CA3: Lack of any assertion of fact for CP in search warrant affidavit justified suppression under Herring

The affidavit for the search warrant here gave absolutely no indication that defendant, who sexually assaulted a child, was in possession of child pornography. The search warrant thus lacked any indicia of probable cause for Leon purposes, and thus failed Herring, too. Not suppressing this search would enable police to engage in fishing expeditions by speculation, and this satisfies Herring‘s culpability requirement. People of the Virgin Islands v. John, 654 F.3d 412, 55 V.I. 1324 (3d Cir. 2011):

Requiring that a warrant applicant state explicitly her belief in the existence of a correlation like the one on which Joseph apparently relied, as well as reasons justifying such a belief, is not inconsistent with the fact that these affidavits are typically drawn by laypersons rather than attorneys. Even police officers who lack legal training are expected to know of the requirement that the factual basis for a probable cause determination must be stated in the affidavit. We demand nothing more than that an officer seeking a warrant explain why she is justified in entering a person’s home and searching through his belongings. This insistence that law enforcement comply with a bedrock principle of the Fourth Amendment cannot be dismissed as the imposition of an unnecessary or hypertechnical obligation.

Policing this requirement easily passes the cost-benefit analysis set forth in Herring. Reliance on a warrant affidavit that omits a fact critical to any reasonable belief in the existence of probable cause is the sort of thing we can expect the exclusionary rule to deter: all an investigator must do to avoid exclusion is comply with the well-known duty to spell out the complete factual basis for a finding of probable cause within the affidavit’s four corners. And deterring police from submitting (and magistrates from accepting) affidavits that completely omit crucial factual allegations is a preeminently worthy goal. Reckless or grossly negligent conduct is enough to justify suppression, and Leon and its progeny establish that an officer’s conduct is sufficiently deliberate and culpable when she relies on a warrant that is as devoid of probable cause as this one. See Herring, 129 S. Ct. at 702; Tracey, 597 F.3d at 151. Joseph’s reliance on the warrant was “entirely unreasonable,” Tracey, 597 F.3d at 151; her behavior was, at a minimum, grossly negligent. Moreover, applying Leon in cases like the one at bar would risk encouraging police to seek permission to search for evidence of crimes unrelated to any known facts, based upon nothing more than unstated and unsupported hunches. It would reward law enforcement for grounding warrant applications in unexamined biases and stereotypes rather than in conscientious assessment of the facts and circumstances uncovered by the investigation. Leon and its progeny were never intended to ratify such unjustified intrusions into the privacy safeguarded by the Fourth Amendment. The “good faith” exception does not shield Joseph’s actions here. The evidence obtained pursuant to the invalid portion of the warrant (i.e., the portion authorizing a search for child pornography) must be suppressed.