The relevant factual underpinning is that a federal agent applied to a California state judge for two search warrants and then the federal agent executed the searches.
The searches resulted in federal charges. The defendants moved to suppress arguing (1) the warrants were invalid because they were executed by officials not authorized to execute warrants under California law; and (2) the warrants were not supported by probable cause.
The district court granted both motions based on a lack of probable cause. The government appealed.
The Ninth Circuit affirmed as to one of the warrants but reversed as to the other.
Beginning with the issue of the state warrant being executed by federal agent, the Court held, "the identity of the executing officers—federal agents versus peace officers—does not implicate any interest protected by the Fourth Amendment. No greater intrusion upon protected privacy or property interests occurred by virtue of the fact that the searches were conducted by federal agents as opposed to, say, city police officers." The Court explained,:
California law requires search warrants to be executed by “peace officers,” but federal agents may assist a peace officer in executing a search warrant, provided the federal agent is acting “in aid of the officer on his requiring it, he being present and acting in its execution.” Cal. Penal Code § 1530. As the defendants argue, it seems doubtful that this requirement was satisfied here, although California courts do not appear to have addressed how strictly this provision should be construed when federal agents execute a search warrant as members of a joint federal-state task force that includes peace officers.
We find it unnecessary to decide whether federal agents violated California law by executing the Artis and Hopkins warrants. Even if such a violation occurred, the warrants would still be valid under the Fourth Amendment. An otherwise properly issued search warrant is not rendered void for Fourth Amendment purposes merely because it was executed by law enforcement officers who lacked warrant-executing authority under state law.The Court further found no violation of Rule 41, because the searches were not “federal in character.”
As to probable cause, the Court reminds us that, when a warrant application relies on illegally obtained information to establish probable cause, the reviewing court must disregard the information.
The Court then took this rule one step further: "Having excised evidence from the supporting affidavit, we do not defer, as we normally would, to the issuing magistrate’s determination that probable cause existed. In that scenario, we have nothing to which we could defer, as the magistrate made no determination about whether probable cause exists on the set of facts now before us. Instead, we must 'determine on our own whether the remaining portions of the affidavit support a finding of probable cause.'"
Finding a lack of probable cause in one of the affidavits, the Court discussed the good faith exception:
[W]e have held that the good-faith exception may not be invoked when “the search warrant was issued in part on the basis of evidence obtained from an illegal search.” United States v. Wanless, 882 F.2d 1459, 1466–67 (9th Cir. 1989); see also United States v. Vasey, 834 F.2d 782, 789 (9th Cir. 1987). That rule would foreclose the government’s reliance on the good-faith exception here. We acknowledge that the Supreme Court’s precedent on application of the good-faith exception has shifted somewhat since we decided Vasey and Wanless. When those cases were decided, the good-faith exception had been held to apply only when the police acted in reasonable reliance on mistakes made by others, such as the magistrate who issued the defective warrant in Leon. It was not yet clear whether the good-faith exception would apply when the police acted in reliance on their own mistakes. Thus, in rejecting application of the good-faith exception in Vasey, we stressed that “[t]he constitutional error was made by the officer in this case, not by the magistrate as in Leon.” 834 F.2d at 789. The good-faith exception could not apply to the fruit of that constitutional violation, including evidence seized under the resulting warrant.
The Supreme Court has since held that the good-faith exception can apply even when the police are responsible for the mistake that led to an unlawful search or seizure. In Herring v. United States, 555 U.S. 135 (2009), the Court applied the good-faith exception to uphold the admission of evidence seized during a concededly unlawful arrest, even though the arrest occurred because law enforcement officials negligently failed to remove a recalled warrant from their database. Id. at 138, 147–48. The Court held that, to justify suppression as a remedy for a Fourth Amendment violation, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Id. at 144. The “isolated negligence” at issue in Herring, the Court concluded, did not meet that standard. Id. at 137
In light of Herring, we can no longer declare the good-faith exception categorically inapplicable whenever a search warrant is issued on the basis of evidence illegally obtained as a result of constitutional errors by the police. We must instead determine whether the police misconduct that led to discovery of the illegally obtained evidence is itself subject to the good-faith exception. If it is, suppression of the evidence seized pursuant to the warrant will not be justified. But if the police misconduct is not protected by the good-faith exception, suppression is the appropriate remedy. The misconduct will by definition be “sufficiently deliberate” that it can be deterred through application of the exclusionary rule, and “sufficiently culpable” to warrant exclusion as a remedy. Id. at 144. And because the illegally obtained evidence will necessarily have been decisive in establishing probable cause (otherwise there would be no need to resort to the good-faith exception), evidence discovered pursuant to the warrant will be the fruit of that earlier illegality and subject to suppression for that reason. See Wong Sun v. United States, 371 U.S. 471, 485 (1963).Under this new standard, as to one of the warrants, the Court found the good faith exception did not apply, and affirmed suppression.
As noted, the Court reversed as to the other warrant, because it was supported by probable cause.
