Defendant was the target of a 2019 search warrant for trophies (jewelry and clothing) from and ligatures used in sexual assaults and murders committed in 1986-88. Defendant did four stints in prison in between. A search warrant was issued for his house, and weapons were found. He moved to suppress. The court finds no probable cause for the warrant, but the good faith exception applies. The affidavit used an expert’s opinion to bolster the probable cause, see United States v. Weber, 923 F.2d 1338 (9th Cir. 1990), but it didn’t show to be factually related to defendant. United States v. Karun, 2021 U.S. Dist. LEXIS 11260 (D. Me. Jan. 21, 2021):
d. Conclusion
“Viewed as a whole and from an objective vantage,” the Court concludes that there was not a “fair probability” for the Connecticut and Maine judges to believe the ligatures, earring, bra, and underwear were located in Mr. Karun’s Maine residence. See Weber, 923 F.2d at 1345 (“Each of these inferences standing alone may be reasonable. But with each succeeding inference, the last reached is less and less likely to be true. Virtual certainty becomes probability, which merges into possibility, which fades into chance”). To accept the Government’s conclusion would allow the police to search the home of any serial rapist without expert opinion specific to him placing him within the specific subset of offenders who collect and keep trophies. There was at best a possibility—not probability—that the items were located at Mr. Karun’s home. Judges may not issue warrants based on mere possibilities and thus the warrant fails the Fourth Amendment’s protections.
As to the good faith exception:
Furthermore, the record shows that the warrant was approved by not one but two judges—one in Connecticut and one in Maine. See United States v. Pinto-Thomaz, 352 F. Supp. 3d 287, 308 (S.D.N.Y. 2018) (“[T]he warrants were reviewed and approved by two different magistrate judges acting independently, which provides a clear presumption of validity”). The warrant application included a thirty-two-page affidavit and expert opinion from Dr. Michael Bourke, Chief of the Behavioral Analysis Unit at the U.S. Marshals Service in Washington, D.C. While the parties cited cases involving collectors of child pornography, the parties have not identified, nor has the Court found, any instance where a court found expert opinion like the Bourke Report to be invalid. The Bourke Report sets down general and apparently uncontested principles of forensic psychology and the Weisgerber Affidavit sets out the details of the law enforcement investigation, leaving for the judge or magistrate to determine whether the facts in the affidavit are sufficient to fit within the general principles in the report. While the Court has determined that this effectively requires the reviewing judge to act beyond the proper range of judicial expertise and assume the role properly assigned to an expert, a reviewing judge is allowed to draw logical inferences from the record and the line between a permissible and impermissible inference is too fine to conclude that the Leon standard of good faith was breached in this case.
To recapitulate, the Weisgerber Affidavit and the Bourke Report contain the following:
1) That Mr. Karun is likely the person who kidnapped, sexually assaulted and murdered eleven-year-old Kathleen Flynn in September 1986 in Norwalk, Connecticut;
2) That Mr. Karun used a ligature to choke and control Ms. Flynn by applying pressure around her neck before sexually assaulting and killing her; …
…
The issuing judges were entitled to weigh each of these documented assertions in making their determinations as to whether probable cause existed for a warrant authorizing the search and seizure of Mr. Karun’s residence. Furthermore, it is only after an intensive review of the Weisgerber Affidavit and Bourke Report that gaps in the chain of inferences are revealed—gaps that may not have been apparent to Lieutenant Weisgerber, to the issuing judges, or to the executing officers. Nor is there any suggestion in this record that the gaps in the application for a search warrant were the result of “systemic or recurrent police misconduct” that would be deterred if the seized evidence were suppressed. Utah v. Strieff, 136 S. Ct. 2056, 2063 (2016). To the contrary, the Connecticut and Maine judges issued the search warrants based on diligent and detailed police work in an attempt to solve a decades old, but unspeakably tragic case.
. . .
This situation is similar to the one in Levin, where the First Circuit explained “[t]o the extent that a mistake was made in issuing the warrant, it was made by the … judge[s], not by the executing officers, and the executing officers had no reason to suppose that a mistake had been made and the warrant was invalid.” Levin, 874 F.3d at 323. With these principles in mind, the Court concludes that the executing officers acted “with an objectively ‘reasonable good-faith belief’ that their conduct [was] lawful.” Id. at 322 (quoting Davis v. United States, 564 U.S. 229, 238 (2011)).
Finally, the Levin Court mentions the “great cost to society of suppressing the resulting evidence.” Levin, 874 F.3d at 324. In doing so, the First Circuit echoed guidance from the United States Supreme Court. In 2006, in Hudson v. Michigan, 547 U.S. 586 (2006), the Supreme Court reflected on the “substantial social costs” of exclusion. Id. at 591 (quoting Leon, 468 U.S. at 907). The Hudson Court observed that the exclusionary rule sometimes has the effect of “setting the guilty free and the dangerous at large.” Id. The Supreme Court noted the “rule’s ‘costly toll’ upon truth-seeking and law enforcement objectives” presents “a high obstacle for those urging [its] application.” Id. (quoting Pennsylvania Bd. of Prob. and Parole v. Scott, 524 U.S. 357, 364-65 (1998)). Accordingly, the Supreme Court has “held it to be applicable only ‘where its remedial objectives are thought most efficaciously served.'” Id. (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)). In other words, “where its deterrence benefits outweigh its ‘substantial societal costs.'” Id. (quoting Scott, 524 U.S. at 363) (quoting Leon, 468 U.S. at 907)).
On these facts and applying these principles, the Court concludes that the searching officers’ good faith reliance on the warrant outweighs the “great cost to society of suppressing the resulting evidence.” Levin, 874 F.3d at 324.
