E.D.N.Y.: Given a 4A violation for lack of particularity, subjective good faith isn’t good enough for GFE

There was a failure of particularity in this document search warrant, which the government effectively concedes, and it falls back to the good faith exception to save it. The court concludes, however, in a long analysis, that the deterrent benefits of exclusion require suppressing the evidence in this case despite the subjective good faith of the search team that was briefed ahead of time on what to do. It’s not the defendant’s burden at the time of the search to point out the government’s errors. “Viewed objectively, the conduct of the officers acting under the circumstances described above, cannot be found to be in accord with a good faith belief that their actions were lawful.” United States v. Drago, 2019 U.S. Dist. LEXIS 164588 (E.D. N.Y. Sept. 10, 2019), adopted, Sep 24, 2019 2019 U.S. Dist. LEXIS 164451 (E.D. N.Y. Sept. 24, 2019):

It is unnecessary to determine whether or not Drago pointed out the deficiencies in the Warrant. The Court has already found the conduct of the search sufficiently reckless such that no objective officer could have believed that they were acting in good faith. While acceptance of Drago’s version of events would add to the reasons for that determination, it is not necessary to that holding. It is not the Defendant’s responsibility to alert law enforcement to the Constitutional requirements of executing a search warrant. Viewed objectively, the conduct of the officers acting under the circumstances described above, cannot be found to be in accord with a good faith belief that their actions were lawful. Whether or not Drago pointed out the insufficiency of the Warrant, the facts here show deliberately reckless conduct sufficient to outweigh the costs of suppression.

In sum, bad faith and bad intent are not the only circumstances that can defeat application of the exclusionary rule. If that were the case, good faith would save the fruits of the Kayla Search from exclusion. However, as this case demonstrates, even in the absence of bad intent, the circumstances may show such disregard for the requirements of the Constitution that exclusion must be the only remedy. Here, officers executed what can only be referred to as a general warrant. The testimony shows that the Warrant guided their search. While the plainly unconstitutional language of the Warrant should have raised doubts, no individual in the line of institutional or searching review ever raised a question as to whether or not the Warrant was valid. The Government argues that no questions were raised because everyone on the team knew what they were looking for. The Court may not, however, rely on what may have been in the minds of officers who had long participated in an investigation. Were that the case, there would be no need for any warrant to circumscribe the boundaries of a search. Instead, courts would be required to validate searches so long as there was a general understanding as to the proper scope of a search that existed in the collective recollection of the members of an investigation. Such a rule would swallow the need for any warrant at all. Here, the document against which each item for seizure must have been evaluated failed to limit the search in any meaningful way. Under the circumstances here, there cannot have been any objective belief that the search was legal. The need for deterrence is high enough to sustain the cost of the remedy of exclusion.