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Memory Lane

Remember the good old days, when the courts would throw out a search, even if the police had a warrant?  Those days pretty much ended a quarter century ago, when the Supreme Court handed down US v. Leon, establishing a "good faith" exception to the warrant requirement:  the exclusionary rule wouldn't be applied if the police acted "in reasonable reliance on a search warrant issued by a detached and neutral magistrate," even if another court later determined that the  warrant shouldn't have been issued because probable cause was lacking.

Well, those days might be back again, or at least they were for Joan Kelly.  The cops had obtained a search warrant for Kelly's house, which, the affidavit recited, was based on "numerous citizen complaints for the above-described premises over the past six to nine months," plus a trash pull which revealed "one large plastic bag with suspected marijuana residue," a bag so large, it should be mentioned, that it was "indicative of trafficking activity."  They got a warrant, tossed the place, and Kelly found herself charged with trafficking in valium, percocet, oxycodone, and the demon weed.

The trial judge, in turn, tossed the search, and last week the 8th District unanimously affirmed in State v. KellyThe court holds first that the affidavit doesn't establish probable cause, and secondly that the cops couldn't have had a good faith belief in the validity of the warrant.

You can nitpick with the court's decision, such as its observation that the affidavit "failed to state how many trash bags were pulled in order to find one clear, plastic bag with suspected marijuana residue."  It's not clear why that would matter, assuming the truth of the officer's observation that the size of the bag itself indicated drug trafficking.  Would that observation be diluted if the bag was found in one of five trash bags or one of two?

What you come away from with Kelly is the impression that the case really turned on lousy police work.  Despite the supposedly lengthy record of complaints, the cops never bothered to conduct any surveillance of the premises to document the allegations.  They hadn't even bothered to test the supposed marijuana bag.  Had they done both, the case might well have had a different outcome, especially since the court was able to easily distinguish away two cases the state relied on, where the cops had done surveillance and had tested the items they'd gotten from the trash pull for the presence of drugs.

What's most helpful in Kelly, though -- to the defense bar, at least -- is the court's approach to the good faith exception.  Leon itself established three basic "exceptions" to the good faith exception:  it didn't apply if the police used knowingly false statements to obtain the warrant, if the magistrate abandoned his "neutral and detached" role, or if the warrant is "so lacking in indicia of probable cause as to render a belief in its validity objectively unreasonable." 

The latter is the trickiest of the three, but it should also be the one most rarely applied.  The good faith exception is premised on the idea that the purpose of the exclusionary rule is to deter police misconduct, and there's no purpose to deterrence if the police do exactly what they're supposed to do:  present the facts to a magistrate and get a warrant.  It should be an unusual case where the police should know that the facts supporting probable cause are so lacking that they don't have a right to rely on the magistrate's determination.

Instead of focusing on whether the officers had a right to rely on the magistrate, the court in Kelly focuses on whether the police should have gone to the magistrate in the first place:  "We find that the State of Ohio failed to demonstrate good faith on Mendoza's part in obtaining the search warrant."  That might not seem like a significant distinction, but a clever attorney -- or an unsuspecting judge -- can wind up reading the magistrate out of the whole equation.  Again, the idea behind the good faith exception is whether the police should have been able to rely on the fact that the magistrate made a determination of probable cause, and if you never get to that issue -- if you focus instead on whether the police should have even sought the warrant -- you've gained an advantage you wouldn't ordinarily have.  This isn't the first time the court's used that approach; it did the same thing, using virtually identical language, just last year in State v. Alexander

Kelly and Alexander are certainly helpful to defense lawyers, but an even better case is the 8th's 2001 decision in  State v. ReniffIn addition to the late Judge Kilbane's cogent and detailed analysis of Leon, the reader will be rewarded by a Judicial Opinion Cage Match Smackdown between her and the dissenting judge, future Supreme Court Justice Terrence O'Donnell.  I mean, seriously, folks, if this had happened a couple hundred years earlier, one of them would've had to challenge the other to a duel.

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