{"id":1462,"date":"2008-05-28T08:13:26","date_gmt":"2007-10-19T16:05:13","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-10-19T16:05:13","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1462","title":{"rendered":"KY: Probable cause was so lacking that the GFE should not apply"},"content":{"rendered":"

The affidavit for the search warrant was speculative, and judges should not act as mere rubberstamps for the police. Here, the warrant was so deficient that the good faith exception could not apply. Hensley v. Commonwealth<\/a>, 248 S.W.3d 572 (Ky. App. 2007), released for publication April 25, 2008:<\/p>\n

When requested to issue search warrants, judges may not simply act as rubber stamps for the police and merely ratify the bare conclusions of others, nor may they consider information outside the affidavit. See Crayton v. Commonwealth<\/em>, 846 S.W.2d 684, 688-9 (Ky. 1992) (judicial officers must issue or deny warrants solely on facts within four corners of affidavit). It is clear to us that Officer Hodge’s affidavit does not pass constitutional muster as it contained no substantial basis for the district judge’s determination that probable cause existed to issue a search warrant.<\/p>\n

Having held the affidavit to have been so deficient as to have provided no basis for the issuance of the search warrant, we further hold the trial court erred in applying the “good faith exception” to the exclusionary rule in denying the motion to suppress the seized evidence. The dual purpose of the exclusionary rule has historically been to deter police misconduct by excluding evidence obtained in violation of the Fourth Amendment to the U.S. Constitution, as well as to encourage compliance with the constitutional protection against unreasonable searches and seizures. See United States v. Calandra<\/em>, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), Young v. Commonwealth<\/em>, 313 S.W.2d 580 (Ky. 1958). The exclusionary rule was made binding upon the states in Mapp v. Ohio<\/em>, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), by application of the Due Process Clause of the Fourteenth Amendment. We further note that the language found in the Fourth Amendment is nearly identical to that used in Section 10 of the Kentucky Constitution, thus making federal caselaw analysis particularly relevant to our decision.<\/p>\n

Historically, a violation of the Fourth Amendment required the automatic suppression of the evidence seized. However, in Leon, supra, the Supreme Court reversed this per se suppression rule and added what we know today as the “good faith exception.” The Supreme Court in Leon<\/em> held an officer’s reasonable reliance on a search warrant issued by a neutral and detached magistrate could save evidence from being excluded when the warrant was later determined to be deficient for lack of probable cause. However, the Court went on to add that if the magistrate had been misled with false information, any evidence seized should be suppressed as the officer’s reliance on the search warrant could not be seen as reasonable. Further, if the magistrate abandons the “detached and neutral” judicial role or if the officer’s belief in the existence of probable cause was wholly unreasonable, suppression of evidence remains available as a remedy. Upon a careful review of the record, it is clear the magistrate was misled by false information provided by Officer Hodge, and the officer’s later reliance on the resultant search warrant was wholly unreasonable.<\/p><\/blockquote>\n

Officer had probable cause to search car based on the defendant’s apparent drug intoxication discovered during a stop and a search of her person produced paraphernalia and cash. “I find that the inebriated appearance of the passenger, her possession of drug paraphernalia, the defendant’s suspicious responses, and the cash were sufficient evidence from which a reasonable officer could conclude that she had probable cause to search the vehicle for narcotics.” United States v. Valentine, 517 F. Supp. 2d 816 (W.D. Va. 2007).*<\/p>\n

Defendant’s search and arrest were justified by probable cause. The search incident that followed was valid. United States v. Quiroz-Mendieta, 2007 U.S. Dist. LEXIS 76900 (D. Minn. August 15, 2007).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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