N.D.Okla: Pre-McGirt state SW was obtained and executed in good faith

In a 2255, a state search warrant on Indian lands issued and executed 16 years before McGirt v. Oklahoma was not subject to suppression because it was obtained and executed in good faith based on law at the time. United States v. Sells, 2021 U.S. Dist. LEXIS 225810 (N.D.Okla. Nov. 23, 2021):

First, his contention that the executing officers violated his Fourth Amendment rights by conducting an overbroad or general search was previously raised by him and rejected by this Court, the Tenth Circuit and the Supreme Court, which all upheld the seizure of the .223-calibur rifle, ammunition, pipe bomb, and other bomb-making materials.

Sells argues that evidence seized from his house should have been suppressed even if the search of his home was not rendered retroactively unconstitutional by McGirt. The Fourth Amendment does not expressly preclude the use of evidence obtained in violation of its provisions. However, courts have adopted a rule by which such evidence can be suppressed from use in criminal trials. Arizona v. Evans, 514 U.S. 1, 10 (1995); Herring v. United States, 555 U.S. 135, 139 (2009). The exclusionary rule “operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect.'” Id. (quoting Davis v. United States, 564 U.S. 229, 237 (2011). Accordingly, “the exclusionary rule does not apply when the police conduct a search in ‘objectively reasonable reliance’ on a warrant later held invalid,” because “the error in such case rests with the issuing magistrate, not the police officer. Davis v. United States, 564 U.S. at 238-39 (quoting United States v. Leon, 468 U.S. 897, 922 (1984)).

At the time of the 2004 search, everyone involved—from law enforcement officers to the issuing magistrate—operated under the mistaken belief that the Creek and Cherokee reservations had long been disestablished. McGirt v. Oklahoma, 140 S.Ct. 2452 at 2485 (2020) (acknowledging that Oklahoma “maintained unquestioned jurisdiction for more than 100 years” over land encompassed by the Five Tribes’ prior holdings). “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 … Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” United States v. Leon, 468 U.S. 897, 921 (1984).

In this case, the state search warrant was executed more than a decade before McGirt was decided. Moreover, Sells offers no evidence that the officers acted in bad faith in executing the warrant. Accordingly, the Court concludes that even if the warrant was issued without jurisdiction, the exclusionary rule is inapplicable.

When McGirt was decided, the first thing I thought of was how soon state search warrants issued before hand would be challenged. Based on all good faith exception law, particularly Davis, it was apparent none would be suppressed for that reason because it was quintessential good faith. This is the first I’ve read, but that doesn’t mean there haven’t been others by now.

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