The Ninth Circuit Court of Appeals today released an opinion in USA v. LUONG, No. 05-50090, a criminal appeal. The panel consisted of Betty B. Fletcher, Warren J. Ferguson, and Consuelo M. Callahan, Circuit Judges.
FERGUSON, Circuit Judge:
The government appeals the District Court’s order suppressing evidence seized from Appellee Thai Tung Luong’s residence and storage locker. The District Court held that the government did not have probable cause to search Luong’s residence, and that suppression of the fruits of this search was . . .
CALLAHAN, Circuit Judge, dissenting:
I dissent because United States v. Leon, 468 U.S. 897 (1984), our own precedent, and authority from our sister circuits support a holding that extrinsic evidence may be considered when determining whether the good faith exception to the application of the exclusionary rule applies. When the extrinsic evidence is considered here, sufficient indicia of probable cause and objective good faith reliance on the search warrant exists to support the application of the good faith exception to the exclusionary rule. While Leon explained that the good faith exception does not apply in certain circumstances, including when the affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” 468 U.S. at 923 (quoting Brown v. Illinois, 422 U.S. at 590, 610-611 (1975)) (Powell, J., concurring in part), it also stated that “all of the circumstances– including whether the warrant application had previously been rejected by a different magistrate-may be considered” in the good faith inquiry. Id. at 922, n. 23. Moreover, in discussing the deterrent effect of the exclusionary rule, Leon explained that a police officer generally should be able to rely on a judge’s probable cause determination because “it is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause.” Id. . . .