ENTRY ON DEFENDANT'S MOTIONS TO SUPPRESS AFTER FRANKS HEARING

JOHN DANIEL TINDER, United States District Court Judge.

Defendant, Brent E. Merritt, was indicted for possessing firearms and ammunition in violation of 18 U.S.C. § 922(g)(1) and with having possessed a machine gun and silencer. In the current matter before the court, the Defendant moved to suppress all evidence obtained directly and indirectly by the Government as a result of a search conducted at 6729 Waterside Court, Indianapolis (Marion County), Indiana on January 23, 2001. The main theory in support of his claim that the search in question violated the rights guaranteed to him under the Fourth Amendment to the United States Constitution is that the agent who submitted the affidavit included intentional false statements and omitted material facts that obliterate the finding of probable cause. On December 20 and 21, this court held a Franks hearing on this issue. For the following reasons, the Defendant's Motion to Suppress is DENIED.

I. Factual Background

On December 3, 2000, a building on the southside of Indianapolis owned by Brent E. Merritt burned down. During the investigation into the cause of the fire, agents from the Bureau of Alcohol, Tobacco, and Firearms ("BATF") obtained a warrant to search Merritt's home for financial records. When BATF searched Merritt's home on January 23, 2001, they found an office concealed behind the walls of the basement. In the office, BATF found a Remington 12 gauge shotgun as well as identification which falsely identified Merritt as a deputy marshal with the Whitestown Marshal's Department and a magazine addressed to Brent Merritt.

BATF also found a walk-in vault concealed behind a basement wall. Merritt claimed that he did not know how to open the vault, and his wife, Pamela, then opened it for the investigators. Inside the vault, BATF found seventy-four firearms and ammunition. Also in the vault were "glamour shots" of Pamela Merritt, photographs of nude and partially nude women, one of which was signed, "Brent, Lustfully Yours," three picture identifications of Merritt, and several pieces of mail addressed to Brent Merritt. Merritt was charged with violations of 18 U.S.C. § 922(g)(1), which prohibits a person convicted of a felony from possessing firearms.

On September 25, 2001, Merritt filed a motion to suppress the evidence obtained during the January 23, 2001, search of his home claiming that Michael Vergon, the BATF agent responsible for submitting the affidavit used to obtain the warrant and executing the warrant, included false information and omitted material facts in the affidavit in violation of Franks v. Delaware, 438 U.S. 154, 164-65 (1978). The following is a recital of the facts in the affidavit supporting the application for a warrant. The affidavit claimed that Merritt and Pamela owned Club 2001, which burned down on December 3, 2000. Investigation revealed that the fire was caused by an accelerant being poured throughout Club 2001. There were no signs of forced entry. Merritt had the property insured, but had not pursued an insurance claim. Through inclusion of another affidavit, it was learned Merritt had one of three sets of keys to Club 2001. Finally, the affidavit discussed a conversation between Vergon and Merritt's accountant, Joseph Knarzer, Jr., in which Knarzer told Vergon that he prepared taxes for Merritt and the Merritts kept financial records in their home. From this information, Vergon sought a warrant to search the Merritts' home for "financial documents and records" because they would "assist in determining Brent Merritt's financial condition at the time of the arson of Club 2001 and w[ould] assist in determining whether Brent Merritt had a financial motive to participate in the arson of Club 2001." (Def.'s Mot. to Suppress, Ex. A at 3.)

Attached to his motion to suppress, Merritt submitted an unsworn statement of Knarzer in which Knarzer stated that he told Vergon that the Merritts were in good financial condition and had no financial motive to burn Club 2001. Merritt also challenged the inclusion of the statement that he was not pursuing an insurance claim because he claims although he had not filed a claim, he was discussing his claim with the insurance company. Finally, Merritt claimed that Vergon's contention that the fire was arson was not supported by the evidence. Merritt sought suppression of the evidence, or a hearing to determine whether Vergon's statements satisfied the standards set forth in Franks. The Government opposed Merritt's Motion to Suppress. On November 30, this court granted Defendant's request for a Franks hearing in a preliminary entry. The hearing was held December 20 and 21. This court now rules as follows.

II. Motion to Suppress

Merritt's motion raises a core Fourth Amendment concern: the search of a private home pursuant to a warrant. The Fourth Amendment provides:

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.

U.S. Const. amend. IV.

Merritt maintains that the evidence seized as a result of the January 23, 2001, search should be suppressed because the search violated the Fourth Amendment in a number of ways. The main thrust of his argument is that the Franks hearing requires this court to suppress all the fruits of the searches because Vergon intentionally or recklessly included false statements and omitted material facts which eliminated probable cause.

See Franks v. Delaware, 438 U.S. 154 (1978). Merritt also maintains that the search warrant was not supported by probable cause, and that the good faith exception to the exclusionary rule should not apply. Merritt has standing to challenge this warrant because he had a reasonable expectation of privacy in the residence searched. See United States v. Ruth, 65 F.3d 599, 604 (7th Cir. 1995).

A. Franks Hearing In Franks, the Supreme Court held:

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Id. at 155-56. Therefore, the defendant must not only make a substantial preliminary showing that: (1) the affidavit supporting the search warrant contained a false statement; (2) the affiant made the false statement either intentionally or recklessly; and (3) the false statement was material or necessary for a finding of probable cause, see United States v. Jackson, 103 F.3d 561, 574 (7th Cir. 1996); United States v. Hunter, 86 F.3d 679, 682 (7th Cir. 1996), but in the event the defendant is granted the hearing, he must establish, by a preponderance of evidence, that the misstatements in question were made intentionally or with reckless disregard for the truth and that, with the false statement omitted, probable cause was lacking. Franks, 438 U.S. at 156. Franks applies to material omissions as well as intentional or recklessly false statements. United States v. Pace, 898 F.2d 1218, 1232 (7th Cir. 1998). The court presumes that the affidavit supporting the search warrant is valid. See Franks, 438 U.S. at 171; Jackson, 103 F.3d at 573; United States v. Walker, 25 F.3d 540, 544 (7th Cir. 1994).

In his brief, Merritt maintained that Vergon made the following deliberate or recklessly false statements and omissions in his affidavit: first, falsely leading the issuing judge to believe that Merritt was not pursuing an insurance claim; second, falsely claiming that the fire was an arson without any evidence of that fact; and finally, omitting information from Merritt's accountant that Merritt's businesses were successful. At the hearing, Merritt also contended that Vergon's failure to tell the magistrate that he had already received records from Knarzer through a subpoena was an additional knowing and intentional omission.

Turning to the Merritt's first claim of error, this court remains convinced that its original determination was correct: the statement that Merritt was not pursuing an insurance claim was not a false statement that was necessary for a finding of probable cause. Merritt maintains that he contacted his insurance company, but had not yet filed a proof of loss. Merritt has produced no substantial evidence to show that Vergon had knowledge of Merritt's preliminary attempts to pursue his insurance claim. Furthermore, Merritt claims that his "alleged failure to 'pursue' an insurance claim adds nothing in support of a finding of probable cause." (Def.'s Mot. at 22.) Although this may be correct, the same logic prevents this issue from being the basis for a Franks hearing because one of the preliminary requirements is that the false statement was material or necessary for a finding of probable cause. If the information about failing to pursue a claim added nothing to the probable cause determination, it could hardly be said to be necessary for the finding of probable cause.

Second, Vergon's statement that the fire was an arson was not a false statement necessary for a finding of probable cause. Merritt did not address this contention at great length during the hearing. However, because it is raised in his brief, this court will again mention it. As previously noted, Vergon's statement that the fire was an arson was neither recklessly nor intentionally false, but rather was a deduction that he could have reasonably drawn from his experience and the evidence he had gathered. See United States v. McNeese, 901 F.2d 585, 593 (7th Cir. 1990), overruled on other grounds by United States v. Westmoreland, 240 F.3d 618 (7th Cir. 2001) ("The Supreme Court has recognized that a trained law enforcement officer can make deductions, assess probabilities and draw inferences from the evidence collected during their investigations that might allude [sic] an untrained person."). Furthermore, Vergon's description of the fire and the use of accelerant is sufficient so as not to characterize his contention that the fire was arson as a unsupportable "bare bones" conclusion.

In its original entry, this court noted "Although this court is not convinced that the first two allegations are intentionally or recklessly false or necessary for a finding of probable cause, Merritt makes a substantial preliminary showing on the third item, the omission of the information from Merritt's accountant, to warrant a Franks hearing." However, after hearing evidence on the matter, Merritt failed to carry his burden of proof to show that Vergon intentionally or knowingly made false statements or omitted material information. In his affidavit, Vergon correctly informed the judge that Knarzer informed him that Merritt kept financial documents and records in his home. Vergon then stated that:

Financial documents and records pertaining to Brent Merritt and documents and records pertaining to Brent Merritt's ownership of items of real and personal property will assist in determining Brent Merritt's financial condition at the time of the arson of Club 2001 and will assist in determining whether Brent Merritt had a financial motive to participate in the arson of Club 2001.

(Def.'s Mot., Ex. A at 3.) However, Merritt claims that Vergon neglected to include Knarzer's statements that the Merritts' financial situation was good, they had no financial motive to burn their property, they were current in their obligations, and the investigators "were barking up the wrong tree." (Def.'s Mot., Ex. C, at 2.)

At the hearing, Knarzer could testify with certainty only to the last two of the four. Furthermore, he had a generally bad recollection of his interview with BATF, including confusion over the date and time, how many people were present and their gender, and whether he was subpoenaed before, during, or after the interview. Knarzer was able to testify that on January 9 (the day of the interview with Vergon) he had just recently received the records for the first half of 2000 and had not had an opportunity to review them yet. Vergon, on the other hand, testified with great details about his conversation with Knarzer, including the number of people present, the subject matter, and even recollected details of Knarzer's home. Specifically, during the interview with Knarzer, Vergon learned that Club 2001 lost $27,000 in 1999 and that the Merritts' adjusted gross income had declined by $90,000 from 1997 to 1999. Upon further investigation, Vergon learned that there were inconsistencies between Merritt and his son about who actually controlled the business, Merritt was owed over $70,000 in back rent and other fees, the alarm system was not functioning in the Club and had not been since June, Merritt was having trouble with his liquor license and zoning for the Club, and there were fines levied against the Club.

Furthermore, Merritt had attempted to sell the Club shortly before the fire, with no luck, and had told people that he was losing money at the Club because of security costs. On the positive side, Vergon examined Merritt's credit report and it showed nothing amiss.

In order to suppress evidence under Franks, a deliberate or reckless omission in an affidavit must "amount to deliberate falsehood or reckless disregard for the truth." McNeese, 901 F.2d at 594 (citing United States v. Kimberlin, 805 F.2d 210, 252 (7th Cir. 1986)). However, [m]ere negligence by the affiant does not constitute reckless disregard for the truth." Id. In order to prove deliberate falsehood or reckless disregard for the truth, the defendant "must offer direct evidence of the affiant's state of mind or inferential evidence that the affiant had obvious reasons for omitting facts." Id.

After seeing both witnesses in person, it is this court's opinion that Vergon did not intentionally or recklessly disregard the truth to the extent there is any discrepancy between the testimony of Vergon and Knarzer about the discussion on January 9. Knarzer's testimony as to the contents of the conversations between himself and Vergon was not credible given his lapses in memory. Furthermore, even assuming Knarzer presented information to Vergon in a manner more persuasive than he did in court, Vergon's statements were opinions, nothing more, nothing less. Knarzer had not even looked at the Merritts' financial records from 2000. His statements about the Merritts' financial condition were based on his memory and understanding of events, not hard evidence. In particular, the only statements that Knarzer can testify to with certainty, about being current on their obligations and "You're barking up the wrong tree," are clearly opinions. The "barking up the wrong tree" statement occurred after the official interview was over and was in response to an off-hand remark made by Vergon. Vergon is not required to give great weight to Knarzer's opinions. In fact, if Vergon is required to include every passing statement made by a witness in his affidavit, the magistrate would surely be overwhelmed with insignificant information. Also, the information about Merritt's allegedly good financial condition was disputed by other information from Knarzer and Vergon's own investigation. See Mays v. City of Dayton, 134 F.3d 809, 816 (6th Cir. 1998) ("Franks is inapplicable to the omission of disputed facts.")

Finally, the hearing revealed that Vergon obtained several pieces of information from Knarzer that would have supported his application for a warrant. These included the decline in the Merritts' adjusted gross income and the losses at the Club. However, Vergon did not include this information in his affidavit. It seems likely that Vergon disregarded the majority of Knarzer's statements because he did not feel they added or detracted from the probable cause determination. If his intent had been to deceive the magistrate, he would have included the favorable information from Knarzer and not included that unfavorable. Rather, Vergon included none of the information. In sum, Merritt has not shown by a preponderance of the evidence that Vergon intentionally or with a reckless disregard for the truth omitted Knarzer's statements about the Merritts' financial condition from his affidavit.

At the hearing, Merritt also challenged Vergon's failure to include in the affidavit the fact that he had already subpoenaed Knarzer and had obtained records from Knarzer. However, there was no testimony that Knarzer's records were completely duplicative of the Merritts' financial records or even contained the same information. In fact, Knarzer received all of his information from the Merritts so it was logical to assume that there would be additional records in the Merritts' home. As the Sixth Circuit has noted,

A Franks hearing may be merited when facts have been omitted in a warrant application, but only in rare instances. . . . [A]ffidavits with potentially material omissions, while not immune from Franks inquiry, are much less likely to merit a Franks hearing than are affidavits including allegedly false statements. This court reasoned that dallowing omissions to be challenged would create a situation where almost every affidavit of an officer would be questioned.

Mays, 134 F.3d at 815 (citations omitted). The same reasoning applies here. Although in a perfect world Vergon would have presented more evidence to the magistrate, Merritt has not shown that Vergon intentionally or recklessly omitted information about the subpoena of Knarzer from the warrant.

B. Probable Cause

As indicated above, based upon the information presented in Vergon's affidavit a judge determined that probable cause existed to search 6729 Waterside Court. A judge's decision to issue a search warrant should be upheld so long as the judge had a "substantial basis for . . . conclud[ing] that probable cause existed." Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (quotation omitted) (alteration in original); see also United States v. Spry, 190 F.3d 829, 835 (7th Cir. 1999), cert. denied, 528 U.S. 1130 (2000); United States v. Lloyd, 71 F.3d 1256, 1262 (7th Cir. 1995); United States v. Malin, 908 F.2d 163, 165 (7th Cir. 1990), abrogated on other grounds by United States v. Monroe, 73 F.3d 129, 133 (7th Cir. 1995). Although an affidavit must provide the judge with a substantial basis for determining the existence of probable cause, Gates, 462 U.S. at 239, a judge's finding of probable cause is entitled to "'great deference[,]'" id. at 236 (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)):

[A judge's] determination of probable cause is to be given considerable weight and should be overruled only when the supporting affidavit, read as a whole in a realistic and common sense manner, does not allege specific facts and circumstances from which the [judge] could reasonably conclude that the items sought to be seized are associated with the crime and located in the place indicated.

Spry, 190 F.3d at 835 (internal quotations omitted); see also McNeese, 901 F.2d at 593 ("The duty of a reviewing court is to ensure that the [judge] had a substantial basis for concluding that, under the totality of the circumstances, probable cause existed.") (internal quotations omitted).

"Probable cause to search exists if, given the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Young, 38 F.3d 338, 340 (7th Cir. 1994) (citations omitted). The issuing judge need not determine that the items sought are on the premises to be searched or even that they are more likely than not to be there. See Malin, 908 F.2d at 166; see also Gates, 462 U.S. at 238-39. Rather, the judge need only determine that there is a fair probability that the evidence sought is likely to be in the place identified in the affidavit. See Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978). The issuing judge, however, cannot merely act as a "rubber stamp" for law enforcement agencies. McNeese, 901 F.3d at 593 (citations omitted). Accordingly, "[s]ufficient information must be presented to the [judge] to allow that official to determine probable cause; his actions cannot be a mere ratification of the bare conclusions of others." Gates, 462 U.S. at 239.

The reviewing court should not conduct a de novo review of the judge's probable cause determination, but, considering all the facts presented to the judge, should only determine whether there exists substantial evidence in the affidavit supporting the judge's probable cause determination. See Lloyd, 71 F.3d at 1262 (quoting Massachusetts v. Upton, 466 U.S. 727, 728 (1984); United States v. Markling, 7 F.3d 1309, 1317 (7th Cir. 1993)). Moreover, "courts should not invalidate . . . warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a common-sense, manner." Gates, 462 U.S. at 236 (internal quotation omitted) (alterations in original). Doubtful cases should be resolved in favor of upholding the warrant. See United States v. Ventresca, 380 U.S. 102, 106 (1965) ("In Jones v. United States, 362 U.S. 257, 270 [(1960), overruled on other grounds by United States v. Salvucci, 448 U.S. 83 (1980)], this Court, strongly supporting the preference to be accorded searches under a warrant, indicated that in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.") (internal parallel citations omitted); Malin, 908 F.2d at 165 (quoting United States v. Rambis, 686 F.2d 620, 622 (7th Cir. 1982)). With this standard in mind, the court sets out to determine whether there existed enough evidence in the affidavit to support Judge Foster's determination of probable cause.

In this case, the affidavit read as follows: (1) Merritt owned Club 2001, which burned in an arson fire; (2) he had one of three keys to the door, which showed no signs of forced entry; (3) Merritt had insurance, but had not pursued a claim; and (4) the Merritts kept financial records in their home. This information does not appear to be sufficient "to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found" in the Merritts' house. Ornelas v. United States, 517 U.S. 690, 696 (1996); see also McNeese, 901 F.2d at 592 ("[Probable cause] is based on reasonable belief that evidence in the place to be searched will lead to an arrest or conviction for a particular offense."). There is even less evidence here than in United States v. Dickerson, 975 F.2d 1245 (7th Cir. 1992), in which the Seventh Circuit determined that there was insufficient probable cause to search the defendant's home where a witness saw a bank robber run from the bank to a car with a license plate that was registered to the defendant at his home. The court determined that there was an insufficient nexus between the car and the home to uphold a warrant authorizing a search of the defendant's home.

In this case, the only link in the affidavit which shows that Merritt had anything to do with the arson is his owning of the property and his possession of one of the only three keys to the building. The affidavit contains no suggestion, exculpatory or inculpatory, indicating a link between the financial records and a motive to participate in or aid and abet in the arson. There really is not any information to tell the magistrate judge that the records may show that the Merritts were in financial distress. If this evidence was sufficient to constitute probable cause, then any time someone had insurance on a property they owned that was destroyed by arson, the police could search their home and financial records. More is needed to overcome Merritt's Fourth Amendment right to privacy in his home. Of course this court's perspective is one of hindsight. Nonetheless, the information in the affidavit about the financial records leads to equally balanced inferences: that the records would show financial distress or financial stability. This court would not draw the inference on the information provided alone that there was a substantial likelihood that the records would show the Merritts to be in a negative financial position. Thus, the affidavit did not manifest probable cause.

C. Good Faith

The inquiry does not end there however. Evidence that has been obtained pursuant to a search warrant unsupported by probable cause is not suppressed in every situation. Rather, courts must look to whether "the magistrate abandoned his detached and neutral role, . . . [whether] the officers were dishonest or reckless in preparing their affidavit, or [whether the officers] could not have harbored an objectively reasonable belief in the existence of probable cause." United States v. Leon, 468 U.S. 897, 922-23 (1990). In this case, Merritt has not argued that the magistrate abandoned his detached and neutral role and according to the Franks discussion, above, Vergon did not act with either intentional or reckless disregard for the truth. The issue then becomes "whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Id. at 922 n. 23.

The Supreme Court determined that the purpose of the exclusionary rule was to deter police misconduct. Id. at 916. Therefore, if the police have acted in good faith, even if a warrant is deficient, there is no purpose in excluding evidence. As the Supreme Court noted:

[The idea that the exclusion of evidence will not affect police conduct] is particularly true, we believe, when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope. In most such cases, there is no police illegality and thus nothing to deter. It is the magistrate's responsibility to determine whether the officer's allegations establish probable cause and, if so, to dissue a warrant comporting in form with the requirements of the Fourth Amendment. In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient. "[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law." Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.

. . . .

"[S]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness," for "a warrant issued by a magistrate normally suffices to establish" that a law enforcement officer has "acted in good faith in conducting the search."

Leon, 468 U.S. at 920-22 (citations and footnotes omitted).

"[I]n the ordinary case, a law enforcement officer 'cannot be expected to question' the magistrate's probable cause determination" and this is just such a case. United States v. Sleet, 54 F.3d 303, 307 (7th Cir. 1995) (quoting Illinois v. Krull, 480 U.S. 340, 349 (1987)). First, the warrant here was not facially deficient because it provided an adequate description of the place to be searched and items to be seized. Secondly, Vergon provided numerous and detailed facts about the fire at Club 2001, the amount of the insurance policy, and Merritt's accountant. By no means was this a "boilerplate" form. It is clear from the affidavit that Vergon conducted an investigation and corroborated information to the best of his ability. Furthermore, Vergon has knowledge and experience in investigating criminal complaints, particularly arson cases, which was reflected in the affidavit. See United States v. Spry, 190 F.3d 829, 834 (7th Cir. 1999) (looking at the experience of the officer who wrote the affidavit in determining whether there was an objectively reasonable belief that probable cause existed); United States v. Skinner, 972 F.2d 171, 176 (7th Cir. 1992) (same). This lends credence to Vergon's affidavit and the inferences that can be drawn from it. Finally, there is no evidence that would lead Vergon to believe the magistrate judge was not acting in a neutral and detached fashion. This not the case, suggested by a footnote in Leon, where the warrant application was previously rejected by a different magistrate. Vergon could make the inference that Merritt's financial records could lead to the discovery of motive for the fire, especially given Merritt's access to the fire scene and the possible financial gain from the fire. A reasonably well trained officer in Vergon's position with the information presented in the warrant and reviewed by not only the magistrate, but the Assistant United States Attorney, would not have known that the search was unsupported by probable cause.

At the Franks hearing, Defendant made note of the fact that the Assistant United States Attorney actually drafted the affidavit and that good faith should not apply because the Leon exception applied only to police officers. However, this logic fails when examining Leon itself and, in fact, consulting with an attorney further supports Vergon's claim of good faith. As already discussed, the United States Supreme Court noted in Leon that the purpose behind the exclusionary rule was to deter police misconduct. In this case, Vergon did everything he could to obtain a proper warrant. He collected information and then went to the Assistant United States Attorney for assistance in drafting an affidavit that would comply with the Fourth Amendment. Only after consulting with an attorney and having a warrant issued by a "detached and neutral" magistrate, did Vergon execute the search on Merritt's home. This court can conceive of no other steps that Vergon could have taken, except for insisting on a more complete picture of events for the affidavit, to comply with the Fourth Amendment.

As the Ninth Circuit has noted:

These two undisputed facts-the approval by an Assistant U.S. Attorney of the illegal warrant provisions and the ratification of the warrant by a neutral magistrate-bring this case within the holding of Massachusetts v. Sheppard. In that case, the police detective prepared an affidavit which was reviewed and approved by the District Attorney. He presented that affidavit to a judge. After the judge told the detective that he would authorize the warrant, the detective "produced the warrant form and informed the judge that it might need to be changed. He was told by the judge that the necessary changes would be made. He then observed the judge make some changes. . . ." In concluding that the police "took every step that could reasonably be expected of them," the Court reasoned: "An error of constitutional dimensions may have been committed with respect to the issuance of the warrant, but it was the judge, not the police officers, who made the critical mistake. '[T]he exclusionary rule was adopted to deter unlawful searches by police, not to punish the errors of magistrates and judges.'"

Like the police detective in Sheppard, the agents involved in the instant case consulted and secured the approval of a government attorney. They then fully informed the magistrate of the contents of the warrant, including the controversial deletion of the notice provisions, and obtained his approval as well. These acts were sufficient to establish objectively reasonable behavior under Sheppard.

United States v. Freitas, 856 F.2d 1425, 1431 (9th Cir. 1988); accord United States v. Lightbourne, 104 F.3d 1172, 1177 (9th Cir. 1997); United States v. Tagbering, 985 F.2d 946, 951 (8th Cir. 1993); United States v. Johns, 948 F.2d 599, 605 (9th Cir. 1991).

Although Freitas dealt with alterations to the warrant, the same rationale has been applied to cases dealing with warrants unsupported by probable cause. See United States v. Brown, 951 F.2d 999, 1005 (9th Cir. 1992) (noting the court's prior holding that "the approval of illegal provisions in a search warrant by an Assistant United States Attorney, combined with the magistrate's ratification, was sufficient to establish good faith" and applying it to a case where probable cause was lacking); see also United States v. Frangenberg, 15 F.3d 100, 103 (8th Cir. 1994); United States v. Cook, 854 F.2d 371, 374 (10th Cir. 1988).

Vergon's consultation with the Assistant United States Attorney weighs particularly in his favor in a case such as this where the issue is whether probable cause exists. Probable cause is an amorphous term, incapable of precise definition. Reasonable judges differ in many cases on whether it exists. See Leon, 468 U.S. 914 ("Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause. . . .").

Agent Vergon could not be expected to second-guess a magistrate judge, trained in the law with many years experience in a judicial capacity, on the definition of a legal term that defies a set definition. In effect, Vergon consulted two attorneys, both of whom felt that probable cause existed, which surely satisfies the requirement that he acted as "a reasonably well trained officer" would. He was not "required to disbelieve" these experts. Massachusetts v. Sheppard, 468 U.S. 981, 989-90 (1984)

The Supreme Court has noted that in order to determine whether to apply the exclusionary rule in a particular case, courts must "weigh the costs and benefits of preventing the use in the prosecution's case in chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant issued by a detached and neutral magistrate that ultimately is found to be defective." Leon, 468 U.S. at 907. In this case, the exclusionary rule would prevent the Government from admitting seventy-four guns at trial and essentially set Merritt free. Although some might argue that this would be an extreme outcome, such a result would be justified if it would produce a deterrent effect to other police officers and prevent abuses of the Fourth Amendment. However, in this case, Vergon made every effort to comply with the Fourth Amendment. Although the Assistant United States Attorney's drafting of the affidavit was deficient, this is no reason to punish police officers. If this court were to adopt a rule such as that urged by Merritt, whereby government attorneys were subject to the exclusionary rule, rather than encourage the attorneys to perform more competently, it would discourage police from going to attorneys for assistance with their affidavits. Cf. United States v. Mendonsa, 989 F.2d 366, 369-70 (9th Cir. 1993) (looking at fact that police officer consulted county attorney before submitting affidavit as factor contributing to good faith). Because the exclusionary rule in this case would serve no deterrent effect on police officers, it should not be applied.

Because Vergon obtained and executed the warrant in good faith, the evidence will not be suppressed, despite the lack of probable cause.

IV. Conclusion

For the foregoing reasons, Defendant's Motion to Suppress is DENIED.