Petition for Writ of Certiorari — Kyle S. Matthews, Petitioner v. United States

No. ______

IN THE

Supreme Court of the United States

___________________________________________________________

KYLE S. MATTHEWS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

______________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

______________________________________________________________

TODD M. SCHULTZ

Assistant Federal Public Defender

650 Missouri Ave.

East St. Louis, IL 62201

(618) 482-9050

(618) 482-9057 fax

Todd_Schultz@fd.org

Counsel for Petitioner

QUESTIONS PRESENTED

A police officer may rely on an invalid search warrant if he acts with objective good faith,

but not when the warrant lacks an indicia of probable cause supporting that evidence of a crime

will be found in the place to be searched.

1) Where a search warrant affidavit lacks probable cause, in that it contains only the

officer’s “belief” as to the existence of a connection between the defendant or his offense and the

place to be searched, along with the officer’s general assertion that his information came from

unspecified third parties and police officers, is this information sufficient to constitute “an

indicia” of probable cause, such that an officer could have reasonably relied on the warrant?

2) In determining whether a warrant is based on information that constitutes an indicia of

probable cause, is the fact that an officer consulted with the prosecutor in preparing a warrant

affidavit a relevant consideration?

i

TABLE OF CONTENTS

Questions Presented ......................................................................................................................... i

Table of Contents ............................................................................................................................ ii

Table of Authorities ....................................................................................................................... iii

Petition for a Writ of Certiorari .......................................................................................................1

Decision Below ................................................................................................................................1

Jurisdictional Statement ...................................................................................................................1

Constitutional Provisions Involved ..................................................................................................1

Constitutional Provisions Involved ..................................................................................................1

Statement of the Case.......................................................................................................................2

Reasons for Granting the Writ .........................................................................................................6

............I. This Court should grant the Writ and reverse the Seventh Circuit’s holding that a search

warrant affidavit lacking any articulable facts supporting that the defendant or his offense had

any connection to the property to be searched nevertheless contains an indicia of probable cause,

based on a police officer’s statement of belief that the defendant lived on the property and had

access to all of the varied structures there, as well as the officer’s general assertion that the

information in the affidavit was obtained from personal interviews or from other police officers .6

A. The Seventh Circuit’s holding is contrary to this Court’s precedent ............................... 6

B. The Seventh Circuit’s holding perpetuates a circuit split, with the Seventh Circuit in the

minority, which needs this Court’s attention. .................................................................................8

II. This Court should grant the Writ and reverse the Seventh Circuit’s holding that a court,

when evaluating whether a warrant is so lacking in probable cause to preclude good faith

reliance on it, may consider that the officer consulted with the prosecutor’s office in preparing

the warrant affidavit, and rely on that fact in finding an indicia of probable cause existed. .........11

A. Under Leon, only information provided to an issuing judge to justify the search is

relevant to whether the warrant contains an indicia of probable cause. .......................................11

B. The Seventh Circuit’s misconstruction of Leon encourages police misconduct. ............12

III. Correction of the Seventh Circuit’s holding is important, and warrants this Court’s

attention..........................................................................................................................................13

A. The Seventh Circuit’s holding is wrong. ........................................................................13

B. The Seventh Circuit’s holding encourages Fourth Amendment violations. ...................14

Conclusion .....................................................................................................................................15

INDEX TO APPENDIX

Exhibit 1 — United States Court of Appeals for the Seventh Circuit Opinion (Aug. 27,

2021) ............................................................................................. Appendix 1

Exhibit 2 — United States District Court for the Southern District of Illinois, Denial of

Motion for reconsideration of suppression denial (April 9, 2019)Appendix 10

ii

Exhibit 3 — United States District Court for the Southern District of Illinois, Denial of

Motion to Suppress (January 28, 2019) ...................................... Appendix 15

Exhibit 4--- Exhibit 2 — United States District Court for the Southern District of

Illinois Final Judgment and Conviction (August 26, 2020)........ Appendix 32

TABLE OF AUTHORITIES

Cases:

Illinois v. Gates, 462 U.S. 213 (1983) ...............................................................................3,6,7,9,13

Messerschmidt v. Millender, 565 U.S. 535 (2012) ....................................................................5,7,8

United States v. Calandra, 414 U.S. 338 (1974) ............................................................................6

United States v. Gonzales, 399 F.3d 1225 (10th Cir. 2005) ......................................................9,10

United States v. Hove, 848 F.2d 137 (9th Cir.1988) ......................................................................10

United States v. Leon, 468 U.S. 897 (1984)............................................................................... 4-12

United States v. Matthews, 12 F.4th 647 (7th Cir. 2021) ......................................................... iv,12

United States v. Weaver, 99 F.3d 1372(6th Cir. 1996) ...................................................................9

United States v. Wilhelm, 80 F.3d 116 (4th Cir. 1996) .................................................................8,9

Wong Sun v. United States, 371 U.S. 471 (1963) ........................................................................6,7

Constitution:

U.S. Const. amend. IV ................................................................................................1,3,6,11,12,14

Federal Statutes:

18 U.S.C. § 3231 ..............................................................................................................................1

18 U.S.C. § 3742 .............................................................................................................................1

28 U.S.C. § 1291 ..............................................................................................................................1

28 U.S.C. § 1254 ..............................................................................................................................1

iii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Kyle S. Matthews respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Seventh Circuit.

DECISION BELOW

The Seventh Circuit’s decision is published at 12 F.4th 647 (7th Cir. 2021), and appears at

Appendix 1 to this Petition.

JURISDICTIONAL STATEMENT

The United States District Court for the Southern District of Illinois originally had

jurisdiction pursuant to 18 U.S.C. § 3231, which provides exclusive jurisdiction of offenses

against the United States.

Petitioner timely appealed his conviction and sentence to the United States Court of

Appeals for the Seventh Circuit, pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The

Seventh Circuit affirmed Petitioner’s conviction and sentence on August 27, 2021.

Petitioner seeks review in this Court of the Seventh Circuit’s published opinion affirming

Appellant’s conviction and sentence pursuant to 28 U.S.C. § 1254(1). This Petition is filed within

90 days of the Seventh Circuit’s opinion affirming the district court’s August 27, 2021 judgment.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched, and the persons or things to be

seized.

1

STATEMENT OF THE CASE

Factual background. Police executed a search warrant on a property where Petitioner

Matthews lived in a camper trailer. The property consisted of a former restaurant and a nearby

collection of buildings, vehicles, and dumpsters. The search warrant complaint described the place

to be searched as:

The structure of the former Fin and Feather restaurant, motor home and

camper trailers, and all outbuildings located at 21000 North Emerald Road . . . and

all other structures and things situated thereon . . . the motor home and camper

trailer are situated within approximately 50 feet to the east behind the former Fin

and Feather restaurant building. Said motor home and camper trailer are believed

to be occupied by persons including Kyle S. Matthews . . . who is also believed to

have access to all other structures and building situated on the premises to be

searched.

(Doc. 29-1).

The judge issuing the search warrant heard testimony from Detective Becherer, in addition

to reviewing the warrant application. The testimony included the following exchange describing

the collection of places comprising the property to be searched, as well as Detective Becherer’s

“understanding” that Petitioner had access to all of the structures and vehicles there.

Q: You’re intending to go into the entire property where he’s been staying

which is at the Fin and Feather restaurant?

A: That’s right.

Q: There is a motor home, a camper, and several dumpsters and vehicles in

addition to the primary structure of the former restaurant?

A: Right.

Q: There’s also an outbuilding?

A: Yes.

Q: It’s your intent that – your understanding Mr. Matthews has access to all

those places?

A: Right.

Q: It’s your intent to go search all places and seize any evidence of the

crimes described?

A: That’s right.

(Doc. 43 p. 7-8, citing Doc. 29-3, at 9).

2

The evidence obtained in the search led to a three-count indictment against Petitioner.

(Doc. 1). On August 17, 2018, Defense Counsel filed a Motion to Suppress evidence, arguing the

information given to the judge in support of the search warrant lacked any facts to support a nexus

between Petitioner and each of the structures and vehicles comprising the property to be searched,

nor any basis of knowledge from which to conclude Petitioner had access to each of those places.

(Docs. 28-29). Defense Counsel cited, inter alia, Illinois v. Gates, 462 U.S. 213, 238–39 (1983),

which describes the issuing judge’s task as “simply to make a practical, common-sense decision

whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’

and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” Id.

Defense Counsel also argued the good faith exception did not apply: “Given the

deficiencies in the affidavit, a reasonably well-trained officer would have known that the search

was illegal despite Judge Brandmeyer’s authorization. Therefore, the Good Faith Exception to the

Fourth Amendment is inapplicable, and the evidence seized during the search . . . must be

suppressed.” (Doc. 29 p. 11). Government Counsel responded, briefly arguing probable cause

existed, but primarily arguing Officer Becherer relied on the search warrant in good faith, so the

exclusionary rule did not apply. (Docs. 43-45).

The district court found the warrant was not supported by probable cause to believe that

any of the suspected crimes were linked to the property because the affidavit provided no factual

basis for the belief that Petitioner resided at the Fin and Feather property. Furthermore, the affidavit

failed to provide any nexus between the criminal activity and that property; it offered no indication

Petitioner ever was observed at that property, or that any illegal activity took place there, or that

evidence would likely be found there. (Doc. 48).

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However, the district court found the good-faith exception to the exclusionary rule applied,

and denied the motion to suppress. (Doc. 48). Defense Counsel filed a motion for rehearing

because the district court’s finding of good faith was based on information not presented to the

magistrate, and which pertained to Detective Becherer’s subjective good faith. (Doc. 50). The

District Court agreed it should not have relied on a subjective good faith standard and on materials

not presented to the reviewing judge. However, the district court again denied suppression, finding

“the affidavit and supporting testimony were not so lacking in indicia of probable cause as to

render official belief in its existence entirely unreasonable.” (Doc. 54; citing United States v. Leon,

468 U.S. 897, 923 (1984) (citation omitted).

Petitioner Matthews entered a conditional plea to possessing an unregistered shortbarreled rifle, preserving his right to appeal of the denial of the motion to suppress the evidence.

(Docs. 58-59). On August 26, 2020, the district court entered a final conviction and judgment,

sentencing Petitioner Matthews to three-year probation. (Doc. 96). Defense Counsel appealed to

the Seventh Circuit Court of Appeals on September 3, 2020. (Doc. 104).

Seventh Circuit decision. On appeal, Petitioner argued the search warrant application’s

deficiencies rendered it so lacking in indicia of probable cause that official belief in its existence

was entirely unreasonable, citing United States v. Leon, 468 U.S. 897, 923 (1984). The Seventh

Circuit considered “whether an officer in Detective Becherer’s situation could rely reasonably on

the warrant issued by the state court judge as valid authorization to search the Fin & Feather

property,” and concluded the warrant contained an indicia of probable cause. Even though the

affidavit asserted only Detective Becherer’s conclusory belief, with no supporting articulable

facts, connecting Petitioner or his offense with Fin and Feather property, the Seventh Circuit

found “Detective Becherer’s affidavit cannot fairly be characterized as wholly conclusory. It

4

explained, albeit in broad strokes, how the officer came to this belief that Mr. Matthews lived on

the property—'by personal interviews and … through other law enforcement officers.’”

The Seventh Circuit also brushed aside Petitioner’s argument the affidavit failed to

provide a basis for concluding he had access to all of the varied structures and vehicles on the

Fin and Feather property, based on the belief Petitioner resided somewhere on the property: “A

reasonable judge or officer still might well assume that, here, the person living in a camper has

control over the other structures on the property in much the same way as the owner of a house is

most likely to control a shed or detached garage in close proximity to the house.” Id. at 656.

Finally, the Seventh Circuit held that Detective Becherer’s decision to consult with the

State’s attorney before preparing the complaint for a search warrant supported his “objective

good faith,” and also bolstered the finding that the affidavit contained an “indicia of probable

cause:”

The Supreme Court has held that attorney (and magistrate) approval of a

warrant is not “dispositive,” but it is “certainly pertinent in assessing whether [an

officer] could have held a reasonable belief that the warrant was supported by

probable cause.” Messerschmidt, 565 U.S. at 554–55, 132 S.Ct. 1235. That

officers consulted with attorneys before seeking a warrant featured prominently in

both Leon, 468 U.S. at 902, 104 S.Ct. 3405, and its companion case,

Massachusetts v. Sheppard, 468 U.S. 981, 985, 104 S.Ct. 3424, 82 L.Ed.2d 737

(1984). We have repeatedly credited an officer's choice to confer with an attorney

before seeking a warrant as evidence of good faith. * * * the involvement of the

State's Attorney in preparing and approving the warrant and affidavit simply

bolsters our conclusion that these documents contained sufficient indicia of

probable cause to permit Detective Becherer to rely on the warrant.”

Id. at 656-57.

Hence, the Seventh Circuit affirmed the district court’s denial of Petitioner’s motion to

suppress.

5

REASONS FOR GRANTING THE PETITION

The Fourth Amendment says “no Warrants shall issue, but upon probable cause.” In a

criminal trial, evidence obtained in violation of the Fourth Amendment may be excluded to deter

police misconduct. United States v. Calandra, 414 U.S. 338, 354 (1974). In United States v.

Leon, 468 U.S. 897 (1984), this Court held the exclusionary rule does not apply when a police

officer acts in objectively reasonable reliance on a search warrant issued by a neutral magistrate,

even if the warrant is later determined to lack probable cause. Leon’s good faith doctrine is not

boundless, and does not apply, inter alia, when the warrant lacks an indicia of probable cause.

Id. at 898-99. Probable cause requires “a fair probability that contraband or evidence of a crime

will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).

I. This Court should grant the Writ and reverse the Seventh Circuit’s holding that a search

warrant affidavit lacking any articulable facts supporting that the defendant or his offense had

any connection to the property to be searched nevertheless contains an indicia of probable cause,

based on a police officer’s statement of belief that the defendant lived on the property and had

access to all of the varied structures there, as well as the officer’s general assertion that the

information in the affidavit was obtained from personal interviews or from other police officers.

A. The Seventh Circuit’s holding is contrary to this Court’s precedent. This Court directs

a probable-cause determination must be made by a neutral magistrate, in order “to insure that the

deliberate, impartial judgment of a judicial officer will be interposed between the citizen and the

police, to assess the weight and credibility of the information which the complaining officer

adduces as probable cause.” Wong Sun v. United States, 371 U.S. 471, 481-482 (1963). The neutral

magistrate must review, in particular, the basis of knowledge the officer’s information and

information supplied by third parties, in order to determine its veracity: “The task of the issuing

magistrate is simply to make a practical, common-sense decision whether, given all the

6

circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of

knowledge’ of persons supplying hearsay information, there is a fair probability that contraband

or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238

(1983). United States v. Leon, 468 U.S. 897, 915 (1984) directs the good faith doctrine cannot

save “a warrant based on an affidavit that does not ‘provide the magistrate with a substantial basis

for determining the existence of probable cause,’” and warns the magistrate’s “action cannot be a

mere ratification of the bare conclusions of others.’” Id.

Petitioner’s case presents the precise scenario Leon excluded from application of the

good faith doctrine: the information presented to the magistrate was wholly lacking in any

specific facts from which a magistrate could independently determine the existence of probable

cause, that is, a fair probability evidence would be found on the Fin and Feather property. The

Seventh Circuit’s finding the good faith doctrine applied is contrary to Leon. The Seventh

Circuit’s holding is also contrary to Wong Sun and Gates, in that it permits an officer to rely on a

warrant that provides no basis for a neutral magistrate to review whether probable cause existed.

This Court has applied the good faith doctrine in a case where a warrant was based on

less than probable cause, but relief on information sufficient to constitute an “indicia” of

probable cause. This Court’s opinion makes clear an “indicia” of probable cause must be based

on articulable facts presented to a judge and/or inferences from those facts, even if they fall short

of probable cause. As this Court stated in Messerschmidt v. Millender, 565 U.S. 535 (2012):

Even if the scope of the warrant were overbroad in authorizing a search

for all guns when there was information only about a specific one, that specific

one was a sawed-off shotgun with a pistol grip, owned by a known gang member,

who had just fired the weapon five times in public in an attempt to murder another

person, on the asserted ground that she had “call[ed] the cops” on him. * * *

Evidence of one crime is not always evidence of several, but given Bowen's

possession of one illegal gun, his gang membership, his willingness to use the gun

to kill someone, and his concern about the police, a reasonable officer could

7

conclude that there would be additional illegal guns among others that Bowen

owned.

Id. at 548-49. Messerschmidt illustrates this Court’s intention that an indicia of probable cause

must be rooted in specific, articulable facts probative of probable cause, regardless of the steps

an officer may have taken to ensure probable cause existed. The Seventh Circuit’s finding of an

indicia of probable cause in the absence of such facts is contrary to this Court’s precedent.

B. The Seventh Circuit’s holding perpetuates a circuit split, with the Seventh Circuit in

the minority, which needs this Court’s attention. Officer Becherer’s only asserted basis for

believing Petitioner had a connection to the Fin and Feather property was a general statement in

the affidavit that his information therein came from personal interviews or other police officers-that is, from other, unspecified individuals, whose basis of knowledge was unstated. Despite the

absence of any articulable facts on which a judge could make an independent evaluation of

probable, the Seventh Circuit found the good faith exception to the exclusionary rule applied.

The Fourth Circuit takes a contrary view. It holds the good faith doctrine does not apply

when a warrant affidavit relies on an officer’s assertion of information from a third party, when

the affiant includes no significant detail as to the informant’s basis of knowledge, or

corroboration of the informant’s reliability. As the Fourth Circuit explained in United States v.

Wilhelm, 80 F.3d 116, 123 (4th Cir. 1996),

We believe that this is not a case of “objectively reasonable law

enforcement activity.” Proctor could not reasonably rely on an unknown,

unavailable informant without significant corroboration. Because Proctor

presented to the magistrate nothing more than this unreasonable reliance, the

Supreme Court's third exception to Leon applies: the affidavit here did not

“provide the magistrate with a substantial basis for determining the existence of

probable cause.” While perhaps not undertaken with deliberate bad faith, Proctor's

use of phrases such as “concerned citizen,” “mature” and “truthful demeanor”

strike this court as attempts to endue the affidavit with the appearance of genuine

substance; this tactic suggests that Proctor herself knew that probable cause was

lacking, and thus that reliance on the resulting warrant was not reasonable. In

8

addition, the state magistrate appears to have acted as a rubber stamp in finding

this affidavit sufficient to establish probable cause. Therefore, the search warrant

unsupported by probable cause is not saved by the Leon good-faith exception.

This search was unconstitutional because it was based upon a warrant

unsupported by probable cause, and the police could not have acted in good faith

in relying on that warrant.

United States v. Wilhelm, 80 F.3d 116, 123 (4th Cir. 1996).

Similarly, the Sixth Circuit in United States v. Weaver, 99 F.3d 1372, 1380–81 (6th Cir.

1996), found an officer could not rely in good faith on a warrant where probable cause was based

on information from a third party, and corroborating facts to support the reliability and basis of

knowledge of that individual were flimsy:

Viewed objectively, McCullough possessed some information from a

previously reliable informant regarding possible criminal activities but 1)

possessed no prior personal knowledge of any unlawful activity by this suspect, or

at the suspect residence, other than an old conviction on completely unrelated

circumstances; 2) possessed no present personal knowledge of any connection

between this suspect and marijuana possession or distribution; 3) had not

personally seen any marijuana at the suspect residence nor conducted any visual

reconnaissance of the property to determine whether marijuana was likely to be

present on the property; and 4) possessed only third-party hearsay information

about a possible marijuana grow operation on the property. With little firsthand

information and no personal observations, McCullough should have realized that

he needed to do more independent investigative work to show a fair probability

that this suspect was either possessing, distributing, or growing marijuana.

* * * Had the detective made some meaningful “effort to corroborate the

informant's report at issue, ‘an entirely different case’ would have been

presented.” Gates, 462 U.S. at 242, 103 S.Ct. at 2334 (citing Aguilar, 378 U.S. at

109 n. 1, 84 S.Ct. at 1511 n. 1). We believe a reasonably prudent officer would

have sought greater corroboration to show probable cause and therefore do not

apply the Leon good faith exception on the facts of this case.7 Accordingly, the

items seized at the Weaver residence should be suppressed.

United States v. Weaver, 99 F.3d 1372, 1380–81 (6th Cir. 1996).

The Tenth and Ninth Circuits take a similar view. In United States v. Gonzales, 399 F.3d

1225, 1229–31 (10th Cir. 2005), the officer was diligent in showing his search warrant affidavit

to his supervisor and the prosecutor for review, before submitting it to a judge. Still, the Tenth

9

Circuit found the absence of specific facts in the affidavit linking the defendant to the place to be

searched, or explaining why evidence might be located there, precluded application of the good

faith doctrine. The opinion also discusses Ninth Circuit case law, which holds the same view:

Here, Detective Gonzales's affidavit listed the address of the place to be

searched in the caption and described the residence with particularity; however,

there were no facts explaining how the address was linked to Mr. Gonzales, the

vehicle, or the suspected criminal activity, or why the officer thought the items to

be seized would be located at the residence. * * * in United States v. Hove, 848

F.2d 137 (9th Cir.1988), the Ninth Circuit held that good faith reliance was

lacking where the supporting affidavit failed to provide any connection between

the residence subject to search and the suspect or suspected criminal activity. In

Hove, officers suspected a woman of sending bomb threats to her ex-husband and

sought a warrant to search the place in which they believed she was living. Id. at

138–39. However, none of the facts supporting the officers' belief that the woman

lived at the address to be searched were included in the affidavit. In rejecting the

government's good faith argument, the court stated, “the affidavit offer[ed] no hint

as to why the police wanted to search this residence. The affidavit ... [did] not

offer an explanation of why the police believed they may find incriminating

evidence there; the affidavit simply list [ed] the ... address as the location to be

searched.” Id. at 139–40. * * * Like Hove, the affidavit in this case completely

failed to explain why the detective believed the items sought would be found at

321 E. Church. And even though we have previously held that courts may

properly rely on an officer's experience in finding probable cause, * * * here, the

detective's generically stated experience—that “firearm [sic] are often kept at the

residence”—was not supported by any facts establishing the residence belonged

to or was otherwise linked to Mr. Gonzales. * * * For good faith to exist, there

must be some factual basis connecting the place to be searched to the defendant or

suspected criminal activity. When this connection is wholly absent, the affidavit

and resulting warrant are “so lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923, 104

S.Ct. 3405. Exclusion is appropriate in such circumstances because “reasonably

well-trained” officers, exercising their own professional judgment, will be able to

recognize the deficiency. Here, the warrant was “so lacking,” and the officer's

reliance upon it was not objectively reasonable.

United States v. Gonzales, 399 F.3d 1225, 1229–31 (10th Cir. 2005) (citation omitted).

The Seventh Circuit’s view is directly contrary to that of these other circuits, and

warrants this Court’s attention to establish a consistent standard for application of the good faith

doctrine.

10

II. This Court should grant the Writ and reverse the Seventh Circuit’s holding that a

court, when evaluating whether a warrant is so lacking in probable cause to preclude good faith

reliance on it, may consider that the officer consulted with the prosecutor’s office in preparing

the warrant affidavit, and rely on that fact in finding an indicia of probable cause existed.

A. Leon’s good faith exception is rooted in the fact that generally no purpose is served by

punishing a police officer who reasonably relies on a warrant that a judge appears to have

properly issued. As stated in Leon,

Excluding the evidence can in no way affect his future conduct unless it is

to make him less willing to do his duty.” Stone v. Powell, 428 U.S., at 539–540,

96 S.Ct., at 3073–3074 (WHITE, J., dissenting). This is particularly true, we

believe, when an officer acting with objective good faith has obtained a search

warrant from a judge or magistrate and acted within its scope. In most such cases,

there is no police illegality and thus nothing to deter. It is the magistrate's

responsibility to determine whether the officer's allegations establish probable

cause and, if so, to issue a warrant comporting in form with the requirements of

the Fourth Amendment. In the ordinary case, an officer cannot be expected to

question the magistrate's probable-cause determination or his judgment that the

form of the warrant is technically sufficient.

Leon, 468 U.S. at 920–21.

However, Leon explicitly limits application of its good faith doctrine, by identifying

circumstances in which an officer’s reliance on a warrant can never be deemed objectively

reasonable, including where the warrant affidavit lacks even an indicia of probable cause,

regardless of other indicators of good faith:

Nevertheless, the officer's reliance on the magistrate's probable-cause

determination and on the technical sufficiency of the warrant he issues must be

objectively reasonable, cf. Harlow v. Fitzgerald, 457 U.S. 800, 815–819, 102

S.Ct. 2727, 2737–2739, 73 L.Ed.2d 396 (1982) and it is clear that in some

circumstances the officer will have no reasonable grounds for believing that the

warrant was properly issued. * * * Nor would an officer manifest objective good

faith in relying on a warrant based on an affidavit “so lacking in indicia of

probable cause as to render official belief in its existence entirely unreasonable.”

Leon, 468 U.S. at 922–23.

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Hence, Leon clearly prohibits application of the good faith doctrine when a warrant

affidavit lacks an indicia of probable cause, regardless of the steps an officer takes during an

investigation. In Petitioner’s case, the only issue on appeal was whether the information in the

warrant affidavit presented an indicia of probable cause. Nevertheless, the Seventh Circuit, in

determining whether an indicia of probable cause existed, considered, as part of its analysis, the

fact that the officer consulted with the prosecutor about the affidavit before submitting it to a

judge: “Detective Becherer's objective good faith is further demonstrated by his decision to

consult with the State's Attorney before preparing the complaint for a search warrant.” Matthews,

12 F.4th at 656. The Seventh Circuit conflates the purely academic question of whether a warrant

is based on an indicia of probable cause, with the unrelated question of whether the officer

demonstrated good faith in the steps he took to obtain the warrant, which is contrary to Leon.

B. The Seventh Circuit’s opinion encourages police misconduct. Under the Seventh

Circuit’s misinterpretation of Leon, a police officer seeking a warrant based on uncorroborated

hearsay from an informant of unknown reliability (or in one of the other circumstances Leon

excludes from the good faith doctrine), will simply first seek approval from the prosecutor; if the

judge then issues the warrant, the prosecutor’s prior approval may help to avoid application of

the exclusionary rule. Although the magistrate has the primary responsibility of ensuring a

warrant is based on probable cause, Leon’s decision not to apply the doctrine when an officer

turns a blind eye to a patently deficient warrant, recognizes the officer bears some responsibility

in preventing Fourth Amendment violations when a warrant is blatantly deficient. The Seventh

Circuit’s misconstruction of Leon relieves police of this responsibility and seriously weakens this

safeguard.

12

III. Correction of the Seventh Circuit’s holding is important, and warrants this Court’s

attention.

A. The Seventh Circuit’s holding is wrong. This Court’s clear case law prohibiting a

finding of probable cause based on wholly conclusory beliefs, unsupported by articulable facts,

and based on facts provided by third parties, without additional information providing some

assurance as to the veracity of those facts, is longstanding. As explained in Illinois v. Gates,

Our earlier cases illustrate the limits beyond which a magistrate may not

venture in issuing a warrant. A sworn statement of an affiant that “he has cause to

suspect and does believe that” liquor illegally brought into the United States is

located on certain premises will not do. Nathanson v. United States, 290 U.S. 41,

54 S.Ct. 11, 78 L.Ed. 159 (1933). An affidavit must provide the magistrate with a

substantial basis for determining the existence of probable cause, and the wholly

conclusory statement at issue in Nathanson failed to meet this requirement. An

officer's statement that “affiants have received reliable information from a

credible person and believe” that heroin is stored in a home, is likewise

inadequate. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723

(1964).

***

Our decisions applying the totality-of-the-circumstances analysis outlined

above have consistently recognized the value of corroboration of details of an

informant's tip by independent police work. In Jones v. United States, supra, 362

U.S., at 269, 80 S.Ct., at 735, we held that an affidavit relying on hearsay “is not

to be deemed insufficient on that score, so long as a substantial basis for crediting

the hearsay is presented.” We went on to say that even in making a warrantless

arrest an officer “may rely upon information received through an informant, rather

than upon his direct observations, so long as the informant's statement is

reasonably corroborated by other matters within the officer's knowledge.” Ibid.

Likewise, we recognized the probative value of corroborative efforts of police

officials in Aguilar —the source of the “two-pronged test”—by observing that if

the police had made some effort to corroborate the informant's report at issue, “an

entirely different case” would have been presented. Aguilar, supra, 378 U.S., at

109, n. 1, 84 S.Ct., at 1511, n. 1.

Illinois v. Gates, 462 U.S. 213, 239, 241–42 (1983).

In light of this case law, a police officer could not reasonably rely on a search warrant

where probable cause was based only on wholly conclusory beliefs and a general reference to the

fact that unspecified third parties provided the information that was the basis of those beliefs.

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The information asserted as probable cause in Petitioner’s case did not simply fail to rise to the

level of probable cause, it failed to supply any appreciable basis to support that evidence would

be found at the Fin and Feather property. Therefore, the Seventh Circuit erred in applying the

good faith doctrine, and in failing to exclude the evidence.

B. The Seventh Circuit’s holding encourages Fourth Amendment violations. Relying on

the Seventh Circuit’s view, police in this Circuit can try to bypass a neutral judge’s review of the

basis for probable cause, by asserting only the officer’s belief, based on unspecified facts from

unspecified third parties. When a judge issues the warrant despite these deficiencies, police may

freely rely on it without fear evidence will be excluded. Thus, when an officer’s information falls

short of even an indicia of probable cause, he has nothing to lose by submitting the warrant

application anyway.

The Seventh Circuit’s holding that the fact that an officer seeks a prosecutor’s review is

relevant to a good faith determination, despite blatant deficiencies in a warrant, similarly

encourages police misconduct. Police who have insufficient information to support even an

indicia of probable cause may simply consult with the prosecutor before submitting the warrant

application to a judge, in order to ensure application of the good faith doctrine, in the event the

warrant is issued despite the deficiencies.

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CONCLUSION

For the foregoing reasons, this Court should grant the petition for a writ of certiorari.

Dated: November 18, 2021

Respectfully submitted,

TODD M. SCHULTZ

Counsel of Record

Assistant Federal Public Defender

Southern District of Illinois

650 Missouri Ave

E St. Louis, IL 62201

(618) 482-9050

(618) 482-9057 (fax)

Todd_Schultz@fd.org

Counsel for Petitioner

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