Yrvens Bain was a drug dealer, recently released from prison. The police obtained a warrant for his arrest and arrested Bain outside of his building where he and multiple people had apartments. Not knowing which apartment was his, officers took Bain’s keys and tried them in several door locks before concluding he lived in Unit D. Lacking any belief that anyone else was in the apartment, or that anything in the apartment presented a threat, the officers entered nonetheless to conduct a protective sweep, during the course of which, they found incriminating evidence, The officers then applied for and obtained a federal search warrant to re-enter and search Unit D.
The government conceded there was no legal basis for the protective sweep, but maintained, with some precedent, that testing the key into several locks, including Bain’s, was not a search entitled to Constitutional protection. The First Circuit does a good job in the opinion explaining the difference between “homes” and “effects” for Fourth Amendment purposes (some cases permitting random key tries involved padlocks on lockers or other “effects”), and finds a Constitutional violation as placing the key into the lock of Bain’s door was a “search” that required a warrant or an exception to the warrant requirement.
Finding no applicable exception to the warrant requirement, the Court asked whether the good faith exception recognized by the Supreme Court in Leon applied. Here is where I have a difference of opinion with the decision. We know of at least two Constitutional violations by these officers whose good faith was now being evaluated- the illegal protective sweep and the “search” of going randomly through the building testing door locks until they found Bain’s apartment. Despite this rash of illegal conduct within a very short period of time, the Court found the good faith exception to apply, as the officers had disclosed their conduct to the federal magistrate when eventually applying for the warrant. So if I understand correctly, misconduct is forgiven and good faith springs forward upon disclosure of past misdeeds. I don’t buy it. It seems to me that the officer’s good or bad faith here should have been evaluated before they consulted with the astute AUSA who advised them to disclose all to the magistrate. Such late disclosure should not undo what was done, or erase the bad purpose with which it was accomplished. The lesson to agents and officers in the First Circuit is clear; you can screw up constitutionally, but disclosure may cure all. U.S. v. Bain, Case No. 16-1140, (Ist Cir.) Op. issued October 13, 2017.
Until next time –
Todd
