John Dame v. First Natl. Bank

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 99-3709WM
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United States of America, *
*
Appellee, *
* On Appeal from the United
v. * States District Court
* for the Western District
* of Missouri.
Lester Herron, *
*
Appellant. *
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Submitted: February 15, 2000
Filed: June 6, 2000
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Before RICHARD S. ARNOLD, HEANEY, and LOKEN, Circuit Judges.
___________
RICHARD S. ARNOLD, Circuit Judge.
Lester Herron entered a conditional plea of guilty to interstate travel in aid of
racketeering and to the use of a communication facility to further a drug-trafficking
crime. See 18 U.S.C. § 1952; 21 U.S.C. § 843 (b). Prior to his plea, Mr. Herron filed
a motion to suppress evidence obtained by police during a search of his home. Despite
finding that probable cause did not exist for the search warrant, the Magistrate Judge
recommended that the motion be denied, applying the "good faith" exception to the
exclusionary rule. See United States v. Leon, 468 U.S. 897 (1984). The District Court
adopted this recommendation. Mr. Herron appeals, arguing that the warrant was so

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lacking in probable cause that no reasonable officer would rely upon it. We agree and
reverse.
I.
On August 31, 1998, the Circuit Court of Harrison County, Missouri, issued a
search warrant for Mr. Herron's residence. The search-warrant application was
supported by the affidavits of Agent William Lenhart of the Missouri Conservation
Department, and Trooper Donald Tyes of the Missouri Highway Patrol. Mr. Herron
plays only a small part in these affidavits, which are primarily concerned with officers'
investigation of marijuana cultivation by his relatives, the Bucks, on a nearby farm.
Agent Lenhart's affidavit stated that during a poaching investigation, he learned from
a Kentucky conservation officer that Tommie Neil Buck (whom we shall call Buck,
Jr.), a poaching suspect, was also under suspicion in Kentucky for marijuana
cultivation. Lenhart attempted to deliver poaching citations to Buck, Jr., at his listed
residence, a trailer located on a farm owned by him and his father, Tommy H. Buck
(Buck, Sr.). No one was home. In April, 1998, Lenhart delivered the citations to
Buck, Jr., at Mr. Herron's farm. Buck, Jr., told Lenhart that he was staying at the
Herron residence to harvest corn. On July 23, 1998, Lenhart notified Trooper Tyes that
Buck, Jr., might be involved in the cultivation of marijuana.
Trooper Tyes's affidavit stated that on July 24, 1998, he and Agent Lenhart
searched an open portion of cornfield on the Buck farm but did not locate any
marijuana. Subsequent searches, however, uncovered hundreds of marijuana plants on
the Buck farm, hidden between rows of corn. Tyes contacted the Kentucky State
Police, who indicated that the Bucks had a history of cultivating marijuana and that
Buck, Jr., was currently under a 1996 indictment for cultivating marijuana. The
Kentucky State Police also told Tyes that Mr. Herron was a relative and an associate
of Buck, Sr., and that Mr. Herron had two previous convictions for cultivating
marijuana in Kentucky, in 1984 and 1996. Based on these facts, his seventeen years

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1The affidavit actually concludes that marijuana and implements for cultivating
it will be found on the Buck farm. The affidavit seeking a warrant to search the Herron
farm was identical to an affidavit seeking a warrant to search the Buck farm, except for
the description of the two properties appearing at the beginning of the respective
affidavits. Apparently the Buck affidavit was drafted first. When it came time to draft
the Herron affidavit, the affiant's conclusion about the likely location of marijuana and
other evidence on the Buck farm were not changed. In fact, the Herron affidavit did
not even include a complete reference to the Herron property.
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of experience as a patrolman, and his involvement in numerous drug investigations,
Trooper Tyes concluded that marijuana and the implements of marijuana production
would be found at the Herron residence.1
The Prosecuting Attorney of Harrison County reviewed and submitted these
affidavits with an application for a search warrant for the Herron residence. At the
same time, she submitted an application for a search warrant for the Buck farm. The
same affidavits were offered to support both warrant applications; only the name of the
occupant and the descriptions of the residences to be searched varied.
II.
The government concedes on appeal that the search warrant for Mr. Herron's
residence was not supported by probable cause. Under Leon, however, evidence
obtained pursuant to a search warrant that is later found to be invalid is not suppressed
if the executing officers reasonably relied in good faith on the issuing court's
determination of probable cause and technical sufficiency. 468 U.S. at 922. Mr.
Herron argues that "objective good faith" was not present here because the search
warrant was based on affidavits "so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable." Id. at 923. We agree.

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2 In total, the affidavits make only two passing references to the Herron residence
(to note Buck, Jr.'s, presence there and to request a search warrant for the residence)
and only three total references to Mr. Herron (to note his criminal background, to note
his familial relation to the Bucks, and to describe him as an occupant of the property
to be searched).
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First, as the Magistrate Judge concluded, "[t]here is simply no evidence in either
affidavit that [marijuana or the implements of marijuana production] would be found
at [Mr. Herron's] residence . . .." The affidavits provide no evidence that there was any
illegal activity at the Herron residence and no evidence that Mr. Herron ever
participated in the cultivation of the marijuana found at the Buck farm. Mr. Herron was
never seen at the location where the marijuana was discovered, and no marijuana had
ever been seen at his residence. Mr. Herron made no admission that he had been at the
site of the marijuana cultivation, and he was not shown to have been associated with
the Bucks in past marijuana dealings. The only evidence in the affidavits concerning
Mr. Herron related to his prior marijuana convictions and his familial relation to the
Bucks. The only evidence concerning the Herron residence was that one time, four
months before the search warrant was sought, Buck, Jr., said he was staying there to
help harvest corn. We do not think that a reasonable officer would believe that these
facts established probable cause to search the Herron residence for marijuana or the
implements of its cultivation.
Moreover, we think that the officers involved should have been fully aware of
the deficiencies of their affidavits. The problem is not a technical legal deficiency; the
affidavits simply do not say very much about Mr. Herron or his residence.2 The
officers' affidavits were originally prepared to support a search-warrant application for
the Buck farm. On this subject, they are focused, complete, and quite probative. By
contrast, the affidavits barely touch on the Herron residence or Mr. Herron and then
only in a way incidental to the Buck investigation. While the same affidavit can
support probable cause at more than one location, here the affidavits were designed to
support a search warrant for the Buck farm and applied to the Herron residence as an

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afterthought. Under these circumstances, we think that the lack of probable cause in
the affidavits would have been apparent to reasonable officers. In reaching this
conclusion we are mindful that the subject of this search – a person's home – enjoys
special protection under the Fourth Amendment.
Given the lack of evidence in the affidavits and the obvious nature of the
deficiency, we conclude that the officers did not reasonably rely upon the issuing
court's determination of probable cause for a search warrant. Accordingly, the motion
to suppress should have been granted. The judgment of the District Court is reversed,
and the cause remanded for further proceedings consistent with this opinion.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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