The Sixth Circuit has decided that the good faith exception to the exclusionary rule can apply in a situation in which the affidavit supporting the search warrant is tainted by evidence obtained in violation of the Fourth Amendment, if the facts surrounding the initial Fourth Amendment violation were “close enough to the line of validity to make the officer’s belief in the validity of the warrant objectively reasonable.” United States v. McClain, No. 04-5887. This position sides with the Second and Eighth Circuits in a split with the Ninth and Eleventh. In an opinion concurring in the result, Judge Boggs advises drug dealers to maintain large fleets of cars.
According to the Honorable jurist:
My reading is that [probable cause] does not require a belief that there is more than a 50% probability of evidence being found in a particular location. See, e.g., United States v. Gourde, 382 F.3d 1003, 1015 (9th Cir. 2004) (Gould, J., concurring) (collecting cases). If that were the case, one could never get a search warrant to search all three cars of a person for whom there was overwhelming evidence of general drug dealing, and specific evidence of a drug transaction the proceeds of which were now certainly in one of three cars in his garage, and certainly not in any of the others. However, to be more than a hunch or a supposition, in my own mind, requires a legitimate belief that there is more than a 5 or 10 percent chance that a crime is being committed or that evidence is in a particular location.
Thus, one concludes, that if a distributor maintains a fleet of 21 cars, and distributes narcotics from a trunk that he moves among them, Judge Boggs would not uphold the admission of evidence gained from a search warrant that allowed a search of all of the cars, as there would not be a 5% chance of finding evidence of a crime in any one of them. Of course, 21 identical trunks might be a cheaper form of insurance.