S.D.N.Y.: While there was no probable cause of nexus to defendant’s house, the good faith exception still saves this search

Defendant sold drugs over a mile from his home, and there was no evidence that there was a connection to his house, other than an officer’s expert opinion that drug dealers commonly keep their drugs in their house. Without more, there was no probable cause for issuance of the warrant. Nevertheless, the search warrant would not be suppressed under Leon’s good faith exception because of a split in authority that this was not enough. United States v. Kortright, 2011 U.S. Dist. LEXIS 107386 (S.D. N.Y. September 13, 2011):

The Court holds that (1) stale information (one year old) that Defendant dealt drugs on a handful of occasions, combined with (2) an expert opinion that drug dealers typically keep drugs in their homes, is not enough to establish probable cause to search the Apartment.

. . .

Although the court in Moran found the “good faith” exception unavailing, this Court recognizes that there is an “existing disagreement among [courts] on the sufficiency of the opinions of law enforcement agents in establishing probable cause.” United States v. Guzman, 97 cr. 786, 1998 U.S. Dist. LEXIS 1538, 1998 WL 61850, at *3 (S.D.N.Y. Feb. 13, 1998) (Scheindlin, J.); 1998 U.S. Dist. LEXIS 1538, [WL] at *4 (“[T]here exists no clear rule in this circuit governing the exclusive reliance on law enforcement agents’ expert opinions in determining probable cause.”). Because of this disagreement, a reasonably well-trained officer may not necessarily have known that this search was illegal. Leon, 468 U.S. at 923 n.23.

. . .

In sum, these decisions reveal “existing disagreement among [courts] on the sufficiency of the opinions of law enforcement agents in establishing probable cause.” Guzman, 1998 U.S. Dist. LEXIS 1538, 1998 WL 61850, at *3. The Court thus declines to suppress the seized evidence because, under the current state of the law, a reasonably well trained officer would not have known that the search was illegal. Leon, 468 U.S. at 922 n.23. Here, the magistrate judge, whose duty it was to interpret the law, issued the search warrant, and it was reasonable for the officers to rely on that determination. See Gomez, 652 F. Supp. at 464. Accordingly, Defendant’s motion to suppress evidence seized from the Apartment is denied.

So, what about the next case? Does this mean that the next case in the Southern District of New York with similar facts will not be suppressed? This case should now be notice to the NYPD that the search lacked probable cause. Is this like the “one dog bite” rule? What about other police departments? At what point is the rule universally accepted?