CA1: GFE applies to warrant execution issues

The First Circuit makes clear that the good faith exception applies to warrant execution issues despite Leon’s statement it should not. (Not the first court to hold this.) United States v. Pimentel, 2022 U.S. App. LEXIS 4350 (1st Cir. Feb. 17, 2022):

As a threshold matter, the parties dispute whether the Leon good-faith exception applies to an allegation that the execution of a search warrant exceeded the warrant’s scope. In questioning Leon’s applicability, Pimentel relies in part on a footnote in Leon in which the Court noted that its “discussion of the deterrent effect of excluding evidence obtained in reasonable reliance on a subsequently invalidated warrant assumes, of course, that the officers properly executed the warrant ….” Id. at 918 n.19. But subsequent caselaw makes clear that the good-faith exception also applies “across a range of cases,” including where the alleged error derives from the police rather than the warrant’s issuing magistrate. Davis, 564 U.S. at 238; see also Herring v. United States, 555 U.S. 135, 147, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009) (holding that the good-faith exception may apply “when police mistakes are the result of negligence … rather than systemic error or reckless disregard of constitutional requirements”).

Accordingly, Pimentel’s claim that the HPD exceeded the scope of the search warrant does not itself foreclose the application of the good-faith exception. See, e.g., Maryland v. Garrison, 480 U.S. 79, 86, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987) (applying the good-faith exception to “a search that turned out to be ambiguous in scope”); see also Rawlings v. Kentucky, 448 U.S. 98, 110, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980) (“[W]hile the officer’s belief about the scope of the warrant they obtained may well have been erroneous … the conduct of the police here does not rise to the level of conscious or flagrant misconduct requiring prophylactic exclusion of petitioner’s statements.”); United States v. Grisanti, 943 F.3d 1044, 1051 (7th Cir. 2019) (relying on Rawlings to conclude that the good-faith exception applied where “the agents did not unreasonably exceed the scope of the warrant”).

In questioning the applicability of Leon, Pimentel also points to cases in which courts have declined to apply the exception to searches that went beyond the scope of a warrant. To this end, Pimentel highlights dicta in United States v. Fuccillo, 808 F.2d 173 (1st Cir. 1986), where we stated that “[t]he good faith exception [] will not be applied unless the officers executing search warrants, at the very minimum, act within the scope of the warrants and abide by their terms.” Id. at 177. However, the good-faith exception did not apply in Fuccillo because the facts did not support a finding of good faith, not because it would have been categorically impermissible to apply the exception to a warrant’s execution. Crucially, the warrant in Fuccillo was unambiguous in its scope, and there was no question that the officers’ conduct went well beyond what had been authorized. Id. at 177-78 (noting that “agents seized, in addition to the authorized cartons of women’s clothing, racks of clothing, empty boxes, and, most disturbingly, two racks of men’s clothing”). Fuccillo shows that searches clearly exceeding the scope of an unambiguous warrant cannot be saved by the good-faith exception. It does not indicate, however, that defendants can make an end-run around Leon simply by alleging a scope violation or another defect in a warrant’s execution.

The upshot is that when we have found that an improperly executed warrant fails to satisfy the good-faith exception, we have done so only “[i]n view of the facts before us ….” Id. at 178. We have not bypassed the inquiry into good faith altogether. See id. at 177 (“Applying [Leon’s] principles to the searches and seizures at [issue] … it is clear to us that the agents executing the warrants did not act in good faith as that term was explained in Leon.”). As the good-faith exception only saves searches “that it was reasonable to believe were covered by the warrant,” Leon, 468 U.S. at 918 n.19, our inquiry here turns on whether the HPD officers’ belief that the search warrant covered the third floor was objectively reasonable under the circumstances.