United States v. Thai Tung Luong

470 F.3d 898 UNITED STATES of America, Plaintiff-Appellant, v. Thai Tung LUONG, Defendant-Appellee. No. 05-50090. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 14, 2006. Filed December 12, 2006. Matthew D. Umhofer, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellant. Stephen G. Frye, Los Angeles, CA, for the defendant-appellee. Appeal from the United States District Court for the Central District of California; Dickran M. Tevrizian, District Judge, Presiding. D.C. No. CR-04-01210-DT. Before: B. FLETCHER, FERGUSON, and CALLAHAN, Circuit Judges. FERGUSON, Circuit Judge: 1 The government appeals the District Court's order suppressing evidence seized from Appellee Thai Tung Luong's residence and storage locker. The District Court held that the government did not have probable cause to search Luong's residence, and that suppression of the fruits of this search was appropriate because the "good faith" exception to the exclusionary rule did not apply. On appeal, the government concedes the search was not supported by probable cause but contends that the warrant contained sufficient indicia of probable cause to render the officers'…

The government appeals the District Court’s order suppressing evidence seized from Appellee Thai Tung Luong’s residence and storage locker. The District Court held that the government did not have probable cause to search Luong’s residence, and that suppression of the fruits of this search was appropriate because the “good faith” exception to the exclusionary rule did not apply. On appeal, the government concedes the search was not supported by probable cause but contends that the warrant contained sufficient indi-cia of probable cause to render the officers’ reliance on the warrant objectively reasonable. We agree with the District Court that the warrant in this case was so lacldng in indicia of probable cause that a reasonably well-trained officer could not have relied on it in good faith. We therefore affirm the suppression order.

I. BACKGROUND

A. The Search Warrant

On August 1, 2003, agents of the Drug Enforcement Administration (DEA), in conjunction with local Los Angeles police officers, initiated an investigation of Chun-Ying Jao, a Taiwanese male, after Jao arrived in Los Angeles on a flight from Hong Kong. The next day, the agents sought a warrant to search the…

dissenting.

I dissent because United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), our own precedent, and authority from our sister circuits support a holding that extrinsic evidence may be considered when determining whether the good faith exception to the application of the exclusionary rule applies. When the extrinsic evidence is considered here, sufficient indicia of probable cause and objective good faith reliance on the search warrant exists to support the application of the good faith exception to the exclusionary rule.

While Leon explained that the good faith exception does not apply in certain circumstances, including when the affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” 468 U.S. at 923 , 104 S.Ct. 3405 (quoting Brown v. Illinois, 422 U.S. at 590, 610-611, 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975)) (Powell, J., concurring in part), it also stated that “all of the circumstances — including whether the warrant application had previously been rejected by a different magistrate — may be considered” in the good faith inquiry. Id. at 922, 95 S.Ct. 2254, n. 23 . Moreover, in…