United States v. Kimberly Ann Hove , 848 F.2d 137 ( 1988 )

CANBY, Circuit Judge:

The district court denied Kimberly Hove’s pretrial motion to suppress incriminating evidence seized by the police from one of her residences. Although the evidence was seized pursuant to a facially valid warrant, the affidavit submitted to the magistrate in support of the warrant failed to link Hove to the address of the residence searched. The district court found that the affidavit was deficient, but held that the evidence seized was admissible under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), because the officers acted in a good faith belief that probable cause existed to justify the search. On appeal, Hove argues that the good faith exception to the exclusionary rule should not save the search in this case because the affidavit was so deficient that official belief in the existence of probable cause would be entirely unreasonable. We agree and reverse the district court’s ruling that Leon’s good faith exception to the exclusionary rule applies to this search.

FACTUAL BACKGROUND

On February 18, 1986, Sergeant Moya, an experienced police officer with the Los Angeles County Sheriff’s Department, responded to a bomb complaint from Mr. Kenneth Hove, Kimberly Hove’s ex-husband. Over the following two weeks, Mr. Hove received two threatening letters in the mail. The letters were composed of words cut out of a magazine and pasted on paper. The envelopes were typed with a typewriter that had some malfunction in its keys. Sgt. Moya conducted his investigation of the case by talking to Mr. Hove, his neighbors, and Kimberly Hove’s sister, Cindy Wilson. The evidence Sgt. Moya collected led him to suspect that Kimberly Hove was sending the letters to Mr. Hove and planting pipe bombs under his car.

Sgt. Moya learned that Ms. Hove and the couple’s only child stayed with several different relatives and that one of their current residences may have been with Hove’s father, Gerald Wilson, at 2727 DeAnza Road in San Diego. Sgt. Moya learned that Hove was staying at this residence by tracing a phone number given to him by Hove and her sister. Sgt. Moya went out to this location and observed toys in the yard and. a car, previously identified as belonging to Ms. Hove, in the parking lot. Although he testified that he recited these facts to his stenographer when preparing his affidavit for a search warrant, the final affidavit did not include this information. Therefore, the final warrant application, while it set forth facts suggesting that Kimberly Hove had sent threatening letters, never linked Kimberly Hove or any suspected criminal activity in any way with the 2727 DeAnza residence. The error went unnoticed by Sgt. Moya, a district attorney who reviewed the affidavit, and the magistrate who issued a search warrant based on the affidavit.

The warrant was executed by Deputy Stevens. A magazine with words cut out of it that matched the threatening letters was found at the DeAnza residence. In its order denying Hove’s motion to suppress, the district court held that, in light of Sgt. Moya’s investigation, probable cause existed to believe that Kimberly Hove resided at the DeAnza location. In addition, the court held that Deputy Stevens executed the warrant with objective good faith that probable cause existed to justify the search.

STANDARD OF REVIEW

We review de novo the issue of whether the "good faith” exception to the exclusionary rule applies to this search. See United States v. Dozier, 826 F.2d 866, 872 (9th Cir.1987). We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291.

DISCUSSION

In this case, it is clear that probable cause to search the DeAnza residence was not established before the magistrate because the affidavit submitted to obtain the warrant did not explain the significance or relevance of searching this particular location. See United States v. Hendricks, 743 F.2d 653, 654-56 (9th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 382 (1985). The district court acknowledged the affidavit’s deficiency, but held that the evidence seized need not be suppressed because the officers involved acted in good faith that probable cause existed to search the DeAnza residence. The only question before us on appeal, therefore, is whether Leon’s good faith exception to the exclusionary rule applies to save the search in this case.

In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Supreme Court held that evidence obtained pursuant to a facially-valid search warrant, later found to be invalid, is admissible if the executing officers acted in good faith and in objectively reasonable reliance on the warrant. Id. at 922, 104 S.Ct. at 3420. The Leon Court noted, however, that an officer cannot manifest objective good faith if the warrant he is relying on was supported by an affidavit that is “ ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” Id. at 923, 104 S.Ct. at 3421 (citations omitted).

We agree with Hove that the affidavit submitted by Sgt. Moya in support of this search warrant was so deficient that any official belief in the existence of probable cause must be considered unreasonable. The test for reasonable reliance is whether the affidavit was sufficient to “create disagreement among thoughtful and competent judges as to the existence of probable cause.” Leon 468 U.S. at 926, 104 S.Ct. at 3422. See also United States v. Tate, 795 F.2d 1487, 1490 (9th Cir.1986). Here, reasonable judges could not disagree over whether probable cause existed to search the DeAnza location because the affidavit offers no hint as to why the police wanted to search this residence. The affidavit does not link this location to the defendant and it does not offer an explanation of why the police believed they may find incriminating evidence there; the affidavit simply lists the DeAnza address as a location to be searched. It is critical to a showing of probable cause that the affidavit state facts sufficient to justify a conclusion that evidence or contraband will probably be found at the premises to be searched. Hendricks, 743 F.2d at 654. No such facts were stated in this affidavit. Thus, any official belief in the existence of probable cause must be considered unreasonable.

Despite the complete lack of “any indicia of probable cause” in the affidavit, the district court found that the officers acted in objective good faith that probable cause existed to search the DeAnza residence. In so finding, the court apparently relied on facts that Sgt. Moya subjectively knew at the time he completed the affidavit but that were not included in the affidavit or presented to the magistrate. Leon does not extend, however, to allow the consideration of facts known only to an officer and not presented to a magistrate. The Leon test for good faith reliance is clearly an objective one and it is based solely on facts presented to the magistrate. Leon, 468 U.S. at 923, 104 S.Ct. at 3421. An obviously deficient affidavit cannot be cured by an officer’s later testimony on his subjective intentions or knowledge. “[Rjeviewing courts will not defer to a warrant based on an affidavit that does not ‘provide the magistrate with a substantial basis for determining the existence of probable cause.’ ” Leon, 468 U.S. at 915, 104 S.Ct. at 3416 (quoting Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)).

Leon creates an exception to the exclusionary rule when officers have acted in reasonable reliance on the ruling of a judge or magistrate. The point is that officers who present a colorable showing of probable cause to a judicial officer ought to be able to rely on that officer’s ruling in executing the warrant. Leon, 468 U.S. at 916-17, 104 S.Ct. at 3417-18. When the officers have not presented a colorable showing, and the warrant and affidavit on their face preclude reasonable reliance, the reasoning of Leon does not apply. To permit the total deficiency of the warrant and affidavit to be remedied by subsequent testimony concerning the subjective knowledge of the officer who sought the warrant would, we believe, unduly erode the protections of the fourth amendment.

The district court accordingly erred in failing to suppress the evidence obtained in the search of the DeAnza property. The conviction is reversed and the cause remanded for retrial, if there is to be one.

REVERSED AND REMANDED.