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January 13, 2007
Leon Has its Limits: United States v. Thai Luong (9th Cir.2006)
At issue in Luong was the search of Luong’s residence pursuant to a search warrant. The search warrant stated that the Hong Kong office of the DEA had informed the Los Angeles office that “a suspected suspect (Chun-Ying Jao) known as a chemist” was arriving at LAX to “set up and manufacture methamphetamine.” The affidavit set forth the surveillance of Jao. Luong was seen going to Jao’s hotel room. The two left the hotel and went to a restaurant where they ate lunch. After lunch, they went to a residence, then drove to a Home Depot store. They entered Home Depot carrying a red high pressure hose and questioned a store employee about “how to insert a new adapter fitting into (the) hose.” Luong purchased an adapter fitting, and he and Jao drove back to the residence. The affiant stated that she recognized the hose as a common tool used with a vacuum pump during the production of methamphetamine. Upon execution of the search warrant, agents found evidence of methamphetamine manufacturing in Luong’s home.
Luong’s case was originally brought in the state court. After the state court suppressed the evidence, Luong was indicted in federal court. Luong’s motion to suppress was granted by the District Court, the court finding that the affidavit was so lacking in indicia of probable cause that it was not objectively reasonable for an officer to rely on the warrant.
On appeal, the government conceded that the warrant was not supported by probable cause. However, the government maintained that suppression was unnecessary under United States v. Leon, 468 U.S. 897 (1984), due to the officers’ good faith reliance upon the warrant. The court stressed that the Leon good faith test was an objective one, the inquiry being “whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” The court discussed the situations in which reliance on a warrant cannot be considered objectively reasonable. One of those situations is when the affidavit is so lacking in indicia of probable cause that official belief in its existence is objectively unreasonable. The court concluded that the Luong affidavit was so deficient that the officer’s reliance thereon was unreasonable. Totally missing from the affidavit was any factual basis to believe the anonymous tip was true. “The tip must include a ‘range of details,’ and it must predict future actions by the suspect that are subsequently corroborated by the police.” United States v. Morales, 252 F.3d 1070, 1075 (9th Cir.2001).
The court rejected the government’s claim that exigent circumstances made it objectively reasonable for the officers to rely on the warrant. Also rejected was an attempt to justify reliance on the affidavit by facts orally conveyed to the magistrate but not contained in the affidavit. The court stressed that “all data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath.” United States v. Gourde, 440 F.3d 1065, 1067 (9th Cir.2006).
Posted by Tim Warriner at 09:02 AM