magistrate's finding "might be admissible as expert evidence of [defendant's] reasonableness"
How later courts described this case
- magistrate's finding "might be admissible as expert evidence of [defendant's] reasonableness"
- where sufficiency of facts in affidavit "fall[s] into the grey area appropriate for judicial determination," magistrate's probable cause finding "will insulate the officer from liability"
Written by the judges who cited it.
The opinion
ALDRICH, Senior Circuit Judge
(concurring).
I do not share the court’s view that United States v. Leon, — U.S. —, 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), merely assists us, rather than disposes of the present question out of hand. Leon , in effect, based the exclusionary rule upon a principle of penalizing the officer for his “official misconduct” (cf. “bad faith,” Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982)). By this is meant an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Brown v. Illinois, 422 U.S. 590, at 610-611 , 95 S.Ct. 2254, at 2265 , 45 L.Ed.2d 416 (1975) (Powell, Jr., concurring in part) quoted in Leon , — U.S. at —, 104 S.Ct. at 3423 . The Court held that such conduct is not cured by the magistrate’s acceptance of the affidavit, * even as against a defendant guilty of unlawful possession. I see no room for argument that the magistrate’s action should relieve the officer who cannot be said to have acted in objective good faith vis-a-vis an innocent arrestee. Footnote 35 of Justice Stevens’ dissent in Leon indicating equivalency, quoted in the court’s opinion herein, evoked no response from his brethren, and I can read it only as a noting of inevitable consequences, not as a disputation.
So far as “chill” is concerned, it is already clear that an officer’s unreasonable conclusion of probable cause can lead to personal liability. Cf. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971). While the reasons for, and loss of, qualified privilege with respect to professional conduct by the high executive officials in Harlow v. Fitzgerald, ante, and the lowly po *722 lice officers in Leon are not “perfectly analogous,” Leon , n. 22, I can have no doubt but that the Court would apply the same general principles of liability and immunity. Hobson v. Wilson, 737 F.2d 1, 25 (D.C.Cir.1984). The magistrate’s acting upon the affidavit might be admissible as expert evidence of its reasonableness, cf. Leon, n. 23 (last sentence), but it cannot remove impropriety.
‘‘[0]ur good faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization.” Leon, n. 23. (Emphasis suppl.)