S.D.N.Y.: No GFE where SW issued on bare conclusion of officer and CI

Here, the approval of the search warrant was mere ratification of the conclusion of the officer, so there was no probable cause and no good faith exception. United States v. Rutherford, 2014 U.S. Dist. LEXIS 166917 (S.D. N.Y. December 2, 2014):

The Government concedes, in its post-hearing submission, that the record before Judge Ramseur provided no information with respect to the lawfulness of the possession of the firearms alleged to be in Apartment 11A. (Gov’t Post-Hearing Memo., docket entry no. 21, at 3.) Officer Fernandez’s affidavit merely proffered the conclusory statement that weapons were “unlawfully possessed” and, although Judge Ramseur probed the CI as to the basis for believing that there were guns in the apartment, the CI’s testimony sheds no light on whether the possession of the weapons was illegal. The Government now proffers that, before swearing out his warrant affidavit, Officer Fernandez had checked the criminal history of Defendant, finding that Defendant is a felon ineligible to possess a firearm, and that Officer Fernandez determined that neither Defendant nor Ms. Green possessed a firearms license. This information was not provided to Judge Ramseur, and thus was not the basis of her determination that there was probable cause to believe that the guns constituted evidence of a crime. See Whiteley v. Warden, 401 U.S. 560, 565 n.8, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971) (“[A]n otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate.”). Rather, it is obvious that the judge’s determination that there was probable cause to believe that the guns for which search was authorized were evidence of a crime was “a mere ratification of the bare conclusions” proffered by Officer Fernandez. The reviewing court must not defer to such a warrant. United States v. Leon, 468 U.S. 897, 915, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). The warrant thus was not a valid authorization for the search of Apartment 11A.

The invalidity of the warrant does not, however, necessarily require the exclusion of the evidence obtained as a result of the search, for the deterrent purpose of the exclusionary rule generally is not served:

when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope. In most such cases, there is no police illegality and nothing to deter. It is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient.

Leon, 468 U.S. at 920-21; see also Herring v. United States, 555 U.S. 135, 144, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009) (“The exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”). The good faith exception established by Leon is not available, however:

(1) where the issuing magistrate has been knowingly misled; (2) where the issuing magistrate wholly abandoned his or her judicial role; (3) where the application is so lacking in indicia of probable cause as to render reliance upon it unreasonable; and (4) where the warrant is so facially deficient that reliance upon it is unreasonable.

Clark, 638 F.3d at 100. “The burden is on the government to demonstrate the objective reasonableness of the officers’ good faith reliance.” United States v. George, 975 F.2d 72, 77 (2d Cir. 1992) (internal citation omitted).

Here, the Government cannot meet its burden. Three of the four indicators identified in Leon preclude a finding of objectively reasonable conduct on the part of the officers. The warrant and application contained no facts that the judge could have interpreted in reaching a reasoned conclusion that the guns alleged to be in the apartment were unlawfully possessed. The warrant thus indicates that the issuing judge had abandoned her judicial role insofar as she had relied on Officer Fernandez’ conclusory assertion that the guns were evidence of unlawful activity. For the same reason, the warrant and application are, on their face, so lacking in indicia of probable cause for suspicion of criminal activity as to render reliance upon them unreasonable, and the warrant is so facially deficient that reliance upon it was unreasonable.

Gun possession is not illegal under all circumstances in New York City. Some people have permits. Most residents are not prior felony offenders. To uphold the execution of a search warrant merely upon the assertion of an officer that a gun is held illegally would be to legitimize the sort of unmediated police invasions of homes that the Fourth Amendment was adopted to prevent. The Government’s proffer that the search should be upheld because the officers had information, undisclosed to the judge, that would have supported an objective probable cause finding, is thus unavailing. The reckless or negligent conduct of the officers here is the type of conduct that can, and should, be deterred by application of the exclusionary rule. Their reliance on the warrant was not reasonable, and the good faith exception does not preclude suppression of the evidence obtained through the search of Apartment 11A.