MEMORANDUM OPINION & ORDER
AMUL R. THAPAR, District Judge.
The sole question here is whether an objectively reasonable officer would have relied on the search warrant in this case. The answer to that question is no. Thus, the defendant's motion to suppress must be granted. R. 52.
Both the defendant, James E. Rice, and the government agree that the warrant issued in this instance was lacking in probable cause. See R. 52 (motion to suppress) and R. 54 (government's response). The facts supporting their determination are as follows:
On December 16, 2008, Officer Bryan Bowling, a four-year veteran of the Kentucky Department of Fish & Wildlife, submitted an affidavit to get a search warrant for: 1120 Turkey Fork Road, Scalf, Kentucky. See R. 38, Ex. A. In his affidavit, Officer Bowling stated the following:
R. 38, Ex. A at 2. Officer Bowling got a search warrant to seize "any and all evidence of illegally harvested wildlife including but not limited to, elk or parts thereof and any other criminal activity." R. 38, Ex. B at 1. The search warrant and the affidavit listed the location to be searched as: 1120 Turkey Fork Road, Scalf, Kentucky. See R. 38, Exs. A and B. Importantly, it is undisputed that neither the warrant nor the affidavit stated that the premises to be searched were the defendant's residence (or any other reason why the officer believed
On December 17, 2008, Officer Bowling executed the search warrant at the defendant's residence. R. 38, Ex. B at 2. He seized, among other things, three firearms. Id.
On August 27, 2009, a grand jury indicted Rice for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). R. 1. On February 24, 2010, Rice filed the instant motion to suppress for lack of probable cause. See R. 52. On March 5, 2010, Rice stated that no evidentiary hearing was necessary since his motion is "purely a four corners matter." R. 55 at 1. The government did not request a hearing for this motion in its response. R. 54 at 3 (the government agreeing that a "review of the sufficiency of the evidence supporting probable cause is limited to the four-corners of the affidavit." (citing United States v. Frazier, 423 F.3d 526, 531 (6th Cir.2005))). During a telephonic conference with the parties on March 16, 2010, the government re-stated that the Court should only consider the evidence contained within the four corners of the affidavit when it rules on this motion. R. 67 at 5 ("I think [the good faith analysis] is confined to the four corners in this particular instance"). Following the call, Rice filed a reply in support of his motion. See R. 64.
"The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific `things' to be searched for and seized are located on the property to which entry is sought." United States v. Savoca, 761 F.2d 292, 297 (6th Cir.1985) (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978)). In this case, the parties agree that the warrant lacked probable cause since the affidavit did not tie the place to be searched to the defendant's alleged illegal activity. See R. 54 at 3 (government agreeing that nothing in the affidavit ties Rice to the place searched).
Even without probable cause, the evidence from a search can still be saved from suppression. "[T]he exclusionary rule should not bar the government's introduction of evidence obtained by police officers acting in objectively reasonable reliance on a search warrant that is subsequently invalidated." United States v. Laughton, 409 F.3d 744, 748 (6th Cir.2005) (citing United States v. Leon, 468 U.S. 897, 918-921, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). Under Leon, the sole issue is whether the officer reasonably believed that the warrant was properly issued. Id. at 752 (quoting United States v. Carpenter, 360 F.3d 591, 598 (6th Cir.2004) (en banc) (Gilman, J., concurring)). Such reliance is not reasonable when the affidavit itself is severely "lacking in indicia of probable cause." Id. at 748.
In order for the search to be saved under Leon, there must be "some modicum of evidence, however slight, to connect the criminal activity described in the affidavit to the place to be searched." Id. at 749. Here, it is undisputed that there is no such evidence in the affidavit. The affidavit states that the defendant "sold or pawned several sets of elk antlers to the T & L pawn shop." R. 38, Ex. A at 2. Next, it states that the officer confirmed that: (1) the "freshly removed" elk antlers were at the pawn shop, and (2) the defendant had not received permission to "elk hunt." Id. The affidavit fails in two critical ways: (1) it fails to indicate that the place to be searched is Rice's residence, and (2) it fails to demonstrate why evidence of the crime would be found at this location.
To uphold this search, the Court would have to find that it was reasonable for an
This case is unlike the cases where an officer knew from the warrant that it was the person's residence and simply inferred that evidence of a crime would be found there.
The government's response is that "the absence of any statement listing the premises to be searched as the Defendant's residence was merely an oversight or scrivener's error on the part of the affiant, and therefore do [sic] not preclude application of the good-faith exception." R. 54 at 5. Indeed, in some cases, a scrivener's error may not warrant suppression. For example, in Frazier, the Sixth Circuit did not apply the exclusionary rule because punishing that agent for a "ministerial oversight would have no foreseeable effect on future police misconduct." 423 F.3d at 535. But Officer Bowling's omission is unlike the scrivener's error in Frazier. There, six affidavits failed to mention that the police tape recorded two of the controlled buys that a confidential informant performed. Id. at 530. The magistrate judge issuing the warrants asked the agent to revise the affidavits to state that the two buys were tape recorded. Id. The
The government also seems to dismiss the error in the affidavit as a mere technicality because no one disputes the fact that Officer Bowling knew the place to be searched was Rice's residence. Regardless, the officer had to state that he sought to search Rice's residence in the affidavit or bring evidence to show that the issuing judge knew something relevant that was not in the affidavit. Courts are not permitted to determine how much an affiant knew or when and how they learned it. Laughton, 409 F.3d at 752. The officer's state of mind is not a consideration since the Leon exception is an objective test.
It is important to note that the Court is not finding that the officer acted in bad faith. Rather, the Officer Bowling's reliance on the warrant appears to be in "good faith"—but just not reasonable. So that begs the question, why suppress? See, e.g., United States v. Carr, 355 Fed.Appx. 943, 949-51 (6th Cir.2009) (Thapar, D.J., dissenting) (noting the purpose of suppression is to deter wrongful police conduct). First off, Laughton (and similar holdings) compels suppression in this instance. See, e.g., United States v. Bethal, 245 Fed.
Second, the Fourth Amendment's protections are at their highest when the government comes knocking at a person's home. The home is a person's castle.
The motion to suppress will be granted because the affidavit failed to tie the defendant's alleged illegal activity to the premises searched—his home. As such, there is no need to consider the other allegedly deficient aspects of the affidavit that the defendant raises. For these reasons, it is