COMMONWEALTH OF KENTUCKY

CALLOWAY DISTRICT COURT

CASE NO. 05-M-519

COMMONWEALTH PLAINTIFF

VS REPLY TO RESPONSE TO MOTION TO SUPPRESS

ROBERT XXXXXXX DEFENDANT

Comes now the Defendant, through counsel, and replies to the Commonwealth’s response to the motion to suppress and respectfully shows the Court as follows:

I.  “Good Faith” is not an Issue, and Leon does not Apply.

The “good faith” exception to the exclusionary rule espoused in U.S. v. Leon, 468 U.S. 897 (1984) does not apply. Leon held that the exclusion of evidence is not required where a police officer acts in objectively reasonable reliance on a facially valid warrant that is later found to be invalid because of a lack of probable cause. That is not the issue in this case. The warrant was issued on a failure to pay a public defender fee, not because probable cause was found to be lacking.

In fact, the Leon court specifically stated that an executing officer’s ignorance concerning the facts surrounding the warrant’s issuance cannot shield the warrant process from scrutiny. Leon at 923, n.24. The Court cautioned against applying a cursory good-faith analysis that would allow a procuring officer to secure an illegal search by simply “rely[ing] on colleagues who are ignorant of the circumstances under which the warrant was obtained. Id.

Illinois addressed the very problem before this court in People v. Turnage, 642 N.E.2d 1235 (Ill. 1994). In that case, the defendant was arrested pursuant to a warrant on which he had already been arrested and posted bond seven days earlier. Rejecting the Leon good faith argument, the Illinois Supreme Court held:

[The second arresting officer’s] conduct is not the appropriate focus for a Leon analysis because he did not procure the warrant at issue…

Thus, the appropriate analysis where an officer arrests a suspect based upon a warrant obtained by someone else is to determine whether there is a valid warrant at the source. Under Whitely [401 U.S. 560 (1971)], Officer Podschweit [the officer who served the warrant the second time] was entitled to “assume” that the information he received was correct and that he was executing a valid warrant. However, an otherwise illegal arrest is not insulated from challenge by the ignorance of the executing officer of the circumstances surrounding the issuance of the warrant. As we have already determined, the warrant was invalid when issued. Therefore, under Whiteley, defendant’s arrest based on this invalid warrant was illegal and Officer Podschweit’s good faith inapposite. [Emphasis added.]

Thus, Det. Vaden’s good faith is inapposite here. The issue is not whether he acted in good faith; his ignorance of the state of the warrant does not insulate the otherwise invalid arrest.

II.  Vaughn Rejected a “Good Faith” Analysis

In Vaughn, the Commonwealth argued that the error in the dispatch of the police department was “attributable to the administrative delay attendant to the operation of any law enforcement agency.” Further, the Commonwealth argued that “the officers executing the arrest warrant had no reason to suspect the information was inaccurate.” Obviously, if the police had had “good reason” to suspect the information was inaccurate, the police would not have been acting in “good faith.” Therefore, the “good faith” of the officers in Vaughn is assumed.

Had the case turned on the issue of whether the officers were acting in good faith – as opposed to serving a warrant they knew had already been served – the Vaughn case would not have been decided as it was. Instead, the Vaughn Court rejected the good faith argument. Look closely at the holding:

We believe that the collective knowledge rule is applicable in cases where a warrant has already been served or is otherwise invalid. Nevertheless, we do not believe it would be reasonable or fair to hold the police to collective knowledge of the warrant if, during the time in question, it was not possible to disseminate that “knowledge” to other officers who might use it…

In addition, it may be necessary to explore whether in this case the sheriff’s department followed the proper procedure in a timely manner after it served the warrant. This will provide a basis for the court’s determination whether it is reasonable to hold the officers to the knowledge that the warrant was previously served and invalid. Vaughn, at 112,

In the case at hand, the Commonwealth has ADMITTED that Detective Jim Wright should have “pulled” the hard copy from the active file. Thus, it is clear that the sheriff’s department did not “follow the proper procedure in a timely manner.”

Also important is the testimony of Det. Vaden that he checked only with dispatch, who checked only the Excel Spreadsheet – an internal program – and not the NCIC or other computer database which would have revealed the warrant had been served. According to his testimony, whenever a sherriff’s deputy or detective served a warrant, the fact of service normally was placed into the spreadsheet. But what about warrants served by other departments? When a Murray City Policeman or a Murray State Policeman serves a warrant, that fact of service never makes it into the Sheriff’s Dept. database. So unless the officer checks the computer database available to all law enforcement, the fact of prior service of the warrant can remain undetected.

When Mr. XXXxxxx was arrested:

·  Mr. XXXxxxx informed Det. Vaden the warrant had already been served;

·  The Jail was able to pull up a computer and show it had been served;

·  The Court and the Clerks are able to pull up a computer and show it had been served;

·  This attorney is able to pull up cases on Courtnet, and show whether warrants are active or had been served.

It would have taken no trouble at all for Det. Vaden or dispatch to confirm the validity – or lack thereof – of this three and a half (3 ½ ) year old warrant. Instead, the officer relied upon an archaic and self-contained ledger entry system, which in turn was not even followed by the detective who should have placed the return of the served warrant into the system.

Good faith is not applicable to the law of this case, and does not exist in fact.

WHEREFORE, this Court should suppress the evidence obtained pursuant to the illegal search in this case.

Respectfully submitted,

______

B. Scott West

Asst. Public Advocate

503 N. 16th St.

Murray, KY 42071

(270) 753-4633

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was served upon the Hon. David Harrington, County Attorney, via ______U.S. Mail, postage pre-paid, or ______hand delivery on this the ______day of ______, 2005.

______

B. Scott West

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