United States appealed the granting of defendant’s motion to suppress which was granted due to bare bones, cut and paste facts in a search warrant affidavit. Underwood was charged with conspiracy to possess and distribute controlled substances in violation of 21 U.S.C. §§ 841 and 846.
•The Ninth Circuit held that:
–Conclusions of affiant unsupported by underlying facts can’t be used to establish probable cause
–The affidavit contained only two facts, foundationless expert opinion, and conclusory allegations
•Seen baggie of personal use marijuana lacked a nexus to ecstasy trafficking
•Observation of Defendant delivering two wooden crates to suspected dealers three months before warrant wasn’t detailed enough; was a bare conclusion that it contained ecstasy
•Affidavit failed to define “drug trafficker” and provided no facts to support conclusion that Underwood is in business of buying & selling ecstasy
•LAPD Officer’s statement that a federal warrant had previously issued in the case for a different residence didn’t add any indicia of probable cause to the state affidavit (neither warrant nor affidavit were attached).
•“Leon” good faith exception doesn’t apply because the affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”
–“The affidavit reasonable supports only the following innocent conclusions: Underwood knows Luong and Barrera; he helped [them] move crates on one occasion; and Underwood possibly uses marijuana.”