The defendant argued that the government witnesses weren't believable on the question of the reason for the stop, but they were. The government argued that if the stop was invalid the exclusionary rule should not apply. The court wasn't buying it. More important to this case is the court's rejection of the government's argument in a two page long footnote that Herring would protect the search. It wouldn't. United States v. Barclay, 2011 U.S. Dist. LEXIS 45285 n. 5 (E.D. Mich. March 21, 2011): Relying on Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009), and United States v. Master, 614 F.3d 236 (6th Cir. 2010), the Government argues that even if there was a Fourth Amendment violation in this case suppression is not an appropriate remedy. If the Court accepts my recommendation, the Court need not reach this issue. However, if the Court concludes that the officers did not have reasonable suspicion to stop the van, the Court should reject the government's argument and conclude that suppression is the appropriate remedy. In Herring, the Court considered whether the exclusionary rule applies where an "officer reasonably believes there is an outstanding arrest warrant, but that belief turns out to be wrong because of a negligent bookkeeping error by another police employee." Herring, 129 S. Ct. at 698. Analogizing to its decisions in United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) (exclusionary rule inapplicable where police rely in objectively reasonable reliance on a warrant issued by a neutral magistrate) and Arizona v. Evans, 514 U.S. 1, 14-15, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995) (exclusionary rule inapplicable where police acted in reasonable reliance on a court database which mistakenly indicated that a warrant was outstanding), the Herring Court concluded that any deterrent effect of applying the exclusionary rule in that case was outweighed by its costs to society. Herring, 129 S. Ct. at 700-04. In Master, which also involved a defective warrant, the Sixth Circuit read Herring as "effectively creat[ing] a balancing test by requiring that in order for a court to suppress evidence following the finding of a Fourth Amendment violation, 'the benefits of deterrence must outweigh the costs.'" Master, 614 F.3d at 243 (Herring, 129 S. Ct. at 700). In the Sixth Circuit's view, "the Herring Court's emphasis seems weighed more toward preserving evidence for use in obtaining convictions, even if illegally seized, than toward excluding evidence in order to deter police misconduct unless the officers engage in 'deliberate, reckless, or grossly negligent conduct.'" Id. (quoting Herring, 129 S. Ct. at 702). Based on Master the Government argues that evidence should never be excluded "unless the officers engage in 'deliberate, reckless, or grossly negligent conduct.'" Id. (quoting Herring, 129 S. Ct. at 702). Because the officers' conduct here was not deliberate, reckless, or grossly negligent, the Government argues, the evidence obtained as a result of the stop should not be suppressed. The Government's argument, however stretches Herring and Master far beyond the bounds of those cases. Both Herring and Master involved what appeared to be facially valid warrants which, it later turned out, were defective and the officers' reasonable reliance on those warrants. Those cases, in other words, were merely applications of the Leon good faith exception to the exclusionary rule. The Leon rule has been applied in four circumstances, when officers: (1) reasonably and in good faith rely on a warrant subsequently declared invalid, see Leon, 468 U.S. at 922; (2) perform a warrantless search in reliance upon a statute later declared unconstitutional, see Illinois v. Krull, 480 U.S. 340, 349-53, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987); (3) act in good faith reliance upon mistaken information indicating the existence of an outstanding warrant, see Herring, 129 S. Ct. at 702-04; Evans, 514 U.S. at 14-16; and (4) act in reliance on existing caselaw which justifies the search but which is later overturned, see United States v. Buford, 632 F.3d 264, 276 (6th Cir. 2011); United States v. McCane, 573 F.3d 1037, 1044-45 (10th Cir. 2009). See generally, McCane, 573 F.3d at 1042-44; United States v. Peoples, 668 F. Supp. 2d 1042, 1048 (W.D. Mich. 2009). On the other hand, the courts have concluded that the good faith exception is generally inapplicable to warrantless searches besides those types of warrantless searches identified in Krull and Evans. See United States v. Herrera, 444 F.3d 1238, 1251 (10th Cir. 2006); United States v. Curzi, 867 F.2d 36, 44 (1st Cir. 1989); United States v. Winsor, 846 F.2d 1569, 1579 (9th Cir. 1988) (en banc); United States v. Morgan, 743 F.2d 1158, 1165 (6th Cir. 1984). And I have been unable to locate a single case, either federal or state, applying the good faith exception to an officer's own mistaken conclusion that the facts known to the officer sufficed to establish reasonable suspicion or probable cause. Cf. United States v. Lopez-Soto, 205 F.3d 1101, (9th Cir. 2000) ("[T]here is no good faith exception to the exclusionary rule for police who do not act in accordance with governing law. To create an exception here would defeat the purpose of the exclusionary rule, for it would remove the incentive for police to make certain that they properly understand the law that they are entrusted to enforce and obey."). Indeed, such a conclusion would be nonsensical. Under Terry, the question is whether the officer had an objectively reasonable suspicion that a crime was occurring or was about to occur. Under Leon, the question is whether an objectively reasonable officer would have known that the search or seizure was illegal. However, no objectively reasonable officer could believe a search to be valid where there is no objectively reasonable suspicion. Thus, Leon simply takes one back to the Terry inquiry-that is, whether there was objectively reasonable suspicion. And nothing in Herring or Master, both of which involved traditional Leon-type circumstances, purports to change this understanding of Leon. Instructive is the decision in United States v. Stokely, 733 F. Supp. 2d 868 (E.D. Tenn. 2010). In that case, the court found that the officer's original decision to detain the defendant, which subsequently led to the defendant's consent to search his home, was not supported by reasonable suspicion. There, as here, the Government nevertheless argued that exclusion was improper under Herring because the officer "detained Mr. Stokely based upon a good-faith belief in the existence of reasonable suspicion to detain him[.]" Id. at 905. The court rejected this argument for similar reasons to those discussed above, explaining: In the present case, Detective Gibson's decision to detain Mr. Stokely and to place him in handcuffs was based upon her own erroneous assessment that either she or the officers directing her to detain Mr. Stokely had a valid basis to do so. As discussed at length above, that determination was woefully incorrect. Unlike the officers in Herring who relied upon the representation of other law enforcement personnel that an arrest warrant was outstanding or the officers executing the search warrant in Leon who relied upon the judge's determination that probable cause to issue a search warrant existed, Detective Gibson made the decision to detain Mr. Stokely at the scene based upon her and her fellow officers' assessment that such detention was necessary and legal. Thus, the Fourth Amendment violation in this case resulted from the deliberate action of law enforcement and is of a type that could be deterred by exclusion of the evidence. Id. at 906. And, in other contexts, the courts (including the Sixth Circuit) have rejected the Government's arguments that Herring fundamentally alters the way in which courts are to apply the exclusionary rule or the good faith exception. See United States v. Lazar, 604 F.3d 230, 237-38 & n.6 (6th Cir. 2010) (with respect to facially deficient warrant, which is generally outside the good faith exception, rejecting the Government's argument that Herring "greatly expanded" the good faith exception and "changed the applicable standard," and concluding that "Herring does not purport to alter that aspect of the exclusionary rule which applies to warrants that are facially deficient warrants ab initio."); United States v. Martinez, 686 F. Supp. 2d 1161, 1204-05 (D.N.M. 2009) (with respect to rule that good faith exception does not apply to warrants supported by illegally obtained evidence, "[t]he Court does not believe that the Supreme Court's decision in Herring v. United States changes this analysis. … The Court is not convinced that Herring v. United States stands for the proposition that, any time an officer in the field negligently violates someone's constitutional rights, exclusion of the evidence is not justified."). Accordingly, if the Court concludes that the officers lacked reasonable suspicion to stop the van, the Court should conclude that the evidence is subject to suppression notwithstanding Herring and Master.
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