State of Arizona v. Thomas L. Dean , 241 Ariz. 387 ( 2017 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
THOMAS L. DEAN,
Appellant.
No. 2 CA-CR 2015-0392
Filed January 12, 2017
Appeal from the Superior Court in Cochise County
No. CR201300593
The Honorable Wallace R. Hoggatt, Judge
REVERSED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy Pignatella Cain, Assistant Attorney General, Tucson
Counsel for Appellee
Emily Danies, Tucson
Counsel for Appellant
STATE v. DEAN
Opinion of the Court
OPINION
Chief Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Vásquez concurred and Judge Metcalf1 dissented.
E C K E R S T R O M, Chief Judge:
¶1 Thomas Dean appeals from his conviction and sentence
for sexual exploitation of a minor. On appeal, he challenges the trial
court’s ruling that, although the pertinent warrant was defective, the
officer relied on it in good faith. For the following reasons, we
conclude that the warrant in question was facially invalid and in
clear violation of the constitutional requirement of particularity. We
therefore reverse the court’s ruling and Dean’s conviction and
sentence.
Factual and Procedural Background
¶2 “In reviewing the denial of a defendant’s motion to
suppress, we consider only ‘evidence presented at the suppression
hearing and view the facts in the light most favorable to sustaining
the trial court’s ruling.’” Brown v. McClennen, 239 Ariz. 521, ¶ 4, 373
P.3d 538, 540 (2016), quoting State v. Hausner, 230 Ariz. 60, ¶ 23, 280
P.3d 604, 614 (2012). In July 2012, a detective with the Cochise
County Sheriff’s Office received a report that Dean had sexually
assaulted eight-year-old C.D. eighteen months earlier. The detective
sought a search warrant for Dean’s trailer and car. In the affidavit,
as the sole basis for probable cause, the detective described an
incident occurring in December 2010, in which Dean had “put his
1The Hon. D. Douglas Metcalf, a judge of the Pima County
Superior Court, is authorized and assigned to sit as a judge on the
Court of Appeals, Division Two, pursuant to Arizona Supreme
Court order filed September 21, 2016.
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Opinion of the Court
thing up [C.D.’s] thing.”2 At the time he sought the warrant, the
detective knew, but did not advise the magistrate, that Dean had
previously been convicted of child molestation sixteen years earlier
in another state. In that prior incident, Dean had photographed the
victim.3
¶3 During the search of Dean’s trailer, officers seized a
laptop computer and submitted it for examination. The computer
contained images of child pornography that resulted in a ten-count
indictment, which was reduced to a single count at the state’s
request.4 After a bench trial, Dean was convicted of one count of
sexual exploitation of a minor under fifteen years of age and
sentenced to an enhanced, minimum prison term of twenty-one
years. This appeal followed.
Motion to Suppress
¶4 On appeal, Dean argues the trial court erred in denying
his motion to suppress the evidence secured from execution of the
search warrant. “We review the court’s decision ‘for abuse of
discretion if it involves a discretionary issue, but review
constitutional issues and purely legal issues de novo.’” State v. Gay,
214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007), quoting State v.
Booker, 212 Ariz. 502, ¶ 10, 135 P.3d 57, 59 (App. 2006).
¶5 The trial court found the warrant deficient because the
affidavit, which referred only to an allegation of molestation
2The affidavit also alleged that the molestation occurred in a
residence owned by Dean’s parents, and not the trailer the detective
sought to search.
3This is the extent of the information presented at the
suppression hearing. All other facts presented by the dissent were
not introduced at the hearing on the motion to suppress and are
therefore outside the scope of our review. McClennen, 239 Ariz.
521, ¶ 4, 373 P.3d at 540.
4Althoughthe molestation of C.D. was the basis for the search
warrant, Dean was not charged with that offense in this case.
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Opinion of the Court
occurring at another location eighteen months earlier, “did not
establish probable cause that [Dean] possessed child pornography
on his computer in July 2012.” The state does not dispute this
finding. The court nonetheless concluded that the warrant was
sufficiently particular to be relied upon under the good-faith
exception articulated in United States v. Leon, 468 U.S. 897 (1984), and
denied Dean’s motion to suppress.5
¶6 In Leon, the Supreme Court concluded that, in general,
evidence seized by law enforcement officers acting in good faith, but
in reliance on a faulty warrant, should not be suppressed. Id. at 922.
The court then established four exceptions to that general rule:
(1) when a magistrate is misled by
information that the affiant knew was false
or would have known was false but for his
or her reckless disregard for the truth;
(2) when the issuing magistrate “wholly
abandon[s]” his or her judicial role;
(3) when a warrant is based on an affidavit
“so lacking in indicia of probable cause as
to render official belief in its existence
entirely unreasonable”; and (4) when a
warrant is “so facially deficient . . . that the
executing officers cannot reasonably
presume it to be valid.”
State v. Hyde, 186 Ariz. 252, 273, 921 P.2d 655, 676 (1996), quoting
Leon, 468 U.S. at 923 (alterations in Hyde).
¶7 On appeal, Dean claims the fourth Leon exception
applies here because the “warrant lacks particularity in describing
the places to be searched and the items to be seized.” We agree. In
United States v. Spilotro, the Ninth Circuit articulated a three-factor
test to determine whether a description of items to be seized is
5Because we consider only the evidence admitted at the
suppression hearing, Brown, 239 Ariz. 521, ¶ 4, 373 P.3d at 540, we
do not consider whether a second search warrant, introduced into
evidence at the trial, authorized the seizure.
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Opinion of the Court
sufficiently particular to support an officer’s good-faith belief in the
validity of the warrant:
(1) whether probable cause exists to seize
all items of a particular type described in
the warrant, (2) whether the warrant sets
out objective standards by which executing
officers can differentiate items subject to
seizure from those which are not, and
(3) whether the government was able to
describe the items more particularly in light
of the information available to it at the time
the warrant was issued.
800 F.2d 959, 963 (9th Cir. 1986) (citations omitted).
¶8 As to the first Spilotro factor, whether there was
probable cause to seize a certain type of item described in the
warrant, 800 F.2d at 963, the trial court found there was not. As
noted above, the state has not challenged this finding on appeal. We
nonetheless consider this factor in accordance with our obligation to
uphold the trial court if it is correct for any reason. State v.
Valenzuela, 239 Ariz. 299, ¶ 35, 371 P.3d 627, 638 (2016).
¶9 In the affidavit seeking a search warrant, the detective
stated that in 2010 Dean had anally sodomized a six- or seven-year-
old boy. The alleged incident took place at the home of Dean’s
parents, in the attic. Although the allegations certainly provided
probable cause to believe Dean had committed child molestation or
sexual conduct with a minor, nothing about these facts provided
probable cause to believe Dean possessed child pornography
eighteen months later, much less at any particular location. See
United States v. Hodson, 543 F.3d 286, 292 (6th Cir. 2008) (“[I]t is
beyond dispute that the warrant was defective for lack of probable
cause—[the detective] established probable cause for one crime
(child molestation) but designed and requested a search for evidence
of an entirely different crime (child pornography).”); Carissa Byrne
Hessick, Disentangling Child Pornography from Child Sex Abuse, 88
Wash. U. L. Rev. 853, 875 (2011) (“[E]mpirical literature is unable to
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Opinion of the Court
validate the assumption that there is a causal connection between
possession of child pornography and child sex abuse.”).
¶10 The dissent suggests that we may consider information
not presented to the magistrate, but known to the officer, in
evaluating whether there was probable cause to search under the
first Spilotro factor. Courts are currently split on the issue of whether
a reviewing court may look beyond the four corners of the affidavit
seeking a search warrant in determining whether an officer relied on
a warrant in good faith. Compare United States v. Martin, 297 F.3d
1308, 1318 (11th Cir. 2002) (reviewing court may look beyond
affidavit to any information known by the officer), with United States
v. Frazier, 423 F.3d 526, 535-36 (6th Cir. 2005) (reviewing court may
consider information not contained in affidavit if it was presented to
the magistrate), and United States v. Luong, 470 F.3d 898, 904-05 (9th
Cir. 2006) (reviewing court may not consider information beyond
four corners of affidavit).
¶11 But, even assuming arguendo we could consider
information known to the officer, but not included in the affidavit or
presented to the magistrate, the officer still lacked probable cause to
believe Dean possessed child pornography. Here, the detective
knew, but did not advise the magistrate, that Dean was on parole for
sexual assault of a minor for an incident which had occurred sixteen
years earlier. In that incident, Dean had taken photographs of the
victim. However, the facts underlying the prior incident provided
no greater evidence that Dean possessed child pornography on his
computer than the facts of the instant case. And the victim in this
case, C.D., although forensically interviewed, never asserted that he
was either photographed or shown pornography by Dean.
Accordingly, even if we consider the facts known by the detective
that were not included in the affidavit, the warrant is still lacking in
probable cause to believe Dean possessed child pornography at all,
much less at his home, a location where none of the alleged criminal
acts occurred.
¶12 The second factor, whether the warrant provided
sufficient guidance to officers conducting the search, focuses on
whether the warrant “specified the crime to be investigated, the
specific places to be searched, and the types of evidence to be
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Opinion of the Court
seized.” Dawson v. City of Seattle, 435 F.3d 1054, 1064 (9th Cir. 2006).
Specificity in a warrant “prevents officers from engaging in general,
exploratory searches by limiting their discretion and providing
specific guidance as to what can and cannot be searched and
seized.” United States v. Adjani, 452 F.3d 1140, 1147 (9th Cir. 2006);
see State v. Adams, 197 Ariz. 569, ¶ 25, 5 P.3d 903, 908 (App. 2000).
¶13 The warrant at issue here described four categories of
items to be seized, two of which are relevant to this discussion:
A. Any and all electronic devices and
associated materials capable of
producing, manipulating, sending,
receiving, and/or storing electronic
files, media and/or digital images
which may be stored in (i.e. computers,
cameras, cell phones, thumb drives,
etc.).
B. Any and all items which visually depict
minors engaged in exploitive exhibition
or any and all other sexual conduct such
as, but not limited to, posing nude.
¶14 Category A allowed officers to search all of Dean’s
computer records without any limitations on what files could be
seized or how those files “related to specific criminal activity.”
United States v. Kow, 58 F.3d 423, 425-26, 427 (9th Cir. 1995); see
United States v. Riccardi, 405 F.3d 852, 862 (10th Cir. 2005)
(“[W]arrants for computer searches must affirmatively limit the
search to evidence of specific . . . crimes or specific types of
material.”). The trial court correctly concluded that this was
impermissibly broad. On appeal, the state has not challenged this
conclusion.
¶15 The primary dispute on appeal is whether category B,
“[a]ny and all items which visually depict minors engaged in
exploitive exhibition,” was sufficiently particular to authorize a
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Opinion of the Court
search of a computer.6 Dean argues this category instead “refer[s] to
items such as printed photographs, books, magazines, or other illicit
printed material depicting minors.” In making this claim, Dean
distinguishes between printed material, which officers can
immediately determine to be illicit or not, and computer files, which
cannot so readily be distinguished.
¶16 Because of the privacy interests at stake in computers,
and the large amount of personal information available therein, we
likewise conclude that a warrant that does not specify that officers
intend to search a computer is not sufficiently particular to authorize
such a search. See United States v. Galpin, 720 F.3d 436, 446 (2d Cir.
2013) (“Where . . . the property to be searched is a computer hard
drive, the particularity requirement assumes even greater
importance.”); United States v. Christie, 717 F.3d 1156, 1164 (10th Cir.
2013) (“[T]he particularity requirement and its underlying purposes
are fully engaged when investigators seek to search a personal
computer.”). Here, category B of the warrant does not specify that a
computer is one of the “items” to be searched for visual depictions
of “minors engaged in exploitive exhibition.”
¶17 In United States v. Giberson, 527 F.3d 882, 884 (9th Cir.
2008), an official conducted a search of a defendant’s residence
pursuant to a warrant that authorized him to search for certain
6The state claims Dean has forfeited his argument because in
his motion to suppress below, he did not make the specific claim
that category B, the only category of the warrant found to be valid
by the trial court, was not sufficiently particular to authorize a
search of a computer. But Dean raised the issue of particularity to
the trial court. The state responded to the claim that the warrant did
not authorize seizure of the computer. The trial court ruled on this
issue of particularity. In short, Dean squarely presented the claim
we now address to the trial court and the trial court reached its
merits. Once a claim is properly raised below, appellate briefing
and argument need not be a precise facsimile of the briefing and
argument occurring at the trial court level. No purpose would be
served by finding the issue forfeited. See State v. Granados, 235 Ariz.
321, ¶ 19, 332 P.3d 68, 73-74 (App. 2014); State v. Vannoy, 177 Ariz.
206, 210, 866 P.2d 874, 878 (App. 1993).
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Opinion of the Court
documents. The defendant claimed that, because the warrant did
not authorize a search of his computer, it lacked sufficient
particularity. Id. at 886. The court noted the officers had probable
cause to believe the computer would contain the documents sought
and they “merely secured the computer while they waited to get a
second warrant that would specifically authorize searching the
computer’s files.” Id. at 889. However, in United States v. Payton, the
court clarified that in the absence of the circumstances highlighted in
Giberson, a warrant must explicitly authorize a search of a computer.
Payton, 573 F.3d 859, 864 (9th Cir. 2009).
¶18 None of the circumstances present in Giberson are
present here. Based on the evidence within the scope of our review,
the officers did not merely seize the computer while they obtained a
warrant to search it, and the officer requesting the warrant did not
have probable cause to believe Dean had child pornography. See 527
F.3d at 889. Accordingly, the second Spilotro factor also weighs
against the state.
¶19 Finally, we must assess whether it was possible for the
state to describe the items sought with greater particularity, the last
Spilotro factor. As to category A, the state could have specified that
it wanted to search Dean’s computers and electronic devices for
child pornography. As to category B, the state could have specified
that “computers” were included as part of the “items” to be
searched. See United States v. Mann, 389 F.3d 869, 878 (9th Cir. 2004)
(warrant was sufficiently particular, in part, because “officers had no
additional information available that would have allowed them to
describe the items more particularly at the time the warrant was
issued”). Here, the warrant lacked particularity because category A
adequately articulated the items to be searched, including
computers, but placed no limitation on the specific evidence sought.
By contrast, category B described the evidence sought but lacked
specificity on the items to be searched.7
7The state has not asserted, either at trial or on appeal, that we
may read category B as informing or limiting category A. See State v.
Crowley, 202 Ariz. 80, ¶ 32, 41 P.3d 618, 629 (App. 2002) (state has
burden “to prove that the good faith exception to the exclusionary
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Opinion of the Court
¶20 Because all three Spilotro factors weigh against the state,
we conclude the warrant here was not sufficiently particular. The
remaining question, then, is whether the warrant was so lacking in
particularity that it was not objectively reasonable for an officer to
rely on it. Spilotro, 800 F.2d at 968. This court has previously held
that a “search warrant which does not particularly describe either
the place to be searched or the items to be seized is not facially valid,
and the police cannot rely on it in good faith.” State v. Williams, 184
Ariz. 405, 407, 909 P.2d 472, 474 (App. 1995). “As an irreducible
minimum, a proper warrant must allow the executing officers to
distinguish between items that may and may not be seized.” United
States v. Leary, 846 F.2d 592, 602 (10th Cir. 1988). Moreover, case law
has cautioned officers that warrants authorizing computer searches
must be afforded careful scrutiny regarding particularity. See
Galpin, 720 F.3d at 446; Christie, 717 F.3d at 1164; see also United States
v. George, 975 F.2d 72, 77-78 (2d Cir. 1992) (precedent may be used in
determining whether warrant could be relied upon in good faith); cf.
Riley v. California, ___ U.S. ___, ___, 134 S. Ct. 2473, 2488-89 (2014)
(noting privacy interests in cell phones); State v. Peoples, 240 Ariz.
245, ¶ 15, 378 P.3d 421, 426 (2016) (“Cell phones are intrinsically
private . . . .”). Accordingly, we conclude it was not “objectively
reasonable” for officers to rely on the warrant and the good-faith
exception does not apply. See Williams, 184 Ariz. at 407 n.3, 909 P.2d
at 474 n.3.
¶21 In the trial court, the state argued as an alternative
ground for upholding the search that Dean was on parole at the time
and “may have given consent to searches by law enforcement of his
residence as a condition of his parole.” The state now argues that
rule applies”). Moreover, the warrant included two additional,
distinct categories of items sought—namely, records of criminal
activity and items used for luring children, which discredits any
theory that category B is intended to inform or limit category A.
And, if category B is simply intended to inform category A, the
warrant then would not authorize seizure of any print materials
such as photographs or magazines containing child pornography.
This rebuts any suggestion that the categories should be read in
conjunction with one another.
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Opinion of the Court
we should remand this case for a determination of whether the
search was permissible on that ground. While the state briefly noted
this argument in its response to Dean’s motion to suppress, it also
stated: “If the State can develop this theory the evidence will be
presented at the evidentiary hearing.” But at the evidentiary
hearing, the state did not present any evidence regarding the terms
of Dean’s parole in Missouri. The state therefore did not present the
trial court with the evidence necessary to make a finding on this
issue and did not meet its burden of demonstrating the lawfulness
of the search on this ground. See Ariz. R. Crim. P. 16.2(b); Hyde, 186
Ariz. at 266, 268, 921 P.2d at 669, 671 (in challenging search warrant,
defendant bears burden of production but state bears burden of
persuasion); State v. Boteo-Flores, 230 Ariz. 551, ¶ 10, 288 P.3d 111,
114 (App. 2012); cf. United States v. Dickler, 64 F.3d 818, 832 (3d Cir.
1995) (“[W]here the government has the burden of production and
persuasion . . . its case should ordinarily have to stand or fall on the
record it makes the first time around.”).
The Dissent
¶22 The dissent suggests the primary issue before us is
whether the officer’s investigation developed sufficient probable
cause to support the issuance of the warrant, rather than whether
the warrant was sufficiently particular. The dissent posits that if
such cause existed, regardless of what information was presented to
the magistrate, then the officer acted in good faith when executing
the defective warrant. As noted above, we face unsettled law on the
question of what portions of the officer’s knowledge we may
consider in evaluating an officer’s good faith. And, without
resolving that question, we have conducted our analysis on the
probable cause factor with the assumption that all such facts may be
considered.8 We simply disagree with the premise that all
allegations of sexual conduct with a minor, regardless of their
specific nature, and regardless of whether an officer has articulated
any case-specific nexus between the two crimes, necessarily provide
8The dissent suggests we should resolve the issue. Because
the issue is one of first impression in Arizona, because neither party
has raised or briefed it, and because resolving it is not necessary to
decide the case before us, we decline to do so.
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Opinion of the Court
probable cause for the search of a defendant’s computer for child
pornography.
¶23 But there are other factual constraints we are duty-
bound to enforce in evaluating any motion to suppress on appeal.
In his dissent, our colleague acknowledges that we may consider
only information that was presented at the hearing on the motion to
suppress. See Brown, 239 Ariz. 521, ¶ 4, 373 P.3d at 540. He
nevertheless considers the entire trial court record. Importantly, any
factual material not presented at the suppression hearing would not
have been developed by its proponent, subjected to cross-
examination, or considered by the trial court as a basis for its ruling.
At any rate, this limitation is a rule of appellate review set forth by
our supreme court, which we are not at liberty to disregard. See id.;
State v. Smyers, 207 Ariz. 314, n.4, 86 P.3d 370, 374 n.4 (2004).
¶24 Specifically, the dissent incorrectly asserts that we may
consider the legal impact of a second search warrant that the state
did not introduce at the suppression hearing. But not only did the
state fail to present the second warrant at the hearing, the detective
testified that the first warrant—the one Dean has challenged and we
have addressed—was the only warrant pertinent to the case.
Indeed, the trial court specifically inquired if there was an
“amended, corrected, or modified warrant of any kind,” and the
detective replied, “No, your Honor.”
¶25 The dissent nonetheless burdens the defendant with the
responsibility to raise and address any impact of the second warrant
on the application of the good-faith exception. But Dean presented a
prima facie case for suppression on the grounds that that the
warrant under which his computer was seized was invalid. See
Ariz. R. Crim. P. 16.2(b). The ultimate burden of persuasion then fell
to the state. See id. If the state sought to argue that any defect with
the first warrant was ultimately remedied by the second warrant, it
bore the duty to present that argument, and any factual information
in support of it, to the trial court. To the contrary, the state has
never argued, either below or on appeal, that the second warrant
cures any defect in the first, and has waived this issue. See State v.
Brita, 158 Ariz. 121, 124, 761 P.2d 1025, 1028 (1988) (“[T]he state,
never having presented the issue to the trial court . . . has waived
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Opinion of the Court
it.”). And, although we can affirm a trial court’s ruling for any
reason supported by the record, see State v. Moreno, 236 Ariz. 347,
¶ 5, 340 P.3d 426, 429 (App. 2014), we may not do so with reference
to facts not properly in the record before us.9
¶26 The dissent also asserts that the good-faith exception
applies in the absence of “systemic or deliberate police misconduct,”
infra ¶ 34, and correctly observes that our record contains no
evidence of any deliberate malfeasance by the officer here. But, in
Leon, the Court specifically tailored the standard for applying the
good-faith exception to the context of a defective warrant. The
Court concluded that the standard is one of “objective good faith.”
Leon, 468 U.S. at 923. As we have observed in this context,
“[s]ubjective good faith on the part of the officers is insufficient.”
State v. Coats, 165 Ariz. 154, 158, 797 P.2d 693, 697 (App. 1990); accord
State v. Williams, 184 Ariz. 405, 408, 909 P.2d 472, 475 (App. 1995).
Thus, the good-faith exception does not apply if the officer knew or
“should have known” his actions were unconstitutional. Hyde, 186
Ariz. at 275, 921 P.2d at 678.
¶27 As discussed above, Leon articulated four circumstances
under which officers could make no claim that they had exercised
“objective good faith.” 468 U.S. at 923. And, in Spilotro, the court
articulated three objective factors by which to evaluate whether,
under Leon, a warrant is “so facially deficient . . . that the executing
officers cannot reasonably presume it to be valid.” 800 F.2d at 968,
quoting Leon, 468 U.S. at 923. We submit that this is the correct
analytical framework to evaluate the officer’s actions here.
9The dissent likewise departs from our standard of appellate
review when he looks outside the suppression hearing record to
support the supposed common-sense connection between child
molestation and child pornography, attempting to illustrate his
point with the thousands of images found on Dean’s computer.
Such a temptation is precisely why search warrants are based on an
“objective predetermination of probable cause” instead of the “far
less reliable procedure o[f] an after-the-event justification for the . . .
search, too likely to be subtly influenced by the familiar
shortcomings of hindsight judgment.” Beck v. Ohio, 379 U.S. 89, 96
(1964).
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Opinion of the Court
¶28 In that context, neither the officer’s apparent
inexperience nor lack of deliberate misconduct relieved him of the
duty to exercise objective good faith in executing the warrant.
“[T]he [exclusionary] rule’s primary purpose has been to deter law
enforcement from carrying out unconstitutional searches and
seizures.” United States v. Underwood, 725 F.3d 1076, 1084 (9th Cir.
2013). It does not serve this purpose to allow the state to
inadequately train its officers and then rely on that inadequate
training in defending inadequate warrants. See State v. Stoll, 239
Ariz. 292, ¶ 20, 370 P.3d 1130, 1135 (App. 2016) (officer’s reliance on
inadequate training did not make conduct objectively reasonable).
¶29 The dissent relies on United States v. Otero, 563 F.3d 1127(10th Cir. 2009), and United States v. Riccardi, 405 F.3d 852 (10th Cir.
2005), cases addressing “particularity” defects in a warrant, for its
conclusion that the good-faith exception should apply here. A
number of features distinguish this case from Otero and Riccardi.
¶30 In both of those cases, the officer seeking the warrant
consulted with an attorney to ensure the warrant was sufficient, a
factor which the court referred to as “one of the more important
facts.” Otero, 563 F.3d at 1135. Here, the detective was unsure
whether he had sought assistance from a more experienced officer,
and certainly did not consult an attorney. In Otero, the warrant
consisted of two sections: a category of “items to be seized,” which
detailed items related to credit card fraud, and a category of
“computer items to be seized,” which authorized the seizure of all
computers and devices capable of electronic media storage. Id. at
1129-30. The officers who executed the warrant testified that they
understood the first part of the warrant to be limited by the second.
Id. at 1134. Here, as we have explained above, the warrant, read as a
whole, actually appears to expand, rather than to limit, the category
authorizing search of Dean’s computer. Supra n.7. And, unlike in
Otero, the detective who drafted the warrant and executed the search
did not provide any testimony regarding his understanding of the
limitations of the warrant.
¶31 Finally, the dissent claims that our application of the
Spilotro factors amounts to a holding that any warrant lacking in
particularity cannot be relied on in good faith. That characterization
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Opinion of the Court
is inaccurate. We conclude only that (1) a warrant that allows an
officer to search all of a defendant’s electronic materials without
specifying what the officer is looking for may not be relied on in
good faith, and (2) a warrant that seeks to search a computer must
specifically state that a computer is among the items to be seized,
and if it does not, it may not be relied on in good faith. These two
principles are well established by our case law and should be known
by any trained officer.
Disposition
¶32 For the foregoing reasons, we reverse the decision of the
trial court as well as Dean’s conviction and sentence for sexual
exploitation of a minor.
M E T C A L F, Judge, dissenting:
¶33 Because I believe that the trial court properly denied the
motion to suppress on the ground that the good-faith exception to
the exclusionary rule applies, I respectfully dissent.
¶34 To summarize, the facts included in the affidavit
showing that Dean had allegedly sexually molested a child are
sufficient to show that the detective acted in objective good faith in
obtaining a warrant to seize Dean’s computer, particularly when
coupled with facts that the detective had discovered but failed to
include in his affidavit. Those additional facts are that Dean had
been previously convicted of child molestation and had
photographed his nude child victim. There is also a common-sense
relationship between child molestation and child pornography. To
the extent that the detective made mistakes in articulating probable
cause to seize Dean’s computer, they were neither systemic nor
deliberate. Without evidence of systemic or deliberate police
misconduct, the good-faith exception applies.
¶35 To explain my position, a more expansive recitation of
the facts and procedural history of the case is required. On July 16,
2012, V.D. reported to a detective with the Cochise County Sheriff’s
Office that Dean had sexually molested her eight-year-old son, C.D.,
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Opinion of the Court
approximately eighteen months earlier. The detective interviewed
V.D. and S.D., C.D.’s father, three days later. V.D. explained that in
December 2010, C.D. had been living in a trailer with S.D. on
property owned by Dean’s parents. V.D. also explained that Dean
had lived in a trailer on the same property and that S.D. had worked
for Dean. S.D. told the detective he knew Dean to be a registered sex
offender. Dean’s alleged molestation of C.D. occurred in the attic of
a duplex located on the same property.
¶36 The detective then interviewed a caseworker for the
Arizona Child Protective Service10 who had received a report a
month earlier about C.D. from a local hospital. The hospital had
reported that V.D. recently refused recommended in-patient care
because she was concerned there would be no one to care for C.D.
V.D. had told hospital workers that Dean was a pedophile. The
detective interviewed a hospital employee who confirmed the
account.
¶37 On July 24, 2012, the detective watched, by closed-
circuit video monitoring, a child forensic interview of C.D. The
child explained he had been at his aunt’s duplex located on the same
property watching cartoons. Dean was working in the attic of the
duplex. C.D.’s aunt and father had left to buy cigarettes. Dean was
making noise upstairs in the attic and C.D. asked him to stop. Dean
asked C.D. to come upstairs, which he did. Dean then pulled down
C.D.’s pants and underwear and molested him. Dean told C.D. not
to say anything. C.D. said he had been afraid to tell anyone because
he feared Dean would go back to prison. The detective did not
believe that the forensic interviewer asked C.D. whether Dean
photographed him or showed him pornography.
¶38 Two days later, on Saturday, July 26, 2012, the detective
received a report from an Arizona parole board officer that had been
prepared by the Missouri State Board of Probation. The Missouri
probation report reflected that Dean had been convicted of several
statutory rape and sodomy charges in 1998 in Missouri and had
been sentenced to eighteen years in prison. The report said the
10Now the Department of Child Safety. See 2014 Ariz. Sess.
Laws 2d Spec. Sess., ch. 1, §§ 6, 20, 54.
16
STATE v. DEAN
Opinion of the Court
charges stemmed from Dean molesting his nine-year-old
stepdaughter and her nine-year-old friend in 1996. Dean’s
stepdaughter told authorities that Dean had been molesting her
since she was seven years old. The stepdaughter also told
authorities that Dean took nude pictures of her and pictures of them
while they were engaged in sexual activity.
¶39 On Tuesday, July 30, 2012, just two business days after
receiving the documents from Missouri, the detective prepared an
affidavit and search warrant and presented it to a Cochise County
justice of the peace. Although the justice of the peace placed the
detective under oath, the detective did not make any statements
about the facts of the investigation that were not contained in his
affidavit.
¶40 In his affidavit, the detective failed to include the facts
he learned from the Missouri State Board of Probation, including
that Dean had been convicted of child molestation in Missouri and
had taken nude photographs of his child victim. The detective also
failed to include that his training and experience taught him to look
for computers in child sex cases, a fact he testified to during the
suppression hearing.
¶41 The warrant authorized the detective to search Dean’s
automobile and a fifth-wheel trailer for, among other things, “[a]ny
and all electronic devices and associated materials capable of
producing, manipulating, sending, receiving, and/or storing
electronic files, media and/or digital images which may be stored in
(i.e. computers, cameras, cell phones, thumb drives, etc.).” The
warrant also authorized the search for “[a]ny and all items which
visually depict minors engaged in exploitative exhibition or any and
all other sexual conduct such as, but not limited to, posing nude.”
The search of Dean’s trailer resulted in the seizure of a laptop
computer, a digital camera, three flip-style cellular telephones, and a
notebook that referenced children in a sexual way.
¶42 In November 2012, after continuing to investigate the
matter, the detective obtained a second search warrant from the
same justice of the peace to search the contents of the electronic
devices he had seized from Dean’s trailer on July 30, 2012. The
17
STATE v. DEAN
Opinion of the Court
detective’s affidavit for the second search warrant identified
additional facts to support the search of Dean’s computer and other
electronic equipment. Among those other facts were that the
detective had received documents from Missouri, which he included
with his affidavit, indicating Dean had been convicted of statutory
rape and sodomy charges in 1998 and he had taken nude
photographs of his child victim; Dean had been caught viewing
child pornography on another person’s computer; Dean had a VHS
cassette tape of a movie about child sexual abuse that contained an
image of a nude pre-adolescent female; and he had admitted to the
detective that C.D. came up to the attic when he was there and that
he thought no one else was at home at the time (although he denied
any molestation had occurred).11
¶43 After obtaining the November warrant, the sheriff’s
department undertook a forensic examination of the computer and
found images of child pornography on it.12 The examination
showed that Dean’s computer contained over 4,000 digital images,
“the majority” of which “depict[ed] minor females . . . and/or minor
males engaged in sexual conduct[,] exploitive exhibition or sexually
suggestive poses/clothing.” Nearly 600 additional digital images
depicted unknown minor females in such circumstances and fifty-
two others depicted known exploited victims according to a national
database on exploited children. The examination did not reveal any
images of C.D. on Dean’s computer.
¶44 The state charged Dean with ten counts of sexual
exploitation of a minor by possessing visual depictions in which the
minor is under fifteen years of age and engaged in exploitive
exhibition or other sexual conduct. The state proceeded on one
11The facts stated in paragraphs 43 and 44 of the dissent are
taken from evidence admitted at trial, but not offered or admitted
during the suppression hearing. As discussed below, they are
included to properly frame the issue on appeal.
12The majority criticizes my inclusion of a description of the
child pornography found on Dean’s computer. However, this is the
evidence Dean’s motion sought to suppress. It seems incongruous
that we cannot discuss the evidence that is the subject of this appeal.
18
STATE v. DEAN
Opinion of the Court
count at trial. Dean was convicted and sentenced to a twenty-one-
year term of imprisonment.
¶45 The first issue on which I disagree with the majority
opinion is in determining what search we are being asked to review.
I agree that in reviewing whether the good-faith exception applies,
we are limited to reviewing the evidence admitted at the
suppression hearing. Brown v. McClennen, 239 Ariz. 521, ¶ 4, 373
P.3d 538, 540 (2016). But this should not prevent us from examining
the entire trial court record to determine whether the parties have
accurately stated the record to us, including what legal issues were
and were not raised before the trial court.
¶46 In his motion to suppress, Dean only addressed the
seizure of his computer pursuant to the July 30, 2012 warrant. He
did not raise any issue with respect to the forensic search of the
computer. Likewise, the state explained in its response to Dean’s
motion that it had seized the computer pursuant to the July 30
warrant, but that a second warrant had been obtained to search its
contents. At the suppression hearing, the detective testified that the
July 30 warrant had not been amended, corrected, or modified. The
detective did not discuss the November warrant during the hearing,
most likely because everyone understood that the only issue Dean
raised before the trial court was the seizure of Dean’s computer
pursuant to the July 30 warrant.
¶47 On appeal, Dean conflates the seizure of his computer
with the later forensic search of the computer that uncovered the
existence of child pornography. This is of concern because the
majority bases much of its analysis on the latter search even though
Dean did not raise an issue regarding the second warrant which led
to that search.
¶48 Because the pornographic images were obtained
pursuant to a search warrant, Dean had the burden of going forward
in his motion to suppress. See Ariz. R. Crim. P. 16.2(b) (“the
prosecutor’s burden of proof shall arise only after the defendant has
come forward with evidence of specific circumstances which
establish a prima facie case that the evidence taken should be
suppressed”); State v. Hyde, 186 Ariz. 252, 270, 921 P.2d 655, 673
19
STATE v. DEAN
Opinion of the Court
(1996) (“[I]f the challenged evidence was obtained under authority
of a warrant, defendant bears the burden of going forward with
some evidence to show that the challenged evidence was illegally
obtained.”). If Dean wanted to address issues beyond the July 30
warrant, it was his initial burden to raise them in his motion to
suppress. By not raising the issue, he forfeited it. State v. Henderson,
210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005) (failure to object at trial
forfeits right to appellate review except for prejudicial fundamental
error).
¶49 Dean could not limit his suppression motion to the first
warrant, raise issues on appeal that can only be resolved by
reviewing the second warrant, but then claim we cannot even
acknowledge the existence of the second warrant because he did not
raise it at the suppression hearing. Accordingly, the issue, properly
framed, is whether the good-faith exception to the exclusionary rule
applies to the seizure of Dean’s computer pursuant to the July 30
warrant.
¶50 The majority correctly acknowledges that the good-faith
exception provides that evidence seized by law enforcement officers
acting in good faith, but pursuant to a faulty warrant, should not be
suppressed. United States v. Leon, 468 U.S. 897, 922 (1984). And it is
further acknowledged the Supreme Court set out four exceptions to
that general rule:
(1) when a magistrate is misled by
information that the affiant knew was false
or would have known was false but for his
or her reckless disregard for the truth;
(2) when the issuing magistrate “wholly
abandon[s]” his or her judicial role;
(3) when a warrant is based on an affidavit
“so lacking in indicia of probable cause as
to render official belief in its existence
entirely unreasonable”; and (4) when a
warrant is “so facially deficient . . . that the
executing officers cannot reasonably
presume it to be valid.”
20
STATE v. DEAN
Opinion of the Court
Hyde, 186 Ariz. at 273, 921 P.2d at 676, quoting Leon, 468 U.S. at 923(alterations in Hyde).
¶51 But I part company with the majority as to what we can
consider in analyzing whether a law enforcement officer acted in
good faith in executing a warrant that lacked probable cause. Many
courts have considered evidence that the officer knew but failed to
include in the affidavit. For example, the Eighth Circuit has stated
“when assessing the officer’s good faith reliance on a search warrant
under the Leon good faith exception, we can look outside of the four
corners of the affidavit and consider the totality of the
circumstances, including what the officer knew but did not include
in the affidavit.” United States v. Farlee, 757 F.3d 810, 819 (8th Cir.
2014); see also United States v. McKenzie-Gude, 671 F.3d 452, 460 (4th
Cir. 2011) (“Leon presents no barrier to holding that the experienced
officers in this case, who swore out the affidavit and executed the
search, acted with the requisite objective reasonableness when
relying on uncontroverted facts known to them but inadvertently
not presented to the magistrate.”); United States v. Martin, 297 F.3d
1308, 1318 (11th Cir. 2002) (“[W]e can look beyond the four corners
of the affidavit and search warrant to determine whether [the
officer] reasonably relied upon the warrant.”). This approach
advances the purpose of the good-faith exception: to “limit the
application of the exclusionary rule to those instances when it will
most effectively serve to deter police misconduct.” State v.
Edmonson, 598 N.W.2d 450, 460-61 (Neb. 1999) (“[Because] this
purpose is best served by viewing all of the circumstances
surrounding the issuance and execution of the warrant, we conclude
that in assessing the good faith of an officer’s conducting a search
pursuant to a warrant, an appellate court must look to the totality of
the circumstances surrounding the issuance of the warrant,
including information not contained within the four corners of the
affidavit.”); see also Adams v. Commonwealth, 657 S.E.2d 87, 94 (Va.
2008) (“The purpose of the good-faith exception is, therefore, best
accomplished by looking at the totality of the circumstances
surrounding the issuance and execution of the search warrant,
[which] does, at a minimum, take into account information known
to police officers that was not included in the search warrant
affidavit.”) (citation omitted). Thus, going beyond the four corners
21
STATE v. DEAN
Opinion of the Court
of the affidavit in determining whether the officer acted in good
faith is consistent with Leon’s admonition that in determining
whether good faith applies, the court should consider all the
circumstances. See Leon, 468 U.S. at 922 n.23.13
¶52 There is no evidence to suggest, and no party has
argued, that either of the first two exceptions under Leon apply.
Nothing indicates the magistrate was misled by information that the
averring detective knew was false or would have known was false
but for his reckless disregard for the truth. Nor did the issuing
magistrate wholly abandon his judicial role.
¶53 The third exception under Leon applies when a warrant
is based on an affidavit so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable. While the
majority opinion states that it is only reviewing the fourth Leon
exception, it addresses this third exception by finding that the
detective’s affidavit completely lacked probable cause by failing to
link Dean’s alleged molestation to whether he possessed child
pornography on his computer.
¶54 But it is undisputed that the detective’s affidavit
establishes probable cause to show that Dean molested C.D., a minor
child. The affidavit, standing alone, may not establish probable
cause that Dean possessed child pornography on his computer.
However, considering that Dean had been convicted of sexual
molestation in Missouri, had taken nude photographs of his child
victim in that Missouri case, and then had molested C.D. after being
released from prison in Missouri, coupled with the common-sense
relationship between child molestation and child pornography, the
officer arguably had an objective good-faith belief that probable
cause existed to seize Dean’s computer. After all, probable cause
13The court overruled Dean’s objection to the detective’s
testimony about the Missouri evidence at the suppression hearing.
On appeal, Dean again argues that the court could not go beyond
the four corners of the affidavit in determining whether the good-
faith exception applies. Accordingly, this court should decide
whether we can consider the Missouri evidence in determining if the
detective acted in good faith.
22
STATE v. DEAN
Opinion of the Court
means that facts and circumstances “would warrant a man of
reasonable caution in the belief that the items to be seized were in
the stated place.” State v. Summerlin, 138 Ariz. 426, 431, 675 P.2d 686,
691 (1983), quoting United States v. Lucarz, 430 F.2d 1051, 1055 (9th
Cir. 1970); see also Brinegar v. United States, 338 U.S. 160, 175-76 (1949)
(Probable cause means “a reasonable ground for belief of guilt,”
which is “‘less than evidence which would justify condemnation’ or
conviction” but “more than bare suspicion.”), quoting Carroll v.
United States, 267 U.S. 132, 161 (1925); Locke v. United States, 11 U.S.
339, 348 (1913), see also Maryland v. Pringle, 540 U.S. 366, 371 (2003)
(“The probable-cause standard is incapable of precise definition or
quantification into percentages because it deals with probabilities
and depends on the totality of the circumstances.” But “‘[t]he
substance of all the definitions of probable cause is a reasonable
ground for belief of guilt,’” and “the belief of guilt must be
particularized with respect to the person to be searched or seized.”),
quoting Brinegar, 338 U.S. at 175 (alteration in Pringle). The detective
had developed reasonable grounds to believe that Dean’s computer
may have held evidence of a crime even if he failed to include all the
facts in his affidavit.
¶55 Such a holding is consistent with a Second Circuit case
in which the court concluded that an eighteen-year-old conviction
for child molestation was not sufficient to establish probable cause
to believe the defendant possessed child pornography, but was
sufficient to prove that the officer acted in good faith when he
obtained a warrant on that basis. United States v. Falso, 544 F.3d 110,
128 (2d Cir. 2008). Interestingly, the concurring judge found a
sufficiently strong link between child molestation and child
pornography to support a finding of probable cause. Id. at 129-32(J. Livingston, concurring). In coming to that decision, the
concurring judge cited a congressional finding in the Child
Pornography Prevention Act of 1996, relied on in a previous
decision, that there is “a strong correlation between child
pornography offenders and molesters of children” and that the
“correlation between collection of child pornography and actual
child abuse is too real and too grave to ignore.” Id., quoting United
States v. Brand, 467 F.3d 179, 198 n.17 (2d Cir. 2006).
23
STATE v. DEAN
Opinion of the Court
¶56 Likewise, the Eighth Circuit has concluded “[t]here is
an intuitive relationship between acts such as child molestation or
enticement and possession of child pornography. Child
pornography is in many cases simply an electronic record of child
molestation.” United States v. Colbert, 605 F.3d 573, 578 (8th Cir.
2010); see also Probable Cause to Protect Children: The Connection
Between Child Molestation and Child Pornography, 36 B.C. J.L. & Soc.
Just. 287, 310-11 (2016) (sufficient empirical evidence supports
conclusion that relationship exists between child molestation and
child pornography so that evidence of child molestation should
establish probable cause to search for child pornography).
¶57 Ultimately, the majority decision does not base its
decision solely on the lack of probable cause, but also on the fourth
exception to the good-faith exception: namely, that the July 30
warrant was so facially deficient that the detective could not
reasonably presume it to be valid. In coming to that conclusion, the
majority opinion primarily relies on United States v. Spilotro, 800 F.2d
959 (9th Cir. 1986).
¶58 Spilotro does not squarely address the good-faith
exception. Indeed, in Spilotro, the trial court granted the defendant’s
motion to suppress before the Supreme Court’s ruling in Leon and
then, in the “interests of finality,” decided not to revisit the issue
after Leon was decided. Id. at 962. The central issue in Spilotro was
not good faith but rather whether the warrants “describe[d] the
items to be seized with sufficient particularity to be valid under the
Fourth Amendment.” Id. at 963. The court concluded that “the
warrants . . . d[id] not describe the items to be seized with sufficient
particularity, and we cannot conscientiously distinguish this case
from others in which we have held warrants invalid because of their
general terms.” Id. at 964. Having found that the warrant was not
sufficiently particular, the Ninth Circuit only cursorily addressed the
good-faith exception. The law of the good-faith exception has
developed significantly since Spilotro was decided thirty years ago.
It is not the authority upon which to establish a rule for Arizona.
¶59 More modern cases have addressed the issue of when a
warrant to search a computer is so facially deficient that officers
could not rely on it in good faith. For example, the Tenth Circuit has
24
STATE v. DEAN
Opinion of the Court
held “[n]ot every deficient warrant . . . will be so deficient that an
officer would lack an objectively reasonable basis for relying upon it.
‘Even if the court finds the warrant to be facially invalid . . . it “must
also review the text of the warrant and the circumstances of the
search to ascertain whether the agents might have reasonably
presumed it to be valid.”’” United States v. Otero, 563 F.3d 1127, 1134
(10th Cir. 2009), quoting United States v. Riccardi, 405 F.3d 852, 863
(10th Cir. 2005) (alteration in Riccardi).
¶60 The facts supporting a finding that the detective acted
in objective good faith even if the warrant was facially invalid are as
follows. First, the detective had probable cause to believe that Dean
possessed child pornography based on the Missouri evidence when
combined with the current evidence of child molestation. Second,
the detective who obtained the warrant executed it. Thus, he
confined his search to evidence that was related to the child
molestation investigation. There is no indication that he seized any
items that did not relate to the child molestation investigation. This
is important because as the court found in Riccardi, limiting a search
to evidence relevant to the matter under investigation is a factor that
weighs in favor of finding good faith. 405 F.3d at 861.
¶61 Third, the warrant, when read as a whole, clearly
indicates that the detective was searching for evidence of child
pornography on Dean’s computer. See United States v. Conley, 4 F.3d
1200, 1208 (3d Cir. 1993) (search warrant should be read as a whole,
in context, and not in isolation). The first paragraph describing the
things to be seized identified electronic devices capable of storing
digital images or files. The second paragraph identified items that
depict minors engaged in exploitative exhibition, sexual contact, or
nude. Had the detective combined these two paragraphs into one,
there would have been no doubt that the warrant was sufficiently
particular to justify searching Dean’s computer for child
pornography. The fact that the detective wrote them in two separate
paragraphs should not determine the outcome.
¶62 Fourth, the detective did not search the contents of the
computer based on the July 30 warrant. This shows he did not use
the warrant as an excuse to examine private data unrelated to the
child molestation investigation. Fifth, there is no evidence the
25
STATE v. DEAN
Opinion of the Court
detective made any false or misleading statements in his affidavit.
He was inexperienced, and drafted an affidavit that in retrospect
was inadequate to the task at hand. The good-faith exception
should apply in such a circumstance. See generally United States v.
Zimmerman, 277 F.3d 426, 436 (3d Cir. 2002) (“[S]uppression should
not be ordered where an officer, acting in objective good faith, has
obtained a warrant without probable cause because in such cases
only marginal deterrent purposes will be served which ‘cannot
justify the substantial costs of exclusion.’”), quoting Leon, 468 U.S. at
922.
¶63 And finally, as the Supreme Court held in Herring v.
United States, “[t]o trigger the exclusionary rule, police conduct must
be sufficiently deliberate that exclusion can meaningfully deter it,
and sufficiently culpable that such deterrence is worth the price paid
by the justice system.” 555 U.S. 135, 144 (2009). Exclusion is not a
necessary consequence of a Fourth Amendment violation. Id. at 141.
There must be “deliberate, reckless, or grossly negligent conduct or
in some circumstances recurring or systemic negligence.” Id. at 144;
see also United States v. Davis, 564 U.S. 229, 238 (2011) (affirming
Herring’s holding that police mistakes must be more than isolated
negligence to justify exclusion); State v. Valenzuela, 239 Ariz. 299,
¶ 35, 371 P.3d 627, 638 (2016) (citing Herring and Davis for the
proposition that police conduct must be sufficiently deliberate to
justify exclusion). There is no evidence of deliberate, reckless, or
grossly negligent police misconduct in this case, a fact that the
majority concedes. Nor is there evidence of recurring or systemic
negligence. Thus, this case is unlike State v. Stoll, 239 Ariz. 292, 370
P.3d 1130 (App. 2016), in which the court found lack of good faith
due to systemic mistakes in training officers on the proper
application of the motor vehicle laws. Contrary to Herring, Davis,
and Valenzuela, the majority opinion does not weigh the relatively
small mistakes the detective made in drafting the affidavit and
warrant against the high cost of “letting [a] guilty and possibly
dangerous defendant[] go free—something that ‘offends basic
concepts of the criminal justice system.’” Herring, 555 U.S. at 141,
quoting Leon, 468 U.S. at 908.
26
STATE v. DEAN
Opinion of the Court
¶64 The majority opinion applies Leon’s fourth exception to
the good-faith exception too broadly and without regard to the
substantial costs to society of allowing a dangerous defendant to
escape punishment. If adopted, this would result in the suppression
of evidence in any case in which the warrant was not sufficiently
particular. But the Supreme Court held in Leon that the exclusionary
rule should only apply in “unusual cases.” 468 U.S. at 918. This is
not that unusual case.
¶65 Accordingly, I respectfully dissent.
27