At page 139 Lack of nexus between affidavit facts and searched location53 citing cases“the test for reasonable reliance is whether the affidavit was sufficient to 'create disagreement among thoughtful and competent judges as to the existence of probable cause.”
- United States v. Carpenter, Sheila, 360 F.3d 591 (6th Cir. 2004).published ([T]he final warrant application, while it set forth facts suggesting that Kimberly Hove had sent threatening letters, never linked Kimberly Hove or any suspected criminal activity in any way with the 2727 DeAnza reside…)
- United States v. Carpenter, 360 F.3d 591 (6th Cir. 2004).published ([T]he final warrant application, while it set forth facts suggesting that Kimberly Hove had sent threatening letters, never linked Kimberly Hove or any suspected criminal activity in any way with the 2727 DeAnza reside…)
- United States v. Kelvin Lee, 972 F.2d 1345 (9th Cir. 1992).unpublished (affidavit simply lists the DeAnza address as a location to be searched)
- United States v. Robert Fowler, No. 22-50002 (9th Cir. Apr. 28, 2023).unpublishedThese facts are, at a minimum, “sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause.” Id. (quoting United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988)).
- United States v. Kendall Thrift, No. 17-10019 (9th Cir. July 5, 2018).unpublished(holding that the good faith exception applies when “the affidavit was sufficient to ‘create disagreement among thoughtful and competent judges as to the existence of probable cause’)
- United States v. Adolfo Guzman, Jr., 657 F. App'x 688 (9th Cir. 2016).unpublished“The test for reasonable reliance is whether the affidavit was sufficient to ‘create disagreement among thoughtful and competent judges as to the existence of probable cause.’” United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988) (quot…
- United States v. John Underwood, 725 F.3d 1076 (9th Cir. 2013).published United States v. Hove, 848 F.2d 137, 139-40 (9th Cir.1988).
- State v. Althaus, 305 P.3d 716 (Kan. Ct. App. 2013).publishedSee Gonzales, 399 F.3d at 1231 (“For good faith to exist, there must be some factual basis connecting the place to be searched to the defendant or suspected criminal activity.”); United States v. Hove, 848 F.2d 137, 139-40 (9th Cir. 1988).
- Lane v. State, 104 So. 3d 874 (Ala. 2012).publishedIn Leon , “the Supreme Court held that evidence obtained pursuant to a facially-valid search warrant, later found to be invalid is inadmissible if the executing officers acted in good faith and in objectively reasonable reliance on the war…
- United States v. Soto, 779 F. Supp. 2d 208 (D. Mass. 2011).published(affidavit inadvertently omitted a crucial paragraph connecting defendant to the premises to be searched)
Show 42 more citing cases
- United States v. Yoeung Eng, 571 F. Supp. 2d 239 (D. Mass. 2008).publishedUnited States v. Hove, 848 F.2d 137, 139-140 (9th Cir.1988).
- Ex Parte Green, 15 So. 3d 489 (Ala. 2008).published In Leon , `the Supreme Court held that evidence obtained pursuant to a facially-valid search warrant, later found to be invalid, is admissible if the executing officers acted in good faith and in objectively reasonable reliance on the warr…
- State v. Jenkins, 941 A.2d 517 (Md. Ct. Spec. App. 2008).publishedUnited States v. Laughton, 409 F.3d 744, 751-52 (6th Cir.2005); United States v. Koerth, 312 F.3d 862, 871 (7th Cir.2002); United States v. Hove, 848 F.2d 137, 139-40 (9th Cir.1988).
- United States v. Thai Tung Luong, 470 F.3d 898 (9th Cir. 2006).published United States v. Hove, 848 F.2d 137, 139 (9th Cir.1988).
- United States v. Luong, No. 05-50090 (9th Cir. Dec. 11, 2006).published United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988).
- Adams v. Commonwealth, 635 S.E.2d 20 (Va. Ct. App. 2006).published We emphasize that, as to the facts supporting probable cause for issuance of a search warrant, see McCary, 228 Va. at 231 , 321 S.E.2d at 644 , “[a]n obviously deficient affidavit cannot be cured by an officer’s later testimony on his subj…
- Kendrick v. Baca, 141 F. App'x 511 (9th Cir. 2005).unpublishedThis is not a case in which “the affidavit offers no hint as to why the police wanted to search this residence.” United States v. Hove, 848 F.2d 137, 139-40 (9th Cir.1988).
- Floyd Ricks v. Commonwealth, No. 2534031 (Va. Ct. App. Jan. 11, 2005).unpublishedThe affidavit must, at a minimum, “explain the significance or relevance of searching [the] particular location.” United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988), cited with approval in Janis v. Commonwealth, 22 Va. App. 646, 652…
- United States v. Garcia, 119 F. App'x 98 (9th Cir. 2004).unpublishedThis is not a case where “the affidavit offers no hint as to why the police wanted to search this residence.” United States v. Hove, 848 F.2d 137, 139-40 (9th Cir.1988).
- United States v. Ahmad, 118 F. App'x 183 (9th Cir. 2004).unpublishedUnited States v. Hove, 848 F.2d 137, 139-40 (9th Cir.1988).
- United States v. Rodriguez, 85 F. App'x 598 (9th Cir. 2004).unpublished United States v. Hove, 848 F.2d 137, 139 (9th Cir.1988); United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984). .
- Ball v. State, 868 So. 2d 474 (Ala. Crim. App. 2003).published Thus, any official belief in the existence of probable cause must be considered unreasonable." 848 F.2d at 139-40 (emphasis added).
- United States v. Hermanek, 47 F. App'x 439 (9th Cir. 2002).unpublishedThis case is distinguishable from United States v. Hove, 848 F.2d 137, 139-40 (9th Cir.1988), where we refused to apply the good faith exception because the affidavit failed to link the residence to the defendant and failed to explain why…
- United States v. Hermanek, 40 F. App'x 427 (9th Cir. 2002).unpublishedThis case is distinguishable from United States v. Hove, 848 F.2d 137, 139-40 (9th Cir.1988), where we refused to apply the good faith exception because the affidavit failed to link the residence to the defendant and failed to explain why…
- People v. Altman, 960 P.2d 1164 (Colo. 1998).published One test for a bare bones affidavit is “whether the affidavit was sufficient to ‘create disagreement among thoughtful and competent judges as to the existence of probable cause.’ ” United States v. Hove, 848 F.2d 137, 139 (9th Cir.1988) (q…
- United States v. Kenneth Romaine Christenot, 127 F.3d 1107 (9th Cir. 1997).unpublished(refusing to apply good faith exception when affidavit failed to link residence to defendant and failed to explain why police believed there may be incriminating evidence at the location)
- United States v. Lewis Boniface, United States of Am. v. John Robert Sargent, AKA Robert Goad, United States of Am. v. Larry Bolain, 110 F.3d 70 (9th Cir. 1997).unpublishedSee id. at 923 , 104 S.Ct. at 3421 ; cf. United States v. Hove, 848 F.2d 137, 139-40 (9th CIr.1988); Holzman, 871 F.2d at 1511 n. 4.
- United States v. Santiago Castillo-Arvizu, United States of Am. v. Juan Sanchez-Cervantes, AKA Hugo Quirox, Hugo Quiroc, Hugo Quiroz, Hugo Oquiroz Trejo, & Hugo Quiroz Tapia, United States of Am. v. Adolfo Brahms-Garcia, AKA Jose Quarta, United States of Am. v. Enrique Cisneros-Silva, AKA Kiki, 81 F.3d 170 (9th Cir. 1996).unpublishedUnited States v. Hove, 848 F.2d 137, 139 (9th Cir.1988). 1.
- United States v. Jimenez, 205 F. App'x 656 (10th Cir. 2006).unpublished
- United States v. Dennis L. Taxacher, 902 F.2d 867 (11th Cir. 1990).published
- United States v. Benny McKinney, 919 F.2d 405 (7th Cir. 1990).published
- United States v. Hector Martin Ramos, 923 F.2d 1346 (9th Cir. 1991).published
- United States v. Martinez Malone, 947 F.2d 951 (9th Cir. 1991).unpublished
- United States v. Eric J. Brown, 958 F.2d 369 (4th Cir. 1992).unpublished
- United States v. Donald Craig Kessack, United States of Am. v. Robert M. Petty, United States of Am. v. Melvin L. Dewitt, United States of Am. v. Pasqual Debraine, United States of Am. v. Jordan Rodrigues Quintal, Jr., United States of Am. v. Gary Granger, 983 F.2d 1078 (9th Cir. 1993).unpublished
- United States v. Robert G. Lees, 988 F.2d 124 (9th Cir. 1993).unpublished
- United States v. Lloyd Dewey Rutherford, Jr., 993 F.2d 886 (9th Cir. 1993).unpublished
- United States v. Dracy Lamont McKneely Andrew Ellis, & Alandis Bennett, Also Known as Torjano Akines, 6 F.3d 1447 (10th Cir. 1993).published
- United States v. James Allan Huss, 7 F.3d 1444 (9th Cir. 1993).published
- United States v. Darcy Ira Thigpen Robert Ross, Dwayne Allen Falconer, 19 F.3d 31 (9th Cir. 1994).unpublished
- United States v. Genaro Navarro, 24 F.3d 251 (9th Cir. 1994).published
- United States v. Daniel James Fowlie, 24 F.3d 1059 (9th Cir. 1994).published
- United States v. Joseph Mikesell, United States of Am. v. Gilbert Aguilar, 33 F.3d 60 (9th Cir. 1994).unpublished
- United States v. Randall Wynn, United States of Am. v. Abel Oliveras-Perez, United States of Am. v. Adrian Plasencia-Garcia, 46 F.3d 1148 (9th Cir. 1995).unpublished
- United States v. John Van Shutters, II, 163 F.3d 331 (6th Cir. 1998).published
- Nelms v. State, 568 So. 2d 384 (Ala. Crim. App. 1990).published
- State v. Diamond, 628 A.2d 1032 (Me. 1993).published
- United States v. Johnson, 332 F. Supp. 2d 35 (D.D.C. 2004).published
- State v. Koen, 152 P.3d 1148 (Alaska 2007).published
- United States v. Moran, 320 F. App'x 544 (9th Cir. 2009).unpublished
- United States v. Beck, 139 F. App'x 950 (10th Cir. 2005).unpublished
- United States v. William B. Stromberg, 963 F.2d 381 (9th Cir. 1992).unpublished
At page 140 Assessing probable cause when affidavit is deficient37 citing cases“despite the complete lack of any indicia of probable cause in the affidavit.”
- United States v. Burgess, 357 F. App'x 974 (10th Cir. 2009).unpublished But see United States v. Hove, 848 F.2d 137, 140 (9th Cir.1988).
- United States v. Carpenter, Sheila, 360 F.3d 591 (6th Cir. 2004).published Id. at 139-40 (“[T]he final warrant application, while it set forth facts suggesting that Kimberly Hove had sent threatening letters, never linked Kimberly Hove or any suspected criminal activity in any way with the 2727 DeAnza residence.”…
- United States v. Carpenter, 360 F.3d 591 (6th Cir. 2004).published Id. at 139-40 ("[T]he final warrant application, while it set forth facts suggesting that Kimberly Hove had sent threatening letters, never linked Kimberly Hove or any suspected criminal activity in any way with the 2727 DeAnza residence."…
- State of Alabama v. Quinard Melton, No. CR-2025-0235 (Ala. Crim. App. Sept. 25, 2026).publishedNelms v. State, 568 So. 2d 384, 389 (Ala. Crim. App. 1990) (quoting United States v. Hove, 848 F. 2d 137, 140 (9th Cir. 1988)) (" '[O]fficers who present a colorable showing of probable cause to a judicial officer ought to be able to rely…
- United States v. Kevan Carter Gibbs, II, No. 24-12448 (11th Cir. Sept. 17, 2026).publishedMartin, 297 F.3d at 1314 (citing United States v. Hove, 848 F.2d 137, 140 (9th Cir. 1988)).
- United States v. Russell Davis, 84 F.4th 672 (6th Cir. 2023).publishedSee United States v. Waide, 60 F.4th 327, 342 (6th Cir. 2023); United States v. Laughton, 409 F.3d 744 , 751-52 (6th Cir. 2005); see also United States v. Knox, 883 F.3d 1262 , 1270-73 & n.7 (10th Cir. 2018); United States v. Hove, 848 F.2…
- United States v. Kyle Matthews, 12 F.4th 647 (7th Cir. 2021).published(inquiry limited to four corners of search-warrant application)
- United States v. Knox, 883 F.3d 1262 (10th Cir. 2018).publishedRather, the Court held that the information contained in the affidavit, even without the information known to the officer but not included, “provide[d] significant corroboration to the [confidential informant’s] assertion[.]” Id. 11 Hove,…
- United States v. George Payne, 394 F. App'x 891 (3d Cir. 2010).unpublishedHowever, Zimmerman merely reinforced the longstanding exception to the good faith rule that “paltry” affidavits which “ ‘on their face preclude reasonable reliance’ ” cannot trigger “application of the good faith exception....” Zimmerman,…
- United States v. Crews, 502 F.3d 1130 (9th Cir. 2007).publishedThese facts, combined with Officer McConnell’s statements that his experience has shown him that further evidence of possession of firearms is often found at a suspect’s residence, provide a sufficient link between Crews, Manus, firearms e…
Show 26 more citing cases
- Cunningham v. Commonwealth, 643 S.E.2d 514 (Va. Ct. App. 2007).publishedAs we noted in Adams, “ ‘[a]n obviously deficient affidavit cannot be cured by an officer’s later testimony on his subjective intentions or knowledge.' " Id. at 748, 635 S.E.2d at 25 (quoting United States v. Hove, 848 F.2d 137, 140 (9th C…
- United States v. Thai Tung Luong, 470 F.3d 898 (9th Cir. 2006).published United States v. Hove, 848 F.2d 137, 139 (9th Cir.1988).
- United States v. Luong, No. 05-50090 (9th Cir. Dec. 11, 2006).published United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988).
- Adams v. Commonwealth, 635 S.E.2d 20 (Va. Ct. App. 2006).published We emphasize that, as to the facts supporting probable cause for issuance of a search warrant, see McCary, 228 Va. at 231 , 321 S.E.2d at 644 , “[a]n obviously deficient affidavit cannot be cured by an officer’s later testimony on his subj…
- United States v. Larry L. Koerth A/K/A Lonnie Younger, 312 F.3d 862 (7th Cir. 2002).published See Leon, 468 U.S. at 915 & n. 13, 923 n. 23, 104 S.Ct. 3405 ; United States v. Bynum, 293 F.3d 192, 210-13 (4th Cir.2002) (Michael, J., dissenting); United States v. Wilhelm, 80 F.3d 116, 121-22 (4th Cir.1996); United States v. Baker, 894…
- United States v. Koerth, Larry L., No. 01-3767 (7th Cir. Dec. 5, 2002).published See Leon, 468 U.S. at 915 & n.13, 923 n.23; United States v. Bynum, 293 F.3d 192, 210-13 (4th Cir. 2002) (Michael, J., dissenting); United States v. Wil- helm, 80 F.3d 116, 121-22 (4th Cir. 1996); United States v. Baker, 894 F.2d 1144, 114…
- United States v. Corey Martin, 297 F.3d 1308 (11th Cir. 2002).published(As “the affidavit offer[ed] no hint as to why the police wanted to search [the] residence” and why they believed they would find incriminating evidence there and there was no link between the location and the defendant,…)
- United States v. David Scott Zimmerman, 277 F.3d 426 (3d Cir. 2002).published When a police officer has "not presented a colorable showing [of probable cause], and the warrant and affidavit on their face preclude reasonable reliance, the reasoning of Leon does not apply." United States v. Hove, 848 F.2d 137, 140 (9t…
- United States v. Zimmerman, No. 1-1251 (3d Cir. Jan. 4, 2002).When a police officer has "not presented a colorable showing [of probable cause], and the warrant and affidavit on their face preclude reasonable reliance, the reasoning of Leon does not apply." United States v. Hove, 848 F.2d 137, 140 (9t…
- State v. Johnson, 578 N.W.2d 75 (Neb. Ct. App. 1998).publishedIn this regard, we agree with the reasoning expressed in U.S. v. Hove, 848 F.2d 137, 140 (9th Cir. 1988), which states: The affidavit.. . does not offer an explanation of why the police believed they may find incriminating evidence there;…
- United States v. Guitterez, 983 F. Supp. 905 (N.D. Cal. 1998).published (finding search of the defendant’s residence improper where “[t]he affidavit [did] not link this location to the defendant and ... [did] not offer an explanation of- why the police believed they may find incriminating ev…)
- Janis v. Commonwealth, 472 S.E.2d 649 (Va. Ct. App. 1996).published Id. at 140 (emphasis added).
- United States v. Thomas Richardson, 60 F.3d 829 (6th Cir. 1995).published(holding that "an obviously deficient affidavit cannot be cured by an officer's later testimony on his subjective intentions or knowledge)
- 42 Fed. R. Evid. Serv. 527, 95 Daily Journal D.A.R. 8949 United States of Am. v. John Jario Gil, United States of Am. v. Daniel Montoya, 58 F.3d 1414 (9th Cir. 1995).publishedUnited States v. Greany, 929 F.2d 523, 524-25 (9th Cir.1991); United States v. Hove, 848 F.2d 137, 140 (9th Cir.1988).
- United States v. Donald Craig Kessack, United States of Am. v. Robert M. Petty, United States of Am. v. Melvin L. Dewitt, United States of Am. v. Pasqual Debraine, United States of Am. v. Jordan Rodrigues Quintal, Jr., United States of Am. v. Gary Granger, 983 F.2d 1078 (9th Cir. 1993).unpublished
- United States v. Albert Leroy Comstock, 978 F.2d 716 (9th Cir. 1992).unpublished
- United States v. Guilberto Silva De La Torre, 996 F.2d 1229 (9th Cir. 1993).unpublished
- United States v. McKenzie-Gude, 671 F.3d 452 (4th Cir. 2011).published
- United States v. Terrell Lamont Bynum, A/K/A Boo, A/K/A Boo-Man Sumeka Plummer Iris Johnson, 293 F.3d 192 (4th Cir. 2002).published
- Tart v. Commonwealth, 437 S.E.2d 219 (Va. Ct. App. 1993).published
- United States v. Turner, 713 F. Supp. 714 (D. Vt. 1989).published
- Vinson v. State, 843 So. 2d 229 (Ala. 2001).published
- United States v. Conley, 813 F. Supp. 372 (W.D. Pa. 1993).published
- State v. Jamison, 482 N.W.2d 409 (Iowa 1992).published
- United States v. Bynum, No. 00-4773 (4th Cir. June 14, 2002).published
- Tralvis Edmond v. United States, 899 F.3d 446 (7th Cir. 2018).published
At page 141 cited at this page2 citing cases
- United States v. Allen, No. 96-6313 (6th Cir. May 4, 2000).publishedThe dissent apparently believes that Lomenick’s if an unquestionably honest citizen comes forward with actions amount to “flagrant misconduct” (United States v. a report of criminal activity – which if fabricated would Hove, 848 F.2d 137,…
- United States v. Kenneth Eugene Allen, 211 F.3d 970 (6th Cir. 2000).published The dissent apparently believes that Lomenick’s actions amount to “flagrant misconduct” (United States v. Hove, 848 F.2d 137, 141 (9th Cir.1988)) and therefore the “extreme sanction” (Leon, 468 U.S. at 916, 926 , 104 S.Ct. 3405 ) of exclus…
At page 146 cited at this page1 citing case
- United States v. Larry L. Koerth A/K/A Lonnie Younger, 312 F.3d 862 (7th Cir. 2002).published See Leon, 468 U.S. at 915 & n. 13, 923 n. 23, 104 S.Ct. 3405 ; United States v. Bynum, 293 F.3d 192, 210-13 (4th Cir.2002) (Michael, J., dissenting); United States v. Wilhelm, 80 F.3d 116, 121-22 (4th Cir.1996); United States v. Baker, 894…
v.
Kimberly Ann HOVE, Defendant-Appellant
Reporter's Syllabus editorial summary, not part of the Court's opinion
Marilyn E. Butler, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.
Alka Sagar, Deputy U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before CANBY and WIGGINS, Circuit Judges, and LOVELL,* District Judge.
CANBY, Circuit Judge:
Lead Opinion
The district court denied Kimberly Hove’s pretrial motion to suppress incriminating evidence seized by the police from one of her residences. Although the evidence was seized pursuant to a facially valid warrant, the affidavit submitted to the magistrate in support of the warrant failed to link Hove to the address of the residence searched. The district court found that the affidavit was deficient, but held that the evidence seized was admissible under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), because the officers acted in a good faith belief that probable cause existed to justify the search. On appeal, Hove argues that the good faith exception to the exclusionary rule should not save the search in this case because the affidavit was so deficient that official belief in the existence of probable cause would be entirely unreasonable. We agree and reverse the district court’s ruling that Leon’s good faith exception to the exclusionary rule applies to this search.
FACTUAL BACKGROUND
On February 18, 1986, Sergeant Moya, an experienced police officer with the Los Angeles County Sheriff’s Department, responded to a bomb complaint from Mr. Kenneth Hove, Kimberly Hove’s ex-husband. Over the following two weeks, Mr. Hove received two threatening letters in the mail. The letters were composed of words cut out of a magazine and pasted on paper. The envelopes were typed with a typewriter that had some malfunction in its keys. Sgt. Moya conducted his investigation of the case by talking to Mr. Hove, his neighbors, and Kimberly Hove’s sister, Cindy Wilson. The evidence Sgt. Moya collect[*139] ed led him to suspect that Kimberly Hove was sending the letters to Mr. Hove and planting pipe bombs under his car.
Sgt. Moya learned that Ms. Hove and the couple’s only child stayed with several different relatives and that one of their current residences may have been with Hove’s father, Gerald Wilson, at 2727 DeAnza Road in San Diego. Sgt. Moya learned that Hove was staying at this residence by tracing a phone number given to him by Hove and her sister. Sgt. Moya went out to this location and observed toys in the yard and. a car, previously identified as belonging to Ms. Hove, in the parking lot. Although he testified that he recited these facts to his stenographer when preparing his affidavit for a search warrant, the final affidavit did not include this information. Therefore, the final warrant application, while it set forth facts suggesting that Kimberly Hove had sent threatening letters, never linked Kimberly Hove or any suspected criminal activity in any way with the 2727 DeAnza residence. The error went unnoticed by Sgt. Moya, a district attorney who reviewed the affidavit, and the magistrate who issued a search warrant based on the affidavit.
The warrant was executed by Deputy Stevens. A magazine with words cut out of it that matched the threatening letters was found at the DeAnza residence. In its order denying Hove’s motion to suppress, the district court held that, in light of Sgt. Moya’s investigation, probable cause existed to believe that Kimberly Hove resided at the DeAnza location. In addition, the court held that Deputy Stevens executed the warrant with objective good faith that probable cause existed to justify the search.
STANDARD OF REVIEW
We review de novo the issue of whether the "good faith” exception to the exclusionary rule applies to this search. See United States v. Dozier, 826 F.2d 866, 872 (9th Cir.1987). We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291.
DISCUSSION
In this case, it is clear that probable cause to search the DeAnza residence was not established before the magistrate because the affidavit submitted to obtain the warrant did not explain the significance or relevance of searching this particular location. See United States v. Hendricks, 743 F.2d 653, 654-56 (9th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 382 (1985). The district court acknowledged the affidavit’s deficiency, but held that the evidence seized need not be suppressed because the officers involved acted in good faith that probable cause existed to search the DeAnza residence. The only question before us on appeal, therefore, is whether Leon’s good faith exception to the exclusionary rule applies to save the search in this case.
In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Supreme Court held that evidence obtained pursuant to a facially-valid search warrant, later found to be invalid, is admissible if the executing officers acted in good faith and in objectively reasonable reliance on the warrant. Id. at 922, 104 S.Ct. at 3420. The Leon Court noted, however, that an officer cannot manifest objective good faith if the warrant he is relying on was supported by an affidavit that is “ ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” Id. at 923, 104 S.Ct. at 3421 (citations omitted).
We agree with Hove that the affidavit submitted by Sgt. Moya in support of this search warrant was so deficient that any official belief in the existence of probable cause must be considered unreasonable. The test for reasonable reliance is whether the affidavit was sufficient to “create disagreement among thoughtful and competent judges as to the existence of probable cause.” Leon 468 U.S. at 926, 104 S.Ct. at 3422. See also United States v. Tate, 795 F.2d 1487, 1490 (9th Cir.1986). Here, reasonable judges could not disagree over whether probable cause existed to search the DeAnza location because the affidavit offers no hint as to why the police wanted[*140] to search this residence. The affidavit does not link this location to the defendant and it does not offer an explanation of why the police believed they may find incriminating evidence there; the affidavit simply lists the DeAnza address as a location to be searched. It is critical to a showing of probable cause that the affidavit state facts sufficient to justify a conclusion that evidence or contraband will probably be found at the premises to be searched. Hendricks, 743 F.2d at 654. No such facts were stated in this affidavit. Thus, any official belief in the existence of probable cause must be considered unreasonable.
Despite the complete lack of “any indicia of probable cause” in the affidavit, the district court found that the officers acted in objective good faith that probable cause existed to search the DeAnza residence. In so finding, the court apparently relied on facts that Sgt. Moya subjectively knew at the time he completed the affidavit but that were not included in the affidavit or presented to the magistrate. Leon does not extend, however, to allow the consideration of facts known only to an officer and not presented to a magistrate. The Leon test for good faith reliance is clearly an objective one and it is based solely on facts presented to the magistrate. Leon, 468 U.S. at 923, 104 S.Ct. at 3421. An obviously deficient affidavit cannot be cured by an officer’s later testimony on his subjective intentions or knowledge. “[Rjeviewing courts will not defer to a warrant based on an affidavit that does not ‘provide the magistrate with a substantial basis for determining the existence of probable cause.’ ” Leon, 468 U.S. at 915, 104 S.Ct. at 3416 (quoting Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)).
Leon creates an exception to the exclusionary rule when officers have acted in reasonable reliance on the ruling of a judge or magistrate. The point is that officers who present a colorable showing of probable cause to a judicial officer ought to be able to rely on that officer’s ruling in executing the warrant. Leon, 468 U.S. at 916-17, 104 S.Ct. at 3417-18. When the officers have not presented a colorable showing, and the warrant and affidavit on their face preclude reasonable reliance, the reasoning of Leon does not apply. To permit the total deficiency of the warrant and affidavit to be remedied by subsequent testimony concerning the subjective knowledge of the officer who sought the warrant would, we believe, unduly erode the protections of the fourth amendment.
The district court accordingly erred in failing to suppress the evidence obtained in the search of the DeAnza property. The conviction is reversed and the cause remanded for retrial, if there is to be one.
REVERSED AND REMANDED.
Dissent
dissenting:
I respectfully dissent.
The majority found that the good faith exception to the exclusionary rule as set out in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), does not apply in this case because the error was not that of the judicial officer issuing the warrant, but rather was that of the officer applying for the warrant.
The Ninth Circuit has acknowledged that the Supreme Court in Massachusetts v. Shepherd, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984), did not limit the circumstances in which an executing officer’s reliance was reasonable “to a situation in which the judge is the source of the warrant’s deficiency.” U.S. v. Michaelian, 803 F.2d 1042, 1047 (9th Cir.1986).
The Ninth Circuit has also acknowledged that
Leon does not preclude applicability of the ‘good faith’ exception in all situations where an officer’s affidavit falls short of satisfying probable cause_ In the absence of abandonment of the detached and neutral magisterial role, suppression is proper only where the officers were dishonest or reckless in preparing their affidavit, or could not have harbored an objectively reasonable belief in the existence of probable cause due to a facial[*141] deficiency in the warrant. See Leon, 468 U.S. at 926, 104 S.Ct. at 3423.
Although the affidavit was deficient in •that it did not specifically connect the De-Anza address to Ms. Hove, I find that it was not so deficient that official belief in the existence of probable cause was unreasonable. In his five page affidavit, Sergeant Moya set out a summary of his two week investigation indicating that Ms. Hove may have been residing in San Diego. On the page listing the DeAnza address as a location to be searched, the affidavit also listed two automobiles which would be searched at that location, a white Toyota pickup truck and a brown Ford station wagon. The affidavit linked both of these automobiles to the bombing incident. The brown station wagon was specifically linked to Ms. Hove, and the white pickup was linked to her father. It is not unreasonable that an executing officer would rely, in good faith, on this warrant and affidavit and conclude that the DeAnza residence was one in which Ms. Hove was residing.
The majority ignores the fact that Detective Stevens, the executing officer, accompanied Sergeant Moya when he investigated the residence at the DeAnza address and observed toys and the brown Ford station wagon which would connect the residence to Ms. Hove. There is no question that the officer executed the warrant in complete good faith.
Leon set out parameters for use of the exclusionary rule which would be consistent with its intent, to deter and punish illegal police conduct. Sergeant Moya's misconduct was that he failed to catch the stenographer's error in transcribing that portion of the affidavit specifically linking the DeAnza address to Ms. Hove. This is not the type of flagrant misconduct meant to be deterred under the exclusionary rule. The district court was correct in denying Ms. Hove's motion to suppress. I would affirm that determination.