United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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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.

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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
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. 
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.