United States v. Michael Duane Hunt , 925 F.2d 1181 ( 1991 )

TANG, Circuit Judge,

dissenting in part:

I respectfully dissent from that part of the order denying Hunt’s petition for rehearing.

In our opinion we affirmed the district court’s ruling that police validly searched a home for Hunt in good faith reliance on an administrative warrant. We concluded that “Hunt’s contention that an administratively issued warrant is constitutionally infirm is irrelevant so long as the police acted in good faith reliance upon the warrant process.” United States v. Hunt, 893 F.2d 1028, 1032 (9th Cir.1990). In reaching this conclusion, as Hunt argues on petition for rehearing, we overstepped the bounds of the exception the Supreme Court has established for good faith reliance.

In United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984), the Supreme Court held that police may rely in good faith on a judicially issued warrant which is later determined to be constitutionally infirm. The Supreme Court reasoned that excluding evidence obtained pursuant to an infirm warrant could not achieve the salutory result of deterring the judicial branch from issuing infirm warrants. Id. at 921, 104 S.Ct. at 3419. In Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), the Supreme Court refused to exclude evidence obtained in good faith reliance on a state warrant-less search statute which was subsequently struck as unconstitutional. As in Leon, the Krull court reasoned that exclusion of the evidence could achieve no salutory result of deterring legislators from enacting unconstitutional search laws. Id. at 352, 107 S.Ct. at 1168. Thus, in both Leon and Krull, the Supreme Court concluded that police may rely in good faith on permission granted them to search by the judicial or legislative branches of government. The exclusionary rule need not operate against the judicial or legislative branches because neither branch is “inclined to ignore or subvert the Fourth Amendment.” Id. at 348, 107 S.Ct. at 1166 (quoting Leon, 468 U.S. at 916, 104 S.Ct. at 3417).

The rationale underlying the Leon and Krull good faith exceptions does not obtain in Hunt’s case. Police searched a home for Hunt pursuant to an administrative warrant issued by their own branch of government, the executive. As the Leon and Krull Court reiterated, the exclusionary rule is intended precisely to deter the misconduct of police, officers of the executive branch. Police may rely in good faith on a judicial officer or a legislative enactment, but they should not presume to rely on warrants issued by officers of their own branch who are, after all, “adjuncts of the law enforcement team.” Id. at 350-51, 107 S.Ct. at 1167-68 (quoting Leon at 917, 104 S.Ct. at 3417).

In Hunt’s case, it appears that the statute authorizing the administrative warrant pertained only to parolees and probationers, and not to escapees such as Hunt. The “warrant” for Hunt’s arrest, Hunt argues, was therefore invalid. The search conducted pursuant to the invalid “warrant” was consequently illegal. We misread Leon and Krull when we conclude that police good faith reliance on an invalid executive warrant saves the search from unconstitutionality. Indeed, by applying Leon and Krull to Hunt’s case, we permit the judicial and legislative exceptions to swallow the exclusionary rule.