United States v. Harju, Matthew S.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3777
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
MATTHEW S. HARJU,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 CR 97—Lynn Adelman, Judge.
____________
ARGUED APRIL 10, 2006—DECIDED OCTOBER 20, 2006
____________
Before EASTERBROOK, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Matthew S. Harju was indicted
on one count of being a felon in possession of a firearm
and one count of being a felon in possession of ammunition,
both in violation of 18 U.S.C. § 922(g)(1). He filed a motion
to suppress the physical evidence on which the indictment
was based. A magistrate judge recommended denying Mr.
Harju’s motion; the district court rejected the recommenda-
tion and granted the motion. The Government timely
appealed. For the reasons set forth in the following opinion,
we reverse the judgment of the district court.
2 No. 05-3777
I
BACKGROUND
A. Facts
A commissioner of the Sheboygan County Court issued a
warrant for a search of Mr. Harju’s home. The commissioner
relied upon information provided under oath by Detective
Joel Clark of the Sheboygan Police Department. Detective
Clark stated that he had been contacted by a confidential
informant (“CI”) who had told him that Mr. Harju pos-
sessed a firearm at his home. Specifically, the CI had told
Detective Clark that a relative of the CI had observed Mr.
Harju waving the firearm around the upper unit of his
duplex approximately three weeks earlier on December 31,
2004.
Detective Clark also testified to several efforts to cor-
roborate the information provided by the CI. The detective
had the CI place, in the detective’s presence, a recorded
call to the relative. During the conversation, the relative
essentially repeated the information that the CI had pro-
vided to Detective Clark. During the call, the CI also
expressed concern that Mr. Harju was keeping the gun in
the part of the duplex occupied by Mr. Harju’s nephew, and
the CI asked the relative to request that Mr. Harju remove
the gun.
In the warrant application, Detective Clark also provided
the commissioner with several details regarding Mr. Harju’s
residence, specifically that the residence was a duplex with
a common door, that Mr. Harju paid rent for both units and
that Mr. Harju’s nephew resided in the other unit. Detective
Clark also had reviewed state records and discovered that
Mr. Harju was a felon who had been convicted of felony
escape and sentenced to 24 months in state prison in 1996.
No. 05-3777 3
After confirming the date on which Mr. Harju had been
seen with the weapon, the court commissioner issued a
search warrant for the residence. The warrant was executed
the same day, January 21, 2005, and the search of Mr.
Harju’s home uncovered ammunition and a firearm.
B. District Court Judgment
After Mr. Harju was indicted, he moved to suppress the
evidence uncovered during the search. A magistrate
judge reviewed the warrant and determined that the
warrant was supported by probable cause because the
information, which formed the basis of the warrant, came
from a citizen witness who did not know that she was
providing information to law enforcement and because
this information was corroborated in part by Detective
Clark’s investigation. The magistrate judge further con-
cluded that, even if the warrant were not supported by
probable cause, the evidence fell within the good faith
exception established in United States v. Leon, 468 U.S. 897,
913 (1984).
The district court declined to follow the magistrate judge’s
recommendation and granted the motion to suppress. In the
district court’s view, the warrant was not supported by
probable cause because the information provided by
Detective Clark was not sufficiently detailed and was stale:
Clark did not describe the firearm to the commissioner
or indicate that the relative had described it to him.
Clark also did not indicate to the commissioner the
circumstances under which the relative had observed
the firearm. Again, it appears that the relative did not
describe such circumstances to Clark. Clark did not
state where in the house the defendant was when the
4 No. 05-3777
relative allegedly observed him with a gun, nor did
he indicate that he had information that defendant kept
the gun in his house or where he might have kept it. . . .
R.30 at 6-7. The district court believed that, in light of the
shortcomings in the evidence, the lack of established
reliability of the CI or of the CI’s relative, as well as the
lack of corroboration with respect to the alleged criminal
activity, the warrant was not supported by probable cause.
Turning to the question of good faith, the district court
concluded that the good faith exception did not apply
because, based on the case law in existence at the time
the application was filed, the information supporting
the warrant was facially inadequate. See id. at 18-23.
II
DISCUSSION
The Government asks us to review the district court’s
decision that Detective Clark was not entitled to rely in
good faith on the warrant issued by the commissioner.
Whether a law enforcement officer reasonably relied upon a
subsequently invalidated search warrant is a legal question
which we review de novo. See United States v. Koerth, 312
F.3d 862, 865 (7th Cir. 2002).1
1
On appeal, the Government argues only that the good faith
exception applies; it does not claim that the warrant was sup-
ported by probable cause.
No. 05-3777 5
A. The Foundations and Purpose of the Exclusionary
Rule
Simply stated, “[t]he exclusionary rule operates to prevent
the Government from using evidence seized as the result of
an illegal search in a subsequent criminal prosecution.”
United States v. McGough, 412 F.3d 1232, 1239 (11th Cir.
2005). It has existed, in some form, as part of
our constitutional jurisprudence for over one hundred years.
See Boyd v. United States, 116 U.S. 616, 638 (1886) (holding
that a notice to produce personal papers was “unconstitu-
tional and void, and that the inspection by the district
attorney of said invoice, when produced in obedience to
said notice, and its admission in evidence by the court, were
erroneous and unconstitutional proceedings”).
Although commentators have articulated several purposes
served by the rule, see generally 1 Wayne R. LaFave, Search
and Seizure § 1.1(f), at 21-25 (4th ed. 2004) (discussing
deterrence, judicial integrity and popular trust in gov-
ernment as among the purposes of the exclusionary rule),
the purpose identified by the Supreme Court as the “ ‘prime
purpose’ of the rule, if not the sole one, ‘is to deter future
unlawful police conduct.’ ” United States v. Janis, 428 U.S.
433, 446 (1976) (quoting United States v. Calandra, 414 U.S.
338, 347 (1974)).
The deterrence value of the exclusionary rule was used to
justify its broadest application in Mapp v. Ohio, 367 U.S. 643(1961). In that case, the Court applied the exclusionary rule
to the fruits of illegal searches conducted by state officers
and used in state prosecutions. Specifically, the Court noted
that the exclusionary rule was a “deterrent safeguard
without insistence upon which the Fourth Amendment
would have been reduced to a form of words,” id. at 648(internal quotation marks and citations omitted), and,
6 No. 05-3777
accordingly, held that “all evidence obtained by searches
and seizures in violation of the Constitution is, by the same
authority, inadmissible in a state court.” Id. at 655.
More recently, however, the Court has relied on the rule’s
deterrent purpose in declining to expand its application
beyond traditional criminal proceedings. See, e.g., I.N.S. v.
Lopez-Mendez, 468 U.S. 1032, 1043 (1976) (refusing to employ
the exclusionary rule in deportation proceedings in part
because the “deterrent value” of the rule would not be
served); United States v. Calandra, 414 U.S. 338, 351 (1974)
(holding that grand jury witnesses may not refuse to answer
questions on the ground that they are based on illegally
seized evidence because any “incremental deterrent effect
which might be achieved by extending the rule to grand
jury proceedings is uncertain at best”). Indeed, even within
the context of criminal trials, the Court’s focus on deterrence
also has resulted in a contraction of the rule’s scope. See
Hudson v. Michigan, 126 S. Ct. 2159, 2168 (2006);2 Leon, 468
U.S. 897.
The present case concerns the exception to the
exclusionary rule articulated by the Supreme Court in
United States v. Leon. In Leon, the Court addressed “whether
the Fourth Amendment exclusionary rule should be modi-
2
In Hudson v. Michigan, 126 S. Ct. 2159, 2168 (2006), the Court
stated:
In sum, the social costs of applying the exclusionary rule to
knock-and-announce violations are considerable; the incen-
tive to such violations is minimal to begin with, and the
extant deterrences against them are substantial— incompara-
bly greater than the factors deterring warrantless entries
when Mapp was decided. Resort to the massive remedy of
suppressing evidence of guilt is unjustified.
No. 05-3777 7
fied so as not to bar the use . . . of evidence obtained by
officers acting in reasonable reliance on a search warrant
issued by a detached and neutral magistrate but ultimately
found to be unsupported by probable cause.” 468 U.S. at
900. The starting point for the Court’s analysis was the
premise that the exclusionary rule was not “a necessary
corollary of the Fourth Amendment,” as many had assumed
in the wake of Mapp v. Ohio. Id. at 905-06. Instead,
[w]hether the exclusionary sanction is appropriately
imposed in a particular case, our decisions make
clear, is “an issue separate from the question wheth-
er the Fourth Amendment rights of the party seeking
to invoke the rule were violated by police conduct.”
Only the former question is currently before us, and it
must be resolved by weighing the costs and benefits
of preventing the use in the prosecution’s case in chief
of inherently trustworthy tangible evidence obtained
in reliance on a search warrant issued by a detached
and neutral magistrate that ultimately is found to be
defective.
Id. at 906-07 (quoting Illinois v. Gates, 462 U.S. 213, 223
(1983)). The rule, observed the Court, therefore should
operate to preclude evidence only in situations “ ‘where
its remedial objectives are thought most efficaciously
served,’ ” id. at 908 (quoting Calandra, 414 U.S. at 348),
namely when it will “deter police misconduct,” id. at 916.3
3
The Court has stressed this purpose in other cases as well. See
United States v. Calandra, 414 U.S. 338, 347 (1974) (noting that the
“prime purpose” of the exclusionary rule “is to deter future
unlawful police conduct and thereby effectuate the guarantee
of the Fourth Amendment against unreasonable searches and
(continued...)
8 No. 05-3777
“[E]vidence obtained pursuant to a subsequently invali-
dated warrant,” therefore, should be excluded only
when that exclusion will “alter the behavior of individual
law enforcement officers or the policies of their depart-
ments.” Leon, 468 U.S. at 918.
The Court explained that, generally speaking, exclud-
ing evidence seized pursuant to a warrant will not serve the
rule’s remedial purpose. Judicial officers have the responsi-
bility to determine whether there is probable cause to issue
a warrant; police officers should not be expected to question
that determination. See id. at 921; see also Illinois v. Krull, 480
U.S. 340, 349 (1987) (quoting same). “Penalizing the officer
for the magistrate’s error, rather than his own, cannot
logically contribute to the deterrence of Fourth Amendment
violations.” Leon, 468 U.S. at 922.
The Court then went on to identify those situations in
which, despite the issuance of a warrant, exclusion
would deter police misconduct, and, therefore, applica-
tion of the exclusionary rule would be justified. First,
suppression would be warranted if the affiant knew that the
information provided to the magistrate was false, or if the
affiant provided the information with reckless disregard to
its truth or falsity. See id. at 923. Second, the rule would
apply if the magistrate judge wholly abandoned his judicial
role. Id. Third, exclusion would be warranted if the present-
ing officer had not operated in objective good faith, as
evidenced by reliance on an affidavit that was “ ‘so lacking
in indicia of probable cause as to render official belief in its
existence entirely unreasonable.’ ” Id. at 923 (quoting Brown
v. Illinois, 422 U.S. 590, 610-11 (1975) (Powell, J., concur-
3
(...continued)
seizures”); Illinois v. Krull, 480 U.S. 340, 347 (1987) (quoting same).
No. 05-3777 9
ring)). Finally, suppression would be appropriate if “the
warrant [were] so facially deficient—i.e., in failing to
particularize the place to be searched or the things to be
seized—that the executing officers cannot reasonably
presume it to be valid.” Id.In addressing questions of good faith under Leon, we have
held that the Government bears the initial burden of
establishing that the police officer relied in good faith on the
warrant. See Koerth, 312 F.3d at 868. However, we also have
held that “[a]n officer’s decision to obtain a warrant is prima
facie evidence that she was acting in good faith.” United
States v. Mykytiuk, 402 F.3d 773, 777 (7th Cir. 2005). Whether
a defendant has rebutted this presumption of good faith is
evaluated according to a framework similar to that em-
ployed in the qualified immunity context. We explained the
good-faith analysis in some detail in Koerth:
We evaluate an officer’s good-faith reliance with an
analysis similar to that used in cases involving the
affirmative defense of qualified immunity. See Olson
v. Tyler, 825 F.2d 1116, 1120 (7th Cir. 1987) (citing Malley
v. Briggs, 475 U.S. 335 (1986)). “Police officers
in effecting searches are charged with a knowledge
of well-established legal principles as well as an abil-
ity to apply the facts of a particular situation to these
principles.” [United States v.] Brown, 832 F.2d [991, 995
(7th Cir. 1989)]. When evidence has been obtained
pursuant to a subsequently invalidated search warrant,
we will exercise our discretion and admit the evi-
dence only if we are convinced, after review, it is
appropriate to do so pursuant to Leon’s exception to
the exclusionary rule. That is to say, we will admit
the evidence unless: (1) courts have clearly held that
a materially similar affidavit previously failed to
10 No. 05-3777
establish probable cause under facts that were indistin-
guishable from those presented in the case at hand; or
(2) the affidavit is so plainly deficient that any reason-
ably well-trained officer “would have known that his
affidavit failed to establish probable cause and that
he should not have applied for the warrant.” Malley, 475
U.S. at 345. . . .
312 F.3d at 869 (parallel citations omitted).
B. The Application to Search Mr. Harju’s Duplex
In the present case, Detective Clark’s decision to seek a
warrant is prima facie evidence of his good faith. The
burden therefore falls on Mr. Harju to negate Detective
Clark’s good faith based on one of the criteria set forth
above. Mr. Harju submits that, based on the case law in
existence at the time Detective Clark made his application,
Detective Clark had notice that the evidence supporting
the warrant was patently deficient. The Government
maintains, however, that the same case law makes clear that
Detective Clark could not have known that the warrant was
plainly lacking probable cause. The Government maintains
that the cases relied upon by the district court are materially
distinguishable from the present situation and, conse-
quently, did not put Detective Clark on notice of any
deficiency in the application.
The parties first invite our attention to Owens v. United
States, 387 F.3d 607 (7th Cir. 2004). In Owens,
[t]he warrant . . . was based on a barebones affidavit,
signed by a detective, which stated that three months
earlier an informant had bought “a quantity of crack”
from Owens at a house believed to be Owens’s resi-
No. 05-3777 11
dence. There was no indication of the actual quantity
of crack or of the reliability of the informant. . . .
Id. at 608. Owens’ attorney had moved to suppress the
evidence arguing that “a sale of an unknown quantity of an
illegal drug three months before a search warrant was
sought does not, without more . . . establish probable
cause to believe that the search of the premises on which the
sale took place would turn up contraband or evidence of
crime.” Id. We agreed that this argument “should have been
a winner”; we stated:
If the quantity was slight—which, for all the judge
issuing the warrant could have known, it was—there
would be no basis for thinking either that the premises
were a crack house or that the money received in the
sale would still be on the premises. It would be just as
likely that either Owens or someone with access to his
house had made a single, isolated sale, perhaps to a
desperate acquaintance.
Id. We further noted that the affidavit was “[s]o inadequate”
that the search could not be saved by the good
faith exception outlined in Leon. Id.Mr. Harju maintains that his situation “mirrors Owens
with regard to the paucity of detail in the warrant applica-
tion.” Appellee’s Br. at 12. The Government contends,
however, that the contraband here was not a fungible
item, like narcotics, but a firearm, which is less likely to be
sold in a short period of time. See Appellant’s Br. at 16-17.
We agree with the Government that the facts in Owens are
not sufficiently similar to those presented here as to under-
mine Detective Clark’s reasonable reliance on the warrant.
Our decision in Owens rested in large part on the fact that
small quantities of drugs and of cash are not likely to be
12 No. 05-3777
found in the same location after several months have
elapsed. Here, by contrast, only three weeks had elapsed
since the gun had been seen in Mr. Harju’s possession on his
property, and, unlike small amounts of drugs or cash, the
gun was not likely to have been sold (or consumed) during
that period of time. Consequently, we do not believe that
Owens necessarily put Detective Clark on notice that the
affidavit was deficient, and Detective Clark’s failure to
include all of the details contained in the Owens affidavit
does not constitute evidence of bad faith.
Mr. Harju also points to United States v. Peck, 317 F.3d 754(7th Cir. 2003). The facts of Peck are as follows:
James Root, deputy sheriff of the Macon County
Sheriff’s Department, received a phone call from a
confidential informant, “Pat Doe,” alleging that Peck
possessed crack cocaine and cannabis. Doe told Root
that she wanted Peck punished because he was not
paying for diapers for their child and that she thought
Peck should be arrested because he was dealing drugs.
Doe said she had been inside Peck’s residence within
the last two days. While inside the residence, Peck
allegedly showed Doe large amounts of two substances
wrapped in individual packages. Peck told Doe that the
substances were crack cocaine and marijuana that he
planned to sell. Even without Peck’s representations,
Doe claims that she knew what the substances were
based on her own “personal experiences.”
Root drafted an affidavit including Doe’s statements.
Because Doe had not previously given any informa-
tion to the police, Root asked Doe to visit the station and
swear under oath that her statements were true. Judge
Paine administered the oath to Doe, and Doe then
No. 05-3777 13
signed the affidavit. Relying on the affidavit, Judge
Paine issued a search warrant. . . .
Id. at 755. The court determined that, based on the few
details provided by the informant regarding Peck’s home
and his person, the lack of explanation regarding how
the informant knew that the substances were illicit drugs,
and the lack of corroboration by the police, there was an
insufficient factual basis to support the issuance of a search
warrant for the premises. Nonetheless, the court determined
that the warrant fell within the good faith exception:
Even though the warrant issued by the judge was bare
bones, it was not so lacking as to make it facially defi-
cient. Although minimal, Doe’s statement did contain
evidence that Peck possessed and planned on selling
drugs. In addition, Root addressed issues regarding
Doe’s credibility and veracity by requiring Doe to come
to the police station and sign her statement under oath
in front of the issuing judge. Therefore, it was reason-
able for Root to rely on a warrant issued by a neutral
and detached officer of the court.
Id. at 757-58 (citations omitted).
Mr. Harju maintains that “[w]hat’s important about Peck
is that the Court struck the warrant initially on probable
cause grounds on much more detailed facts than those set
forth in the instant case,” Appellee’s Br. at 14. He empha-
sizes that, “in Peck, the police relied upon the statements
of an informant who said that she had seen drugs at her ex-
boyfriend’s house two days earlier. She personally appeared
before the magistrate that issued the warrant.” Id. (citations
omitted). The Government, on the other hand, believes that
Peck is “markedly distinguishable” for two reasons: (1) the
informant in Peck “had an axe to grind with Peck,” and (2)
14 No. 05-3777
“the police in Peck did next to nothing to corroborate Doe’s
information.” Appellant’s Br. at 18.
There is no question that the affidavit in Peck suffered
from a marked lack of detail. However, the Government is
correct that there are important differences between the
affidavits in each of the cases. First, the affiant in Peck
clearly was biased against the defendant: “Doe told Root
that she wanted Peck punished because he was not paying
for diapers for their child . . . .” Peck, 317 F.3d at 755. Second,
we noted in Peck that “[c]ompounding the weaknesses of
Doe’s statement is the failure of the police to corroborate her
allegations.” Id. at 757. Here, by contrast, Detective Clark
confirmed the key elements of the CI’s information through
an impromptu, recorded conversation between the CI and
his relative. Detective Clark also confirmed other aspects of
the CI’s information such as the design of the duplex, its
ownership and its residents. We believe that an officer, after
taking these steps, reasonably could have believed that these
efforts distinguished the present situation from that in Peck,
which specifically noted “the failure of the police to corrobo-
rate her allegations.” Id.Finally, without argument or analysis, Mr. Harju points to
Koerth and Mykytiuk as support for his claim that Detective
Clark should have known that the affidavit was factually
insufficient; these cases, he maintains, found “no probable
cause on a warrant application more detailed than that
provided in this case.” Appellee’s Br. at 15.4 However, we
4
Mr. Harju also notes that the district court relied upon a Fourth
Circuit case, United States v. Wilhelm, 80 F.3d 116 (4th Cir. 1996),
and a case from the Eastern District of Michigan, United States v.
Bryant, 951 F. Supp. 674 (E.D. Mich. 1997), in rejecting the
(continued...)
No. 05-3777 15
do not believe that either Koerth or Mykytiuk is sufficiently
similar to the present case to undermine Detective Clark’s
good-faith reliance.
In Koerth, we accepted the Government’s concession that
the warrant was not supported by probable cause because
of the affidavit’s “use of essentially conclusory state-
ments without corroboration.” Koerth, 312 F.3d at 868.
However, we also determined that the good faith exception
applied. We explained:
We are convinced that Inv[estigator] Sturz acted in
objective good faith, and the evidence seized by the
4
(...continued)
Government’s good-faith claim. As with United States v. Koerth,
312 F.3d 862 (7th Cir. 2002), and United States v. Mykytiuk, 402
F.3d 773 (7th Cir. 2005), Mr. Harju does not make any specific
arguments based on this case law; however, he does “acquiesce[]
with Judge Adelman on his reliance upon these cases.” Appel-
lee’s Br. at 15. The Government counters that these cases are
distinguishable on their facts. See Appellant’s Br. at 22. Even if
these cases could not be distinguished on their facts, we do not
believe that these cases constitute “well-established” law that
affidavits similar to the one offered here should be rejected. In the
context of qualified immunity, which has provided the founda-
tion for our good-faith analysis, see Mykytiuk, 402 F.3d at 777, this
court first looks to the Supreme Court and circuit case law to
determine whether a right is clearly established. In the absence of
controlling precedent, we look to all relevant case law in order
“to determine whether there was such a clear trend in the case
law that we can say with fair assurance that the recognition of the
right by a controlling precedent was merely a question of time.”
Denius v. Dunlap, 209 F.3d 944, 951 (7th Cir. 2001) (internal
quotation marks and citations omitted). The cases relied upon by
the district court do not establish such a trend.
16 No. 05-3777
drug task force was properly admitted, because it was
not clearly established on August 31, 2000 that Inv.
Sturz’s affidavit failed to justify a search of Defendant
Koerth’s house. . . . [I]t was clearly established prior
to August 31, 2000 that an officer seeking to obtain a
search warrant was required to provide more than
an uncorroborated, conclusory assertion of illegal
activity from a confidential informant of unknown reli-
ability. However, Koerth has failed to provide us with
any cases holding that an affidavit materially similar to
Inv. Sturz’s would fail to meet the test of establishing
probable cause based upon information from a named
informant like Savage. . . . Based on the evidence pre-
sented in the absence of such a ruling, we refuse to hold
that Inv. Sturz behaved unreasonably, or acted in
objective bad faith, or disregarded clearly established
law when conducting her investigation and relying
upon the search warrant issued in the case before us.
Id. at 869-70. (citations omitted). In Koerth, therefore, the
defendant did not carry his burden of negating the officer’s
reasonable reliance on the affidavit because there were
material distinctions between the affidavit at issue and the
affidavits that, in the cases proffered by the defendant, were
rejected as lacking probable cause.
In the present case, there are material distinctions between
Detective Clark’s affidavit and the affidavit in Koerth. Here,
Detective Clark attempted to corroborate the CI’s informa-
tion and therefore to avoid the deficiency we cited with
respect to the officers in Koerth. If Detective Clark’s efforts
still fell short of establishing probable cause, the fault lay
with the judicial officer issuing the warrant, not with
Detective Clark. As the Court noted in Leon, “[p]enalizing
the officer for the magistrate’s error, rather than his own,
No. 05-3777 17
cannot logically contribute to the deterrence of the Fourth
Amendment violations.” 468 U.S. at 921. This principle
makes clear that invoking the exclusionary rule in the
present case on the authority of Koerth would be inappropri-
ate.
We believe the same is true with respect to Mykytiuk. In
Mykytiuk, we noted that the affidavit contained some of the
same infirmities as did the affidavit in Koerth, and, therefore,
we accepted the Government’s concession that the affidavit
lacked probable cause. However, despite factual similarities
with Koerth, we nevertheless determined that the good faith
exception applied. We noted that “[p]olice officers are
charged with having knowledge of well-established legal
principles,” Mykytiuk, 402 F.3d at 777, and that we had taken
a narrow view in determining whether a legal principle
is well-established . . . holding that evidence seized
pursuant to a search warrant should not be excluded
unless the supporting affidavit is “plainly deficient” or
where “courts have clearly held that a materially similar
affidavit previously failed to establish probable cause
under facts that were indistinguishable from those
presented in the case at hand.”
Id. (quoting Koerth, 312 F.3d at 869). Employing this “narrow
view,” we concluded that the affidavit in Mykytiuk was not
supported by “the type of evidence that has been found so
wanting in the past—uncorroborated, conclusory assertions
from unproven informants.” Mykytiuk, 402 F.3d at 777(emphasis added). For the same reasons, we do not believe
that our probable cause determination in Mykytiuk under-
mines Detective Clark’s good-faith reliance on the affidavit
here. In the present case, there is no question that the
affidavit supporting the warrant for Mr. Harju’s duplex
18 No. 05-3777
lacked some detail. Mr. Harju is correct that the affidavit
bears some similarity to the affidavits in the cases upon
which he relies. However, the affidavit at issue here is not
similar in all material respects to those that we have found
lacking in probable cause. Mr. Harju has not pointed to a
case involving a weapon, as opposed to drugs, nor has he
pointed to a case in which the officers exerted the same type
of corroborative efforts as Detective Clark.5 For these
reasons, we do not believe that Mr. Harju has met his
burden of showing that Detective Clark relied unreasonably
on the present affidavit; the good faith exception to the
exclusionary rule therefore applies.
5
We believe that the record before us also contains additional
support for application of the good faith exception. In United
States v. Leon, 468 U.S. 897, 926 (1984), the Court found that the
affidavit before it “provided evidence sufficient to create dis-
agreement among thoughtful and competent judges as to
the existence of probable cause. Under these circumstances,
the officers’ reliance on the magistrate’s determination of
probable cause was objectively reasonable, and application of the
extreme sanction of exclusion is inappropriate.” Here, both the
state court commissioner, as well as a federal magistrate judge,
determined that Detective Clark’s affidavit established probable
cause for the search of Mr. Harju’s residence. Although perhaps
not dispositive of the issue of good faith, it certainly is further
evidence that Detective Clark’s reliance on the affidavit was
reasonable.
No. 05-3777 19
Conclusion
For the foregoing reasons, we reverse the judgment of the
district court.
REVERSED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-20-06