CA8: Assuming Fourth Amendment was violated, the GFE saved this search because the police conduct was objectively reasonable

The Eighth Circuit assumed a Fourth Amendment violation in police entry into the back room of a car dealership during a routine fire inspection that revealed what the fire marshal thought was a child pornography production facility. Without deciding whether the police violated the Fourth Amendment in the entry [a tough question], the court instead decided whether the good faith exception applied based on how the investigation started, the entry into the area, and the obtaining of the search warrant. The court concluded that the good faith exception applied, and the search would not be suppressed. Defendant’s computer was seized and child pornography was found. The police conduct was objectively reasonable. United States v. Cannon, 703 F.3d 407 (8th Cir. 2013):

We have applied Leon where, as here, the search warrant application cites information gathered in violation of the Fourth Amendment. See, e.g., United States v. Kiser, 948 F.2d 418, 421 (8th Cir. 1991); United States v. White, 890 F.2d 1413, 1419 (8th Cir. 1989) (“[E]vidence seized pursuant to a warrant, even if in fact obtained in violation of the Fourth Amendment, is not subject to the exclusionary rule if an objectively reasonable officer could have believed the seizure valid.”). For the Leon exception to apply when the warrant is based on evidence obtained through a Fourth Amendment violation, the detectives’ prewarrant conduct must have been “close enough to the line of validity to make the officers’ belief in the validity of the warrant objectively reasonable.” United States v. Conner, 127 F.3d 663, 667 (8th Cir. 1997) (quoting White, 890 F.3d at 1419). If “the officers’ prewarrant conduct is ‘clearly illegal,’ the good-faith exception does not apply.” Id. (quoting United States v. O’Neal, 17 F.3d 239, 242-43 n.6 (8th Cir. 1994)).

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In light of these facts, the district court made the following findings with respect to what was known by Detectives Barrios and Hignite: (1) although Officer Holland, the first to arrive on the scene, was aware that Cannon lived in “Billy’s rooms,” he did not discuss this fact with Detectives Barrios and Hignite prior to their entry; (2) Captain Creek told the detectives that Cannon lived in the rooms, but only after they already had entered the rooms and made their observations; and (3) the detectives did not observe the bed on the floor in the back room until well after their entry. After reviewing the record, we have determined that these findings are not clearly erroneous. Based on these factual findings, we agree with the district court that the detectives reasonably could have believed that they were entering another part of the car dealership, not a private residence, with EZ Credit’s consent. As a result, the detectives’ pre-warrant conduct was “close enough to the line of validity” to make their belief in the validity of the subsequent warrant “objectively reasonable.” Conner, 127 F.3d at 667.

Furthermore, the detectives fully disclosed the nature of the rooms to the state court judge in the warrant application. They noted that in the course of their initial inspection of the rooms, they discovered that someone appeared to be living there. The detectives also disclosed that after their initial entry they discovered that Cannon had told Captain Creek that he lived in the rooms. Once the state court judge considered these facts and issued the warrant, it was reasonable for the detectives to believe the warrant was valid. To the extent that such disclosures might undermine the validity of the warrant, “[t]he error in such a case rests with the issuing magistrate, not the police officer, and ‘punish[ing] the errors of judges’ is not the office of the exclusionary rule.” Davis, 131 S. Ct. at 2428 (alteration in original) (quoting Leon, 468 U.S. at 922).