Following the denial of his motion to suppress, Ronnie K. Hongo, Jr., conditionally pleaded guilty to possessing methamphetamine with the intent to distribute and using and carrying a firearm in connection with a drug- trafficking offense. He was sentenced to 180 months’ imprisonment and a five-year term of supervised release. On appeal, Hongo challenges the denial of the motion to suppress, urging that the district court erred in applying the good faith exception to the exclusionary rule. The 5th affirmed. (no facts provided)
Before we get to analysis…
When officers use a search warrant signed by a Judge, they are getting probable cause reviewed by an independent Judicial source. Thus, as long as the officer is acting in good faith, the warrant will normally not be excluded (even if it turns out that the warrant was invalid…the Court protects the officer and the items from being excluded since you got this review from a Judge).
There are four exceptions to this general rule. In other words, even with a warrant signed by a Judge, the officer is not acting in good faith if any of the below occurs and the items can be excluded under the exclusionary rule:
1) Police mislead or provide false information to the judge issuing the warrant;
2) The judge abandons his judicial role;
3) The affidavit is so lacking in probable cause as to render belief in its existence unreasonable (bare-bones); or
4) Warrant is so facially deficient in failing to particularize the place to be searched and the things to be seized that officer could not reasonably rely on it.
1 and 2 are very rare. Subjects usually try to use 3 or 4 above. In this case, Hongo tries to use 4 without success.
We employ a two-step process when reviewing a district court’s denial of a motion to suppress when a search warrant is involved. See Cherna.
First, we determine whether the good faith exception to the exclusionary rule applies. The good faith exception bars the application of the exclusionary rule to exclude evidence obtained pursuant to a warrant if law enforcement officers act under an objectively reasonable, good faith belief that the search warrant in question is valid—even if it, in fact, is not. See Jarman. If the good faith exception applies, the warrant is legally valid. If good faith exception does not apply, we continue to the second step, where we ensure that the magistrate had a substantial basis for concluding that probable cause existed.
Hongo argues that the good faith exception to the exclusionary rule does not apply. He contends that the warrant failed to specify the items to be searched with the requisite particularity and thus was so facially deficient that no objectively reasonable officer could rely on it. Hongo says that the accompanying affidavit did not cure the deficiency because, he says, it was not physically attached to the warrant at the time of the search and was not presented to the residents or the officers who performed the search.
Hondo’s arguments are unavailing. The search warrant here explicitly incorporated by reference the accompanying affidavit, which listed the items sought in the search. And in reviewing challenges to particularity, we read the warrant as a whole, including its accompanying affidavit and attachments. See Aguirre. Hongo’s particularity argument thus fails.
Hongo’s argument that the warrant was invalid because the officers did not give him or his girlfriend the supporting affidavit also fails. In United States v. Grubbs, 547 U.S. 90 (2006), SCOTUS held the Fourth Amendment does not require an executing officer to give the property owner a copy of the warrant or attachments before the search. In light of Grubbs, there is no Fourth Amendment right to obtain warrant attachments.
Finally, Hongo’s argument that the executing officers were not shown the affidavit and did not know what they were searching for is not supported by the record. At the suppression hearing, Lieutenant Branam, the officer who prepared the affidavit and warrant, testified that he brought the warrant and a copy of the affidavit to the scene when he executed the warrant. He also testified that he was aware of the items that were listed in the affidavit and could be seized. Likewise, Sergeant Steinke, one of the deputies involved in the warrant’s execution, testified that the officers discussed the warrant during a pre-execution briefing and knew they were looking for methamphetamine. That Sgt. Steinke could not recall whether the affidavit was specifically discussed does not demonstrate that the officers were unaware of the objects of their search. Thus, Hongo’s argument as to the officers also fails.
Where, as here, probable cause existed, the affidavit provided specific information of the objects of the search, an executing officer was the affiant, the additional officers making the search knew what was to be searched for, and the warrant referenced the affidavit, the officers’ good faith reliance upon the warrant was objectively reasonable. Hongo has not shown that the good faith exception does not apply. Accordingly, the district court’s denial of his motion to suppress is affirmed.