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People v. Miller9/8/2003
defendant (while out of jail on bond for doing the same thing) continues to use methamphetamine, to acquire a supply of the materials required for its manufacture, and in fact to manufacture the drug at a number of locations simultaneously; and where he clearly manufactured the drug in his home before being arrested and was observed still doing so at least four months afterward; to hold that there is not even a reasonable probability that his home has continued to be one of his manufacturing sites, or at least still contains evidence of his ongoing manufacturing operations. The majority's decision to limit the life-span of probable cause to a set number of days following the last information of drug manufacturing at a particular location is not only contrary to our prior holdings but fails to appreciate the significance of being a continuing and ongoing operation.
While I am concerned about the majority's attempt to distinguish this case from our prior "course of conduct" cases on the grounds that we have not previously decided a case involving the same number of days between observation and issuance, see maj. op. at 14, I am much more concerned by its holding that no well-trained police officer could reasonably believe the information to still establish probable cause. The majority not only reduces the probable cause determination to a mechanical (if not arbitrary) counting process; it forces police officers to predict precisely where the court will draw the cutoff line. Even if it did not fly in the face of an abundance of counter-examples from courts across the country, this holding can only serve to encourage officers to rely on their own counting rather than the appropriate assessment of the nature and circumstances of the criminal activity by a neutral magistrate. Having a good faith exception serves little purpose if acting in good faith means nothing more than accurately predicting the ultimate conclusion of the courts.
The exception to the exclusionary sanction does not apply, nor should it, if the magistrate misbehaves or is misled by police misbehavior, or if the affidavit is so lacking in indicia of probable cause - is so "bare bones" - as to render official belief in its existence entirely unreasonable. In this case, the trial court did not apply the good faith exception because it believed that the month-long interval between observations of manufacturing in the defendant's home and issuance of the warrant not only rendered that information stale but made unreasonable any belief by trained officers that the affidavit contained probable cause for the search. In upholding that ruling, the majority in effect finds it unreasonable for well-trained officers to rely on a probable cause determination by a neutral magistrate that would be upheld as fully justified by other justices of the jurisdiction's highest court.
The good faith exception to the exclusionary rule springs from the realization that the suppression of evidence as a sanction is unlikely to significantly modify executive branch behavior undertaken in objectively reasonable good faith. United States v. Leon, 468 U.S. 897 (1984). In addition to avoiding an extremely high cost to society, with little corresponding benefit, the exception has an additional salutary effect of promoting a judicial preference for warrants, by largely insulating executive branch officers from the mistakes of judicial magistrates. Not only does the majority's narrow interpretation nullify virtually any beneficial effect of the good faith exception; its unrealistic time and place restrictions on the probable cause determination severely undercut incentives to seek warrants in cases of ongoing methamphetamine operations. If delay by the polic
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