United States Court of Appeals Fifth Circuit F I L E D REVISED JULY 5, 2006 June 6, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 04-51008
UNITED STATES OF AMERICA,
Plaintiff - Appellee versus
CHERYL LEA POPE,
Defendant - Appellant
Appeal from the United States District Court for the Southern District of Texas
Before JOLLY, WIENER and DENNIS, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Cheryl Lea Pope entered a conditional plea
of guilty to a charge of conspiracy to manufacture methamphetamine,
reserving her right to appeal the district court’s denial of her
motion to suppress evidence obtained during a two-stage evidentiary
search of her residence. In the first stage, officers executed a
search warrant purportedly issued for the purpose of uncovering
evidence of a prescription-drug operation. At the outset of that
stage, officers observed evidence of a methamphetamine laboratory
in plain view. That evidence formed the basis of a second warrant
issued to search for evidence of a meth lab, the second stage of
the search. At the suppression hearing, the district court ruled that the
initial stage was unconstitutional because it was grounded in a
warrant issued on the basis of stale evidence. The court
nevertheless admitted the evidence from that unconstitutional
search in reliance on the good faith exception to the exclusionary
rule. Under that ruling, evidence from both stages of the search
of Pope’s residence was admitted.
The parties do not contest the district court’s determination
that the first stage prescription-drug warrant was unsupported by
probable cause. Instead, they dispute the district court’s
application of the good faith exception to the exclusionary rule to
the facts of this case. Specifically, Pope contends that the first
stage of the search does not qualify under the good faith exception
to the exclusionary rule, so that she is entitled to have all
evidence seized during both stages of the search suppressed. The
parties agree that if we reverse the district court and hold that
the initial stage of the search does not qualify under the good
faith exception to the exclusionary rule, Pope must be acquitted.
We so hold, and thus reverse and vacate Pope’s conviction and
sentence.
I. FACTS AND PROCEEDINGS
On June 25, 2003, Officer Michael Baird bought six
prescription pills for ten dollars from Pope as part of an
undercover investigation. There is no evidence in the record that,
2 after that single purchase, either he or any other law enforcement
personnel pursued the prescription-drug matter. Then, 78 days
later, Baird received a tip having nothing to do with prescription
drugs, viz., that Pope was cooking methamphetamine. Baird
acknowledges that he knew that he did not have probable cause to
obtain a search warrant to enter Pope’s home in search of evidence
of a meth lab. To circumvent that hurdle, Baird immediately began
drafting an evidentiary search warrant affidavit —— the first in
his career —— relating solely to the moribund prescription-drug
issue. Despite having done nothing about the prescription-drug buy
for 78 days, Baird stayed at work past midnight preparing a
prescription-drug search warrant affidavit, slept a few hours, then
timed his trip to a state magistrate’s home to arrive at seven
o’clock the next morning.
Crucially, Baird intentionally failed to disclose to the
magistrate the true purpose for which the officer wanted to search
Pope’s house: solely to look for and seize evidence of a meth lab.
Instead, he attested under oath that he was applying for “an
evidentiary search warrant... The purpose is to obtain evidence of
a crime that has already been committed,” i.e., evidence of the
stale prescription-drug buy.1 Only by this subterfuge was Baird
able to obtain a warrant to search Pope’s home for the undisclosed
purpose of seeking evidence of a meth lab.
1 Emphasis added.
3 Significantly, Baird did not hand off the tainted warrant to
other officers; rather, he personally went to Pope’s home to
execute the faux search for prescription drugs accompanied by a
team of officers fully dressed in the kind of protective gear used
to search for meth labs. When, as anticipated, they found evidence
of a meth lab in plain view, Baird immediately left the premises to
obtain a second warrant, this one to search for additional evidence
of the meth lab. Notably, there is no evidence in the record that
the police ever looked for, much less found, any evidence of the
prescription-drug crime for which Baird had obtained the initial
warrant.
Pope sought to suppress all the evidence because the facts in
the affidavit on which the prescription-drug warrant was issued
were stale, depriving Baird of probable cause to search Pope’s
residence for anything. Pope also insisted that, under the
particular facts of this case, the government could not rely on the
good faith exception to the exclusionary rule. When Pope’s counsel
questioned Baird as to his actual purpose of securing the
prescription-drug search warrant, the officer’s testimony confirmed
that he secured the warrant because he was tipped that Pope was
conducting a meth cook.
The district court correctly found that (1) the initial search
warrant was based on a sale of prescription drugs that occurred 78
days before Baird obtained the warrant, (2) the purpose for which
the magistrate issued the warrant was not to search for evidence of
4 a meth lab, but solely to search for evidence related to the stale
prescription-drug buy,2 and (3) Baird consciously withheld all
information about the meth lab and his suspicions in that regard,
because he knew that he did not have probable cause for a warrant
to search for evidence of a meth operation. Specifically, the
district court found that Baird “had received a tip that [Pope] was
cooking methamphetamine... Because he did not believe he had
probable cause to search the residence for evidence of meth
production, Baird did not tell the state district court judge about
his suspicions.” The court was also correct in holding that the
prescription-drug warrant lacked probable cause because the
information regarding the prescription-drug sale was stale.
Despite all this, the court went on to deny Pope’s motion to
suppress, purporting to rely on the good faith exception to the
rule excluding evidence obtained in a search grounded in an invalid
warrant. In so doing, the court held that none of the exceptions
to the good faith exception applied.
II. ANALYSIS
A. Standard of Review
When a district court grants or denies a motion to exclude
evidence, we review that court’s factual findings —— both explicit
2 The court, in its factual findings, highlighted Baird’s testimony that “[t]he search warrant wasn’t intending to go find methamphetamine. The intent of the search warrant was to find mere evidence of a previous buy” (emphasis added).
5 and implicit —— for clear error.3 We review its conclusions of law
de novo.4
B. Discussion
1. Law
The exclusionary rule requires courts to suppress evidence
seized on the basis of a warrant that is unsupported by probable
cause.5 The purpose of the exclusionary rule is to deter unlawful
police conduct. As the Supreme Court has repeatedly observed:
The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of the accused.6
The exclusionary rule is not without limits, however. As the Court
cautioned, “[w]here the official action was pursued in complete
good faith, however, the deterrence rationale loses much of its
force.”7 Therefore, if the officers obtained the evidence “in
objectively reasonable good-faith reliance upon a search warrant,”
3 United States v. Reyes-Ruiz, 868 F.2d 698, 701 (5th Cir. 1989) (noting that we review express and implied factual findings for clear error). 4 United States v. Alvarez, 127 F.3d 372, 373 (5th Cir. 1997). 5 Mapp v. Ohio, 367 U.S. 343 (1961). 6 United States v. Leon, 468 U.S. 897, 919 (quoting United States v. Peltier, 422 U.S. 531, 539 (1975)). 7 Id. (quoting Peltier, 422 U.S. at 539) (emphasis added).
6 the evidence is admissible “even though the affidavit on which the
warrant was based was insufficient to establish probable cause.”8
The “good faith inquiry is confined to the objectively
ascertainable question whether a reasonably well-trained officer
would have known that the search was illegal despite the
magistrate’s authorization.”9 In conducting the good faith
inquiry, the court may examine “all of the circumstances”
surrounding the issuance of the warrant.10
“[S]uppression of evidence obtained pursuant to a warrant
should be ordered only on a case-by-case basis and only in those
unusual cases in which exclusion will further the purposes of the
exclusionary rule.”11 The Supreme Court noted in Leon that “it is
clear that in some circumstances the officer will have no
reasonable grounds for believing that the warrant was properly
issued.”12 Among the “circumstances” to which the Court referred
are those in which the magistrate issued a warrant in reliance on
a deliberately or recklessly false affidavit.13 This is because a
8 United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992). 9 Leon, 468 U.S. at 922 n.23. 10 Id.; accord United States v. Payne, 341 F.3d 393, 400 (5th Cir. 2003). 11 Leon, 468 U.S. at 918. 12 Id. at 922-23. 13 Id. at 923.
7 reasonably well-trained officer with objective knowledge that a
search warrant has been issued on the basis of (1) deliberate or
reckless falsehoods, (2) material omissions, or (3) both, would
conclude that the search is unlawful under the magistrate’s flawed
authorization.
2. Merits
“[I]t is one thing to admit evidence innocently obtained by officers who rely on warrants later found invalid due to a magistrate’s error. It is an entirely different matter when the officers are themselves ultimately responsible for the defects in the warrant.”14
As noted, the district court held that “the good faith
exception applies to the... search warrant.” In its conclusions of
law, the district court specified the circumstances in which the
good faith exception did not apply, including “when the magistrate
or state judge issues a warrant in reliance on a deliberately false
affidavit.” And the government expressly argued to the district
court that “[t]here was no evidence of deliberate recklessness...
in the affidavit.” Pope contends that the good faith exception
does not apply because Baird’s representation in his search warrant
affidavit that “the purpose [of the search] is to obtain evidence
of a crime that has already been committed,”15 i.e. the 78-day-old
drug-buy, was deliberately or recklessly false. This, according to
14 See United States v. Reilly, 76 F.3d 1271, 1281 (2d Cir. 1996). 15 Emphasis added.
8 Pope, is because the officer’s conceded —— but undisclosed ——
purpose of the search was only to uncover evidence of the meth lab.
Although the district court failed to make an express finding
that Baird did not prepare a deliberately or recklessly false
affidavit, such a finding is necessary to its holding that the good
faith exception applied. “Where the trial court makes no direct
reference to a claim but must necessarily have found a certain
fact, the appellate court will imply such a finding” and may review
the implied factual finding.16 Review of the record, including (1)
Baird’s testimony at the suppression hearing, (2) the circumstances
surrounding the warrant application process, and (3) the execution
of the search, reveals that this implicit factual finding is
clearly erroneous. Instead, the contrary conclusion is revealed:
The record establishes that (1) Baird deliberately lied when he
stated to the magistrate under oath that the purpose of the search
was to uncover evidence of the prescription-drug buy, and (2) Baird
deliberately omitted key material information when he failed to
inform the magistrate of the actual purpose of the search and of
the informant’s tip. Moreover, because the officer who would now
cloak himself in the good faith exception is Baird, the very same
officer who perpetrated the deliberate falsehoods and omissions, we
16 Reich v. Lancaster, 55 F.3d 1034, 1057-58 (5th Cir. 1995); see also Clinkenbeard v. Cent. S.W. Oil Corp., 526 F.2d 649, 651-52 (5th Cir. 1976) (implying a factual finding that the district court did not state, but was necessary to its conclusion).
9 are satisfied that Baird had objective knowledge of the
prescription-drug warrant’s illegality.
(a) Baird’s Testimony at the Suppression Hearing
We know from Baird’s own lips that he lied to the magistrate.
When Pope’s counsel asked Baird why he got the search warrant when
he did, Baird responded that “[w]e had received information several
times that Ms. Pope was cooking methamphetamine. We received
information that, at that time, there was a possibility that she
was cooking methamphetamine.” And, Baird temporized, “[w]e had
information that did not rise to the level of probable cause that
they were cooking methamphetamine.” On hearing this testimony,
Pope’s counsel asked:
Q: So you had this information which you believed fell short of probable cause, so in lieu of that, you sought an evidentiary search warrant on the basis of the transaction that had occurred 78 days ago?
A: I applied for a search warrant, for an evidentiary search warrant for evidence of a previous narcotics purchase.
Q: Were you instructed to do that by one of your superiors?
A: No, sir. It was my idea.
When Baird further emphasized his suspicion that Pope was cooking
meth at the time that he applied for the warrant, Pope’s counsel
asked him, “So why not tell the judge?” Baird responded, “I did
not want to -- I wanted the affidavit to stand on its own.” As
Baird explained during his testimony, “[t]he search warrant wasn’t
10 intending to go find methamphetamines. The intent of the warrant
was to find evidence of a mere previous buy [of prescription
drugs].”17 These statements confirm that searching for evidence of
the prescription-drug operation was not the purpose, or even a
purpose, for which Baird sought the warrant at all. Instead,
stating in his affidavit that the purpose of the search was for
evidence of the prescription-drug operation was a tactical maneuver
Baird used to avoid the probable cause prerequisite that, by his
own admission, he could not satisfy.
Notably, there is more than Baird’s affirmative testimony that
leads us to this conclusion. What Baird failed to say during the
suppression hearing is equally as revealing. When asked whether he
seized anything from the residence, Baird replied, “Yes. We seized
plain view evidence of a methamphetamine lab.” He did not testify
that he seized anything relating to prescription drugs. In fact,
despite repeated opportunities to testify that the real purpose of
the search was to uncover prescription drugs, Baird never testified
directly to that effect. Indeed, although Baird testified that
“[w]e had an ongoing methamphetamine investigation with Ms. Pope
and her family,” he never stated —— nor is there any evidence in
the record —— that the prescription-drug investigation extended
beyond the 78-day-old purchase of June 25.
Baird’s suppression hearing testimony absolutely puts the lie
17 Emphasis added.
11 to his sworn statement in the warrant affidavit that the purpose of
the search was to find evidence of the previous prescription-drug
buy. A careful review of the entire record makes clear that the
only purpose of the search was to find evidence of the suspected
meth lab. Accordingly, the district court clearly erred when it
implicitly found that Baird did not deliberately or recklessly
mislead the magistrate. At the same time, the district court’s
erroneous factual finding led to that court’s legal error in
holding that Baird’s two-warrant search fell within the good faith
exception.18
(b) The Warrant Application
Even if Baird’s testimony were not enough, the undisputed
circumstances surrounding Baird’s warrant application further
confirm our conclusion. As soon as Baird was tipped that Pope was
cooking a batch of meth, he remained on the job and worked past
midnight preparing the deceptive warrant affidavit, then, by
design, arrived at the issuing magistrate’s house at seven o’clock
in the morning to get the magistrate to sign the warrant.
Obviously, none of Baird’s overtime rushing would have been
necessary if gathering evidence about the old undercover
prescription-drug buy were the true purpose for obtaining the
18 Compare United States v. Breckenridge, 782 F.2d 1317, 1322 (5th Cir. 1986)(declining to find that the warrant affidavit contained deliberately or recklessly false information because the officer’s testimony at the suppression hearing was consistent with the warrant affidavit).
12 warrant: Alone, the urgency with which Baird confected the warrant
application immediately after receiving the meth tip further belies
his sworn statement to the magistrate that the purpose of the
search was to uncover evidence of the prescription-drug buy.
(c) The Execution of the Search
Even if Baird’s testimony and the circumstances of the warrant
application were not enough, the undisputed circumstances
surrounding the execution of the search of Pope’s home confirm
beyond cavil that the purpose for obtaining the warrant was to
search for a meth lab. First, Baird and his fellow officers
arrived to execute the search wearing protective gear in
anticipation of finding a meth lab. Second, once they found plain-
view evidence of the meth lab during the initial protective sweep,
Baird and a fellow officer left the premises to prepare another
affidavit and obtain a second search warrant, this one for the meth
lab. As already noted, there is no evidence before us to suggest
that the officers ever looked for —— much less found —— indicia of
a prescription-drug operation. This is confirmed by record
photographs taken in the process of executing the search.19
19 The photographs depict (1) an officer dressed in gear designed to protect the officer from hazardous materials, (2) meth lab equipment on Pope’s kitchen counter, (3) a “burn barrel”, (4) charred remains of pseudoephedrine blister packs, (5) a trash can likely containing materials used in the manufacture of meth (the contents of the trash can are difficult to discern from the photograph, but Baird’s testimony identifies such items in a trash can) (6) a school bus that Pope’s son converted into a residence, (7) license plates, and (8) the front of Pope’s residence and the yard.
13 Ultimately, this was an obviously pre-planned “warrant two-step” in
which Baird misled the magistrate to gain access to a residence for
which there was no probable cause to search.
(d) Conclusion on the Merits
The good faith exception is not an instrument that law
enforcement may use to manipulate the warrant application process
and thereby circumvent the constitutional requirement of probable
cause. As the Second Circuit poignantly observed, the good faith
exception “is not an excuse if the police are not frank with the
magistrate in the proceedings to obtain the warrant.”20 There is
simply no way for this case to be shoe-horned into the good faith
exception to the exclusionary rule: Under these discrete facts, a
reasonably well-trained officer in Baird’s exact circumstances
magistrate’s authorization. This is because the attesting officer
obtained the warrant by way of (1) a deliberate falsehood, i.e.,
the statement that purpose of the search was to uncover evidence of
a prescription-drug operation, and (2) a deliberate omission of
material fact, i.e., that the actual purpose of the search was to
uncover evidence of a meth lab. As the Supreme Court has
unequivocally explained, an officer would have “no reasonable
grounds for believing that the warrant was properly issued... if
the magistrate or judge in issuing a warrant was misled by
20 Reilly, 76 F.3d at 1281.
14 information in an affidavit that the affiant knew was false or
would have known was false except for his reckless disregard of the
truth.”21
Further, it is critical that we suppress evidence obtained
pursuant to a warrant that was procured only by misleading the
magistrate as to the purpose of the intended search. This is
because a judicial officer cannot properly perform his gate-keeping
function of making the probable cause determination if the stated
object of the requested search is false or incomplete: The facts
supporting probable cause and the object of the search are
inextricably linked in the probable cause calculus. Thus, for a
judicial officer to determine properly whether probable cause
exists to conduct a search, law enforcement must forthrightly
inform such magistrate of, inter alia, the actual purpose of the
search.
Finally, we cannot overemphasize the fact that the very
officer who here claims good faith reliance on the warrant is the
self-same officer who duped the magistrate with that officer’s
tainted affidavit, thus producing the equally tainted warrant on
which the deceitful officer now seeks to rely. This is precisely
the type of case in which suppression must be granted to serve the
deterrent purpose of the exclusionary rule: Exclusion of the
evidence here should ensure that future “Officer Bairds” will
21 Leon, 468 U.S. at 923.
15 disclose fully and truthfully all the pertinent information that
they are duty-bound to supply judicial officers when seeking search
warrants.22 As this case does not fit within the good faith
exception to the exclusionary rule, suppression is the appropriate
remedy.
3. The Dissent
With respect, we see the dissent as mischaracterizing the law,
the record, and this opinion. First, the dissent relies entirely
on warrantless pretextual traffic stop jurisprudence in its
critique, viz., Whren v. United States.23 Crucially, the dissent
fails to address the palpable distinction between pretextual
vehicle searches and the searches of private residences pursuant to
a judicially authorized warrant, the kind of searches that lie at
the core of the Fourth Amendment’s protection. Traffic stop cases
such as Whren stand for the principle that, when law enforcement
has a legally justifiable (1) presence at the scene, and (2) reason
to stop a vehicle, the presence of the officer’s ulterior or
additional motive for that stop neither strips law enforcement of
its legal justification for the warrantless stop nor subjects the
22 See United States v. Barth, 26 F.Supp.2d 929, 941-42 (W.D. Tex. 1998) (declining to apply the good faith exception because to do so would condone an FBI policy that prohibited full and frank disclosures to members of the judiciary and the Justice Department). 23 517 U.S. 806 (1996).
16 fruits of the search to suppression.24 The Whren court refused to
undertake the inquiry into whether an officer plausibly had the
proper state of mind to justify a traffic stop because his actions
were legally justified from the outset by probable cause.25
In the instant case, Baird’s actions were not legally
justified from the outset because he lied in and omitted material
information from the affidavit with which he secured the initial
warrant. Without a valid warrant, he had no justifiable reason to
be at Pope’s residence in the first place. Absent any legal
justification to enter and search Pope’s residence, all that
remains is Baird’s objectively proved purpose of searching Pope’s
residence for the meth lab. If we were to rely on traffic stop
jurisprudence to resolve the legality of this search, Delaware v.
Prouse26 would be more appropriate. There, an officer with neither
probable cause nor reasonable suspicion stopped a vehicle and, when
he reached the vehicle, saw marijuana in plain view and seized it.27
The Court held that suppression was required because the officer
lacked probable cause or reasonable suspicion to stop the car in
the first place, without which there could be no “plain view”
24 Whren, 517 U.S. at 812. 25 Id. at 814. 26 440 U.S. 648 (1979). 27 Id. at 651.
17 exception.28
The dissent also accuses this writing of advancing a
subjective determination on the basis of what we perceive to be
Officer Baird’s state of mind. But, we obviously are not
conducting a subjective inquiry into Officer Baird’s mindset: Quite
to the contrary, we are objectively determining whether Baird
deliberately or recklessly made false statements or material
omissions, or both, that misled the magistrate into signing the
search warrant. To do so, we properly consider the officer’s
statements under oath in his affidavit, the sworn testimony he
provided at the suppression hearing, and other relevant evidence.
Only then must we consider whether, under the entirety of these
circumstances, a reasonably well-trained officer would objectively
and in good faith rely on the search warrant as legally issued.
Ours is a purely objective inquiry; there is simply no other way to
determine whether an officer has deliberately or recklessly misled
a magistrate. Therefore, the question here is not “What was
Officer Baird’s subjective state of mind?”, but rather “Would a
reasonably well-trained officer rely on a warrant that he
personally obtained by deceit?” As the Supreme Court explained in
Leon, the answer is no. Indeed, to hold otherwise would be an
insult to every reasonably well-trained law enforcement officer.
Further, even though we need not debate the question here
28 Id. at 663.
18 because our inquiry is objective, there is solid jurisprudence
indicating that actual good faith is a threshold inquiry when
determining whether the good faith exception to the exclusionary
rule applies, despite the dissent’s insistence to the contrary. A
solid line of cases holds that there is both a subjective and an
objective component to the good faith exception. In United States
v. Williams,29 a pre-Leon case, this court held that there is a good
faith exception to the exclusionary rule, and that to fit within
the exception the officer must be (1) in actual good faith, and (2)
acting in objectively reasonable reliance on the warrant. Leon did
not overrule this dual standard. Indeed, Leon identified
circumstances in which the good faith exception would not apply
that turn on an officer’s actual good faith. For example, the
Court noted that the good faith exception would not apply if an
officer obtained a search warrant with a “bare bones” affidavit,
and then assigned the search to other officers who were unaware of
the warrant affidavit’s deficiencies.30 Similarly, an officer who
has engaged in magistrate shopping may not be entitled to the good
faith exception to the exclusionary rule.31
Since Leon, we have observed that a police officer’s actions
must be in both subjective and objective good faith to come within
29 622 F.2d 830, 841 n.4a (5th Cir. 1980). 30 468 U.S. at 922 n.24. 31 Id. at 922 n.23.
19 the good faith exception.32 The Sixth Circuit has explicitly
recognized that there are two components to the Leon good faith
inquiry: First, whether the police actually acted in good faith,
and second, whether police reliance on the warrant was objectively
reasonable.33 Ultimately, the dissent relies heavily on the
fallacious principle that actual good faith is irrelevant to the
good faith exception to the exclusionary rule. Although that
proposition is not at issue here, both law and logic indicate that
actual good faith is indeed a relevant consideration when deciding
whether to apply the good faith exception to the exclusionary rule.
The dissent further attacks our conclusion that Officer Baird
lied as engaging in “appellate fact-finding.” To that we have two
responses. First, we would respectfully remind the dissent that
our purpose is to review the district court’s factual findings.
The district court’s failure expressly to articulate its finding
that Baird did not deliberately or recklessly mislead the
magistrate does not insulate it from review on appeal for clear
32 United States v. Benavides, 854 F.2d 701, 702 (5th Cir. 1988) (“The execution of the warrant in subjective and objective good faith brings the actions of the officers within the good- faith exception to the exclusionary rule.”) (citing to Leon and Williams); see also United States v. McQuagge, 787 F.Supp. 637, 650-51 (E.D. Tex. 1992) (recognizing that the good faith exception has two components: the requirement that the officers act objectively reasonably and the requirement that they act in subjective good faith, and ultimately suppressing the evidence because the officers did not act in subjective good faith). 33 United States v. Leake, 998 F.2d 1359, 1367 (6th Cir. 1993).
20 error: Such a finding is indispensable to the court’s legal
conclusion that the good faith exception applied. Accordingly, the
entire record is before us on appeal, and we are entitled to rely
on that record in determining whether the district court erred
factually and legally. Doing so amounts to conscientious review ——
not “appellate fact-finding.”
Second, the dissent attacks only our conclusion that Officer
Baird lied —— it does not challenge the fact that Officer Baird
omitted key material information, i.e., the purpose of his search
(or, as the dissent characterizes it, Baird’s “unstated, underlying
motive.”)34 Thus, at the very least, the dissent would have us
confect the following rule: A law enforcement officer may omit from
his affidavit key material information that pertains to the purpose
of a search in securing a warrant, then cynically “throw himself on
the mercy” of the good faith exception to the exclusionary rule ——
never mind that the entire affidavit, including the officer’s
statement of purpose, is a declaration made under oath before a
judicial officer. The dissent points to no law to the effect that
an officer may omit critical material information from his warrant
affidavit and then seek shelter under the good faith exception.
This is because there is none: The law is well established that
omitting critical information from the warrant affidavit deprives
34 Infra at __.
21 the officer of the benefit of the good faith exception.35 (This is
likely a primary reason why the dissent relies singularly and
without explanation on the inapposite analogy of the warrantless
pretextual traffic stop to advance its view.)
Additionally, donning blinders to an officer’s false and
misleading statement of purpose in his warrant affidavit would be
untenable because, as noted above, a judicial officer cannot
properly perform his gate-keeping function in making the probable
cause determination if the stated object of the search is false or
materially incomplete. Furthermore, disregarding a significant
difference between the stated purpose and the actual purpose of a
search ignores the Supreme Court’s specific instruction in Leon
that “in making [the good faith] determination, all of the
circumstances... may be considered.”36
Finally, the dissent argues that we should not consider
whether Officer Baird is entitled to the Leon good-faith exception
because, according to the dissent, it was not raised below and the
district court “did not think for a moment” about it.37 Review of
35 See, e.g., United States v. Davis, 226 F.3d 346, 351 (5th Cir. 2000) (noting that “[t]he necessary falsehood can be perpetrated by omission as well as commission” in applying Leon). 36 468 U.S. at 922 n.23 (emphasis added). 37 We note that the dissent points to Pope’s counsel’s statement at oral argument that Baird thought he was doing the right thing to bolster its conclusion that Baird was in good faith under the law. If not worse, the dissent’s reliance on counsel’s subjective opinion and Baird’s subjective belief that he was doing the right thing is patently inconsistent with its
22 the record, however, reveals that the issue of Officer Baird’s
deceptive behavior was before the district court. Specifically,
Pope argued in her motion to suppress that the Leon good-faith
exception did not apply, and the government argued in response that
“[t]here was no evidence of deliberate recklessness... in the
affidavit.” At the suppression hearing, Pope highlighted Officer
Baird’s deceptive behavior in securing the warrant and, in closing,
explained that:
all of [the statements in the affidavit] are predicated upon violations of controlled substance or marijuana violations, and that’s not what we have here. They are making the jump from this relatively insignificant delivery of six pills for $10 to a major drug dealer case, and there is just nothing in the affidavit that would permit somebody to make that jump... That is our argument, really.
Accordingly, the issue whether Officer Baird deliberately or
recklessly disregarded the truth or omitted information was
sufficiently raised for the district court’s consideration.
III. CONCLUSION
The entire search conducted at Pope’s residence lacked
probable cause. In executing that search, Officer Baird cannot, in
good faith, reasonably rely on the flawed warrants that facially
authorized it —— especially when his personal actions directly
vociferous objection to any subjective component to making the good faith determination. More importantly, when not isolated out of context, it is obvious that Pope’s counsel was not conceding that Baird was in good faith under the law. As counsel correctly explained during the suppression hearing, “good faith [cannot] be equated to the uninformed, inexperienced, naive belief that you are doing the right thing.”
23 caused the vices in those warrants. Accordingly, we reverse Pope’s
conviction and vacate her sentence.
REVERSED; SENTENCE VACATED.