CA10: PC doesn’t need to be decided where GFE would apply; overbroad SWs are severed

Probable cause does not have to be decided where the good faith exception would apply. The warrant was for firearm evidence and had a cell phone search provision. If the cell phone provision was overbroad, that should be severed and the remainder stands. United States v. Cotto, 2021 U.S. App. LEXIS 12427 (10th Cir. Apr. 27, 2021):

In this case, we need not decide whether the warrant was supported by probable cause. The good-faith exception clearly applies. See Campbell, 603 F.3d at 1231 (“[W]e bypass [the probable cause inquiry] and conclude the good-faith exception applies.”).

First, the process the detective followed when applying for the warrant indicates he was acting in good faith. He received approval from a district attorney before bringing the affidavit to the state judge. And he also carried out the subsequent search of the Apodaca residence.

Second, the affidavit was not so devoid of factual support as to render the detective’s reliance on it unreasonable. The affidavit created at least a minimally sufficient nexus between Cotto’s criminal activity and the place to be searched. Soon after the red Camaro sped away from the shooting it was found outside the Apodaca residence. And Cotto was then found returning to the car a short time later. The detective executing the warrant could reasonably infer Cotto was using the Apodaca residence to store evidence of his criminal activity—several hours had passed since the road rage incident, Cotto used a gun during the incident, and the car he fled the scene in was parked outside the residence. The facts contained in the affidavit could have supported an officer’s objectively reasonable good-faith reliance on the warrant.

Cotto suggests our precedent dictates a different outcome. He directs us to several cases in which we held that the affidavit underlying a warrant did not meet the minimal-nexus requirement necessary for the good-faith exception. In United States v. Gonzales, 399 F.3d 1225, 1231 (10th Cir. 2005), we concluded the good-faith exception did not apply when the affidavit listed an address to be searched but contained “no facts explaining how the address was linked to” the defendant. And in United States v. Dutton, 509 F. App’x 815 (10th Cir. 2013) (unpublished), we concluded the good-faith exception did not apply when the affidavit lacked any information connecting the defendant to a storage unit to be searched. Id. at 818 (“What is missing, however, is any evidence that the storage unit to be searched was Defendant’s.” (emphasis added)).

But these case are distinguishable. In Gonzales and Dutton, the government’s affidavits contained no information linking the places to be searched to the defendants or their criminal activity. The same cannot be said here. The information in the affidavit provides at least a minimal nexus between the crime and house. As described above, the affidavit contained statements that Cotto’s car was found outside the house to be searched and that Cotto returned to the address. Given these facts, we cannot say the affidavit was so devoid of factual support as to render the executing officer’s reliance on the subsequent warrant approved by a judge objectively unreasonable.

The district court was correct to deny Cotto’s motion to suppress. Regardless of whether the warrant was supported by probable cause, the good-faith exception to the warrant requirement applies.

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