Fourth Amendment Folly: Have Some Federal Courts Diluted the Bare Bone Exception to the Leon Good Faith Exception?

The United States Court of Appeals for the Fourth Circuit heard oral argument on Tuesday, October 27, 2011 for a case involving Maryland teenager, Collin McKenzie-Gude. He graduated from St. John’s College High School in 2008 and planned on attending American University for his undergraduate studies. During the summer in 2008, suspicion arose when McKenzie-Gude and a witness’ nephew allegedly discussed chemicals associated with explosives at the witness’ house. The police investigated the witness’ story and discovered that an AK-47 rifle mentioned in the affidavit was registered to McKenzie-Gude’s father. Further, the police found an AK-47 in McKenzie-Gude’s bedroom after acquiring a search warrant for his parent’s home.

 However, the defense alleges that the affiant misled the Magistrate Judge by stating that McKenzie-Gude could not legally own or possess a firearm—even though some exceptions may have been applicable to the defendant’s case under state law—and there was insufficient evidence to support a nexus between the premises and the crime.

Nevertheless, McKenzie-Gude was sentenced to five years in jail on firearm possession charges and the court did not suppress evidence found in his home. One of the main issues on appeal involves applying the Leon good faith exception to warrant based activity. The Leon good faith exception limits the exclusionary rule as a remedy when an officer executes a warrant under objectively reasonable grounds. The exclusionary rule is a remedy designed to suppress evidence from trial if it was recovered due to most Fourth Amendment violations. Further, the Court fleshes out situations when the Leon exception would not cure a defective warrant, and these include lying and omitting key facts to the Magistrate Judge as well as a bare bones exception where the affidavit is clearly lacking probable cause to where no reasonable police officer can rely on it. The State argues that the good faith exception should apply even though some negligent activity may have taken place in preparing the affidavit. In contrast, the appellant argues that, given the circumstances, the officer’s reliance on the warrant was unreasonable and the good faith exception should not apply.

There could be negative implications for future law enforcement if the court rules against McKenzie-Gude. The Leon good faith exception already gives the police a lot of leeway in carrying out defective warrants; reasoning away the bare bones exception to the exception would allow an even lower suspicion standard than today. The idea of cops being able to search a house under bare bone warrants or when there is no nexus between location and crime is a scary proposition. Not suppressing this evidence would encourage affiants to write bare bone affidavits while omitting key information without corroboration. The Supreme Court wanted to deter this kind of behavior in Leon.

If the Court of Appeals denies McKenzie-Gude claims again, I would not be surprised if the Court grants certiorari on this specific issue. If anything, the Court would clarify how the Leon exception should be applied going forward in Fourth Amendment jurisprudence. This will go a long way in deciding whether preserving the good faith exception and disallowing bare bone warrants are consistent with Constitutional principles. As such, the Fourth Circuit in the coming weeks should honor precedent and suppress the evidence to preserve the barebones exception to otherwise defective warrants.

Max P. Salazar, Jr.

Line Editor, Criminal Law Brief

Image by wblj