Based on the following information, the police set up a surveillance team to watch the defendant, Rico Suave:

Rico had recently moved to town from an area in Florida known for drug activity. He maintained two separate post office boxes in different towns (both in his own name) and regularly received packages from Florida at the post office boxes. He associated with a known drug user and occasional dealer.

While Rico was under surveillance, the police called an informant who had previously indicated that he had information about Rico and his friends to the station for questioning. The informant told the police that Rico was a "drugger" and that he had no job but lots of cash. The informant also told the police that Rico sold cocaine, which he received from a relative still living in Florida. The informant had no proof to back his allegations up and the police didn't ask for any. The informant told the police that Rico's most recent drug transactions occurred at a time which coincided with the most recent package the police knew Rico received from Florida.

The police called a judge to the office and began preparing an application for a search warrant. Before the judge got there and before the application was prepared and signed, the surveillance team called and said that Rico was leaving his friend's house with a briefcase. The police joined the surveillance team. Rico was stopped, frisked and Mirandized. Rico was brought to the station and his car was impounded.

The judge arrived at the station after Rico. He read the now completed application for a search warrant and signed it authorizing a search of Rico's body and car for cocaine. The search revealed no cocaine, but $4,500.00 in cash, amphetamines and hypodermic needles. Rico was then arrested.

The court has found that the search warrant was improper. Can the evidence still be used under the good faith exception?

Submitted by Julie Leon

Wake Forest University

Answer

-Based on these facts, it appears as though Rico was arrested without probable cause.  Therefore, a search incident to arrest would not authorize this search in lieu of a warrant. 

-If the police believed the information from the informant was objectively reasonable (reliable and a basis for the information) and sufficient to supply probable cause for a warrant, than the good faith exception may apply and allow the evidence to be introduced despite the finding that the warrant was improper.   However, the police could not use any of the information learned after detaining Rico wrongly as a basis for the warrant.