Post details: Search warrant fails on probable cause, and it was so deficient that the good faith exception did not apply

06/05/07

Permalink 01:55:27 pm, by fourth, 631 words, 237 views   English (US)
Categories: General

Search warrant fails on probable cause, and it was so deficient that the good faith exception did not apply

Officers had information from a confidential informant that defendant was manufacturing illegal DVDs in his attic. The information about the premises was the same that could be seen by any passerby. The officers entered without a warrant and went to the attic to conduct a protective sweep. The court found that there was no exigency for the entry and no cause for a protective sweep. On the search warrant that had been issued, the court finds that there was no probable cause for the search warrant--it was nothing more than conclusions. The lack of probable cause was so obvious that the good faith exception did not apply. United States v. Pinder, 2007 U.S. Dist. LEXIS 40061 (E.D. Va. June 1, 2007):

Similar to Wilhelm, the Court finds that it was not objectively reasonable for the officers in this case to rely on an informant that simply told them that illegal DVDs and DVD manufacturing equipment was being produced out of the Defendant's attic without prior corroboration. The government contends, however, that Leon applies and cites United States v. Hyppolite, 65 F.3d 1151, 1156 (4th Cir. 1995). The government's reliance on Hyppolite is misplaced. The key distinction between Hyppolite and the present case is that, in addition to what was contained in the affidavit, the magistrate in Hyppolite was presented with and considered other factors in his determination of probable cause. The court in Hyppolite explained that the magistrate also considered the defendant's refusal to answer questions, his nervousness and aggressive behavior while he asserted his rights, etc. These facts, together with the affidavit, were not so lacking in indicia of probable cause as to render reliance unreasonable. In the instant case, there is no evidence on the record that the magistrate was presented with any additional information other than that contained in what this Court has determined is a "bare bones" affidavit.

One additional point bears on the Court's determination of the officers' reasonable reliance. It is uncontroverted that the entire chain of command had serious concerns that, given the facts and the information Officer Knorowski had received prior to arriving at the Defendant's residence, probable cause was lacking to conduct a search. It was precisely this "bare bones" information which was presented to the magistrate and served as the basis for the warrant. No other information was presented to the magistrate. The Court is not persuaded that given the officers' own doubts of the sufficiency of the basis for the protective sweep, it was objectively reasonable for the officers to then seek a warrant based on even less information, and then to rely on that warrant. Accordingly, the third exception to Leon applies-the affidavit was so facially deficient that the officers' reliance was unreasonable. The Court also finds that the magistrate acted as a "rubber stamp" in authorizing the warrant. Wilhelm, 80 F.3d 116 at 123. Defendant's motion to suppress the items recovered pursuant to the warrant is GRANTED.

Plaintiff was an armed IRS agent boarding a Southwest flight from Louisville, and he was removed from the plane because he got in a verbal altercation with a female passenger over his luggage not fitting overhead. Telling another passenger to "fuck off" apparently is reason to be removed from a flight in the pilot's discretion. He was. In the terminal, he refused to talk to anyone but Southwest's Ground Security Coordinator for Louisville. A heated exchange started in the gate area, and, when the Ground Security Coordinator reached for his arm to move to a different area away from the crowd, he reached for his right side, allegedly for his ID which he had declined to show. He also had his gun there. A police officer took him down. He loses on summary judgment over the seizure and qualified immunity. Fox v. Desoto, 489 F.3d 227 (6th Cir. 2007).*

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