U.S. v. McClain

Decision Date31 March 2006
Docket NumberNo. 04-5887.,04-5887.
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Kevin McCLAIN; George Brandt; Jason Davis, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Robert Anderson, Asst. U.S. Attorney, U.S. Attorney's Office, Nashville, TN, Thomas M. Gannon, U.S. Department of Justice Appellate Section, Criminal Division, Washington, DC, for Plaintiff-Appellant.

Richard L. Gaines, Eldridge, Irvine & Gaines, Knoxville, TN, Peter J. Strianse, Tune, Entrekin & White, R. Price Nimmo, Nimmo, Hoehn & Nimmo, Nashville, TN, for Defendants-Appellees.

Before: BOGGS, Chief Judge; BATCHELDER and GIBBONS, Circuit Judges.

ORDER

This matter comes before the court upon the petitions for rehearing, with suggestion for rehearing en banc, filed by the appellees, and the response of the appellant thereto. The petitions have been circulated not only to the original panel members but also to all other judges* of the court in regular active service, less than a majority of whom have voted in favor of rehearing en banc. Accordingly, the petitions have been returned to the panel for decision.

Upon consideration of the petitions and the response the panel concludes that the issues raised therein were fully considered upon the original submission and decision of the case, and each of the requests for rehearing is therefore denied. In addition, Chief Judge Boggs has revised the penultimate paragraph of his opinion concurring with the decision of December 2, 2005, and copies of that decision and the revised concurrence are attached hereto.**

BOYCE F. MARTIN, Jr., Circuit Judge, with whom MOORE, COLE, and CLAY, Circuit Judges, join, dissenting from the denial of rehearing en banc.

Because the Fourth Amendment already has more holes in it than a piece of Swiss cheese and the panel's decision adds another errantly-fired cannon-ball sized hole, I dissent from the Court's decision denying rehearing en banc. The panel's decision makes several errors: (1) It misunderstands the purpose and rationale of the good-faith exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); (2) It ignores this Circuit's precedent, particularly in an opinion published ten days before the panel's decision in this case, see United States v. Davis, 430 F.3d 345 (6th Cir.2005); (3) It overstates the magnitude of the purported circuit split; (4) It relies upon the Eighth Circuit's precedents in United States v. White, 890 F.2d 1413 (8th Cir.1989), United States v. Kiser, 948 F.2d 418 (8th Cir.1991), and United States v. Fletcher, 91 F.3d 48 (8th Cir.1996), but ignores the fact that those decisions have been severely undermined and limited by other Eighth Circuit decisions, such as United States v. O'Neal, 17 F.3d 239 (8th Cir.1994); and (5) In adopting the Eighth Circuit's undermined precedent, it fails to correctly apply it, by using internally inconsistent logic, leading to the wrong result. For all of these reasons, the panel's decision is incorrect and it undermines both the purposes of the exclusionary rule and the good-faith exception, and I therefore dissent from the Court's decision not to rehear the case en banc.

I.
A. Leon & The Good-Faith Exception

In Leon, the Supreme Court addressed the "question whether the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution's case in chief 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." Leon, 468 U.S. at 900, 104 S.Ct. 3405. The case arose when police, using a confidential informant, began investigating two individuals suspected of drug trafficking. Id. at 901, 104 S.Ct. 3405. During the investigation the police conducted surveillance of three residences and discovered that cars parked at the residences and cars visiting the residences belonged to individuals previously arrested for possession of marijuana. Id. A check of one of the individual's probation records led the police to Alberto Leon, who likewise had a previous arrest for drug charges, and at the time of the prior arrest, the police had information that Leon was heavily involved in drug importation into the United States. Id. Police then witnessed several persons arriving at the residences and leaving with small packages, as well as two individuals leaving Los Angeles on flights to Miami, a known drug source city. Id. at 902, 104 S.Ct. 3405. The pair, upon returning, were discovered with small amounts of marijuana. Id. On the basis of these facts, the officers prepared an affidavit requesting a search warrant, had it reviewed by several Deputy District Attorneys, and submitted it to a magistrate. Id. The magistrate then issued a facially valid search warrant, the searches were conducted, and the officers discovered large quantities of drugs and other evidence sufficient to charge the defendants with conspiracy to possess and distribute cocaine and various other counts. Id.

The defendants filed a motion to suppress which was granted in part by the district court. Id. at 903, 104 S.Ct. 3405. The court concluded that the affidavits were insufficient to establish probable cause and that the magistrate had erred by issuing the warrants. Id. A divided panel of the Ninth Circuit affirmed, agreeing that the affidavit lacked probable cause and that the magistrate erred by issuing the warrant. Id. at 904, 104 S.Ct. 3405. The Ninth Circuit also declined the government's request to recognize a good-faith exception to the exclusionary rule. Id. at 905, 104 S.Ct. 3405. The government filed a petition for certiorari, expressly declining to seek review over the probable cause determination and presenting only the question of "[w]hether the Fourth Amendment exclusionary rule should be modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective." Id. It was in this posture that the Supreme Court reviewed the case.

To determine whether the good-faith exception ought to exist, the Court determined that it must "weigh[ ] 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 907, 104 S.Ct. 3405. In weighing the costs and benefits, the Court recognized the "substantial social costs" of the exclusionary rule because of its interference with the truth-seeking functions of judge and jury. Id. (citing United States v. Payner, 447 U.S. 727, 734, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980)). Further, when officers act in good faith, granting defendants an exclusionary privilege that results in a windfall undermines and "offends basic concepts of the criminal justice system." Id. (citing Stone v. Powell, 428 U.S. 465, 490, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976)). Because of the high societal cost of exclusion, the Court determined that "[c]lose attention" must be paid to the "remedial objectives" and purposes behind the exclusionary rule. Id. at 908, 104 S.Ct. 3405.

The remedial objective of the exclusionary rule, pure and simple, is deterring police misconduct. Id. at 916, 104 S.Ct. 3405. The rule is not designed to punish the errors of judges and magistrates. Id. (noting that "there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion"). Thus, to have any purpose, the exclusion of unlawfully obtained evidence "must alter the behavior of individual law enforcement officers or the policies of their departments." Id. at 918, 104 S.Ct. 3405. With these factors balanced, the Court determined that "suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule." Id.1 Thus, when the remedial objective of the Fourth Amendment will be served, exclusion is the appropriate remedy. When no deterrence can be expected to result from suppression, then society ought not be forced to bear the cost of exclusion.

The Court found that when officers act in objective good-faith reliance on the determinations of a magistrate, suppression "cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity." Id. at 919, 104 S.Ct. 3405. Leon acknowledges that suppression of evidence based on the errors of a magistrate serves no deterrent purpose upon police officers' conduct, and therefore, suppression is not justified in those circumstances. This approach recognizes that "[r]easonable minds frequently may differ on the question of whether a particular affidavit establishes probable cause," and therefore, when police officers rely, in objective good-faith, on a detached and neutral magistrate's determination of probable cause, but a court later finds the magistrate's conclusions to be in error, a punishment inflicted upon the police officers and society serves no purpose. Id. There are, of course, exceptions to this rule to guard against abuse.2

Furthermore, as the Court very clearly noted in United States v. Peltier, 422 U.S. 531, 539, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975):

The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused....

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2 cases
  • United States v. Fugate, 11-3694
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • September 7, 2012
    ...Finally, the defendant in McClain petitioned for rehearing en banc, which the court declined over a strong dissent. United States v. McClain, 444 F.3d 537 (6th Cir. 2006). ...
  • United States v. Benavidez
    • United States
    • U.S. District Court — District of New Mexico
    • December 19, 2016
    ...(applying Leon's good faith exception to allow the use at trial of evidence found during illegal protective sweep) with McClain, 444 F.3d 537, 543-548 (6th Cir. 2006) (dissent to denial of rehearing en banc) (stating that the panel erred in applying the Leon good faith exception and describ......

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