The Northern District of California holds that officers exceeding the scope of a search warrant is not subject to the good faith exception. United States v. Chan, 2006 U.S. Dist. LEXIS 85703 (N.D. Cal. November 15, 2006):
Here, after examining the circumstances surrounding the issuance of the warrant, the contents of the search warrant, and the circumstances of the search, the Court concludes that the search of apartment 5B exceeded the scope of the warrant because there was no objective basis for believing that the area was under the control of Tam or Chan. The search warrant affidavit states that 226 Irving Street is a multi-family dwelling, that Tam owned the building, that Tam and Chan resided at other locations, and that Chan had listed his address at various times as “226 Irving Street Apt. 3,” and at that address without an apartment number. When officers executed the search, they discovered that the Panatches were tenants of apartment 3, and that Chan received mail at apartment 3. According to the Panatch and Crowe declarations, the Panatches told officers they were not aware of any storage areas in the building, that Chan told them he was renovating the downstairs portion of the building, and that Chan had keys to the entire building and acted as a property manager.
Thus, based upon the search of apartment 3 and the information obtained from the Panatches, there was no basis to conclude that a locked room–much less a rental unit–located off of the garage, containing some personal items, was an area controlled by either Tam or Chan. The facts that Tam owned the building, and that officers understood from the Panatches that Chan had keys to the units in the building, are not sufficient to authorize officers to search every part of that building. See United States v. Whitney, 633 F.2d 902, 907 (9th Cir. 1980). Officers still needed some objective basis to believe that the area they were searching was a storage area controlled by Tam or Chan. At the very least, once officers crawled through the window and saw the kitchen, bathroom, and bags of clothes, they should have understood that they were not in a storage room, and likely were in another rental unit. Once inside the unit, there was no basis for concluding that the unit was occupied and/or controlled by Chan or Tam, as opposed to some other individual.
The United States argues that the evidence from the search need not be suppressed under the exclusionary rule if officers honestly, and in “good faith,” believed that the warrant being executed was valid under United States v. Leon, 468 U.S. 891 (1984). The question is limited “to the objectively ascertainable question whether a reasonably well trained officer would have known the search was illegal despite the magistrate’s authorization.” See Leon, 468 U.S. at 922. Leon does not apply and suppression of the evidence is appropriate when the officers could not have “harbored an objectively reasonable belief that probable cause existed.” Id. at 923-24. The government bears the burden of proving that reliance upon the warrant was objectively reasonable. See United States v. Kow, 58 F.3d 423, 428 (9th Cir. 1995).
Here, for all of the reasons stated supra, the Court concludes that reasonably well trained officers would have known that they were exceeding the scope of the search warrant, at least at the point when officers saw that the “storage area” had a kitchen, bathroom, and bags of clothes on the floor. At that point, the officers could no longer harbor a good faith belief that the warrant authorized the search of that area. The only rental unit for which a probable cause determination had been made was apartment 3; no other rental unit in the building was covered by the warrant. Accordingly, once officers crawled through the window and saw the kitchen, bathroom and clothes in bags, they had [an objective basis for concluding that they were, in fact, in another rental unit. Indeed, Parry admits as much in his declaration. See Parry Decl. P 7(b) (“It should be pointed out that at this point [prior to entering the unit], it was unclear whether this area was a ‘unit’; we could tell that it was vacant and used for storage, but only later–after making entry–did we ascertain that there was a kitchen and a bathroom in there, which then suggested that this was a vacant ‘in law’ unit unoccupied at [the] present time.”).
The Court concludes that a reasonably well trained officer would have known the search of that unit was not covered by the search warrant, and that any search would require a separate warrant. Accordingly, the Court concludes that the Leon good faith exception does not apply.
Defendant as a mere passenger in a car had no standing to challenge the search of the car. Even if he did, he would lose on the merits because furtive movements led to officers have reasonable suspicion to detain him longer. State v. Thomas, 98 Conn. App. 542, 909 A.2d 969 (November 28, 2006).*
Reasonable suspicion required in Idaho for a probationer search, and it was present here. State v. Klingler, 143 Idaho 494, 148 P.3d 1240 (Ida. 2006)*:
Moreover, if a probationer has a drug history, courts should be more willing to find that reasonable grounds exist for a search. Anderson, 140 Idaho at 487-88, 95 P.3d at 638-39. In Anderson, this Court held that a probationer’s drug history, indicating that a heightened need of supervision was necessary to protect him or her from society, is a factor for courts to consider in deciding whether reasonable grounds exist for a search. State v. Klingler, 2006 Ida. LEXIS 146 (November 24, 2006)*:
In this case, a probation officer heard from a detective at an intel meeting, with police and probation officers present, that Klingler may be dealing drugs. It was the second time the probation officer had heard allegations about Klingler’s drug use. Further, it is apparent the trial court had some concerns about Klingler’s possible drug use, as evidenced by its recommendation that Klingler complete an inpatient substance abuse treatment program as well as the court’s second probation order requiring him to refrain from possessing or using any controlled substance. Based on the source of the tip (a police detective), the setting in which it was received (an intel meeting regarding felons on probation), and conditions on Klingler’s probation, the probation officer had reasonable grounds to search Klingler’s residence.
Plain feel was not obvious enough to justify seizing evidence off the defendant. Commonwealth v. Jones, 217 S.W.3d 190 (Ky. 2006)*:
Applying Dickerson and Crowder to the case at hand compels a finding that the search of Jones does not fall within the plain feel exception. In many respects, the facts in those cases are more compelling than those found in this case because, unlike those cases, there is no suggestion in the sparse record that Jones’s residence or neighborhood were either high-crime areas in general or were known specifically as being narcotics-trafficking hotspots, nor is there any indication that Jones himself was suspected of being a drug trafficker. As did the suspects in Dickerson and Crowder, Jones began to walk away once he noticed the presence of authorities. But even if Jones’s retreat from Teagle is considered to be a “flight,” that flight, in and of itself, is insufficient to establish probable cause.
