CA2 applies GFE even though not litigated below because the findings on PC show it

A second search warrant was issued for defendant’s cell phone. He argued lack of probable cause and the government responded. The government didn’t raise the good faith exception in the district court. The court assumes lack of probable cause and then turns to the good faith exception finding it discretionary and “prudential” for it to consider good faith on the record and finds it evident. United States v. Wiggins, 2019 U.S. App. LEXIS 29311 (2d Cir. Sept. 30, 2019):

Where, as here, evidence is obtained by police officers executing the search “in objectively reasonable reliance” on a warrant, the good faith exception to the exclusionary rule applies. Id. (quoting United States v. Falso, 544 F.3d 110, 125 (2d Cir. 2008)). Notably, the District Court considered Wiggins’s objections to the second cellphone search prior to authorizing the search and rejected those objections when it issued the warrant. Regardless of whether Wiggins’s objections had merit or not, in the circumstances presented here the police officers had no reason to “question the [District Court’s] probable-cause determination,” a legal conclusion. United States v. Leon, 468 U.S. 897, 921 (1984). More specifically, Wiggins failed to show that this is a case where: (1) the district judge was “knowingly misled”; (2) the district judge “wholly abandoned his … judicial role”; (3) “the application is so lacking in indicia of probable cause as to render reliance upon it unreasonable”; and (4) “the warrant is so facially deficient that reliance upon it is unreasonable.” United States v. Clark, 638 F.3d 89, 100 (2d Cir. 2011) (internal quotation marks omitted). Accordingly, this is not a case involving deliberate police misconduct, recklessness, or gross negligence that warrants the exclusion of the text messages obtained in the second search.

In sum, because the police officers had reason to believe that they obtained a valid warrant from the District Court, which was issued after due consideration of Wiggins’s legal objections, and because the police officers executed the warrant in good faith, “there is no conscious violation of the Fourth Amendment, ‘and thus nothing to deter.'” Raymonda, 780 F.3d at 118 (quoting Leon, 468 U.S. at 921); …