United States v. Steven G. Huggins Vicki Jo Jensen Dahcota Whip Hagen Rhonda Taylor

BETTY B. FLETCHER, Circuit Judge,

special concurrence:

I specially concur in the majority opinion. I am in agreement that the good-faith exception applies in this case, but write separately because the majority errs in failing to make an explicit finding that no probable cause existed to issue the first warrant that authorized a thermal imaging search of the Mowetza property.

In United States v. Leon, 468 U.S. 897, 900 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), the Supreme Court held that the Fourth Amendment’s exclusionary rule does not prevent 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.” Mindful of the concern that the application by courts of this “good-faith exception” could “preclude review of the constitutionality of the search or seizure, deny needed guidance from the courts, or freeze Fourth Amendment law in its present state,” id. at 924 , 104 S.Ct. 3405 , the Court reasoned as follows:

There is no need for courts to adopt the inflexible practice of always deciding whether the officers’ conduct manifested objective good faith before turning to the question whether the Fourth Amendment

If the resolution of a particular Fourth Amendment question is necessary to guide future action by law enforcement officers and magistrates, nothing will prevent reviewing courts from deciding that question before turning to the good-faith issue. Indeed, it frequently will be difficult to determine whether the officers acted reasonably without resolving the Fourth Amendment issue.

Id. at 925 , 104 S.Ct. 3405 .

Following Leon , which allows reviewing courts “to exercise an informed discretion” in deciding whether to apply probable cause analysis prior to reaching the question of good faith, we are left with the task of judging when the particular facts of a case provide for an appropriate occasion to clarify, for both magistrates and law enforcement generally, the threshold showing required to establish probable cause. Id. at 925 , 104 S.Ct. 3430 . Unlike the majority, I believe this is such an occasion.

The facts presented in the affidavit in support of the search warrant to conduct thermal imaging, and to collect discarded trash from the property, did not provide the magistrate judge with a “substantial basis for concluding that the affidavit in support of the warrant established probable cause.” United States v. Wright, 215 F.3d 1020, 1025 (9th Cir.2000). There was not a scintilla of evidence of any current drug activity other than the electric bills. *1053 There had been no surveillance; there had been no tips or observations of buys or sells or growing. The only possible relevant current information was that the subject premises used more electricity than houses next door and more than the prior usage at the premises.

The only allegations presented in support of the warrant application other than the electricity bills were a “tip” from an incarcerated informant, whose “reliability” was “untested,” that the defendant was once, at least three years previous, involved in producing and distributing marijuana, once had a girlfriend named “Rhonda,” and had lived in Eugene but may have moved to Ashland; information gathered by law enforcement that the defendant lived in Ashland (with the Mowetza property listed as an address on a vehicle registration in his name) and previously lived in Veneta (near Eugene); that Rhonda Taylor owned the Mowetza property, lived there, and used aliases; that a person with one of the aliases she used, with the same birthday as Rhonda Taylor, was arrested in 1983 with marijuana (though apparently never prosecuted).

Nothing suggests current criminal activity. A statement by an untested informant that three years earlier the defendant was involved in the drug trade carries almost no weight in the analysis of probable cause to cause one to believe that current criminal activity is underway, not only because three years had passed since the informant learned such information, but because of the complete lack of specificity as to what the defendant was doing and where he was doing it. Confirmation of the defendant’s whereabouts and his girlfriend’s identity carries no weight whatsoever in the probable cause analysis. See United States v. Mendonsa, 989 F.2d 366, 369 (9th Cir.1993) (finding that confirmation of innocent information does not constitute “corroboration” for purposes of establishing probable cause). Information that the defendant’s girlfriend was arrested on drug charges more than 15 years earlier similarly can have no bearing on the probable cause analysis. The information regarding electricity usage, admittedly the government’s strongest evidence in support of the warrant application, cannot by itself sustain the government’s burden to establish probable cause. United States v. Clark, 31 F.3d 831, 835 (9th Cir.1994) (“Even assuming ... that[defendant’s] electrical consumption was ‘high,’ such consumption is consistent with numerous entirely legal activities. This evidence, which is equally consistent with both legal or illegal activity, ... is simply not sufficient to establish probable cause ... ”).

Before proceeding to a good faith analysis, we should forthrightly face the issue of whether there was probable cause. I submit there was no probable cause.