Eighth Circuit: When Pretty Much Every Judge Thinks Your Warrant Is Bad, Good Faith Ain’t Gonna Save It

Warrants that are short on things required by the Fourth Amendment — probable cause, specificity, the correct address, solid affidavits — are often given a free pass because law enforcement has plenty of options when it comes to sneaking around the edges of the Constitution.

In some cases, the excuses are pretty much just this: “Hey, maybe we didn’t even need a warrant!” Those excuses include exigent circumstances (“no time to get a good warrant!”), plain view (“hey, we just saw the stuff right out in the open!”), community caretaking (“we cared so much about this person’s health we arrested/killed them!”), and any number of other exceptions (vehicle exception, officer safety, border security).

Then there’s something called “good faith,” a defense offered almost exclusively in hopes of excusing officers who acted in bad faith. That theory is basically this: “Well, we had a piece of paper with a judge’s signature on it.”

Even a bad warrant can become a good warrant so long as it was shoved in front of the bleary eyes of the local magistrate who likely started dozing off during the multiple paragraphs of copy-pasted boilerplate that always proceeds the actual particulars of this supposed probable cause.

But when multiple judges start saying a warrant is bad, no amount of good faith will save it. Especially when almost every judge given the chance to read the warrant affidavit arrives at the same conclusion: this isn’t probable cause, or anything even approaching it.

And so it goes in this relatively brief Eighth Circuit Appeals Court decision [PDF]. It starts with the arrest of John Ralston, following a search of his property. Although officers claimed Ralston was involved in fencing stolen goods, he was only charged with illegally possessing a firearm.

Ralston wasn’t even the person cops were interested in. Ralston lived on a 9.32 acre parcel of property left to him by his mother. The property contained a mobile home on the north side of Bear Creek Road (in Jones County, Iowa) and another small residence on the south side of the same road.

Local law enforcement officers were far more interested in Colton Varty, who they considered to be a suspect in multiple burglaries. Using extremely specious reasoning, they came to the conclusion Varty either lived at the mobile home at this property or at least “frequented” the residence.

So, officers decided the smartest move was to search John Ralston’s property.

The warrant authorized the search of Ralston’s residence, the mobile home where Varty was frequenting/residing, a machine shed, and two separate storage sheds with a physical address of 1221 Bear Creek Road, as well as a blue Jeep Liberty Sport owned by Varty. It authorized officers to seize a number of different things, including items commonly used in thefts or distribution of stolen property, indicia of occupancy, tools burglars use to gain access to locked structures or storage containers, property that had been reported as stolen, shoes believed to have beenworn during the thefts, and tire tracks/treads for comparison.

Ralston challenged the search of the south side of his property, which contained the house Ralston actually lived in. (The mobile home “linked” to Varty was on the north side.) Ralston claimed no nexus existed to give officers probable cause to search a residence never linked to Varty, the actual burglary suspect.

The first judge (beyond one signing the original warrant) to review the warrant agreed with Ralston. No probable cause existed to search his property.

In analyzing Ralston’s argument, the magistrate judge found: (1) the affidavit supporting the search warrant described the places to be searched in overbroad terms; (2) the information in the affidavit connecting Varty to the south side of the property was minimal; and (3) the supporting affidavit contained no information connecting Varty to Ralston’s residence. In addition to finding a want of probable cause, the magistrate judge found the good-faith exception did not apply.

The government said, “Oh, come on! The two residences are on the same property and besides everyone always grants us good faith, no matter how terrible we are at establishing probable cause.”

The district court compared Ralston’s arguments to the government’s arguments and then compared them to the warrant. It came down on the side of Ralston and the magistrate performing the initial review, but it did give the government what it wanted: forgiveness.

The district court was unpersuaded by the government’s objections regarding the probable cause determination, but ultimately denied the motion to suppress, reversing the magistrate judge’s determination that the good faith exception did not apply.

The score at this point: Bad warrant: 2 – Good faith 1. Not the best odds, but then again, the government rarely needs the best odds to walk off with win or, at the very least, a tie.

The Appeals Court makes sure this isn’t a tie. First off, it points out there’s nothing tying the suspected activity of Varty to the residence maintained by Ralston. These are two different people and only one of them was actually suspected of committing a string of burglaries.

The fact that Varty may have been present on the property from time to time (or even maintained a part-time residence on the other end of the 9.32 acre parcel) isn’t enough to tie Ralston to Varty’s alleged criminal activity. Probable cause is the base line. The officers didn’t even manage to approach that low bar here.

The officers here knew that Ralston and Varty maintained separate residences on the property. Their residences were separated by a road. The officers offered little more than a hunch that Ralston’s residence was being used to fence property that Varty was stealing. A reasonable officer would understand that a prerequisite for a search warrant is probable cause, not a mere suspicion or hunch.

Obviously, these officers were unreasonable. The appeals court makes sure that much is clear. Reviving past criminal activity may help when convictions and prison sentences are on the line. But they don’t add anything to probable cause assertions that deal with an entirely different set of crimes allegedly committed by an entirely different person.

The government asks us to give weight to law enforcement’s conclusory assertions that the property had been known for multiple years as a place where stolen property was fenced, Ralston and Varty were unemployed drug users, Ralston had been involved in the sale or distribution of narcotics for many years, and a neighbor had recently reported gunfire in the area.

The officer’s meandering into Ralston’s past weapons violations, drug use, and drug convictions is unrelated and immaterial to the offenses—burglary and possession/fencing stolen property—that were under investigation in the warrant application.

Attempting to add more probable cause to a deficient warrant during testimony in front of the district court doesn’t change anything about the original warrant. Only one judge approved it as it was written. Every judge after that declared it to be deficient. The Appeals Court points out that the US Supreme Court long ago declared that the “mere association with a known or suspected criminal or the presence in the location known to be involved in criminal activity does not establish probable cause.”

And that’s all the cops had here: stuff the Eighth Circuit made clear years ago didn’t amount to a hill of Fourth Amendment beans.

Armed with only the proximity of residences on rural property, conclusory assertions that lacked a nexus to Ralston’s residence or the targeted offenses, and no evidence of a relationship between Ralston and Varty or evidence that Varty had access to Ralston’s house, a reasonable officer would not believe there was a sufficient nexus to establish probable cause to search Ralston’s residence for evidence related to the burglaries or fencing stolen property. While the affidavit was detailed, focused, and probative as to Varty’s criminal activity, it said little about Ralston and lacked any specifics connecting Ralston or his residence to the offenses under investigation. Given the paucity of evidence as to Ralston, law enforcement should have been aware of the affidavit’s deficiencies. The additional information not included in the affidavit that consists of conclusory assertions and details unrelated to the offenses under investigation does not cure the deficiencies.

Bad warrant. No good faith. The final smack of the law enforcement nose with the rolled-up judicial newspaper? A vacated guilty plea, suppression of the evidence derived from this search, and (presumably) a dismissal of charges that can’t be supported without the evidence the government obtained illegally.