Florida’s 5th DCA holds that the good faith exception applied to sustain a search without the court even attempting to analyze whether probable cause existed. The case apparently was close enough on probable cause that it was easier to go directly to the good faith exception, and gratuitously relied on the experience of the judge, the lack of evidence of corruption [well, Duh!], and the reliance of the police in finding the good faith exception applicable. State v. Watt, 946 So. 2d 108 (Fla. App. 5th Dist. January 5, 2007, released for publication January 24, 2007):
In this case, an experienced trial judge reviewed Agent Brannon’s affidavit and determined that probable cause existed to justify the issuance of a search warrant. The police executed the search pursuant to the warrant issued by the judge. In order to reject the application of the good faith exception in this case, we would need to conclude that an objectively reasonable police officer would have a better understanding of the law of search and seizure and probable cause than did the trial judge who issued the warrant. We are not willing to do so.
No indication exists in the record that either the police officer or the trial judge was corrupt, dishonest, or acted in bad faith. Accordingly, this case is controlled by the principle we articulated in State v. Harris, 629 So. 2d 983 (Fla. 5th DCA 1993):
“The warrant was regular on its face and the affidavit upon which it was based was not so lacking in indicia of probable cause that the officer executing the warrant could not with reasonable objectivity rely in good faith on the magistrate’s probable cause determination and on the technical sufficiency of the warrant.”
Id. at 984.
Comment: I, for one, find such a cavalier attitude toward the good faith exception to be troublesome. This is an understatement, so let me rephrase: This opinion reads like an ad hominem judicial cop-out. Of course the judge was experienced. Does that imply that less experienced judges’ paperwork is to be subjected to more or closer scrutiny? Hardly. I have seen experienced judges literally sign search warrant applications in chambers without even reading them. They would qualify as “experienced,” if an old, worn rubberstamp for the police could be called “experienced.” To say that there is no evidence of corruption of the judge is an extreme hypothetical situation which would rarely be made and even more rarely provable, barely hinted at in Leon on the lack of a neutral and detached magistrate issuing a search warrant, if one reads between Leon‘s lines. If being a shill for the police is a form of intellectual “corruption,” most issuing judges will fall in that category because the good faith exception has given them an out–they don’t have to read the paperwork as closely or even think about it because they well know that it doesn’t even matter as much under Leon because the proof is in the affirmances. Worse yet, the police know it, too. It shows in suppression hearings where officers parrot the lines necessary to get in under Leon. Finally, the comment that the defendant here would expect the police to know the law better than the magistrate overlooks the fact that the police control the affidavit process because they prepare the affidavits, and, after 22 years of Leon, police officers watching judges sign off on search warrants without (or perfunctorily) reading them means that they have to know what they put in there no longer matters. This is a simple truth, and it was inevitable from Leon, but the Supreme Court was warned of its folly by the dissenters and amici and did not care. After reading this opinion, one is almost struck with a sense of the court’s near desperation to sustain the search. Why could the court not just say “We have looked at the affidavit for the search warrant, and the question is too close to call. Anything near a tie goes to the state.” Moreover, there are two questions when Leon is invoked: (1) Is there probable cause? (2) If not, does the good faith exception apply or does one of the four exceptions to the good faith exception apply? That is the gist of the good faith exception. Skipping the first question and going straight to the second only encourages judicial laziness, on all levels of the judiciary, which is evident on this court. When probable cause does not matter to the appellate courts, it does not matter to the trial courts, and it finally gets through to the police that it does not matter to them, either. This case is an embarrassment to the Florida judiciary. It could have been dealt with “more professional,” as they say to us lawyers, or more judiciously, as judges would say. Leon is demeaned in any case, such as this one, where it is viewed as a judicial panacea thrown up to the defense as an impenetrable wall. It is not. Treating it as such devalues Leon, the court writing the opinion, and the law as a whole.
Defendant’s 15 year old daughter reported capital sexual battery on her father, and the police came to investigate. At their strong suggestion, she entered defendant’s bedroom to retrieve used condoms as evidence. The trial court found, and the appellate court agreed, that she was acting as an agent of the state when she made the entry on the officer’s strong suggestion. The state’s alternative argument of consent failed because there was no showing of equal access to the room. Suppression order affirmed. State v. Moninger, 957 So. 2d 2 (Fla. App. 2d Dist. 2007). (There is a case I read more than a year ago reaching opposite result on the child’s apparent authority to go into the father’s bedroom because that was where the sexual assaults occurred. I cannot remember the name, and the cases from more than a year ago are archived.)
California again decides that an officer has to know that the defendant is on probation before the state can rely on a post hoc rationalization of probation status as justifying an otherwise unlawful search. People v. Miller, 146 Cal. App. 4th 545, 52 Cal. Rptr. 3d 894 (4th Dist. January 4, 2007).
Stop never matured into a de facto arrest (although officers had developed probable cause in the meantime). Defendant was conversing with officer and minimizing his role in the suspected offense, and he was always free to go and not even obligated by the police to go with them to talk to them. He consented. United States v. Moss, 2007 U.S. Dist. LEXIS 293 (S.D. Fla. January 2, 2007).*
