United States v. Harju, Matthew S.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-3777

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

MATTHEW S. HARJU,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 05 CR 97—Lynn Adelman, Judge.

____________

ARGUED APRIL 10, 2006—DECIDED OCTOBER 20, 2006

____________

Before EASTERBROOK, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge. Matthew S. Harju was indicted

on one count of being a felon in possession of a firearm

and one count of being a felon in possession of ammunition,

both in violation of 18 U.S.C. § 922(g)(1). He filed a motion

to suppress the physical evidence on which the indictment

was based. A magistrate judge recommended denying Mr.

Harju’s motion; the district court rejected the recommenda-

tion and granted the motion. The Government timely

appealed. For the reasons set forth in the following opinion,

we reverse the judgment of the district court.

2 No. 05-3777

I

BACKGROUND

A. Facts

A commissioner of the Sheboygan County Court issued a

warrant for a search of Mr. Harju’s home. The commissioner

relied upon information provided under oath by Detective

Joel Clark of the Sheboygan Police Department. Detective

Clark stated that he had been contacted by a confidential

informant (“CI”) who had told him that Mr. Harju pos-

sessed a firearm at his home. Specifically, the CI had told

Detective Clark that a relative of the CI had observed Mr.

Harju waving the firearm around the upper unit of his

duplex approximately three weeks earlier on December 31,

2004.

Detective Clark also testified to several efforts to cor-

roborate the information provided by the CI. The detective

had the CI place, in the detective’s presence, a recorded

call to the relative. During the conversation, the relative

essentially repeated the information that the CI had pro-

vided to Detective Clark. During the call, the CI also

expressed concern that Mr. Harju was keeping the gun in

the part of the duplex occupied by Mr. Harju’s nephew, and

the CI asked the relative to request that Mr. Harju remove

the gun.

In the warrant application, Detective Clark also provided

the commissioner with several details regarding Mr. Harju’s

residence, specifically that the residence was a duplex with

a common door, that Mr. Harju paid rent for both units and

that Mr. Harju’s nephew resided in the other unit. Detective

Clark also had reviewed state records and discovered that

Mr. Harju was a felon who had been convicted of felony

escape and sentenced to 24 months in state prison in 1996.

No. 05-3777 3

After confirming the date on which Mr. Harju had been

seen with the weapon, the court commissioner issued a

search warrant for the residence. The warrant was executed

the same day, January 21, 2005, and the search of Mr.

Harju’s home uncovered ammunition and a firearm.

B. District Court Judgment

After Mr. Harju was indicted, he moved to suppress the

evidence uncovered during the search. A magistrate

judge reviewed the warrant and determined that the

warrant was supported by probable cause because the

information, which formed the basis of the warrant, came

from a citizen witness who did not know that she was

providing information to law enforcement and because

this information was corroborated in part by Detective

Clark’s investigation. The magistrate judge further con-

cluded that, even if the warrant were not supported by

probable cause, the evidence fell within the good faith

exception established in United States v. Leon, 468 U.S. 897,

913 (1984).

The district court declined to follow the magistrate judge’s

recommendation and granted the motion to suppress. In the

district court’s view, the warrant was not supported by

probable cause because the information provided by

Detective Clark was not sufficiently detailed and was stale:

Clark did not describe the firearm to the commissioner

or indicate that the relative had described it to him.

Clark also did not indicate to the commissioner the

circumstances under which the relative had observed

the firearm. Again, it appears that the relative did not

describe such circumstances to Clark. Clark did not

state where in the house the defendant was when the

4 No. 05-3777

relative allegedly observed him with a gun, nor did

he indicate that he had information that defendant kept

the gun in his house or where he might have kept it. . . .

R.30 at 6-7. The district court believed that, in light of the

shortcomings in the evidence, the lack of established

reliability of the CI or of the CI’s relative, as well as the

lack of corroboration with respect to the alleged criminal

activity, the warrant was not supported by probable cause.

Turning to the question of good faith, the district court

concluded that the good faith exception did not apply

because, based on the case law in existence at the time

the application was filed, the information supporting

the warrant was facially inadequate. See id. at 18-23.

II

DISCUSSION

The Government asks us to review the district court’s

decision that Detective Clark was not entitled to rely in

good faith on the warrant issued by the commissioner.

Whether a law enforcement officer reasonably relied upon a

subsequently invalidated search warrant is a legal question

which we review de novo. See United States v. Koerth, 312

F.3d 862, 865 (7th Cir. 2002).1

1

On appeal, the Government argues only that the good faith

exception applies; it does not claim that the warrant was sup-

ported by probable cause.

No. 05-3777 5

A. The Foundations and Purpose of the Exclusionary

Rule

Simply stated, “[t]he exclusionary rule operates to prevent

the Government from using evidence seized as the result of

an illegal search in a subsequent criminal prosecution.”

United States v. McGough, 412 F.3d 1232, 1239 (11th Cir.

2005). It has existed, in some form, as part of

our constitutional jurisprudence for over one hundred years.

See Boyd v. United States, 116 U.S. 616, 638 (1886) (holding

that a notice to produce personal papers was “unconstitu-

tional and void, and that the inspection by the district

attorney of said invoice, when produced in obedience to

said notice, and its admission in evidence by the court, were

erroneous and unconstitutional proceedings”).

Although commentators have articulated several purposes

served by the rule, see generally 1 Wayne R. LaFave, Search

and Seizure § 1.1(f), at 21-25 (4th ed. 2004) (discussing

deterrence, judicial integrity and popular trust in gov-

ernment as among the purposes of the exclusionary rule),

the purpose identified by the Supreme Court as the “ ‘prime

purpose’ of the rule, if not the sole one, ‘is to deter future

unlawful police conduct.’ ” United States v. Janis, 428 U.S.

433, 446 (1976) (quoting United States v. Calandra, 414 U.S.

338, 347 (1974)).

The deterrence value of the exclusionary rule was used to

justify its broadest application in Mapp v. Ohio, 367 U.S. 643

(1961). In that case, the Court applied the exclusionary rule

to the fruits of illegal searches conducted by state officers

and used in state prosecutions. Specifically, the Court noted

that the exclusionary rule was a “deterrent safeguard

without insistence upon which the Fourth Amendment

would have been reduced to a form of words,” id. at 648

(internal quotation marks and citations omitted), and,

6 No. 05-3777

accordingly, held that “all evidence obtained by searches

and seizures in violation of the Constitution is, by the same

authority, inadmissible in a state court.” Id. at 655.

More recently, however, the Court has relied on the rule’s

deterrent purpose in declining to expand its application

beyond traditional criminal proceedings. See, e.g., I.N.S. v.

Lopez-Mendez, 468 U.S. 1032, 1043 (1976) (refusing to employ

the exclusionary rule in deportation proceedings in part

because the “deterrent value” of the rule would not be

served); United States v. Calandra, 414 U.S. 338, 351 (1974)

(holding that grand jury witnesses may not refuse to answer

questions on the ground that they are based on illegally

seized evidence because any “incremental deterrent effect

which might be achieved by extending the rule to grand

jury proceedings is uncertain at best”). Indeed, even within

the context of criminal trials, the Court’s focus on deterrence

also has resulted in a contraction of the rule’s scope. See

Hudson v. Michigan, 126 S. Ct. 2159, 2168 (2006);2 Leon, 468

U.S. 897.

The present case concerns the exception to the

exclusionary rule articulated by the Supreme Court in

United States v. Leon. In Leon, the Court addressed “whether

the Fourth Amendment exclusionary rule should be modi-

2

In Hudson v. Michigan, 126 S. Ct. 2159, 2168 (2006), the Court

stated:

In sum, the social costs of applying the exclusionary rule to

knock-and-announce violations are considerable; the incen-

tive to such violations is minimal to begin with, and the

extant deterrences against them are substantial— incompara-

bly greater than the factors deterring warrantless entries

when Mapp was decided. Resort to the massive remedy of

suppressing evidence of guilt is unjustified.

No. 05-3777 7

fied so as not to bar the use . . . of evidence obtained by

officers acting in reasonable reliance on a search warrant

issued by a detached and neutral magistrate but ultimately

found to be unsupported by probable cause.” 468 U.S. at

900. The starting point for the Court’s analysis was the

premise that the exclusionary rule was not “a necessary

corollary of the Fourth Amendment,” as many had assumed

in the wake of Mapp v. Ohio. Id. at 905-06. Instead,

[w]hether the exclusionary sanction is appropriately

imposed in a particular case, our decisions make

clear, is “an issue separate from the question wheth-

er the Fourth Amendment rights of the party seeking

to invoke the rule were violated by police conduct.”

Only the former question is currently before us, and it

must be resolved by weighing the costs and benefits

of preventing the use in the prosecution’s case in chief

of inherently trustworthy tangible evidence obtained

in reliance on a search warrant issued by a detached

and neutral magistrate that ultimately is found to be

defective.

Id. at 906-07 (quoting Illinois v. Gates, 462 U.S. 213, 223

(1983)). The rule, observed the Court, therefore should

operate to preclude evidence only in situations “ ‘where

its remedial objectives are thought most efficaciously

served,’ ” id. at 908 (quoting Calandra, 414 U.S. at 348),

namely when it will “deter police misconduct,” id. at 916.3

3

The Court has stressed this purpose in other cases as well. See

United States v. Calandra, 414 U.S. 338, 347 (1974) (noting that the

“prime purpose” of the exclusionary rule “is to deter future

unlawful police conduct and thereby effectuate the guarantee

of the Fourth Amendment against unreasonable searches and

(continued...)

8 No. 05-3777

“[E]vidence obtained pursuant to a subsequently invali-

dated warrant,” therefore, should be excluded only

when that exclusion will “alter the behavior of individual

law enforcement officers or the policies of their depart-

ments.” Leon, 468 U.S. at 918.

The Court explained that, generally speaking, exclud-

ing evidence seized pursuant to a warrant will not serve the

rule’s remedial purpose. Judicial officers have the responsi-

bility to determine whether there is probable cause to issue

a warrant; police officers should not be expected to question

that determination. See id. at 921; see also Illinois v. Krull, 480

U.S. 340, 349 (1987) (quoting same). “Penalizing the officer

for the magistrate’s error, rather than his own, cannot

logically contribute to the deterrence of Fourth Amendment

violations.” Leon, 468 U.S. at 922.

The Court then went on to identify those situations in

which, despite the issuance of a warrant, exclusion

would deter police misconduct, and, therefore, applica-

tion of the exclusionary rule would be justified. First,

suppression would be warranted if the affiant knew that the

information provided to the magistrate was false, or if the

affiant provided the information with reckless disregard to

its truth or falsity. See id. at 923. Second, the rule would

apply if the magistrate judge wholly abandoned his judicial

role. Id. Third, exclusion would be warranted if the present-

ing officer had not operated in objective good faith, as

evidenced by reliance on an affidavit that was “ ‘so lacking

in indicia of probable cause as to render official belief in its

existence entirely unreasonable.’ ” Id. at 923 (quoting Brown

v. Illinois, 422 U.S. 590, 610-11 (1975) (Powell, J., concur-

3

(...continued)

seizures”); Illinois v. Krull, 480 U.S. 340, 347 (1987) (quoting same).

No. 05-3777 9

ring)). Finally, suppression would be appropriate if “the

warrant [were] so facially deficient—i.e., in failing to

particularize the place to be searched or the things to be

seized—that the executing officers cannot reasonably

presume it to be valid.” Id.

In addressing questions of good faith under Leon, we have

held that the Government bears the initial burden of

establishing that the police officer relied in good faith on the

warrant. See Koerth, 312 F.3d at 868. However, we also have

held that “[a]n officer’s decision to obtain a warrant is prima

facie evidence that she was acting in good faith.” United

States v. Mykytiuk, 402 F.3d 773, 777 (7th Cir. 2005). Whether

a defendant has rebutted this presumption of good faith is

evaluated according to a framework similar to that em-

ployed in the qualified immunity context. We explained the

good-faith analysis in some detail in Koerth:

We evaluate an officer’s good-faith reliance with an

analysis similar to that used in cases involving the

affirmative defense of qualified immunity. See Olson

v. Tyler, 825 F.2d 1116, 1120 (7th Cir. 1987) (citing Malley

v. Briggs, 475 U.S. 335 (1986)). “Police officers

in effecting searches are charged with a knowledge

of well-established legal principles as well as an abil-

ity to apply the facts of a particular situation to these

principles.” [United States v.] Brown, 832 F.2d [991, 995

(7th Cir. 1989)]. When evidence has been obtained

pursuant to a subsequently invalidated search warrant,

we will exercise our discretion and admit the evi-

dence only if we are convinced, after review, it is

appropriate to do so pursuant to Leon’s exception to

the exclusionary rule. That is to say, we will admit

the evidence unless: (1) courts have clearly held that

a materially similar affidavit previously failed to

10 No. 05-3777

establish probable cause under facts that were indistin-

guishable from those presented in the case at hand; or

(2) the affidavit is so plainly deficient that any reason-

ably well-trained officer “would have known that his

affidavit failed to establish probable cause and that

he should not have applied for the warrant.” Malley, 475

U.S. at 345. . . .

312 F.3d at 869 (parallel citations omitted).

B. The Application to Search Mr. Harju’s Duplex

In the present case, Detective Clark’s decision to seek a

warrant is prima facie evidence of his good faith. The

burden therefore falls on Mr. Harju to negate Detective

Clark’s good faith based on one of the criteria set forth

above. Mr. Harju submits that, based on the case law in

existence at the time Detective Clark made his application,

Detective Clark had notice that the evidence supporting

the warrant was patently deficient. The Government

maintains, however, that the same case law makes clear that

Detective Clark could not have known that the warrant was

plainly lacking probable cause. The Government maintains

that the cases relied upon by the district court are materially

distinguishable from the present situation and, conse-

quently, did not put Detective Clark on notice of any

deficiency in the application.

The parties first invite our attention to Owens v. United

States, 387 F.3d 607 (7th Cir. 2004). In Owens,

[t]he warrant . . . was based on a barebones affidavit,

signed by a detective, which stated that three months

earlier an informant had bought “a quantity of crack”

from Owens at a house believed to be Owens’s resi-

No. 05-3777 11

dence. There was no indication of the actual quantity

of crack or of the reliability of the informant. . . .

Id. at 608. Owens’ attorney had moved to suppress the

evidence arguing that “a sale of an unknown quantity of an

illegal drug three months before a search warrant was

sought does not, without more . . . establish probable

cause to believe that the search of the premises on which the

sale took place would turn up contraband or evidence of

crime.” Id. We agreed that this argument “should have been

a winner”; we stated:

If the quantity was slight—which, for all the judge

issuing the warrant could have known, it was—there

would be no basis for thinking either that the premises

were a crack house or that the money received in the

sale would still be on the premises. It would be just as

likely that either Owens or someone with access to his

house had made a single, isolated sale, perhaps to a

desperate acquaintance.

Id. We further noted that the affidavit was “[s]o inadequate”

that the search could not be saved by the good

faith exception outlined in Leon. Id.

Mr. Harju maintains that his situation “mirrors Owens

with regard to the paucity of detail in the warrant applica-

tion.” Appellee’s Br. at 12. The Government contends,

however, that the contraband here was not a fungible

item, like narcotics, but a firearm, which is less likely to be

sold in a short period of time. See Appellant’s Br. at 16-17.

We agree with the Government that the facts in Owens are

not sufficiently similar to those presented here as to under-

mine Detective Clark’s reasonable reliance on the warrant.

Our decision in Owens rested in large part on the fact that

small quantities of drugs and of cash are not likely to be

12 No. 05-3777

found in the same location after several months have

elapsed. Here, by contrast, only three weeks had elapsed

since the gun had been seen in Mr. Harju’s possession on his

property, and, unlike small amounts of drugs or cash, the

gun was not likely to have been sold (or consumed) during

that period of time. Consequently, we do not believe that

Owens necessarily put Detective Clark on notice that the

affidavit was deficient, and Detective Clark’s failure to

include all of the details contained in the Owens affidavit

does not constitute evidence of bad faith.

Mr. Harju also points to United States v. Peck, 317 F.3d 754

(7th Cir. 2003). The facts of Peck are as follows:

James Root, deputy sheriff of the Macon County

Sheriff’s Department, received a phone call from a

confidential informant, “Pat Doe,” alleging that Peck

possessed crack cocaine and cannabis. Doe told Root

that she wanted Peck punished because he was not

paying for diapers for their child and that she thought

Peck should be arrested because he was dealing drugs.

Doe said she had been inside Peck’s residence within

the last two days. While inside the residence, Peck

allegedly showed Doe large amounts of two substances

wrapped in individual packages. Peck told Doe that the

substances were crack cocaine and marijuana that he

planned to sell. Even without Peck’s representations,

Doe claims that she knew what the substances were

based on her own “personal experiences.”

Root drafted an affidavit including Doe’s statements.

Because Doe had not previously given any informa-

tion to the police, Root asked Doe to visit the station and

swear under oath that her statements were true. Judge

Paine administered the oath to Doe, and Doe then

No. 05-3777 13

signed the affidavit. Relying on the affidavit, Judge

Paine issued a search warrant. . . .

Id. at 755. The court determined that, based on the few

details provided by the informant regarding Peck’s home

and his person, the lack of explanation regarding how

the informant knew that the substances were illicit drugs,

and the lack of corroboration by the police, there was an

insufficient factual basis to support the issuance of a search

warrant for the premises. Nonetheless, the court determined

that the warrant fell within the good faith exception:

Even though the warrant issued by the judge was bare

bones, it was not so lacking as to make it facially defi-

cient. Although minimal, Doe’s statement did contain

evidence that Peck possessed and planned on selling

drugs. In addition, Root addressed issues regarding

Doe’s credibility and veracity by requiring Doe to come

to the police station and sign her statement under oath

in front of the issuing judge. Therefore, it was reason-

able for Root to rely on a warrant issued by a neutral

and detached officer of the court.

Id. at 757-58 (citations omitted).

Mr. Harju maintains that “[w]hat’s important about Peck

is that the Court struck the warrant initially on probable

cause grounds on much more detailed facts than those set

forth in the instant case,” Appellee’s Br. at 14. He empha-

sizes that, “in Peck, the police relied upon the statements

of an informant who said that she had seen drugs at her ex-

boyfriend’s house two days earlier. She personally appeared

before the magistrate that issued the warrant.” Id. (citations

omitted). The Government, on the other hand, believes that

Peck is “markedly distinguishable” for two reasons: (1) the

informant in Peck “had an axe to grind with Peck,” and (2)

14 No. 05-3777

“the police in Peck did next to nothing to corroborate Doe’s

information.” Appellant’s Br. at 18.

There is no question that the affidavit in Peck suffered

from a marked lack of detail. However, the Government is

correct that there are important differences between the

affidavits in each of the cases. First, the affiant in Peck

clearly was biased against the defendant: “Doe told Root

that she wanted Peck punished because he was not paying

for diapers for their child . . . .” Peck, 317 F.3d at 755. Second,

we noted in Peck that “[c]ompounding the weaknesses of

Doe’s statement is the failure of the police to corroborate her

allegations.” Id. at 757. Here, by contrast, Detective Clark

confirmed the key elements of the CI’s information through

an impromptu, recorded conversation between the CI and

his relative. Detective Clark also confirmed other aspects of

the CI’s information such as the design of the duplex, its

ownership and its residents. We believe that an officer, after

taking these steps, reasonably could have believed that these

efforts distinguished the present situation from that in Peck,

which specifically noted “the failure of the police to corrobo-

rate her allegations.” Id.

Finally, without argument or analysis, Mr. Harju points to

Koerth and Mykytiuk as support for his claim that Detective

Clark should have known that the affidavit was factually

insufficient; these cases, he maintains, found “no probable

cause on a warrant application more detailed than that

provided in this case.” Appellee’s Br. at 15.4 However, we

4

Mr. Harju also notes that the district court relied upon a Fourth

Circuit case, United States v. Wilhelm, 80 F.3d 116 (4th Cir. 1996),

and a case from the Eastern District of Michigan, United States v.

Bryant, 951 F. Supp. 674 (E.D. Mich. 1997), in rejecting the

(continued...)

No. 05-3777 15

do not believe that either Koerth or Mykytiuk is sufficiently

similar to the present case to undermine Detective Clark’s

good-faith reliance.

In Koerth, we accepted the Government’s concession that

the warrant was not supported by probable cause because

of the affidavit’s “use of essentially conclusory state-

ments without corroboration.” Koerth, 312 F.3d at 868.

However, we also determined that the good faith exception

applied. We explained:

We are convinced that Inv[estigator] Sturz acted in

objective good faith, and the evidence seized by the

4

(...continued)

Government’s good-faith claim. As with United States v. Koerth,

312 F.3d 862 (7th Cir. 2002), and United States v. Mykytiuk, 402

F.3d 773 (7th Cir. 2005), Mr. Harju does not make any specific

arguments based on this case law; however, he does “acquiesce[]

with Judge Adelman on his reliance upon these cases.” Appel-

lee’s Br. at 15. The Government counters that these cases are

distinguishable on their facts. See Appellant’s Br. at 22. Even if

these cases could not be distinguished on their facts, we do not

believe that these cases constitute “well-established” law that

affidavits similar to the one offered here should be rejected. In the

context of qualified immunity, which has provided the founda-

tion for our good-faith analysis, see Mykytiuk, 402 F.3d at 777, this

court first looks to the Supreme Court and circuit case law to

determine whether a right is clearly established. In the absence of

controlling precedent, we look to all relevant case law in order

“to determine whether there was such a clear trend in the case

law that we can say with fair assurance that the recognition of the

right by a controlling precedent was merely a question of time.”

Denius v. Dunlap, 209 F.3d 944, 951 (7th Cir. 2001) (internal

quotation marks and citations omitted). The cases relied upon by

the district court do not establish such a trend.

16 No. 05-3777

drug task force was properly admitted, because it was

not clearly established on August 31, 2000 that Inv.

Sturz’s affidavit failed to justify a search of Defendant

Koerth’s house. . . . [I]t was clearly established prior

to August 31, 2000 that an officer seeking to obtain a

search warrant was required to provide more than

an uncorroborated, conclusory assertion of illegal

activity from a confidential informant of unknown reli-

ability. However, Koerth has failed to provide us with

any cases holding that an affidavit materially similar to

Inv. Sturz’s would fail to meet the test of establishing

probable cause based upon information from a named

informant like Savage. . . . Based on the evidence pre-

sented in the absence of such a ruling, we refuse to hold

that Inv. Sturz behaved unreasonably, or acted in

objective bad faith, or disregarded clearly established

law when conducting her investigation and relying

upon the search warrant issued in the case before us.

Id. at 869-70. (citations omitted). In Koerth, therefore, the

defendant did not carry his burden of negating the officer’s

reasonable reliance on the affidavit because there were

material distinctions between the affidavit at issue and the

affidavits that, in the cases proffered by the defendant, were

rejected as lacking probable cause.

In the present case, there are material distinctions between

Detective Clark’s affidavit and the affidavit in Koerth. Here,

Detective Clark attempted to corroborate the CI’s informa-

tion and therefore to avoid the deficiency we cited with

respect to the officers in Koerth. If Detective Clark’s efforts

still fell short of establishing probable cause, the fault lay

with the judicial officer issuing the warrant, not with

Detective Clark. As the Court noted in Leon, “[p]enalizing

the officer for the magistrate’s error, rather than his own,

No. 05-3777 17

cannot logically contribute to the deterrence of the Fourth

Amendment violations.” 468 U.S. at 921. This principle

makes clear that invoking the exclusionary rule in the

present case on the authority of Koerth would be inappropri-

ate.

We believe the same is true with respect to Mykytiuk. In

Mykytiuk, we noted that the affidavit contained some of the

same infirmities as did the affidavit in Koerth, and, therefore,

we accepted the Government’s concession that the affidavit

lacked probable cause. However, despite factual similarities

with Koerth, we nevertheless determined that the good faith

exception applied. We noted that “[p]olice officers are

charged with having knowledge of well-established legal

principles,” Mykytiuk, 402 F.3d at 777, and that we had taken

a narrow view in determining whether a legal principle

is well-established . . . holding that evidence seized

pursuant to a search warrant should not be excluded

unless the supporting affidavit is “plainly deficient” or

where “courts have clearly held that a materially similar

affidavit previously failed to establish probable cause

under facts that were indistinguishable from those

presented in the case at hand.”

Id. (quoting Koerth, 312 F.3d at 869). Employing this “narrow

view,” we concluded that the affidavit in Mykytiuk was not

supported by “the type of evidence that has been found so

wanting in the past—uncorroborated, conclusory assertions

from unproven informants.” Mykytiuk, 402 F.3d at 777

(emphasis added). For the same reasons, we do not believe

that our probable cause determination in Mykytiuk under-

mines Detective Clark’s good-faith reliance on the affidavit

here. In the present case, there is no question that the

affidavit supporting the warrant for Mr. Harju’s duplex

18 No. 05-3777

lacked some detail. Mr. Harju is correct that the affidavit

bears some similarity to the affidavits in the cases upon

which he relies. However, the affidavit at issue here is not

similar in all material respects to those that we have found

lacking in probable cause. Mr. Harju has not pointed to a

case involving a weapon, as opposed to drugs, nor has he

pointed to a case in which the officers exerted the same type

of corroborative efforts as Detective Clark.5 For these

reasons, we do not believe that Mr. Harju has met his

burden of showing that Detective Clark relied unreasonably

on the present affidavit; the good faith exception to the

exclusionary rule therefore applies.

5

We believe that the record before us also contains additional

support for application of the good faith exception. In United

States v. Leon, 468 U.S. 897, 926 (1984), the Court found that the

affidavit before it “provided evidence sufficient to create dis-

agreement among thoughtful and competent judges as to

the existence of probable cause. Under these circumstances,

the officers’ reliance on the magistrate’s determination of

probable cause was objectively reasonable, and application of the

extreme sanction of exclusion is inappropriate.” Here, both the

state court commissioner, as well as a federal magistrate judge,

determined that Detective Clark’s affidavit established probable

cause for the search of Mr. Harju’s residence. Although perhaps

not dispositive of the issue of good faith, it certainly is further

evidence that Detective Clark’s reliance on the affidavit was

reasonable.

No. 05-3777 19

Conclusion

For the foregoing reasons, we reverse the judgment of the

district court.

REVERSED

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—10-20-06