CA9: State search warrant after a federal SW was completely conclusory and no GFE

A state search warrant issued after a federal warrant was conclusory and failed to show probable cause. The federal warrant was supported by a 102 page affidavit. [The state warrant worked from the assumption they could show PC without having to, apparently.] It is so deficient, the good faith exception cannot be applied. United States v. Underwood, 725 F.3d 1076 (9th Cir. 2013):

Detective Kaiser’s statement that a federal warrant had previously issued in the case for a different residence does not add any indicia of probable cause to the state affidavit. First, neither the federal warrant nor the 102-page federal affidavit were attached to the state affidavit. In this situation, the mere assertion of the prior issuance of the federal warrant for a different property should not be treated as a “supporting fact or circumstance” for probable cause purposes. The Supreme Court stated in Leon that in issuing a warrant, a judge must “perform his neutral and detached function and not serve merely as a rubber stamp for the police.” 468 U.S. at 914; see also Ventresca, 380 U.S. at 108-09 (“Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police.”). If we allow judges to rely on the mere assertion that another judge previously issued a warrant in the case without also relying on that other judge’s analysis or supporting facts, we would encourage judges to rubber-stamp the conclusions of law enforcement and of each other. Second, and more importantly, this case concerns two different affidavits. The unattached federal affidavit that supported the previously issued federal warrant is entirely different from the state affidavit at issue here. While the federal affidavit detailed the federal investigation of Underwood and his co-defendants in 102 pages, the affidavit in this case was specific to Underwood and, as explained above, contained mostly conclusory allegations and only two facts, one of which—the personal-use amount of marijuana—was entirely distinct from the federal warrant. Thus, the prior issuance of a federal warrant based on different and more complete information adds no indicia of probable cause to the state affidavit.

Finally, the rest of the affidavit is made up of conclusory allegations. These allegations are either entirely unsupported by facts or are explained as based on “other seizures,” “intercepted conversations over TT #1-4, #6-7” or “my surveillance observations,” meaning Johnson’s surveillance observations. As explained above, these vague explanations add little if any support because they do not include underlying facts that the issuing judge may use to evaluate the affiant’s reasoning or to draw his or her own inferences. For example, the affidavit does not explain who was being surveilled, what was observed, whom the intercepted conversations were apparently between, or what was said during those conversations. From the allegations as written, the issuing judge would have to trust Kaiser and DEA Agent Johnson that the information from the intercepted conversations and surveillance supports their conclusions. Thus, we see these allegations as essentially conclusory statements, and afford them little if any weight in the probable cause analysis.

When viewed in the totality of the circumstances, the affidavit fails to establish probable cause. The affidavit does not give a reasonable judge sufficient basis to find that it was fairly probable that Underwood was an ecstasy courier or that evidence of ecstasy trafficking would be found at Underwood’s house. To conclude from the affidavit that Underwood is a courier for the Luong DTO requires either blind trust in Johnson’s conclusory statements or the drawing of too many inferences. One would have to infer from the crate delivery—the only factual allegation with a nexus to the crime charged—that: (1) Luong and Barrera are conspirators in a drug trafficking organization, (2) the crate contained ecstasy, and (3) Underwood knew or had reason to know the crates contained ecstasy. Further, the affidavit lacks any basis from which to conclude that any of the evidence listed in the affidavit would be found at Mansa Drive, given that expert opinion on drug traffickers keeping such evidence at their homes was foundationless. For these reasons, the resulting search warrant for Mansa Drive is defective under the Fourth Amendment.

. . .

Moreover, the affidavit provides no factual basis for the conclusion that drug trafficking evidence would be found at Underwood’s home. As explained in part A, the expert opinion about drug traffickers keeping evidence of their crimes at their homes is foundationless because the affidavit did not assert that Underwood was a drug trafficker, and thus cannot be used to support probable cause. Further, even if we make the unreasonable inferences that the crates contained drugs and that Underwood knew the crates contained drugs, Underwood delivered those crates to Luong and Barrera, who took them away from him. We thus cannot conclude that any drugs contained in those crates were in Underwood’s possession, let alone at Underwood’s house in particular. The affidavit does not assert that any other deliveries by Underwood to anyone else ever took place. Thus, it would also be unreasonable to conclude that Underwood ever possessed any other crates, let alone that such crates would be at Underwood’s house.

Ultimately, the affidavit reasonably supports only the following innocent conclusions: Underwood knows Luong and Barrera; he helped Luong and Barrera move two crates on one occasion2; and Underwood possibly uses marijuana. Reasonable judges would agree that probable cause did not exist to search Underwood’s Mansa Drive house because the affidavit provides only the most attenuated support for the conclusion that Underwood is a drug courier and no support for the conclusion that drug trafficking evidence would be found at Mansa Drive. Thus, the affidavit was a bare bones affidavit, and the good faith exception to the exclusionary rule is per se not met.