S.D.Tex.: Where no GFE on first suppression inquiry, no PC here either

This was “not a real good warrant.” This court evaluates good faith first, probable cause second. [As you will see, the nature of that inquiry sets up the second answer. If the good faith exception applies, PC is close enough; if not, probable cause likely isn’t there.] United States v. Guerra, 2021 U.S. Dist. LEXIS 21080 (S.D. Tex. Feb. 2, 2021):

Based on the above, the Court finds that “a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” See Leon, 468 U.S. at 922, n.23. Had the investigative team of agents who performed the search read the Affidavit, they would have known that the search of Defendant’s residence was based on insufficient evidence of probable cause and therefore was a violation of his Fourth Amendment rights.

. . .

As set forth supra, the Affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923. Investigator Ibarra acknowledged that the Affidavit left out key details regarding the confidential informant, wiretap evidence that had been gathered in the nine months since Defendant’s prior arrest for possession of marijuana, and any information regarding a reasonable belief that contraband would be found in the residence. There is nothing in the record to indicate that he relayed this or any other information to the magistrate before the warrant was signed. Investigator Ibarra testified that “the judge has a right to ask me and he does, in fact, if he has any questions regarding the warrant.” Hrg. Tr. at 36:6-7. However, he could not “specifically recall what [the judge] asked or how he asked.” Id. at 42:25-43:1.

The Court finds that the search warrant was not supported by probable cause and that the good-faith exception to the exclusionary rule does not apply. The search of Defendant’s home after the initial protective sweep incident to his arrest therefore violated his Fourth Amendment rights. The 18 rounds of 9mm caliber ammunition listed in Number 3 in Case No. 6:18-CR-144 is admissible; however, all evidence obtained as a result of the unlawful search of Defendant’s residence, including the photographs obtained during the forensic search of Defendant’s phones, must be suppressed.

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