The Leon exception has always been somewhat perplexing to me. At least its application. I understand the underlying rationale: that we rely upon the magistrate to sort out the good warrants from the bad, so if it's a close call, we're not going to suppress the evidence. Fair enough. You can agree or disagree with this rule as a policy matter, but I get from whence it's coming.
The harder part for me is deciding when the exception applies on a particular set of facts. Maybe that's because I have a particular view of police work, at least insofar as warrants are concerned. When a police officer wants one, she wants one. She cares very little (if at all) about the particular intricacies of the Fourth Amendment. She just wants to uncover evidence of a crime. So she dumps whatever information she has into an affidavit and gives it a shot. Or at least that's my theory.
She may admittedly have a sense of how likely she is to successfully obtain the warrant. A theory that may perhaps be based -- incredibly loosely -- on whatever she's been taught (or learned) about the application of the Fourth Amendment. There may be some occasions where she (or her superior) says: "This isn't even worth the effort. No way I'm going to get a warrant." But on those occasions she's not likely to seek one. There may be other occasions where she (or her supervisor) says: "This seems like a stretch. But it's worth a shot. Maybe I'll get lucky." Those are the ones that may raise the Leon rule, at least for those occasions in which she in fact succeeds.
Leon says that if it's clear, then there's suppression. But, again, I think it's incredibly rare for officers to seek warrants when it's totally clear. (Put to one side cases of perjury in the affidavit etc.) Sure, they may seek a warrant in circumstances in which they're not positive, or think there's only a twenty percent chance that one will issue. But that's why we have judicial officers: to decide these things. The policy behind the good faith exception seems to apply in such cases.
So what to make of the exception? It seems like it almost necessarily swallows the rule. If they bothered to apply for the warrant, it was probably at least somewhat unclear, so no suppression. And if they didn't think it worth the effort to apply because it was so clear, then there's no warrant, so no suppression exists there either. It seems like virtually every case in which a warrant is issued it'll be sufficiently unclear such that the exception will apply.
Those were my thoughts when I read this opinion.
Everyone -- or at least, every Article III judge to consider the issue -- agrees that the warrant here wasn't sufficient. As indeed it wasn't. It was a whole lot of information that loosely tied the participants to evil events (that they were bad dudes pervades the affidavit), but no probable cause to tie them to a particular crime that a search would help prosecute. But the magistrate thought otherwise, so a warrant issued, and evidence (albeit of a different crime) was found, so now we've got to decide whether to suppress.
The district court thinks the good faith exception applies. The Ninth Circuit doesn't. The latter thinks it's pretty darn clear.
I don't know. My view on the issue is undoubtedly muddled by (1) my respect for the relevant district court judge -- Judge Wu -- who's an extremely bright (and conscientious) guy, and (2) my fuzzy doctrinal thoughts about the Leon exception itself, as revealed above. Both of these things make me think: "Really? Would a reasonable police officer really know that this warrant was wrongfully obtained? As opposed to merely thinking that it's unclear and hence worth a shot?"
Read the opinion and see if your thoughts on the issue reach a clearer conclusion than mine. I usually have a pretty good sense about whether an opinion's right or wrong. Especially when it's unanimous.
But not here.
POSTSCRIPT - An alert reader also noticed that the opinion says that the search warrant here was signed by "a judge on the California Court of Appeal." This is apparently authorized, but it still seems unusual -- I don't recall seeing a similar appellate-signed warrant in the past. So I did some digging. The Culver City Police Department apparently got the warrant -- actually, more than one -- from Justice Paul Turner in 2009. Justice Turner also gave 'em authority to serve it at night. Justice Turner is the presiding judge in Division Five of the Second District. He also lives in Culver City. I can't tell why he's regularly issuing search warrants (as opposed to the hundreds of other lower-level judicial officers in Los Angeles), but presume there's a reason. As a policy matter, I'm not sure I really want my appellate judges deciding whether to issue search warrants. I'm sure they have the expertise -- after all, most of 'em (like Justice Turner) were lower-level judges previously. But unless there's some special reason to get them involved, I would generally prefer that judges on the appellate courts stick to deciding cases rather than getting personally involved in advancing a criminal prosecution.
(Judge Berzon's reference to a "judge" on the California Court of Appeal is technically accurate, though the preferred term is "justice". Just like you could call Justice Scalia a "judge" (since he is one), but might want to use the term "justice" instead. At least that's better than the United States' brief in a related case. Which referred to Justice Turner as sitting on the California Court of Appeals.)
