An issue that has been up in the air in the Sixth Circuit is to what extent the written contents of an affidavit filed in support of a search warrant application can be supplemented at a later suppression hearing by claimed oral statements to the issuing magistrate. While the issue was resolved earlier this year, the recent decision in United States v. Frazier, 423 F.3d 526 (6th Cir. 2005), has created the potential for confusion.
The issue was framed in United States v. Carpenter, 360 F.3d 591 (6th Cir. 2004) (en banc) as "whether the search could have been saved under the ‘good faith exception’ on the basis that the officers had other information that was not presented to the issuing magistrate, but that would have established probable cause." 360 F.3d at 597. The majority of the en banc court did not reach the issue, however, finding instead that the information that was presented to the magistrate was sufficient.
Although not directly addressing this issue, the court did discuss what information could be reviewed in order to decide whether or not to uphold a search warrant. In United States v. Jenkins, 396 F.3d 751 (6th Cir. 2005) (decided January 28, 2005), the Court of Appeals was addressing whether the independent source rule could save the search in question. The court noted, "once the tainted information ... is eliminated, the probable cause analysis focuses on the written affidavit. A court determining the sufficiency of an affidavit in support of a search warrant is concerned only with the statements contained within the affidavit itself." 396 F.3d at 760.
The issue left open in Carpenter was finally squarely addressed in United States v. Laughton, 409 F.3d 744 (6th Cir. 2005) (decided May 17, 2005), which also arose in the context of the application of the Leon good faith exception. After finding the affidavit insufficient, the court addressed whether the search could be saved by application of Leon. It noted that "[i]n reaching its decision, the district court explicitly considered not only what was in the affidavit, but also what other facts were known to the deputy, but not included in the affidavit." 409 F.3d at 751. The court noted that while it had postponed deciding this issue in the en banc decision in Carpenter, it could no longer do so. "We further conclude that a determination of good-faith reliance, like a determination of probable cause, must be bound by the four corners of the affidavit. Whether an objectively reasonable officer would have recognized that an affidavit was so lacking in indicia of probable cause as to preclude good faith reliance on the warrant’s issuance can be measured only by what is in that affidavit." 409 F.3d 751-52. The court noted that this ruling was consistent with the Supreme Court’s dictate in Leon "‘that the relevant question is whether the officer reasonably believed that the warrant was properly issued, not whether probable cause existed in fact.’" 409 F.3d at 752 (quoting Carpenter, 360 F.3d at 598 (Gilman, J., concurring)).
This clarity of authority lasted not quite 4 months. In Frazier, a separate panel of the Sixth Circuit addressed a drug case in which the case agent sought six different search warrants, one of which was for the defendant’s home. The magistrate instructed the officer to include in the affidavits information that two of the buys by the confidential informant had been recorded. For reasons not explained, the agent made changes to five of the warrant applications, but not to the one for defendant’s home. In reviewing the affidavit as submitted, the court finds that it is insufficient to establish probable cause. The panel goes on to find that the search is saved by Leon. While noting that Laughton held that "the good faith exception to the exclusionary rule does not permit consideration of information known to a police officer, but not included in the affidavit, in determining whether an objectively reasonable officer would have relied on the warrant", the panel decides that "we interpret Laughton’s holding as limited to answering the question that this court, sitting en banc, explicitly left open in Carpenter." 423 F.3d at 534-35. In other words, because this case did not involve information that wasn’t presented to the magistrate, the rule doesn’t apply. The reason for the exception is the panel’s perception that the agent’s failure here didn’t amount to anything more than "a scrivener’s error". (Id.)
In justifying its decision, the panel notes "[W]e are unable to envision any scenario in which a rule excluding from the Leon analysis information known to the officer and revealed to the magistrate would deter police misconduct. ... Because a judge’s initial probable cause determination is limited to the four corners of the affidavit [cite], an officer has no incentive to exclude from the affidavit information that supports a finding of probable cause only to reveal this information to the magistrate by parole." (Id.) (Emphasis in original)
This explanation betrays a naivete about the realities of the search warrant process and challenges thereto. The concern is not so much about whether the officer will supplement the facts with oral information at the time he applies for the warrant, but whether he will lie about what information he knew and/or conveyed to the magistrate when he is later challenged in a suppression hearing. This would be the reason that a written application is required in the first place – so that one would know later exactly what (and no more!) was presented to the magistrate. To allow parole evidence to supplement the written application throws the process open to widespread abuse. And, as the Laughton panel noted, to allow into evidence proof of what was in this officer’s mind, but not reduced to writing, is inconsistent with the Leon "reasonable officer" test, which is based on the four corners of the affidavit.
It is most likely that Frazier has little application outside of the unusual and unique factual circumstances on which it is based. The fact that it involved a "scrivener’s error" and that the information was included in the other five warrants will, one hopes, rarely, if ever, be repeated. This ruling should not be taken as an open invitation to supplement search warrant applications with oral evidence that bolsters an otherwise weak affidavit, especially where that information was not even told to the issuing magistrate at the time of the application for the warrant. This would seem to be confirmed by the Court’s recent decision in United States v. Hython, 443 F.3d 480 (6th Cir. 2006). In that case the district court found the search warrant deficient as being stale, but further found that the Leon good faith exception applied and denied the motion to suppress. The Court of Appeals held that despite the occurrence of a single controlled buy at the residence, the lack of recent information to measure whether or not the residence was a fixed drug distribution point rendered the warrant insufficient. It went on to hold that in determining good-faith reliance by the officer, a court can only consider the information in the four corners of the document. The limited exception in Frazier did not apply here to the inference that a recent controlled buy indicates that more drugs will be found in the location as there was no proof in the record that the magistrate knew or was told when the controlled buy took place.