D.Minn.: No PC, but GFE still applied to save this search

While the affidavit for the search warrant did not show probable cause, the officer’s reliance on it was not unreasonable because it was not so lacking in probable cause as to render reliance on it unreasonable. United States v. Wiley, 2009 U.S. Dist. LEXIS 116899 (D. Minn. December 15, 2009)*, affg United States v. Wiley, 2009 U.S. Dist. LEXIS 116901 (D. Minn. October 15, 2009) (USMJ R&R)*:

Even an affidavit that has an obvious facial flaw may not be “so lacking in indicia of probable cause” that it renders an official’s belief in the existence of probable cause “entirely unreasonable.” In Leon, for example, one of the defendants argued that “no reasonably well trained police officer could have believed that there existed probable cause to search his house,” because “the affidavit included no facts indicating the basis for the informants’ statements concerning [the defendant’s] criminal activities and was devoid of information establishing the informants’ reliability.” 468 U.S. at 905, 926. The Court disagreed, stating that the “application for a warrant clearly was supported by much more than a ‘bare bones’ affidavit. The affidavit related the results of an extensive investigation and … provided evidence sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause.” Id. at 926. The Eighth Circuit has “found Leon applicable even when a facially obvious error exists on a warrant.” Hessman, 369 F.3d at 1021. In United States v. Hessman, the Eighth Circuit concluded that an officer’s good faith reliance on a warrant was objectively reasonable, even though the officer had failed to sign his affidavit and the magistrate had failed to administer an oath, noting that “(1) the state magistrate had made a probable cause determination, (2) the affidavit provided specific information about the objects of the search, (3) the affiant . . . helped execute the warrant, and (4) the warrant could have been made valid by the addition of [the affiant’s] signature and administration of an oath.” Id. at 1023.

The Court concludes that even though Officer Babekuhl’s affidavit fails to establish probable cause, it was not “entirely unreasonable” for Officer Babekuhl to believe that it contained sufficient indicia of probable cause. Officer Babekuhl’s affidavit contained specific information establishing his reasons for believing that the residents of the house were selling narcotics. It made reference to citizen complaints, Officer Babekuhl’s personal observations consistent with those complaints, information from a CRI confirming that the residents are dealing narcotics, and a description of a controlled buy that the CRI conducted with a specific individual in the house.

Taking DNA from a convict is not unconstitutional. Here, it linked defendant to another crime. Sanchez v. State, 2009 OK CR 31, 223 P.3d 980 (2009).*

A shaving kit was searched incident to arrest pre-Gant (and certainly appeared invalid under Gant), but the defendant did not make a proper objection, so it was waived for appeal. Bishop v. State, 308 S.W.3d 15 (Tex. App. — San Antonio 2009).*

Inevitable discovery supports the search here because the officer would have been able to arrest the defendant, and it would have been found by an inventory. United States v. Garcia-Covarrubias, 2009 U.S. Dist. LEXIS 117136 (N.D. Tex. December 16, 2009).*