United States v. Kimberly Ann Hove

848 F.2d 137 UNITED STATES of America, Plaintiff-Appellee, v. Kimberly Ann HOVE, Defendant-Appellant. No. 87-5013. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 4, 1988. Decided June 2, 1988. Marilyn E. Butler, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant. Alka Sagar, Deputy U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before CANBY and WIGGINS, Circuit Judges, and LOVELL, * District Judge. CANBY, Circuit Judge: 1 The district court denied Kimberly Hove's pretrial motion to suppress incriminating evidence seized by the police from one of her residences. Although the evidence was seized pursuant to a facially valid warrant, the affidavit submitted to the magistrate in support of the warrant failed to link Hove to the address of the residence searched. The district court found that the affidavit was deficient, but held that the evidence seized was admissible under United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), because the officers acted in a good faith belief that probable cause existed to justify the…

The district court denied Kimberly Hove’s pretrial motion to suppress incriminating evidence seized by the police from one of her residences. Although the evidence was seized pursuant to a facially valid warrant, the affidavit submitted to the magistrate in support of the warrant failed to link Hove to the address of the residence searched. The district court found that the affidavit was deficient, but held that the evidence seized was admissible under United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), because the officers acted in a good faith belief that probable cause existed to justify the search. On appeal, Hove argues that the good faith exception to the exclusionary rule should not save the search in this case because the affidavit was so deficient that official belief in the existence of probable cause would be entirely unreasonable. We agree and reverse the district court’s ruling that Leon’s good faith exception to the exclusionary rule applies to this search.

FACTUAL BACKGROUND

On February 18, 1986, Sergeant Moya, an experienced police officer with the Los Angeles County Sheriff’s Department, responded to a bomb complaint from Mr. Kenneth…

dissenting:

I respectfully dissent.

The majority found that the good faith exception to the exclusionary rule as set out in United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), does not apply in this case because the error was not that of the judicial officer issuing the warrant, but rather was that of the officer applying for the warrant.

The Ninth Circuit has acknowledged that the Supreme Court in Massachusetts v. Shepherd, 468 U.S. 981 , 104 S.Ct. 3424 , 82 L.Ed.2d 737 (1984), did not limit the circumstances in which an executing officer’s reliance was reasonable “to a situation in which the judge is the source of the warrant’s deficiency.” U.S. v. Michaelian, 803 F.2d 1042, 1047 (9th Cir.1986).

The Ninth Circuit has also acknowledged that

Id.

Although the affidavit was deficient in •that it did not specifically connect the De-Anza address to Ms. Hove, I find that it was not so deficient that official belief in the existence of probable cause was unreasonable. In his five page affidavit, Sergeant Moya set out a summary of his two week investigation indicating that Ms. Hove may have been residing in San Diego. On the page listing the DeAnza address…