The Western District of Wisconsin sustains a search under a telephonic authorization where there was an oversight and there was no written memorialization of the warrant. The good faith exception should apply, but, even if it did not, Hudson does not require exclusion. United States v. Aguilera, 2007 U.S. Dist. LEXIS 12823 (W.D. Wis. February 22, 2007). Because this is such an interesting issue which caused the District Court some difficulty, I quote at length:
Of course, there was no warrant here, so it likely undersells the scope of the error to characterize it as a foible in the administration of Rule 41. On the other hand, notwithstanding the violation of Rule 41(e), this warrantless search was not unreasonable under the totality of the circumstances. Prior to entering defendants’ residence to search, the agents presented to the court an affiant who recited under oath the facts establishing probable cause. This court independently assessed the facts and determined that there was probable cause for the requested search. Both the residence to be searched and the items to be seized were described with particularity. The court explicitly set out the limits of Agent Chamulak’s authority to search. The agents’ time of entry is commemorated on the return, which also specifies all items seized. The government provided the defendants, through counsel, with copies of the inventory. As a practical matter, the absence of a written warrant at the time of entry had no real-life ramifications: both defendants had been arrested and detained by agents earlier that same evening. No one was in the residence when the officers arrived; even if a duplicate warrant had been prepared, there was no one home to whom the agents could have presented it to assure them that this was a judicially authorized search. Cf. Katz v. United States, 389 U.S. at 356 n. 16 (Rule 41(d) does not invariably require service of a copy of the warrant before the search takes place). Acknowledging the importance of having a physical warrant, “it is hard to imagine how the actual search could have been carried out any more reasonably.” Groh, 540 U.S. at 577 (Thomas and Scalia, JJ., dissenting).
Apart from the objective reasonableness of what actually occurred, the government argues that pursuant to Leon, evidence seized in violation of the Warrant Clause should be suppressed only when the agent lacked a good faith belief in the validity of his warrant. 468 U.S. at 920-22. The government bears the initial burden of establishing the officers’ good faith, but the agent’s decision to seek a warrant from the court is prima facie evidence of good faith.
Defendants respond that Leon presumes the issuance of an actual warrant; here there was none, so Leon cannot apply. How could Agent Chamulak presume a [*13] non-existent warrant to be valid? Defendants then quote Arizona v. Evans, 514 U.S. 1, 20, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995) for the proposition that “the reasoning in Leon assumed the existence of a warrant; it was, and remains wholly inapplicable to warrantless searches and seizures.” But this quote is from the dissent. The Court’s opinion was to the contrary, applying the reasoning of Leon to negligent record-keeping by government clerical employees that resulted in an unlawful arrest. The Court noted that its more recent case law had rejected reflexive application of the exclusionary rule, emphasizing instead that the issue of exclusion is separate from whether the Fourth Amendment had been violated. Exclusion is appropriate only if the remedial objectives of the rule are thought most efficaciously served. Evans, 514 U.S. at 14. The Court found that the good faith doctrine could be applied to errors for which the court was responsible. Id. at 14-15. See also Massachusetts v. Sheppard, 468 U.S. 981, 988, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984)(where judge assured officers he would edit and correct a defective draft warrant but failed adequately to do so, officers’ mistaken belief in warrant’s validity still was objectively reasonable).
So, it is not clear whether the good faith doctrine applies on these facts. On the one hand, there was no actual warrant. Shouldn’t this have been a huge red flag? But on the other hand, the agent was attempting to obtain a warrant and relied in good faith on the AUSA guiding him through the telephonic warrant application process, and then he relied on this court’s verbal authorization that he could search defendants’ residence. A midnight telephonic warrant obviously was out of the mainstream for all involved, so the agent cannot be blamed for not knowing the requirements of the subpart of a rule that both the prosecutor and the court neglected to invoke and follow. If an experienced federal prosecutor and two-term magistrate judge did not read deeply enough into Rule 41 to discover and comply with the requirements of subpart (e), this error cannot be laid at the agent’s feet.
The fact that the DEA and the U.S. Attorney’s Office went to the trouble of obtaining late night telephonic authorization from the court establishes that they were trying to comply with the rules and the Warrant Clause as they understood them. This resulted in a recorded 26-minute conversation with the court during which the government’s probable cause, the specific location and description of the residence, and the items to be seized were discussed in great detail prompting the court to conclude, “The bottom line is you’ve got judicial authorization. It is so ordered. You can send your team in right now.” Dkt. 9 at 17. To the extent this directive might have violated the Fourth Amendment, this judicial officer blew it and so did the prosecutor, albeit inadvertently. (As the government points out, there was nothing to gain by not preparing a written warrant and it would have been simple to do if we had thought to do it). But there was nothing else that Agent Chamulak or his colleagues could have done or reasonably could have been expected to do in light of the court’s authorization, with which the AUSA was concurring.
Assuming, arguendo, that the good faith doctrine is inapplicable to this situation, suppression still is inappropriate. In United States v. Harju, 466 F.3d 602, 605 (7th Cir. 2006), the court observed that “the prime purpose of the [exclusionary] rule, if not the sole one, is to deter future unlawful police conduct,” and noted that this focus on deterrence led the Supreme Court recently to contract the rule’s scope. See Hudson v. Michigan, 126 S.Ct. 2159, 2168, 165 L. Ed. 2d 56 (2006). The court in Harju quoted at length from United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), noting that even if there were a violation of a defendant’s fourth amendment rights, a court must weigh carefully the costs and benefits of preventing the use of inherently trustworthy evidence obtained in reliance on a search warrant, issued by a detached and neutral magistrate, that ultimately was found to be defective; therefore, the rule should operate to exclude evidence only when it will deter police misconduct. Harju, 466 F.3d at 605. Here, the AUSA and this court inadvertently failed to heed Rule 41(e); the police did nothing wrong. No remedial purpose would be served by suppressing this evidence.
The magistrate issuing a search warrant against the defendant was not neutral and detached because of a prior relationship with the accused that compromised judicial neutrality. State v. Edman, 281 Conn. 444, 915 A.2d 857 (2007):
Having concluded that we properly may consider whether Judge Wollenberg’s personal interest in the case was sufficient to have deprived him of his status as a neutral and detached magistrate, we return to the specific facts upon which the trial court made its legal determination. As the Appellate Court articulated, “the [trial] court determined [that Judge Wollenberg had a sufficient personal interest that he cannot be deemed to have been impartial] when it stated in its oral decision that [u]tilizing what [the defendant] calls a reasonable man standard, a reasonable man looking at impartiality might be forced to conclude, based on the defendant’s assertions regarding his keen friendship with Judge Wollenberg, that the judge would be incapable of finding probable cause against the defendant. The state did likewise by stating in its brief [to the Appellate Court] that if anything, based on the friendship alleged in the affidavit, Judge Wollenberg would have had more of a stake in assuring either that the search warrant not issue or that it was valid and supported by ample probable cause. … By making those statements, the court and the state acknowledged that an inherent temptation existed for Judge Wollenberg to treat the case differently from any other case. Whether that temptation was to tip the scale in one direction or the other, the balance could not remain nice, clear and true between the [s]tate and the accused. … Moreover, having what the state described as a stake in the matter cuts against the very grain of the fourth amendment notion of neutrality and detachment.” (Citation omitted; internal quotation marks omitted.) State v. Edman, supra, 90 Conn. App. 831.
Additionally, like the Appellate Court, “[w]e need not determine whether the defendant’s mere threat of litigation against Judge Wollenberg was sufficient to have deprived him of his status as a neutral and detached magistrate. We also need not determine whether the defendant’s relationship with Judge Wollenberg, standing alone, was sufficient to have done so. Stated differently, we need not … separate the allegations in analyzing Judge Wollenberg’s neutrality and detachment. It is the unique confluence of factors [of Judge Wollenberg’s personal relationship with the defendant combined with the threat of litigation] that leads us to conclude that Judge Wollenberg did not qualify as the neutral and detached magistrate guaranteed by the fourth amendment.” Id., 833-34.
. . .
Nevertheless, we must be mindful that “[d]etachment and neutrality are the essence of judicial behavior. In each case within his or her jurisdiction, the judge is required to find the facts fairly and impartially, to identify the applicable rule of law by reference to his education, training and experience, and finally to apply the rule to the facts and achieve a result. This we call an adjudication. These things each judge … must do without fear or favor, letting the chips fall where they may.
. . .
Therefore, we conclude, in answer to the first certified question, that the Appellate Court properly determined that the defendant had been deprived of the right to a neutral and detached magistrate.
Officers had reasonable suspicion to stop defendant’s car based on a radio call that a woman was forced into a car at a fast food restaurant, and defendant’s car matched the description and location. Drug paraphernalia was found after defendant was arrested for disorderly conduct. State v. Sparks, 2007 Ohio 800, 2007 Ohio App. LEXIS 723 (2d Dist. February 23, 2007).*
