9th Cir.: PC is subsumed into good faith exception and “colorable probable cause” is enough

At the government’s invitation, Ninth Circuit takes good faith exception question first and does not decide probable cause except as ancillary to whether there is good faith. [Taking up the GFE tells you the outcome: They wouldn’t be doing it if they had not already decided that it applied, and all it takes is “colorable probable cause” in the Ninth Circuit.] United States v. Crews, 502 F.3d 1130 (9th Cir. 2007):

For the good faith reliance exception to apply, the officers must have relied on the search warrant in an objectively reasonable manner. United States v. Clark, 31 F.3d 831, 835 (9th Cir. 1994). The affidavit “must establish at least a colorable argument for probable cause” for the exception to apply. United States v. Luong, 470 F.3d 898, 903 (9th Cir. 2006). Therefore, if there is a colorable argument that the search of Apartment 3 was supported by probable cause, the officer’s reliance on the search warrant was objectively reasonable. This ends the inquiry without having to belabor the issue of whether the affidavit stated probable cause.

There are four circumstances in which the good faith exception does not apply because reliance is per se unreasonable: (i) where an affiant misleads the issuing magistrate or judge by making a false statement or recklessly disregarding the truth in making a statement; (ii) where the magistrate or judge wholly abandons her judicial role in approving the warrant, acting only as a “rubber stamp” to the warrant application rather than as a neutral and detached official; (iii) where the warrant is facially deficient in detail as to the place to be searched or the things to be found that the officers could not reasonably presume it to be valid; or (iv) where the affidavit upon which the warrant is based is so lacking in indicia of probable cause that no reasonable officer could rely upon it in good faith. Leon, 468 U.S. at 923-26.

The district courts below found that the good faith reliance exception was inapplicable because the affidavit was so lacking in indicia of probable cause that the police officers should have known that the search was illegal and because the officer’s affidavit misled the issuing state judge. Specifically, the courts found that the officers were objectively unreasonable in believing they would find additional evidence of the crime of “felon in possession of a firearm” because the affidavit did not sufficiently link Crews to Apartment 3. We disagree. For the following reasons, the district courts erred in failing to apply the good faith reliance exception.

On its face, the affidavit was not so lacking in indicia of probable cause as to render reliance upon it objectively unreasonable. For probable cause, an affidavit must establish a reasonable nexus between the crime or evidence and the location to be searched. United States v. Chavez-Miranda, 306 F.3d 973, 978 (9th Cir. 2002). It need only be reasonable to seek the evidence at the location indicated in the affidavit. United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir. 1993). The affidavit showed indicia of such a reasonable nexus between the crime of “felon in possession of a firearm” and Apartment 3 by demonstrating a sufficient link between Crews, Manus, firearm evidence, and Apartment 3 such that an officer could have reasonably relied upon it in good faith.

Comment: This has annoyed me since 1984, and I write about it in § 5.11 of the Treatise: Subsuming PC into the GFE provides no guidance to law enforcement or the courts as to what is probable cause. It tells us what is “colorable probable cause” and that is as far as they need to inquire. Colorable probable cause is good enough if a search warrant was issued on the affidavit. Those in favor of this view see absolutely nothing wrong with it because they do not care what is or is not probable cause. Officers in warrantless searches need to know, and the existence of probable cause has to be determined there. This creates a great irony in the law: courts spend time parsing the facts [as in other posts today] over whether reasonable suspicion or probable cause exists, but they shirk their responsibility on probable cause when there is a warrant. And why? Experience shows that probable cause is not that hard to show, and the defendant, law enforcement, and the public are entitled to know that there was probable cause or not.

In the past, I have analogized probable cause to a game of darts: The government scores if it hits the target, and a bullseye is never required, but the points do add up much faster. Under the GFE, if the government just hits the wall holding the target, it scores. The defendant in the same dart game, however, has to hit the target to score.