Lowry v. State

BUSSEY, Judge,

dissenting.

I must respectfully dissent to the reversal of appellant’s conviction. I am of the opinion that the search in this case, although conducted pursuant to a defective affidavit and search warrant, was nevertheless lawful under the “good faith exception” to the exclusionary rule enunciated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). In Leon, the Supreme Court held that evidence obtained pursuant to a facially valid search warrant should not be suppressed solely because the affidavit supporting the warrant did not allege sufficient facts to constitute probable cause for the search, unless the affidavit was so defective that no well trained officer would have relied upon it. Although Leon was decided by the Supreme Court on July 5, 1984, the Supreme Court stated that its decision in Leon is to be given retroactive effect. 468 U.S. at 912-13, 104 S.Ct. at 3416, 82 L.Ed.2d at 691-92, (Footnote 9 and 10).

I am of the opinion that Leon applies to the instant case. The judge who suppressed the warrant said that if the affidavit had been worded more precisely, the warrant would have been valid. The police officers, armed with what they believed was a valid warrant, conducted a valid search.

The seizure of contraband under the valid search warrant provided probable cause for the arrest of appellant, and the statements made by him thereafter were properly admitted. The judgment and sentence appealed from should be affirmed.