State v. Belmontes

2000 SD 115, 615 N.W.2d 634, 2000 S.D. LEXIS 119

• Court: South Dakota Supreme Court
• Decided: August 23, 2000
• Docket: None
• Status: Published

Opinions

AMUNDSON, Justice.

[¶ 1.] Fernando Belmontes (Belmontes) appeals the denial of a motion to suppress evidence seized pursuant to search warrant. We reverse and remand.

FACTS

[¶-2.] On March 31, 1999, Gary Cudmore (Cudmore), a deputy sheriff in Ziebach County, received a telephone call from an informant. Informant told Cudmore that he was informed by another person that Derwin Martinez had left Modesto, Cali- . fornia, in a white passenger car with California license plates. Martinez and two other individuals were reportedly traveling to Red Scaffold, South Dakota with approximately five pounds of marijuana. Informant advised Cudmore that Martinez would be arriving in Red Scaffold within a couple days. Cudmore believed that this information was reliable because Informant had given information on four or five previous occasions and the tips had resulted hi arrests for various violations.

[¶ 3.] Cudmore passed the information received from informant to Ziebach County Sheriff Robert Menzel (Menzel) and Trooper Shane Severyn (Severyn). Cud-more, however, would not release the name of the informant who supplied the information or the name of the individual who supplied the information to his informant. Severyn passed the information from Cudmore onto Agent Pat West (West) of the South Dakota Division of Criminal Investigation.

[¶4.] West subsequently prepared an Affidavit in Support of Request for Search Warrant. West’s affidavit identified that he had received the information from the Ziebach Sheriffs Department. In addition, statements were included from Men-zel that he had seized drug paraphernalia in the past from Martinez, that Martinez had been previously arrested for assault, and that Martinez owned a silver Buick Skylark automobile. West did not include, however, any information that the informant was reliable or his information was reliable. Further, the affidavit did not state that the information was supplied from an unnamed informant who had received the information from another unnamed informant.

[¶ 5.] Based upon the affidavit, the Magistrate issued a search warrant on April 1, 1999, to allow law enforcement to search the white Mercury Cougar that was identified in the warrant. The warrant, which is referred to as an anticipatory search warrant 1 limited the search to an area within fifty miles of Red Scaffold and required the warrant be served within seventy-two hours after signing.

[¶ 6.] On April 4, 1999, informant advised authorities that Martinez and two other men had arrived in South Dakota during the night, the white Mercury Cougar had broken down south of Red Scaffold and the three individuals had left the car and were in a different automobile driven by Martinez’s mother, Carmen Collins (Collins). Severyn relayed this information to West. Severyn later stopped Collins’ vehicle and ticketed Collins for having a dangling object in her vehicle and having no license in her possession. The three men in the car, Martinez, Miguel Valenzuela and Belmontes, were removed from the vehicle, pat-searched and detained. After being given their Miranda warnings, Valenzuela and Belmontes were taken to Faith, South Dakota Police Department. Martinez, however, was taken by West back to the white Mercury Cougar to execute the search warrant on the automobile. A search discovered numerous items including: a digital scale, packages of ZigZag papers used in rolling cigarettes and a one pound block of marijuana wrapped in plastic, baking soda, duct tape, and grease. Belmontes, Martinez and Valenzuela were arrested for possession of marijuana.

[¶ 7.] At trial, Belmontes moved to suppress the items discovered in the search. The trial court found that the affidavit requesting the search warrant did not contain sufficient probable cause because it lacked any evidence that efforts were made to collaborate the confidential informant’s statements to ensure their credibility.² The trial court held that the law enforcement officers acted in good faith and should not be punished by the mistake of the Magistrate in issuing the warrant. Therefore, suppression of the fruit of this search was denied.

[¶ 8.] The jury convicted Belmontes of possession of marijuana. Belmontes appeals, raising the following issue:

Whether the circuit court erred in applying the good faith exception to a facially insufficient affidavit for search warrant.

STANDARD OF REVIEW

[¶ 9.] We have often stated that our standard of review for a trial court’s grant or denial of a motion to suppress is abuse of discretion. State v. Vento, 1999 SD 158, ¶ 5, 604 N.W.2d 468, 469 (citing State v. Anderson, 1996 SD 59, ¶ 8, 548 N.W.2d 40, 42 (citations omitted)). An abuse of discretion is discretion “ ‘exercised to an end or purpose not justified by, and clearly against reason and evidence.’ ” State v. Durke, 1999 SD 89, ¶ 11, 593 N.W.2d 407, 409 (quoting State v. Gesinger, 1997 SD 6, ¶8, 559 N.W.2d 549, 550 (citations omitted)). Further, it is well settled that,

A trial court’s findings of fact from a suppression hearing must be upheld unless they are clearly erroneous. State v. Pfaff, 456 N.W.2d 558 (S.D.1990).... This [Cjourt’s function under the clearly erroneous standard is to determine whether the decision of the lower court lacks the support of substantial evidence, evolves from an erroneous view of the applicable law or whether, considering the entire record, we are left with a definite and firm conviction that a mistake has been made. State v. Corder, 460 N.W.2d 733 (S.D.1990). In making this determination, we review the evidence in a light most favorable to the trial court’s decision. Id.

Id. (quoting State v. Baysinger, 470 N.W.2d 840, 843 (S.D.1991)).

DECISION

[¶ 10.] Whether the circuit court erred in applying the good faith exception to a facially insufficient affidavit for search warrant.

[¶ 11.] It is well-settled that “[i]f there is insufficient probable cause, the evidence seized in violation of the suspect’s rights under the Fourth and Fourteenth Amendments must be suppressed.” State v. Gerber, 90 S.D. 432, 436, 241 N.W.2d 720, 722-23 (1976) (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)). In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the United States Supreme Court created a “good faith” exception to the Fourth Amendment exclusionary rulé. ' Under the “good faith” exception, “evidence is admissible when police officers reasonably rely on a warrant that is subsequently invalidated because a judge finds there was insufficient basis for the issuing magistrate to find probable cause.” State v. Saiz, 427 N.W.2d 825, 828 (S.D.1988). In Leon, the Supreme Court noted that “good faith” exception will not apply in the following four examples:

Suppression ... remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit' that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The exception ... will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); in such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Brown v. Illinois, [422 U.S. 590, 610-11, 95 S.Ct. 2254, 2265, 45 L.Ed.2d 416, 431] (Powell, J., concurring in part); see [Illinois v. Gates, 462 U.S. 213, 263-64, 103 S.Ct. 2317, 2345-46, 76 L.Ed.2d 527, 564-65 (1983) ] (White, J, concurring in the judgment). Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.

Leon, 468 U.S. at 923, 104 S.Ct. at 3421, 82 L.Ed.2d at 699.

[¶ 12.] In the present case, the trial court concluded that “the affidavit in support of the search warrant contained insufficient probable cause in that it failed to show any efforts to corroborate the confidential informant’s statements, nor any basis for the officer’s belief in the informant’s reliability.” The court found that West had failed to meet the exception under Gerber, 90 S.D. 432, 241 N.W.2d 720, by “not corroborating the Informant’s information by personal observation, reputation of the Defendants, or other research.” Further, the court found that while the affidavit contained insufficient facts to support the issuance of a search warrant, the officers acted in good faith, as defined in Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 and Saiz, 427 N.W.2d 825, by relying on the search warrant issued by Magistrate.

[¶ 13.] It is well-settled that the purpose of the exclusionary rule was “to deter police misconduct rather than to punish the errors of judges and magistrates.” Leon, 468 U.S. at 916, 104 S.Ct. at 3417, 82 L.Ed.2d at 694. In Leon, the error was made by a judicial officer. In the present case, however, the failure to supply information regarding the informants was the error of the officer requesting the warrant. Wfiiether the “good faith” exception applies when the error is made by the affiant officer, rather than the issuing judge, is a question of first impression for this Court.

[¶ 14.] The United States Supreme Court noted in Leon that,

“If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.”

468 U.S. at 919, 104 S.Ct. at 3419, 82 L.Ed.2d at 696 (quoting United States v. Peltier, 422 U.S. 531, 542, 95 S.Ct. 2313, 2320, 45 L.Ed.2d 374, 384 (1975)). Whether the police “officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues” was in good faith is determined under the objectively reasonable standard. Id., 468 U.S. at 922, 104 S.Ct. at 3420, 82 L.Ed.2d at 698. An officer cannot “manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” Id., 468 U.S. at 923, 104 S.Ct. at 3421, 82 L.Ed.2d at 699 (quoting Brown, 422 U.S. at 610-11, 95 S.Ct. at 2265-66, 45 L.Ed.2d at 431-32 (Powell, J., concurring in part)). This good faith inquiry is limited to the “objectively ascertainable question of whether a reasonable well trained officer would have known that the search was illegal despite the magistrate’s authorization.” State v. Klosterman, 114 Ohio , 683 N.E.2d 100, 103 (1996) (citing Leon, 468 U.S. at 922 fn. 23, 104 S.Ct. at 3420 fn. 23, 82 L.Ed.2d at 698 fn. 23).

[¶ 15.] In Leon, the court further noted that “[njothing in our opinion suggests, for example, that an officer could obtain a warrant on the basis of a ‘bare bones’ affidavit and then rely on colleagues who are ignorant of the circumstances under which the warrant was obtained to conduct the search.” 468 U.S. at 923 fn.24, 104 S.Ct. at 3420 fn. 24, 82 L.Ed.2d at 698 fn. 24. The Fourth Circuit Court of Appeals emphasized this footnote from Leon in United States v. Wilhelm, 80 F.3d 116, 121 (4thCir.1996) when it held that the “good-faith exception to the exclusionary rule should not apply in this case due to the ‘bare bones’ nature of the affidavit[.]”³

[¶ 16.] In Klosterman, the Ohio Court of Appeals reviewed whether the affiant police officer’s conduct fell within the good faith exception under Leon. 683 N.E.2d at 103. Deputy Sheriff Larry Fletcher had failed to provide a sufficient basis to support the issuance of a search warrant. In holding that the good faith exception did not apply, the court noted,

[t]he officer cannot claim good faith reliance on a search warrant based on less than probable cause where he has failed to place in the affidavit information known to him that would support probable cause. The officer’s reliance on the warrant can be objectively reasonable only if his belief that the affidavit contains facts sufficient to create probable cause is itself objectively reasonable.'

Id. at 104. Further, the “[c]ourt objectively evaluating an officer’s claim of good faith reliance must charge the officer with a certain minimum level of knowledge of the law’s requirements.” Id. (citing State v. Rees, 1989 WL 145614 (Ohio Ct.App.1989)). Finally, in holding that the evidence obtained under the search warrant was not admissible, the court held that “a reasonably well trained officer would have known that the information contained in this affidavit did not establish probable cause and could not have formed an objectively reasonable belief that it did.” Id. at 105.

[¶ 17.] In People v. Maestas, 204 Cal.App.3d 1208, 252 Cal.Rptr. 739 (1988), the court was faced with whether officers acted in objective, good faith reliance on a warrant when the affidavit in support of the warrant did not establish probable cause. The court noted that “an officer who does not merely execute but prepares and submits a warrant application containing misstatements and omissions cannot rely on the acceptance of that application as evidence that his conduct-was objectively reasonable.” Id. at 743. Further, the court opined that the question was not whether. Officer Silva was a well trained and experienced officer, but rather, whether “a reasonably well-trained officer in his position would have known that his affidavit failed to establish probable cause.” Id. at 744.

[¶ 18.] In United States v. Barrington, 806 F.2d 529, 532 (5thCir.1986), the court addressed facts analogous to the facts in this case; an officer’s obtaining of “a warrant based on his own bare bones affidavit and then conducting] the search himself.” In rejecting the application of the Leon good faith exception, the court held:

In footnote 24 [of Leon ], the Court indicates that an officer may not obtain a warrant based on a bare bones affidavit “and then rely on colleagues who are ignorant of the circumstances under which the warrant was obtained to conduct a search.” [citation omitted.] In the instant case, Captain Solomon obtained a warrant based on his own bare bones affidavit and then conducted the search himself. If one cannot use a bare bones affidavit and then rely on an ignorant colleague to conduct the search, he cannot himself conduct the search based on his own bare bones affidavit. Solomon’s behavior does not fall within the ambit of the good faith exception of Leon, for he had no good faith reason to believe the magistrate had made a probable cause determination.

Id.

[¶ 19.] In the present case, West, as the affiant, was aware that the information was received from an informant. West detailed in his affidavit in support of the search warrant that he had extensive training and education as a law enforcement officer. West also testified at the motions hearing that he had training in preparing search warrants and he was familiar with what needed to be done to obtain a search warrant. West further testified that he had never worked with this confidential informant before, nor did he have knowledge that the informant had provided information on a prior occasion. The only information West had received on the informant’s credibility was from Men-zel who had stated “he was familiar with the subject and believed that the information that he’d get from him is going to be accurate.” Further, West did not mention the informant’s credibility or reliability in the application for the search warrant.⁴

[¶ 20.] The trial court found that the affidavit submitted by West was insufficient, but the good faith exception applied to render the search valid. We disagree with the trial court’s application of the good faith exception. To allow the good faith exception to apply in this case would be improper and send the wrong message. In other words, an officer could submit an inadequate affidavit to a magistrate, which the officer knows is inadequate, and then willy-nilly go out and conduct the search because he has a “good faith” shield against any subsequent challenge. Since there is no error shown on the part of the magistrate, the good faith exception found by the trial court would benefit the party whose conduct caused the error. We can not agree with this decision.

[¶ 21.] We reverse and remand.

[¶ 22.] SABERS, Justice, concurs. [¶ 23.] KONENKAMP, Justice, concurs in result. [¶ 24.] MILLER, Chief Justice, and GILBERTSON, Justice, dissent.

1 . An "anticipatory search warrant” has been defined as "a warrant that has been issued before the necessary events have occurred which will allow the constitutional search of the premises; if those events do not transpire, the warrant is void.” United States v. Garcia, 882 F.2d 699, 702 (2dCir.1989). This Court first encountered and accepted the use of anticipatory search warrants in State v. Engel, 465 N.W.2d 787 (S.D.1991).

2 . State has not appealed this trial court finding by filing a notice of review. In his dissent, Justice Gilbertson accuses the Court of setting a "new standard” that "a law officer ... possess a more sophisticated understanding of this area of the law than is required by a judge." Simply put, this is not the case. The Court is merely stating that an officer cannot withhold known vital information necessary to support a valid search warrant and then benefit from such conduct under the "good faith” exception. There is no "new standard,” rather the Court is simply agreeing with the trial court that the police officer prepared and filed a deficient affidavit. This decision merely says that the "good faith” exception is not intended as a mechanism to cover up deficient police work as found by the trial court in this case.

3 . A "bare bones” affidavit has been described as an affidavit which is " 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable^]' ” See United States v. Patty, 96 F.Supp.2d 703, 710 (E.D.Mich.2000). See also State v. Thieling, 2000 ND 106, 611 N.W.2d 861, 864-65 (2000) (quotation omitted) (stating that " '[sufficient information, rather than "bare bones” information must be presented to the magistrate;’ ‘[a]n affidavit expressed in conclusions without detailing underlying information is insufficient for probable cause.’ ”). Although the trial court did not specifically hold this to be a "bare bones” affidavit, it did find that the information was insufficient to establish probable cause and is in essence, a finding that this was a "bare bones” affidavit.

4 . In Leon, the United States Supreme Court noted that "the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” 468 U.S. at 916, 104 S.Ct. at 3417, 82 L.Ed.2d at 694. We reiterated this principle from Leon in Saiz where we recognized that " '[p]e-nalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.' ” Saiz, 427 N.W.2d at 827 (quoting Leon, 468 U.S. at 921, 104 S.Ct. at 3419, 82 L.Ed.2d at 697) (emphasis added). It is important to emphasize that unlike Saiz, where we upheld the good-faith exception to a situation involving police officer reliance upon the magistrate's error, we are presently faced with the officer's error. This error in preparation of the request for the search warrant logically falls under the purpose of the exclusionary rule; to deter police misconduct in preparing requests for search warrants. See Leon, 468 U.S. at 916, 921, 104 S.Ct. at 3417, 3419, 82 L.Ed.2d at 694, 697.