COMMONWEALTH OF KENTUCKY VS. MCCLAIN (GARRY)
Annotate this Case
Download PDF
RENDERED: MARCH 11, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000256-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
APPEAL FROM MASON CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 09-CR-00120
GARRY MCCLAIN SR.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, LAMBERT, AND THOMPSON, JUDGES.
LAMBERT, JUDGE: The Commonwealth of Kentucky is seeking interlocutory
relief pursuant to Kentucky Revised Statutes (KRS) 22A.020(4) from an order of
the Mason Circuit Court entered January 26, 2010, quashing a search warrant and
suppressing evidence seized during the search of Garry McClain Sr.’s residence.
The Commonwealth contends that the circuit court improperly found that the
search warrant affidavit contained a false statement, and with the false statement
purged, did not support a finding of probable cause. The Commonwealth further
argues that the circuit court improperly determined that the good faith exception
did not apply in this case. After careful review of the record, including the
suppression hearing, as well as the parties’ arguments in their respective briefs, we
affirm.
In September 2009, the Mason County grand jury issued a twentyfour-count indictment against Garry McClain Sr. (hereinafter the Defendant),
charging him with nine counts of possession of a handgun by a convicted felon, a
Class C felony, and with fifteen counts of possession of a firearm by a convicted
felon, a Class D felony, both pursuant to KRS 527.040. The weapons were seized
from the Defendant’s residence at 7032 Water Tower Road in Maysville,
Kentucky, during the execution of a search warrant on July 30, 2009. The
Defendant moved to quash the search warrant and to suppress the evidence
forming the basis for the indictment. In support of these motions, he argued that
the search warrant affidavit did not sufficiently state facts to establish probable
cause, that there was insufficient evidence of a nexus between criminal activity and
the Defendant’s residence, and that the officer’s reliance on the search warrant was
not objectively reasonable so as to permit the good faith exception to apply.
The circumstances surrounding the issuance of the search warrant are
as follows: On July 30, 2009, Mason County Sheriff Patrick Boggs was on patrol
in the eastern end of the county due to several daytime robberies. While on patrol,
he saw James Beckett, a known drug user from another part of the county, driving
-2-
in the area. Sheriff Boggs turned around to follow Beckett’s car, but failed to find
his vehicle again. Still looking for Beckett’s car, Sheriff Boggs pulled onto Olivet
Church Road, a location for which he had received reports of drug trafficking. On
Olivet Church Road, Sheriff Boggs saw the Defendant’s son, Garry McClain Jr.,
driving an ATV (all-terrain vehicle) on the roadway without a helmet. He
performed a traffic stop and searched the vehicle, discovering a baggie containing
a rock of suspected crack cocaine in the wheel well. Sheriff Boggs arrested
McClain Jr. on charges of operating an ATV on a roadway without a helmet and
for first-degree possession of a controlled substance (cocaine). The uniform
citation, completed by Sheriff Boggs, shows that McClain Jr. supplied an address
of 318 E. 5th Street in Maysville, Kentucky, and describes the circumstance of the
stop and arrest:
Above subject was observed operating an ATV on Olivet
Church Rd without a helmet. Upon impound and
inventory of said vehicle a small white substance in a
plastic wrapper believed to be cocaine was found in the
middle portion on the left rear wheel well. Mr. McClain
advised that he did not know you couldn’t ride ATVs in
the country on the roadway and that he had come from
“over there” and he could go get a truck and pick it up.
Sheriff Boggs assumed that by the phrase “over there,” McClain Jr. meant the
Defendant’s residence on Watch Tower Road, which was approximately a mile
away by road, but closer in a direct line over the fields. The uniform citation
shows that McClain Jr. was stopped at 12:37 p.m. and arrested at 1:00 p.m.
Following the arrest, Sheriff Boggs completed an affidavit for a search
warrant, which was sworn before an assistant county attorney, Jacqueline S.
-3-
Wright, at 1:51 p.m. the same day. In the affidavit, Sheriff Boggs stated that he
had probable grounds to believe that there were drugs, controlled substances,
marijuana, pills, drug paraphernalia, drug records, money (proceeds of drug
activity), and other contraband at the Defendant’s residence at 7032 Water Tower
Road and/or on the Defendant’s person or other occupants of the residence.
Sheriff Boggs then stated that he observed:
Gary McClain, Jr. traveling on the highway on a 4wheeler. Affiant conducted a traffic stop on McClain
and impounded the 4-wheeler and a subsequent search of
the vehicle revealed a quantity of crack cocaine. The
driver of the 4-wheeler stated that he had just come
from his father’s house located at 7032 Water Tower
Road, Maysville, KY. [Emphasis added.]
After observing this, Sheriff Boggs stated that he conducted his own independent
investigation:
Affiant reviewed recent reports, claims and information
reported to Sheriff Boggs that Gary McClain Jr. is
allegedly involved in the trafficking of drugs in and out
of the above described residence and on the particular
highway on which he was traveling on the 4-wheeler.
Fleming District Judge Todd Walton signed the search warrant at 2:04 p.m. and
returned the signed warrant to Sheriff Boggs via fax.
Upon obtaining the search warrant, Sheriff Boggs went to the Defendant’s
residence at 7032 Water Tower Road along with three other law enforcement
officers to execute the warrant. Present at the residence were Melanie Johnson,
Todd Gordon, and Maizie McClain. The Defendant was not present. The search
began at 2:39 p.m. and ended several hours later at 7:20 p.m. During the search,
-4-
the officer seized multiple firearms, ammunition, suspected drugs, including
cocaine and marijuana, drug paraphernalia, and money. The suspected drugs were
sent to the lab for testing. The seized firearms became the basis for the present
indictment.
After permitting the parties to brief the issue following the suppression
hearing, the circuit court granted the Defendant’s motions in an order entered
January 26, 2010, which we shall set forth in pertinent part below:
The Court finds that the search warrant issued in this case
was invalid and further that the officer’s reliance upon
the deficient warrant was [sic] should not be deemed to
be [in] good faith and therefore the evidence seized at the
time should be suppressed.
Under the Constitution of the United States and the
Kentucky Constitution, the people of this Nation and of
this Commonwealth are to be free from searches through
warrants unsupported by probable cause.1 Under Guth v.
Commonwealth 29 S.W.3d 809, 811 (Ky. App. 2000)
quoting Coker v. Commonwealth 811 S.W.2d 8, 9 (Ky.
App., 1991), the judicial interpretation of Section 10 of
the Kentucky Constitution requires that “the affidavit for
a search warrant reasonably describe the property or
premises to be searched and state sufficient facts to
establish probable cause for the search of the property or
premises.” Under Commonwealth v. Smith, 898 S.W.2d
496 (Ky. App., 1995)
To attack a facially sufficient affidavit, it
must be shown that (1) the affidavit contains
intentionally or recklessly false statements,
and (2) the affidavit, purged of its falsities,
1
The Fourth Amendment to the Constitution of the United States supports “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.” The Kentucky Constitution Section 10 states in part that: “no
warrant shall issue to search any place, or seize any person or thing, without describing them as
nearly as may be, nor without probable cause supported by oath or affirmation.”
-5-
would not be sufficient to support a finding
of probable cause.
In the case at bar, Mr. McClain, Jr., the Defendant’s son,
was pulled over by Sheriff Boggs for driving his ATV on
a public road (Olivet Church Road) without a helmet and
was found to be in possession of a single rock of crack
cocaine. According to Sheriff Boggs’ testimony at the
suppression hearing, McClain, Jr. told Boggs that he had
just come from “over there” and could go get a truck to
pick up the ATV. There was no explanation or further
inquiry as to where “over there” was, and no way to tie
“over there” to McClain, Sr.’s house which was over a
mile away on a different county road (Water Tower
Road). (McClain, Jr.’s residence according to his
operator’s license was at 318 E. 5th St. in downtown
Maysville, a different address from McClain, Sr.).
McClain, Jr. was subsequently arrested and Sheriff
Boggs went to an assistant County Attorney with the
above information, including that McClain, Jr. “is
allegedly involved in the trafficking of drugs in and out
of the above described residence [McClain, Sr.’s] and on
the particular highway on which he was traveling on the
4-wheeler.”
McClain, Sr.’s residence is on Water Tower Road.
McClain, Jr. was stopped on his ATV on Olivet Church
Road. A major inaccuracy in the affidavit is that
McClain, Jr. never “stated he had just come from his
father’s house” [McClain, Sr.]. The testimony of Sheriff
Boggs and the Uniform Citation both indicate that
McClain, Jr. simply said he came from “over there,” and
the testimony was that McClain, Sr.’s residence was on a
different road about a mile away.
The court finds that the affidavit, purged of inaccurate
recitation that McClain, Jr. had just come from McClain,
Sr.’s house, coupled with a lack of any other information
in the affidavit to tie McClain, Sr. to the sale of cocaine,
would not be sufficient to support a finding of probable
cause to search the residence of McClain, Sr.
-6-
The court rules that had the issuing judge been presented
with an accurate affidavit, he could not have found
probable cause to issue a search warrant for McClain,
Sr.’s residence. The information contained within the
four corners of the affidavit is insufficient to authorize a
search warrant.
Furthermore, under United States v. Carpenter, 360 F.3d
591 (2004), there must be a “nexus between the place to
be searched and the evidence sought,” (quoting United
States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir.
1998), there must be an indication of “why evidence of
illegal activity will be found ‘in a particular place.’” Id.
The quantity of drugs recovered from McClain, Jr.’s
vehicle was minimal and indicative of personal use. No
further evidence of drug dealing was found in the vehicle
search and there was no evidence to suggest that any
additional evidence of that nature would be found located
at McClain, Sr.’s residence over a mile away. Therefore
the warrant is held to be invalid.
Lastly, the Commonwealth cites the “good faith”
exception to the exclusionary rule set forth in United
States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d
677 (1984), and adopted by the Kentucky Supreme Court
in Crayton v. Commonwealth, 846 S.W.2d 684 (Ky.
1992), in which an officer’s objectively reasonable
reliance on an invalidated warrant may not result in the
exclusion of the evidence obtained.
The issue to be decided in Leon was whether or not to bar
the prosecution’s use of evidence “obtained by officers
acting in reasonable reliance on a search warrant issued
by a detached and neutral magistrate but ultimately found
to be unsupported by probable cause.” 468 U.S. at 900.
The Court in Leon held that the officer must have an
objectively reasonable belief in the sufficiency of the
warrant and the determination of probable cause in order
for the “good faith” exception to the exclusionary rule to
apply, and that if the affidavit contains false or
misleading information, reliance is not reasonable. Leon,
468 U.S. at 923. In Crayton, following the holding in
Leon, [footnote containing lengthy quotation from Leon
-7-
omitted] the court states that with regard to what
constitutes an officer acting in an “objectively
reasonable” manner
if it should appear that the affidavit failed to
describe with particularity the place to be
searched and the thing to be seized, or was
untrue, misleading, or that the judicial
officer merely acted as a rubber stamp for
the police, then public policy would require
suppression as the essential purpose of the
warrant would have been defeated.
846 S.W.2d at 688.
In the case at bar, critical evidence adduced by the
Commonwealth at the suppression hearing and contained
in the Uniform Citation is at odds with the information
contained in the affidavit. The court assumes that the
preparer of the affidavit misunderstood the officer and
that the officer failed to pick up the inaccuracy when
reading and signing the affidavit. All information was
supplied by the same officer who was forthright about the
inaccuracy at the hearing. Nevertheless, the affidavit was
misleading and included inaccurate statements, and the
“good faith” exception should not be applied when such a
critical piece of information is relied upon in the issuance
of a search warrant.
In conclusion, considering the part of the language in the
affidavit which must be excluded by contradictory
testimony under oath, and the magistrate being permitted
only to look to the four corners of the affidavit, there was
not enough evidence to support a finding of probable
cause under Smith. There was no nexus between the
finding of a singular rock of crack cocaine in McClain,
Jr.’s vehicle, the only other evidence listed in the
affidavit, and the unconnected activity at McClain, Sr.’s
home, therefore the warrant must be invalidated. Lastly,
the good faith exception in Leon and Crayton does not
apply because the affidavit was misleading and the
officer’s reliance on this warrant is not objectively
reasonable. Therefore, the Defendant’s motion to quash
-8-
the search warrant and suppress evidence is hereby
granted.
This appeal follows.2
In Beemer v. Commonwealth, 665 S.W.2d 912 (Ky. 1984), the Supreme
Court of Kentucky adopted the “totality of the circumstances” test for the issuance
of a search warrant as set forth by the United States Supreme Court in Illinois v.
Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). Our review of a
search warrant is described by the Supreme Court of Kentucky in Commonwealth
v. Pride, 302 S.W.3d 43, 49 (Ky. 2010):
The proper test for appellate review of a
suppression hearing ruling regarding a search pursuant to
a warrant is to determine first if the facts found by the
trial judge are supported by substantial evidence, RCr
9.78, and then to determine whether the trial judge
correctly determined that the issuing judge did or did not
have a “substantial basis for ... conclud[ing]” that
probable cause existed. Gates, 462 U.S. at 236, 103 S.Ct.
2317; see also Beemer, 665 S.W.2d at 915 (applying the
“substantial basis” test to the decision of the warrantissuing judge to determine if there was probable cause).
In doing so, all reviewing courts must give great
deference to the warrant-issuing judge’s decision. Gates,
462 U.S. at 236, 103 S.Ct. 2317. We also review the four
corners of the affidavit and not extrinsic evidence in
analyzing the warrant-issuing
judge’s conclusion. Commonwealth v. Hubble, 730
S.W.2d 532 (Ky. App. 1987).
2
On January 22, 2010, the Defendant was charged in a separate indictment (10-CR-00001) with
trafficking in a controlled substance (cocaine), trafficking in marijuana, use or possession of drug
paraphernalia, and receiving stolen property (firearm). These charges all apparently arose from
evidence seized during the search on July 30, 2009. The Defendant moved to suppress the
evidence forming the basis for the charges, and the circuit court held that motion in abeyance
pending a ruling in the present appeal.
-9-
Pride, 302 S.W.3d at 49 (footnotes omitted). Because there is no allegation that
any factual findings are at issue and the court’s findings as to the applicable facts
are supported by substantial evidence, our review is confined to whether the circuit
court properly suppressed the evidence obtained with the search warrant in this
case.
The constitutional provision underpinning our decision in this case is
Section 10 of the Kentucky Constitution, which states that “no warrant shall issue
to search any place, or seize any person or thing, without describing them as nearly
as may be, nor without probable cause supported by oath or affirmation.” In
Beckam v. Commonwealth, 284 S.W.3d 547, 549 (Ky. App. 2009), this Court
recently set forth the law applicable to the issue before us:
An affidavit supporting a search warrant must
“‘reasonably describe the property or premises to be
searched and state sufficient facts to establish probable
cause for the search of the property or premises.’” Guth
v. Commonwealth, 29 S.W.3d 809, 811 (Ky. App. 2000)
(emphasis added) (quoting Coker v. Commonwealth, 811
S.W.2d 8, 9 (Ky. App. 1991)). The test for probable
cause is whether, under the totality of the circumstances,
a fair probability exists that contraband or evidence of a
crime will be found in a particular place. Moore v.
Commonwealth, 159 S.W.3d 325, 329 (Ky. 2005). When
reviewing the issuance of a search warrant, we must give
great deference to the warrant-issuing judge’s findings of
probable cause and must not reverse unless the court
arbitrarily exercised its discretion. Id.
For its first argument, the Commonwealth addresses the validity of the
affidavit and warrant, suggesting that the circuit court implicitly held that the
documents at issue were facially valid. The Defendant does not appear to contest
-10-
that the warrant was valid on its face. Therefore, having reviewed Sheriff Boggs’
statements in the affidavit, we agree with the Commonwealth that the affidavit for
the search warrant was facially valid because it sufficiently described the property
to be searched and stated facts sufficient to establish probable cause.
Turning to the second argument, the Commonwealth contends that in light
of the finding that the affidavit was facially valid, the circuit court applied an
incorrect standard when it held that a mere false statement invalidated the search.
It argues that it is not enough to show that an affidavit contains inaccurate
information before it may be held invalid.
We begin our analysis of this issue with the acknowledgement that “[t]here
is, of course, a presumption of validity with respect to the affidavit supporting the
search warrant.” Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684, 57
L. Ed. 2d 667 (1978). In Commonwealth v. Smith, 898 S.W.2d 496 (Ky. App.
1995), this Court set out the proper standard to follow when analyzing a facially
valid warrant obtained by means of an allegedly inaccurate affidavit:
The correct standard is that set out in Franks v.
Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667
(1978). To attack a facially sufficient affidavit, it must
be shown that (1) the affidavit contains intentionally or
recklessly false statements, and (2) the affidavit, purged
of its falsities, would not be sufficient to support a
finding of probable cause. The same basic standard also
applies when affidavits omit material facts. An affidavit
will be vitiated only if the defendant can show that the
police omitted facts with the intent to make, or in
reckless disregard of whether the omission made, the
affidavit misleading and that the affidavit, as
supplemented by the omitted information, would not
have been sufficient to support a finding of probable
-11-
cause. United States v. Sherrell, 979 F.2d 1315, 1318
(8th Cir. 1992); State v. Garrison, 118 Wash.2d 870,
872-873, 827 P.2d 1388, 1390 (1992).
Smith, 898 S.W.2d at 503.
At issue in this case is the following line from Sheriff Boggs’ statement in
the affidavit: “The driver [McClain Jr.] of the 4-wheeler stated that he had just
come from his father’s house located at 7032 Water Tower Road, Maysville, KY.”
However, in the uniform citation introduced at the suppression hearing, Sheriff
Boggs reported that McClain Jr. stated to him “that he had come from ‘over
there[.]’” During the suppression hearing, Sheriff Boggs testified that McClain
Jr.’s statements to him matched those as reported in the uniform citation. He
further stated that he “took [‘over there’] to mean that he was at his father’s
residence over on Water Tower Road.” He then testified that Water Tower Road is
approximately one mile from the location of the stop on Olivet Church Road.
The Commonwealth contends that the circuit court did not find that the
affidavit contained an intentionally or recklessly false statement. Rather, the court
merely found that it was a major inaccuracy when Sheriff Boggs stated his
understanding of the term “over there” rather than using the exact words McClain
Jr. had used. The Defendant, on the other hand, points out that Sheriff Boggs did
not state in the affidavit that such was only his understanding of what McClain Jr.
said to him. Instead, Sheriff Boggs swore that those were McClain Jr.’s words to
him.
-12-
In Franks v. Delaware, the United States Supreme Court described what is
necessary for purposes of the first prong of the test:
There must be allegations of deliberate falsehood or of
reckless disregard for the truth, and those allegations
must be accompanied by an offer of proof. They should
point out specifically the portion of the warrant affidavit
that is claimed to be false; and they should be
accompanied by a statement of supporting reasons.
Affidavits or sworn or otherwise reliable statements of
witnesses should be furnished, or their absence
satisfactorily explained. Allegations of negligence or
innocent mistake are insufficient.
438 U.S. 154, 171, 98 S. Ct. 2674, 2684.
While not specifically stated by the circuit court, Sheriff Boggs’ sworn
statement that McClain Jr. told him that he had just come from his father’s Water
Tower Road residence was at best recklessly false. Sheriff Boggs deliberately
chose not to include McClain Jr.’s actual words or to explain that the statement in
the affidavit was his understanding of what McClain Jr. meant when he stated he
had come from “over there.” In any event, Sheriff Boggs’ statement in the search
warrant was false and misleading, and because it was at least recklessly false, it
was sufficient to come within the ambit of Franks v. Delaware. Therefore, we
disagree with the Commonwealth’s argument that the circuit court erred in finding
that the affidavit contained a major inaccuracy or utilized the wrong standard.
The Commonwealth’s next argument addresses the second prong of the
Franks v. Delaware analysis: namely, whether the affidavit supports a finding of
probable cause once the false statement is purged. The Commonwealth contends
-13-
that even without that statement, the affidavit contains a sufficient basis for a
probable cause finding. We disagree.
The review of a search warrant by the courts is well settled in the
Commonwealth. The Supreme Court of Kentucky provided a summary of the
applicable law in Moore v. Commonwealth, 159 S.W.3d 325 (Ky. 2005):
Our review of a search warrant must give great
deference to the warrant-issuing judge’s findings of
probable cause and should not be reversed unless
arbitrarily exercised. Courts should review the
sufficiency of an affidavit underlying a search warrant in
a commonsense, rather than hypertechnical, manner. The
traditional standard for reviewing an issuing judge’s
finding of probable cause has been that so long as the
magistrate had a substantial basis for concluding that a
search warrant would uncover evidence of wrongdoing,
the Fourth Amendment requires no more. U.S.C.A.
CONST. AMEND. 4. United States v. Miller, 314 F.3d 265,
(6th Cir. 2002), reh’g and suggestion for reh’g denied,
cert. denied, 539 U.S. 908, 123 S.Ct. 2261, 156 L.Ed.2d
121; see also United States v. Ware, 338 F.3d 476 (6th
Cir. 2003).
Whether probable cause exists is determined by
examining the totality of the circumstances. United
States v. Hammond, 351 F.3d 765 (6th Cir. 2003).
Furthermore, the test for probable cause is whether there
is a fair probability that contraband or evidence of a
crime will be found in a particular place. See Miller,
supra. Probable cause does not require certainty that a
crime has been committed or that evidence will be
present in the place to be searched. United States v. Hall,
8 F.App. 529, (5th Cir. 2001), cert. denied, 536 U.S. 961,
122 S.Ct. 2668, 153 L.Ed.2d 841 (2002).
Moore, 159 S.W.3d at 329. “[A] judge is bound by the four corners of the affidavit
when determining whether to issue or deny a search warrant.” Smith v.
Commonwealth, 323 S.W.3d 748, 753 (Ky. App. 2009).
-14-
The Commonwealth contends that even without McClain Jr.’s statement that
he had just come from the Defendant’s residence, the affidavit contained enough
other information to justify issuance of the warrant. It argues that the finding of
drugs in the ATV corroborated reports that McClain Jr. was involved in drug
trafficking through transporting drugs from the Defendant’s residence on Water
Tower Road to Olivet Church Road. On the other hand, the Defendant disputes
that sufficient facts were presented in the affidavit to tie the drugs found with
McClain Jr. to any suspected drug trafficking at the Water Tower Place residence.
He points out that only a small amount of drugs indicative of personal use was
found on McClain Jr.; that no other indications of drug trafficking were found on
the ATV, such as scales, baggies, or large amounts of cash; and that nothing
suggested that additional contraband tied to the small amount of drugs recovered
from the ATV would be found at the Defendant’s residence.
We agree with the circuit court and the Defendant that the affidavit, purged
of McClain Jr.’s statement, failed to establish a nexus between the Defendant’s
residence and the evidence of drugs and drug trafficking Sheriff Boggs was
seeking. “To justify a search, the circumstances must indicate why evidence of
illegal activity will be found ‘in a particular place.’ There must, in other words, be
a ‘nexus between the place to be searched and the evidence sought.’” United
States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (citing United States v. Van
Shutters, 163 F.3d 331, 336-37 (6th Cir. 1998)). Sheriff Boggs found only a small
amount of drugs on McClain Jr.’s ATV and did not find any indication of drug
-15-
trafficking, despite the reports he had received. Furthermore, the Defendant’s
residence on Water Tower Road was some distance away from where McClain Jr.
was stopped. Finally, the address McClain Jr. provided to Sheriff Boggs was not
the Water Tower Road address, but an address on East Main Street in Maysville.
Accordingly, we agree with the circuit court’s holding that the search warrant,
when purged of the false statement, failed to establish the requisite probable cause
to search the Defendant’s residence based upon the totality of the circumstances.
For its final argument, the Commonwealth contends that the circuit court
should have applied the Leon good faith exception to the exclusionary rule and not
have suppressed the evidence seized pursuant to the invalid warrant. The
Defendant argues that the exception is not available in this case.
In United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677
(1984), the United States Supreme Court enunciated an exception to the
exclusionary rule when evidence was obtained in violation of the Fourth
Amendment:
We conclude that the marginal or nonexistent
benefits produced by suppressing evidence obtained in
objectively reasonable reliance on a subsequently
invalidated search warrant cannot justify the substantial
costs of exclusion. We do not suggest, however, that
exclusion is always inappropriate in cases where an
officer has obtained a warrant and abided by its terms. . .
. [T]he officer’s reliance on the magistrate’s probablecause 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
-16-
reasonable grounds for believing that the warrant was
properly issued.
Leon, 468 U.S. at 922-23, 104 S.Ct. at 3420 (footnotes omitted). The Sixth Circuit
Court of Appeals described this exception in United States v. Van Shutters, 163
F.3d 331 (6th Cir. 1998):
We have articulated that Leon stands for the
proposition that “the exclusionary rule ‘should be
modified so as not to bar the admission of evidence
seized in reasonable, good-faith reliance on a search
warrant that is subsequently held to be defective.’”
United States v. Weaver, 99 F.3d 1372, 1380 (6th Cir.
1996) (quoting Leon, 468 U.S. at 905, 104 S.Ct. 3405).
We have also noted that the “good faith” exception of
Leon is not boundless and is inappropriate in at least four
circumstances:
[F]irst, if the issuing magistrate “was misled
by information in an affidavit that the affiant
knew was false or would have known was
false except for his reckless disregard for the
truth,” [Leon, 468 U.S.] at 914, 104 S.Ct. at
3416; second, if “the issuing magistrate
wholly abandoned his judicial role,” id;
third, if the affidavit was “so lacking in
indicia of probable cause as to render
official belief in its existence entirely
unreasonable,” id. at 915, 104 S.Ct. at 341617 (citations omitted), or in other words,
where “the warrant application was
supported by [nothing] more than a ‘bare
bones’ affidavit,” id.; and fourth, if the
“warrant may be so facially deficient-i.e.,
failing to particularize the place to be
searched or the things to be seized ...,” id. at
923, 104 S.Ct. at 3421 (citations omitted).
Weaver, 99 F.3d at 1380 (brackets added; parentheticals
in original). We have defined a “bare bones” affidavit as
one that “states suspicions, or conclusions, without
providing some underlying factual circumstances
-17-
regarding veracity, reliability, and basis of knowledge[.]”
Id. at 1378.
Van Shutters, 163 F.3d at 337.
The Supreme Court of Kentucky adopted the Leon good faith exception in
Crayton v. Commonwealth, 846 S.W.2d 684 (Ky. 1992), holding that the exception
did not violate Section 10 of the Kentucky Constitution and stating:
[O]n motion for suppression, if it should appear that the
affidavit failed to describe with particularity the place to
be searched and the thing to be seized, or was untrue,
misleading, or that the judicial officer merely acted as a
rubber stamp for the police, then public policy would
require suppression as the essential purpose of the
warrant would have been defeated. Whether by virtue of
deceit or indifference, when it appears that the judicial
function contemplated by Section 10 has not been
discharged, suppression is available. In other
circumstances, however, and when it appears that the
affidavit was made in good faith but the warrant
erroneously issued by virtue of judicial error, neither the
Constitution nor sound public policy requires suppression
of the evidence.
Crayton, 846 S.W.2d at 688.
Turning to the present case, the circuit court declined to apply the Leon good
faith exception, pointing to discrepancy between the information in the affidavit
and the evidence adduced at the suppression hearing as well as in the uniform
citation, and the fact that Sheriff Boggs both supplied the information for the
affidavit and testified about the inaccuracy at the suppression hearing. The
Commonwealth argues that the circuit court incorrectly found that Sheriff Boggs’
reliance on the information was not objectively reasonable because it included
false or misleading information. Rather, it contends that his reliance was
-18-
objectively reasonable because it was based on his interpretation of his
conversation with McClain Jr. The Defendant, on the other hand, disagrees that
Sheriff Boggs’ reliance on the information in the affidavit was objectively
reasonable.
We agree with the Defendant and the circuit court that Sheriff Boggs did not
act in good faith when he included misleading information in the search warrant
affidavit. His reliance on that information cannot be deemed objectively
reasonable, despite the Commonwealth’s argument that it was reasonable because
it was based on his interpretation of the conversation he had with McClain. The
fact remains that Sheriff Boggs chose to include misleading information in his
affidavit, and he cannot now rely upon his interpretation of McClain Jr.’s words to
form a good faith basis for his reliance on the statement in the affidavit he knew
was misleading. Accordingly, the circuit court correctly declined to apply the
Leon good faith exception in this case and did not abuse its discretion in granting
the Defendant’s motions to quash the search warrant and to suppress evidence.
For the foregoing reasons, the order of the Mason Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Lisa M. Wells
Covington, Kentucky
Heather M. Fryman
Assistant Attorney General
Frankfort, Kentucky
-19-
-20-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.