Monday, July 6, 2015

Leon: Fail

Too often, a good suppression issue is rejected because of Leon. Even if the warrant is constitutionally flawed, the good-faith doctrine set forth in U.S. v. Leon saves the bad search. Innumerable attacks on search warrants have been turned away on the assumption that Leon will salvage the search. Courts even skip the Fourth Amendment challenge to the warrant and go straight to Leon -- if the officers acted in good faith, why bother deciding whether the search itself was unconstitutional? The power of Leon, even 30 years later, sometimes deters the best defense lawyer from even challenging a bad search.

It is a rare event when an exception to Leon applies. But that was the surprising holding by the Tenth Circuit in United States v. Cordova. A warrant lacked probable cause to believe that drugs would be found at the place to be searched. The warrant was so deficient that the Court concluded "the affidavit contained so few facts implicating either Cordova or his current home that a reasonable officer could not have relied on the warrant in good faith."

The decision is intensely fact driven, with stale information and and confidential informants. It will not, on its own, reach many cases as on-point factual precedent. And the legal analysis is rather sparse. But it is written, and the case reversed. Those Fourth Amendment challenges to the search warrants should still be pursued because sometimes Leon fails.

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