacking in indicia of probable cause that belief in its existence would have been entirely unreasonable.

In reaching this conclusion, we find instructive our court’s decision in United States v. Herron, 215 F.3d 812 (8th Cir. 2000). In that case, affidavits used in support of a search-warrant application requesting permission to search the defendant’s home described a marijuana-trafficking ring, but we observed that the defendant “play[ed] only a small part in the[ ] affidavits.” The only information provided about the defendant was that he had two prior convictions for cultivating marijuana, that he was related to some of the traffickers, and that one of those relatives had said four months before the search warrant was sought that he had stayed with the defendant to help harvest corn. Id. at 813-14. We held this was insufficient to show probable cause and that no reasonable officer could think probable cause existed, so the good-faith exception did not apply. Id. at 814-15. As in Herron, very little, if anything, connects the defendant to the trafficking activities set forth in the affidavit in this case.

We reach the same conclusion as to the second warrant even though it contained additional information. We do not consider the additional information obtained from the GPS tracker because, as we just explained, that evidence should be suppressed. And we do not think the information derived from the pen register is enough—all it showed was that Garcia-Jimenez and Lopez-Zuniga had had 154 “contacts” between December 21 and February 11. The affidavit did not explain what did or did not constitute a “contact.” For example, we do not know whether one text-message conversation constituted a single contact or, say, twenty, depending on how many separate messages were sent. But more important, nothing in the affidavit indicates that the contacts involved something criminal, or even a statement by the affiant that the supposedly high number of contacts were likely the product of a criminal conspiracy. In short, the affidavits demonstrate merely that Lopez-Zuniga was acquainted with Garcia-Jimenez.

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