                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                         REVISED JULY 5, 2006
                                                                 June 6, 2006
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                   Clerk

                             No. 04-51008


UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee
versus


CHERYL LEA POPE,

                                                Defendant - Appellant


          Appeal from the United States District Court
               for the Southern District of Texas


Before JOLLY, WIENER and DENNIS, Circuit Judges.

WIENER, Circuit Judge:

     Defendant-Appellant Cheryl Lea Pope entered a conditional plea

of guilty to a charge of conspiracy to manufacture methamphetamine,

reserving her right to appeal the district court’s denial of her

motion to suppress evidence obtained during a two-stage evidentiary

search of her residence.    In the first stage, officers executed a

search warrant purportedly issued for the purpose of uncovering

evidence of a prescription-drug operation.      At the outset of that

stage, officers observed evidence of a methamphetamine laboratory

in plain view.    That evidence formed the basis of a second warrant

issued to search for evidence of a meth lab, the second stage of

the search.
     At the suppression hearing, the district court ruled that the

initial stage was unconstitutional because it was grounded in a

warrant    issued    on     the    basis    of    stale    evidence.      The     court

nevertheless       admitted     the   evidence     from    that    unconstitutional

search in reliance on the good faith exception to the exclusionary

rule.     Under that ruling, evidence from both stages of the search

of Pope’s residence was admitted.

     The parties do not contest the district court’s determination

that the first stage prescription-drug warrant was unsupported by

probable    cause.         Instead,      they    dispute   the     district     court’s

application of the good faith exception to the exclusionary rule to

the facts of this case. Specifically, Pope contends that the first

stage of the search does not qualify under the good faith exception

to the exclusionary rule, so that she is entitled to have all

evidence seized during both stages of the search suppressed.                          The

parties agree that if we reverse the district court and hold that

the initial stage of the search does not qualify under the good

faith exception to the exclusionary rule, Pope must be acquitted.

We so hold, and thus reverse and vacate Pope’s conviction and

sentence.

                           I.     FACTS AND PROCEEDINGS

     On     June    25,     2003,     Officer      Michael    Baird      bought       six

prescription       pills    for    ten   dollars    from    Pope    as   part    of    an

undercover investigation. There is no evidence in the record that,



                                            2
after that single purchase, either he or any other law enforcement

personnel pursued the prescription-drug matter.            Then, 78 days

later, Baird received a tip having nothing to do with prescription

drugs,    viz.,   that   Pope   was   cooking   methamphetamine.   Baird

acknowledges that he knew that he did not have probable cause to

obtain a search warrant to enter Pope’s home in search of evidence

of a meth lab.    To circumvent that hurdle, Baird immediately began

drafting an evidentiary search warrant affidavit —— the first in

his career —— relating solely to the moribund prescription-drug

issue. Despite having done nothing about the prescription-drug buy

for 78 days, Baird stayed at work past midnight preparing a

prescription-drug search warrant affidavit, slept a few hours, then

timed his trip to a state magistrate’s home to arrive at seven

o’clock the next morning.

     Crucially, Baird intentionally failed to disclose to the

magistrate the true purpose for which the officer wanted to search

Pope’s house: solely to look for and seize evidence of a meth lab.

Instead, he attested under oath that he was applying for “an

evidentiary search warrant... The purpose is to obtain evidence of

a crime that has already been committed,” i.e., evidence of the

stale prescription-drug buy.1         Only by this subterfuge was Baird

able to obtain a warrant to search Pope’s home for the undisclosed

purpose of seeking evidence of a meth lab.


     1
         Emphasis added.

                                      3
     Significantly, Baird did not hand off the tainted warrant to

other officers; rather, he personally went to Pope’s home to

execute the faux search for prescription drugs accompanied by a

team of officers fully dressed in the kind of protective gear used

to search for meth labs.         When, as anticipated, they found evidence

of a meth lab in plain view, Baird immediately left the premises to

obtain a second warrant, this one to search for additional evidence

of the meth lab.      Notably, there is no evidence in the record that

the police ever looked for, much less found, any evidence of the

prescription-drug crime for which Baird had obtained the initial

warrant.

     Pope sought to suppress all the evidence because the facts in

the affidavit on which the prescription-drug warrant was issued

were stale, depriving Baird of probable cause to search Pope’s

residence    for   anything.       Pope       also   insisted   that,   under   the

particular facts of this case, the government could not rely on the

good faith exception to the exclusionary rule. When Pope’s counsel

questioned    Baird    as   to    his   actual       purpose    of   securing   the

prescription-drug search warrant, the officer’s testimony confirmed

that he secured the warrant because he was tipped that Pope was

conducting a meth cook.

     The district court correctly found that (1) the initial search

warrant was based on a sale of prescription drugs that occurred 78

days before Baird obtained the warrant, (2) the purpose for which

the magistrate issued the warrant was not to search for evidence of

                                          4
a meth lab, but solely to search for evidence related to the stale

prescription-drug buy,2 and (3) Baird consciously withheld all

information about the meth lab and his suspicions in that regard,

because he knew that he did not have probable cause for a warrant

to search for evidence of a meth operation.               Specifically, the

district court found that Baird “had received a tip that [Pope] was

cooking methamphetamine...           Because he did not believe he had

probable cause     to    search   the   residence   for   evidence   of   meth

production, Baird did not tell the state district court judge about

his suspicions.”        The court was also correct in holding that the

prescription-drug       warrant   lacked    probable   cause   because    the

information regarding the prescription-drug sale was stale.

     Despite all this, the court went on to deny Pope’s motion to

suppress, purporting to rely on the good faith exception to the

rule excluding evidence obtained in a search grounded in an invalid

warrant.   In so doing, the court held that none of the exceptions

to the good faith exception applied.

                               II.    ANALYSIS

A.   Standard of Review

     When a district court grants or denies a motion to exclude

evidence, we review that court’s factual findings —— both explicit



     2
       The court, in its factual findings, highlighted Baird’s
testimony that “[t]he search warrant wasn’t intending to go find
methamphetamine. The intent of the search warrant was to find
mere evidence of a previous buy” (emphasis added).

                                        5
and implicit —— for clear error.3       We review its conclusions of law

de novo.4

B.   Discussion

     1.     Law

     The exclusionary rule requires courts to suppress evidence

seized on the basis of a warrant that is unsupported by probable

cause.5    The purpose of the exclusionary rule is to deter unlawful

police conduct.    As the Supreme Court has repeatedly observed:

     The   deterrent   purpose  of   the   exclusionary  rule
     necessarily assumes that the police have engaged in
     willful, or at the very least negligent, conduct which
     has deprived the defendant of some right. By refusing to
     admit evidence gained as a result of such conduct, the
     courts hope to instill in those particular investigating
     officers, or in their future counterparts, a greater
     degree of care toward the rights of the accused.6

The exclusionary rule is not without limits, however. As the Court

cautioned, “[w]here the official action was pursued in complete

good faith, however, the deterrence rationale loses much of its

force.”7    Therefore, if the officers obtained the evidence “in

objectively reasonable good-faith reliance upon a search warrant,”

     3
       United States v. Reyes-Ruiz, 868 F.2d 698, 701 (5th Cir.
1989) (noting that we review express and implied factual findings
for clear error).
     4
         United States v. Alvarez, 127 F.3d 372, 373 (5th Cir.
1997).
     5
         Mapp v. Ohio, 367 U.S. 343 (1961).
     6
       United States v. Leon, 468 U.S. 897, 919 (quoting United
States v. Peltier, 422 U.S. 531, 539 (1975)).
     7
         Id. (quoting Peltier, 422 U.S. at 539) (emphasis added).

                                    6
the evidence is admissible “even though the affidavit on which the

warrant was based was insufficient to establish probable cause.”8

The     “good      faith        inquiry       is       confined         to   the      objectively

ascertainable question whether a reasonably well-trained officer

would      have     known       that    the    search          was      illegal       despite    the

magistrate’s        authorization.”9                   In    conducting         the    good   faith

inquiry,      the       court     may    examine            “all   of     the     circumstances”

surrounding the issuance of the warrant.10

      “[S]uppression of evidence obtained pursuant to a warrant

should be ordered only on a case-by-case basis and only in those

unusual cases in which exclusion will further the purposes of the

exclusionary rule.”11             The Supreme Court noted in Leon that “it is

clear      that    in    some     circumstances              the     officer      will    have   no

reasonable grounds for believing that the warrant was properly

issued.”12        Among the “circumstances” to which the Court referred

are those in which the magistrate issued a warrant in reliance on

a deliberately or recklessly false affidavit.13                              This is because a



      8
           United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir.
1992).
      9
           Leon, 468 U.S. at 922 n.23.
      10
       Id.; accord United States v. Payne, 341 F.3d 393, 400
(5th Cir. 2003).
      11
           Leon, 468 U.S. at 918.
      12
           Id. at 922-23.
      13
           Id. at 923.

                                                   7
reasonably well-trained officer with objective knowledge that a

search warrant has been issued on the basis of (1) deliberate or

reckless falsehoods, (2) material omissions, or              (3) both, would

conclude that the search is unlawful under the magistrate’s flawed

authorization.

     2.     Merits

            “[I]t is one thing to admit evidence innocently
            obtained by officers who rely on warrants later
            found invalid due to a magistrate’s error. It is
            an entirely different matter when the officers are
            themselves ultimately responsible for the defects
            in the warrant.”14

     As    noted,    the   district   court   held   that   “the   good   faith

exception applies to the... search warrant.” In its conclusions of

law, the district court specified the circumstances in which the

good faith exception did not apply, including “when the magistrate

or state judge issues a warrant in reliance on a deliberately false

affidavit.”     And the government expressly argued to the district

court that “[t]here was no evidence of deliberate recklessness...

in the affidavit.”         Pope contends that the good faith exception

does not apply because Baird’s representation in his search warrant

affidavit that “the purpose [of the search] is to obtain evidence

of a crime that has already been committed,”15 i.e. the 78-day-old

drug-buy, was deliberately or recklessly false. This, according to


     14
          See United States v. Reilly, 76 F.3d 1271, 1281 (2d Cir.
1996).
     15
          Emphasis added.

                                       8
Pope, is because the officer’s conceded —— but undisclosed ——

purpose of the search was only to uncover evidence of the meth lab.

     Although the district court failed to make an express finding

that Baird did not prepare a deliberately or recklessly false

affidavit, such a finding is necessary to its holding that the good

faith exception applied.   “Where the trial court makes no direct

reference to a claim but must necessarily have found a certain

fact, the appellate court will imply such a finding” and may review

the implied factual finding.16   Review of the record, including (1)

Baird’s testimony at the suppression hearing, (2) the circumstances

surrounding the warrant application process, and (3) the execution

of the search, reveals that this implicit factual finding is

clearly erroneous.   Instead, the contrary conclusion is revealed:

The record establishes that (1) Baird deliberately lied when he

stated to the magistrate under oath that the purpose of the search

was to uncover evidence of the prescription-drug buy, and (2) Baird

deliberately omitted key material information when he failed to

inform the magistrate of the actual purpose of the search and of

the informant’s tip.   Moreover, because the officer who would now

cloak himself in the good faith exception is Baird, the very same

officer who perpetrated the deliberate falsehoods and omissions, we


     16
       Reich v. Lancaster, 55 F.3d 1034, 1057-58 (5th Cir.
1995); see also Clinkenbeard v. Cent. S.W. Oil Corp., 526 F.2d
649, 651-52 (5th Cir. 1976) (implying a factual finding that the
district court did not state, but was necessary to its
conclusion).

                                  9
are   satisfied    that     Baird   had   objective   knowledge   of   the

prescription-drug warrant’s illegality.

           (a)    Baird’s Testimony at the Suppression Hearing

      We know from Baird’s own lips that he lied to the magistrate.

When Pope’s counsel asked Baird why he got the search warrant when

he did, Baird responded that “[w]e had received information several

times that Ms. Pope was cooking methamphetamine.             We received

information that, at that time, there was a possibility that she

was cooking methamphetamine.”         And, Baird temporized, “[w]e had

information that did not rise to the level of probable cause that

they were cooking methamphetamine.”          On hearing this testimony,

Pope’s counsel asked:

           Q:   So you had this information which you
           believed fell short of probable cause, so in
           lieu of that, you sought an evidentiary search
           warrant on the basis of the transaction that
           had occurred 78 days ago?

           A:   I applied for a search warrant, for an
           evidentiary search warrant for evidence of a
           previous narcotics purchase.

           Q: Were you instructed to do that by one of
           your superiors?

           A:    No, sir.    It was my idea.

When Baird further emphasized his suspicion that Pope was cooking

meth at the time that he applied for the warrant, Pope’s counsel

asked him, “So why not tell the judge?”         Baird responded, “I did

not want to -- I wanted the affidavit to stand on its own.”            As

Baird explained during his testimony, “[t]he search warrant wasn’t


                                     10
intending to go find methamphetamines.    The intent of the warrant

was to find evidence of a mere previous buy [of prescription

drugs].”17   These statements confirm that searching for evidence of

the prescription-drug operation was not the purpose, or even a

purpose, for which Baird sought the warrant at all.        Instead,

stating in his affidavit that the purpose of the search was for

evidence of the prescription-drug operation was a tactical maneuver

Baird used to avoid the probable cause prerequisite that, by his

own admission, he could not satisfy.

     Notably, there is more than Baird’s affirmative testimony that

leads us to this conclusion.    What Baird failed to say during the

suppression hearing is equally as revealing. When asked whether he

seized anything from the residence, Baird replied, “Yes. We seized

plain view evidence of a methamphetamine lab.”   He did not testify

that he seized anything relating to prescription drugs.    In fact,

despite repeated opportunities to testify that the real purpose of

the search was to uncover prescription drugs, Baird never testified

directly to that effect. Indeed, although Baird testified that

“[w]e had an ongoing methamphetamine investigation with Ms. Pope

and her family,” he never stated —— nor is there any evidence in

the record —— that the prescription-drug investigation extended

beyond the 78-day-old purchase of June 25.

     Baird’s suppression hearing testimony absolutely puts the lie


     17
          Emphasis added.

                                 11
to his sworn statement in the warrant affidavit that the purpose of

the search was to find evidence of the previous prescription-drug

buy.    A careful review of the entire record makes clear that the

only purpose of the search was to find evidence of the suspected

meth lab.      Accordingly, the district court clearly erred when it

implicitly found that Baird did not deliberately or recklessly

mislead the magistrate.           At the same time, the district court’s

erroneous factual finding led to that court’s legal error in

holding that Baird’s two-warrant search fell within the good faith

exception.18

             (b)    The Warrant Application

       Even if Baird’s testimony were not enough, the undisputed

circumstances       surrounding    Baird’s    warrant       application     further

confirm our conclusion.          As soon as Baird was tipped that Pope was

cooking a batch of meth, he remained on the job and worked past

midnight     preparing     the   deceptive    warrant   affidavit,         then,   by

design, arrived at the issuing magistrate’s house at seven o’clock

in   the    morning   to   get    the   magistrate     to    sign   the    warrant.

Obviously,     none   of   Baird’s      overtime   rushing     would      have   been

necessary      if   gathering      evidence    about    the     old    undercover

prescription-drug buy were the true purpose for obtaining the


       18
       Compare United States v. Breckenridge, 782 F.2d 1317,
1322 (5th Cir. 1986)(declining to find that the warrant affidavit
contained deliberately or recklessly false information because
the officer’s testimony at the suppression hearing was consistent
with the warrant affidavit).

                                         12
warrant: Alone, the urgency with which Baird confected the warrant

application immediately after receiving the meth tip further belies

his sworn statement to the magistrate that the purpose of the

search was to uncover evidence of the prescription-drug buy.

            (c)    The Execution of the Search

       Even if Baird’s testimony and the circumstances of the warrant

application       were   not    enough,       the     undisputed   circumstances

surrounding the execution of the search of Pope’s home confirm

beyond cavil that the purpose for obtaining the warrant was to

search for a meth lab.               First, Baird and his fellow officers

arrived     to    execute     the    search     wearing     protective    gear    in

anticipation of finding a meth lab.             Second, once they found plain-

view evidence of the meth lab during the initial protective sweep,

Baird and a fellow officer left the premises to prepare another

affidavit and obtain a second search warrant, this one for the meth

lab.    As already noted, there is no evidence before us to suggest

that the officers ever looked for —— much less found —— indicia of

a   prescription-drug       operation.        This     is   confirmed    by   record

photographs      taken   in    the    process    of    executing   the    search.19

       19
       The photographs depict (1) an officer dressed in gear
designed to protect the officer from hazardous materials, (2)
meth lab equipment on Pope’s kitchen counter, (3) a “burn
barrel”, (4) charred remains of pseudoephedrine blister packs,
(5) a trash can likely containing materials used in the
manufacture of meth (the contents of the trash can are difficult
to discern from the photograph, but Baird’s testimony identifies
such items in a trash can) (6) a school bus that Pope’s son
converted into a residence, (7) license plates, and (8) the front
of Pope’s residence and the yard.

                                         13
Ultimately, this was an obviously pre-planned “warrant two-step” in

which Baird misled the magistrate to gain access to a residence for

which there was no probable cause to search.

              (d)     Conclusion on the Merits

      The    good     faith      exception    is   not     an    instrument    that    law

enforcement may use to manipulate the warrant application process

and thereby circumvent the constitutional requirement of probable

cause.      As the Second Circuit poignantly observed, the good faith

exception “is not an excuse if the police are not frank with the

magistrate in the proceedings to obtain the warrant.”20                        There is

simply no way for this case to be shoe-horned into the good faith

exception to the exclusionary rule:                Under these discrete facts, a

reasonably well-trained officer in Baird’s exact circumstances

would      have     known    that     the    search    was      illegal   despite      the

magistrate’s authorization.             This is because the attesting officer

obtained the warrant by way of (1) a deliberate falsehood, i.e.,

the statement that purpose of the search was to uncover evidence of

a prescription-drug operation, and (2) a deliberate omission of

material fact, i.e., that the actual purpose of the search was to

uncover     evidence        of   a   meth   lab.      As   the    Supreme     Court    has

unequivocally explained, an officer would have “no reasonable

grounds for believing that the warrant was properly issued... if

the   magistrate       or    judge     in   issuing    a   warrant    was     misled    by


      20
           Reilly, 76 F.3d at 1281.

                                             14
information in an affidavit that the affiant knew was false or

would have known was false except for his reckless disregard of the

truth.”21

     Further, it is critical that we suppress evidence obtained

pursuant to a warrant that was procured only by misleading the

magistrate as to the purpose of the intended search.                  This is

because a judicial officer cannot properly perform his gate-keeping

function of making the probable cause determination if the stated

object of the requested search is false or incomplete:               The facts

supporting    probable   cause   and    the   object   of    the   search   are

inextricably linked in the probable cause calculus.                Thus, for a

judicial officer to determine properly whether probable cause

exists to conduct a search, law enforcement must forthrightly

inform such magistrate of, inter alia, the actual purpose of the

search.

     Finally, we cannot overemphasize the fact that the very

officer who here claims good faith reliance on the warrant is the

self-same officer who duped the magistrate with that officer’s

tainted affidavit, thus producing the equally tainted warrant on

which the deceitful officer now seeks to rely.              This is precisely

the type of case in which suppression must be granted to serve the

deterrent purpose of the exclusionary rule: Exclusion of the

evidence here should ensure that future “Officer Bairds” will


     21
          Leon, 468 U.S. at 923.

                                       15
disclose fully and truthfully all the pertinent information that

they are duty-bound to supply judicial officers when seeking search

warrants.22        As this case does not fit within the good faith

exception to the exclusionary rule, suppression is the appropriate

remedy.

      3.        The Dissent

      With respect, we see the dissent as mischaracterizing the law,

the record, and this opinion.          First, the dissent relies entirely

on   warrantless      pretextual    traffic    stop   jurisprudence    in   its

critique, viz., Whren v. United States.23             Crucially, the dissent

fails      to   address   the   palpable    distinction   between   pretextual

vehicle searches and the searches of private residences pursuant to

a judicially authorized warrant, the kind of searches that lie at

the core of the Fourth Amendment’s protection.            Traffic stop cases

such as Whren stand for the principle that, when law enforcement

has a legally justifiable (1) presence at the scene, and (2) reason

to stop a vehicle, the presence of the officer’s ulterior or

additional motive for that stop neither strips law enforcement of

its legal justification for the warrantless stop nor subjects the




      22
       See United States v. Barth, 26 F.Supp.2d 929, 941-42
(W.D. Tex. 1998) (declining to apply the good faith exception
because to do so would condone an FBI policy that prohibited full
and frank disclosures to members of the judiciary and the Justice
Department).
      23
           517 U.S. 806 (1996).

                                       16
fruits of the search to suppression.24       The Whren court refused to

undertake the inquiry into whether an officer plausibly had the

proper state of mind to justify a traffic stop because his actions

were legally justified from the outset by probable cause.25

     In    the   instant   case,   Baird’s   actions   were   not   legally

justified from the outset because he lied in and omitted material

information from the affidavit with which he secured the initial

warrant.    Without a valid warrant, he had no justifiable reason to

be at Pope’s residence in the first place.             Absent any legal

justification to enter and search Pope’s residence, all that

remains is Baird’s objectively proved purpose of searching Pope’s

residence for the meth lab.        If we were to rely on traffic stop

jurisprudence to resolve the legality of this search, Delaware v.

Prouse26 would be more appropriate.       There, an officer with neither

probable cause nor reasonable suspicion stopped a vehicle and, when

he reached the vehicle, saw marijuana in plain view and seized it.27

The Court held that suppression was required because the officer

lacked probable cause or reasonable suspicion to stop the car in

the first place, without which there could be no “plain view”




     24
          Whren, 517 U.S. at 812.
     25
          Id. at 814.
     26
          440 U.S. 648 (1979).
     27
          Id. at 651.

                                     17
exception.28

     The    dissent     also   accuses       this    writing      of   advancing     a

subjective determination on the basis of what we perceive to be

Officer    Baird’s    state    of    mind.     But,    we       obviously   are    not

conducting a subjective inquiry into Officer Baird’s mindset: Quite

to the contrary, we are objectively determining whether Baird

deliberately    or    recklessly      made   false    statements       or   material

omissions, or both, that misled the magistrate into signing the

search warrant.         To do so, we properly consider the officer’s

statements under oath in his affidavit, the sworn testimony he

provided at the suppression hearing, and other relevant evidence.

Only then must we consider whether, under the entirety of these

circumstances, a reasonably well-trained officer would objectively

and in good faith rely on the search warrant as legally issued.

Ours is a purely objective inquiry; there is simply no other way to

determine whether an officer has deliberately or recklessly misled

a magistrate.        Therefore, the question here is not “What was

Officer Baird’s subjective state of mind?”, but rather “Would a

reasonably     well-trained     officer       rely    on    a    warrant    that    he

personally obtained by deceit?”          As the Supreme Court explained in

Leon, the answer is no.             Indeed, to hold otherwise would be an

insult to every reasonably well-trained law enforcement officer.

     Further, even though we need not debate the question here



     28
          Id. at 663.

                                        18
because our inquiry is objective, there is solid jurisprudence

indicating that actual good faith is a threshold inquiry when

determining whether the good faith exception to the exclusionary

rule applies, despite the dissent’s insistence to the contrary.      A

solid line of cases holds that there is both a subjective and an

objective component to the good faith exception.      In United States

v. Williams,29 a pre-Leon case, this court held that there is a good

faith exception to the exclusionary rule, and that to fit within

the exception the officer must be (1) in actual good faith, and (2)

acting in objectively reasonable reliance on the warrant. Leon did

not   overrule    this   dual   standard.   Indeed,   Leon   identified

circumstances in which the good faith exception would not apply

that turn on an officer’s actual good faith.          For example, the

Court noted that the good faith exception would not apply if an

officer obtained a search warrant with a “bare bones” affidavit,

and then assigned the search to other officers who were unaware of

the warrant affidavit’s deficiencies.30     Similarly, an officer who

has engaged in magistrate shopping may not be entitled to the good

faith exception to the exclusionary rule.31

      Since Leon, we have observed that a police officer’s actions

must be in both subjective and objective good faith to come within



      29
           622 F.2d 830, 841 n.4a (5th Cir. 1980).
      30
           468 U.S. at 922 n.24.
      31
           Id. at 922 n.23.

                                    19
the good faith exception.32         The Sixth Circuit has explicitly

recognized that there are two components to the Leon good faith

inquiry:      First, whether the police actually acted in good faith,

and second, whether police reliance on the warrant was objectively

reasonable.33       Ultimately,   the    dissent   relies   heavily   on   the

fallacious principle that actual good faith is irrelevant to the

good faith exception to the exclusionary rule.                  Although that

proposition is not at issue here, both law and logic indicate that

actual good faith is indeed a relevant consideration when deciding

whether to apply the good faith exception to the exclusionary rule.

       The dissent further attacks our conclusion that Officer Baird

lied as engaging in “appellate fact-finding.”           To that we have two

responses.       First, we would respectfully remind the dissent that

our purpose is to review the district court’s factual findings.

The district court’s failure expressly to articulate its finding

that    Baird    did   not   deliberately    or    recklessly    mislead   the

magistrate does not insulate it from review on appeal for clear



       32
       United States v. Benavides, 854 F.2d 701, 702 (5th Cir.
1988) (“The execution of the warrant in subjective and objective
good faith brings the actions of the officers within the good-
faith exception to the exclusionary rule.”) (citing to Leon and
Williams); see also United States v. McQuagge, 787 F.Supp. 637,
650-51 (E.D. Tex. 1992) (recognizing that the good faith
exception has two components: the requirement that the officers
act objectively reasonably and the requirement that they act in
subjective good faith, and ultimately suppressing the evidence
because the officers did not act in subjective good faith).
       33
            United States v. Leake, 998 F.2d 1359, 1367 (6th Cir.
1993).

                                        20
error: Such      a   finding   is   indispensable   to   the   court’s   legal

conclusion that the good faith exception applied. Accordingly, the

entire record is before us on appeal, and we are entitled to rely

on that record in determining whether the district court erred

factually and legally. Doing so amounts to conscientious review ——

not “appellate fact-finding.”

     Second, the dissent attacks only our conclusion that Officer

Baird lied —— it does not challenge the fact that Officer Baird

omitted key material information, i.e., the purpose of his search

(or, as the dissent characterizes it, Baird’s “unstated, underlying

motive.”)34     Thus, at the very least, the dissent would have us

confect the following rule: A law enforcement officer may omit from

his affidavit key material information that pertains to the purpose

of a search in securing a warrant, then cynically “throw himself on

the mercy” of the good faith exception to the exclusionary rule ——

never mind that the entire affidavit, including the officer’s

statement of purpose, is a declaration made under oath before a

judicial officer.        The dissent points to no law to the effect that

an officer may omit critical material information from his warrant

affidavit and then seek shelter under the good faith exception.

This is because there is none: The law is well established that

omitting critical information from the warrant affidavit deprives




     34
          Infra at __.

                                       21
the officer of the benefit of the good faith exception.35             (This is

likely a primary reason why the dissent relies singularly and

without explanation on the inapposite analogy of the warrantless

pretextual traffic stop to advance its view.)

       Additionally, donning blinders to an officer’s false and

misleading statement of purpose in his warrant affidavit would be

untenable because, as noted above, a judicial officer cannot

properly perform his gate-keeping function in making the probable

cause determination if the stated object of the search is false or

materially incomplete.         Furthermore, disregarding a significant

difference between the stated purpose and the actual purpose of a

search ignores the Supreme Court’s specific instruction in Leon

that    “in    making   [the   good   faith]   determination,   all    of   the

circumstances... may be considered.”36

       Finally, the dissent argues that we should not consider

whether Officer Baird is entitled to the Leon good-faith exception

because, according to the dissent, it was not raised below and the

district court “did not think for a moment” about it.37           Review of


       35
      See, e.g., United States v. Davis, 226 F.3d 346, 351 (5th
Cir. 2000) (noting that “[t]he necessary falsehood can be
perpetrated by omission as well as commission” in applying Leon).
       36
            468 U.S. at 922 n.23 (emphasis added).
       37
        We note that the dissent points to Pope’s counsel’s
statement at oral argument that Baird thought he was doing the
right thing to bolster its conclusion that Baird was in good
faith under the law. If not worse, the dissent’s reliance on
counsel’s subjective opinion and Baird’s subjective belief that
he was doing the right thing is patently inconsistent with its

                                       22
the record, however, reveals that the issue of Officer Baird’s

deceptive behavior was before the district court.                Specifically,

Pope argued in her motion to suppress that the Leon good-faith

exception did not apply, and the government argued in response that

“[t]here was no evidence of deliberate recklessness... in the

affidavit.”    At the suppression hearing, Pope highlighted Officer

Baird’s deceptive behavior in securing the warrant and, in closing,

explained that:

           all of [the statements in the affidavit] are
           predicated upon violations of controlled substance
           or marijuana violations, and that’s not what we have
           here. They are making the jump from this relatively
           insignificant delivery of six pills for $10 to a
           major drug dealer case, and there is just nothing in
           the affidavit that would permit somebody to make
           that jump... That is our argument, really.

Accordingly,   the   issue    whether       Officer   Baird    deliberately    or

recklessly    disregarded     the    truth    or   omitted    information     was

sufficiently raised for the district court’s consideration.

                              III.    CONCLUSION

     The   entire    search    conducted      at   Pope’s     residence   lacked

probable cause. In executing that search, Officer Baird cannot, in

good faith, reasonably rely on the flawed warrants that facially

authorized it —— especially when his personal actions directly


vociferous objection to any subjective component to making the
good faith determination. More importantly, when not isolated
out of context, it is obvious that Pope’s counsel was not
conceding that Baird was in good faith under the law. As counsel
correctly explained during the suppression hearing, “good faith
[cannot] be equated to the uninformed, inexperienced, naive
belief that you are doing the right thing.”

                                       23
caused the vices in those warrants. Accordingly, we reverse Pope’s

conviction and vacate her sentence.

REVERSED; SENTENCE VACATED.




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