The affidavit truly failed to show probable cause, and a reasonably well trained police should have known it. This involved a gun in the home, and considering the Second Amendment right to bear arms and the Fourth Amendment right to be free from unreasonable searches and seizures, the “extreme sanction” of suppression is justified. To not suppress rewards bad conduct. United States v. Wooldridge, 2016 U.S. Dist. LEXIS 65123 (E.D.Tex. May 17, 2016):
Though the issue of good faith turns on what a reasonably well-trained officer would believe rather than what the actual officer believed, the Court herein addresses the Government’s contention that the officers’ good faith is demonstrated when they “turned to a possible terroristic-threat charge, which plainly would have supported probable cause given [Defendant’s] violent threats and [Ms.] Terry’s fears of being murdered” and Corporal Wyman’s failure to include that crime in his affidavit “was a mistake, not misconduct.” (Dkt. #69 at p. 17) (citing Tex. Penal Code § 22.07). As the Magistrate Judge noted, Corporal Wyman and Investigator Rutherford discussed multiple different options before including only “preventing further violence” in the affidavit. Specifically, the officers discussed waiting until the next morning and adding that seizure of the firearm be a condition placed in the protective order, or contacting the Bureau of Alcohol, Tobacco, Firearms, and Explosives (Dkt. #68 at p. 22, n.21 (citing Government’s Ex. 2 at 20:35:10-40; 20:36:33-42)). The Government’s argument that Corporal Wyman’s failure to include “terroristic threat” in the search warrant affidavit was a mere mistake, or that the officer’s believed there was sufficient probable cause because a possible terroristic threat charge existed, is unpersuasive. The dashboard camera video makes clear that Corporal Wyman considered but did not include terroristic threat (see Government’s Ex. 2 at 20:35:10-40; 20:36:33-42). Indeed, Investigator Rutherford and Corporal Wyman discussed whether they might be able to seek felon in possession or to include terroristic threat in the search warrant affidavit. Id. The officers collectively determined that Defendant was not a felon in possession. Investigator Rutherford stated that Corporal Wyman would have to make the determination himself regarding terroristic threat. Id. Corporal Wyman, following such discussion, included only “preventing further violence” in the affidavit and warrant. Id; Dkt. #49-1. Further, the Government’s briefing prior to the date of the Magistrate Judge’s amended report and recommendation does not argue that the search warrant affidavit is supported by probable cause because of an alleged terroristic threat; indeed, the Government mentioned it only in passing at the April 18 Hearing (see Dkts. #51; #57; #67 at p. 24).
The dashboard camera video makes clear that the officers were aware of other protocols/procedures by which to properly seize Defendant’s firearm. Id. This Circuit has clearly held that the Second Amendment “‘protects the right of individuals … to privately possess and bear their own firearms.'” Dickerson v. City of Denton, 298 F. Supp. 2d 537, 540 (E.D. Tex. 2004) (quoting United States v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001)). While the right to bear arms is not absolute, police officers may only confiscate firearms during the search of a premises if, and when, Fourth Amendment requirements have been met. Id. Permitting law enforcement officers to seize a gun under the facts presented here could have a grave impact on officers’ future conduct. The desire to secure a firearm simply to ensure that it will not be used in any potential violent actions in the future (the assumed and understandable desire of Corporal Wyman in this case), cannot be permitted to the detriment of an individual’s constitutional rights.
II. The Extreme Sanction of Exclusion
The Government’s second objection contends that the Magistrate Judge failed to analyze, “as is required,” whether the benefits of deterring police misconduct outweigh the costs (Dkt. #69 at p. 17). The United States Supreme Court, beginning with the good-faith exception explained in Leon, has “recalibrated [the] cost-benefit analysis in exclusion cases to focus the inquiry on the ‘flagrancy of the police misconduct’ at issue.” Davis v. United States, 564 U.S. 229, 238 (2011) (citing Leon, 468 U.S. at 909, 911). The Supreme Court has summarized the reasoning of Leon and its progeny as follows:
The basic insight of the Leon line of cases is that the deterrence benefits of exclusion vary with the culpability of the law enforcement conduct at issue. When the police exhibit deliberate, reckless, or grossly negligent disregard for the Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. But when the police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence, the deterrence rationale loses much of its force, and exclusion cannot pay its way.
Davis, 564 U.S. at 238 (internal citations and quotation marks omitted).
The Government cites a Western District of New York case for the proposition that a magistrate judge must perform this “risk/benefit analysis” prior to excluding evidence (Dkt. #69 at p. 17 (citing United States v. Ling Zhen Hu, No. 7-CR-212, 2011 WL 4915734, at *8 (W.D.N.Y. Jan. 21, 2011))). The Fifth Circuit has not, however, found that such an analysis is required by the lower courts. Fifth Circuit precedent dictates that “[e]vidence should be suppressed ‘only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.'” United States v. Chinwoh, 477 F. App’x 184, 185 (5th Cir. 2012) (quoting Herring v. United States, 555 U.S. 135, 143 (2009)). Accordingly, the failure of the Magistrate Judge to perform a “risk/benefit analysis” does not invalidate the finding.
Notwithstanding, the Court herein considers whether the benefits of deterring police misconduct outweigh the societal costs of suppression of the evidence in this case. As previously noted, the law enforcement officers contemplated other ways in which to seize Defendant’s firearm; for example, requesting that it be seized in connection with applying for a protective order against Defendant or contacting the Bureau of Alcohol, Tobacco, Firearms, and Explosives. While the Court agrees that Defendant’s assault of Ms. Terry is egregious and that he may well constitute a danger to society (and to Ms. Terry), here the facts are that Defendant was already in custody at the time of the search. His crime (assault) was complete. The weapon was not used in the assault. Rather, the weapon was located a mile away in a residence Ms. Terry was not returning to. Allowing law enforcement officers to seize a firearm that is not linked to a separate or ongoing crime — based upon the facts and circumstances presented here — is not supported by Texas law or this Circuit’s precedent. Law enforcement officers cannot be permitted to seize weapons where no probable cause exists for obtaining the firearm and with only a goal of “preventing future violence,” particularly when other protocols/procedures are available to them. Accordingly, the Government’s second objection is overruled.
