State v. Carter

             OPINIONS OF THE SUPREME COURT OF OHIO
     The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
     Please call any errors to the attention of the Reporter's
Office of the Supreme Court of Ohio. Attention: Walter S.
Kobalka, Reporter, or Deborah J. Barrett, Administrative
Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010.
Your comments on this pilot project are also welcome.
     NOTE: Corrections may be made by the Supreme Court to the
full texts of the opinions after they have been released
electronically to the public. The reader is therefore advised
to check the bound volumes of Ohio St.3d published by West
Publishing Company for the final versions of these opinions.
The advance sheets to Ohio St.3d will also contain the volume
and page numbers where the opinions will be found in the bound
volumes of the Ohio Official Reports.

The State of Ohio, Appellant, v. Carter et al., Appellees.
[Cite as State v. Carter (1994),     Ohio St.3d    .]
Constitutional law -- Search and seizure -- Evidence gained
     from the serach of an automobile and a residence
     suppressed, when.
     (No. 93-451 -- Submitted February 22, 1994 -- Decided
April 20, 1994.)
     Appeal from the Court of Appeals for Montgomery County,
No. 13628.

     Mathias H. Heck, Jr., Montgomery County Prosecuting
Attorney, and Carley J. Ingram, Assistant Prosecuting Attorney,
for appellant.
     John H. Rion & Associates and John H. Rion, for appellee
Larry T. Carter, Jr.
     Gump & Associates and Dennis E. Gump, for appellee
Christopher R. Ross.
     Michael Miller, Franklin County Prosecuting Attorney, and
Joyce S. Anderson, Assistant Prosecuting Attorney, urging
reversal for amicus curiae, Ohio Prosecuting Attorneys
Association.
     Gold, Rotatori, Schwartz & Gibbons Co., L.P.A., and John
S. Pyle, urging affirmance for amicus curiae, Ohio Association
of Criminal Defense Lawyers.

     Per Curiam. The cause is before this court pursuant to
the allowance of a motion for leave to appeal.
     We adopt the February 4, 1993 decision of the court of
appeals, which decision is attached as an appendix to this
entry, and affirm the decision of the court of appeals for the
reasons stated therein.
                                               Judgment affirmed.
     Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.

                            APPENDIX

     Brogan, Judge.
     The state of Ohio appeals, pursuant to R.C. 2945.67(A) and
Crim.R. 12(J), from a pretrial order of the Common Pleas Court
of Montgomery County, Ohio, which suppressed evidence gained
from the search of an automobile and a residence.
     On March 3, 1992, appellees, Larry T. Carter and Chris R.
Ross, were indicted by the Montgomery County Grand Jury upon
two counts of aggravated trafficking in cocaine in violation of
R.C. 2925.03(A)(9). Pursuant to Crim.R. 12(J), the state has
certified that the suppression order has rendered the state's
proof so weak that any reasonable possibility of effective
prosecution has been destroyed.
     At the inception of the pretrial hearing the state
stipulated that the defendants had legal standing to object to
the search of the residence located at 2010 West Grand Avenue
in Dayton, Ohio.
     Ray McDonald testified that he loaned his 1987 Ford Bronco
to Larry Carter on February 17, 1992 so Carter could move, and
he assumed Ross was helping carter move, so he was permitted as
a passenger in McDonald's vehicle. McDonald said he placed no
restrictions on how Carter used his Bronco. He said he did not
give Carter or Ross his Bronco "to haul cocaine in it."
     Major Ronald Lowe testified he managed all uniform
personnel for the Dayton Police Department and had eighteen
years of experience as a police officer.
     On February 19, 1992, at 10:15 a.m., Lowe testified he was
in a unmarked cruiser travelling southbound on Philadelphia
Drive approaching West Riverview when he noticed McDonald's
white Bronco truck. Lowe said he vaguely remembered that he
had heard a police broadcast about one or two weeks previously
concerning a Bronco being involved in a drive-by shooting on
the west side of Dayton. He said he remembered that the
shooting allegedly took place twenty to twenty-five blocks from
his present location. He said he called the police dispatcher
to obtain more details while he followed the Bronco to obtain
its license number. He said he also asked the dispatcher if
there were other police crews in the area because he wanted to
stop the Bronco, but the dispatcher did not reply. He said
shortly thereafter he lost sight of the Bronco.
     A short time later Lowe said he spotted the Bronco parked
behind a garage in an alley behind Grand Avenue. Lowe said he
did not initially see anyone in the Bronco and he took up a
surveillance position and told the dispatcher of his
approximate location.
     Lowe said he then observed Larry Carter seated in the
driver's seat and he noticed Chris Ross standing by the corner
of a garage carrying some type of bundle in his arms. Lowe
said Ross switched the bundle from his left arm to his right
arm. Lowe said the bundle seemed heavy and was wrapped in
something gray. Lowe said he watched Ross get in the passenger
seat of the Bronco and Carter then drove the Bronco down the
alley and onto Everett.
     Lowe then advised the dispatcher that he had relocated the
Bronco and needed backup assistance. He said he followed the
Bronco and when he observed a uniformed cruiser he ordered that
crew to make a "felony stop" on the car. Lowe said a felony
stop occurs when a vehicle is stopped and the subjects are
ordered out of the vehicle at gunpoint.
     Lowe said he ordered the felony stop of the Bronco because
he did not know what was in the bundle that the passenger
carried into the Bronco and he could not tell if it was a
weapon.
     Lowe said that Officers Christine Bean and Raymond Martin
ordered Carter and Ross out of the Bronco at gunpoint. Lowe
said he approached the Bronco and looked in the open passenger
door for possible weapons. He said he noticed a bundle lying
on the front floorboard and it appeared to be the bundle he saw
Ross carrying into the Bronco. Lowe said he unwrapped the gray
bundle and found a small package wrapped in brown opague
paper. Lowe said he thought the package might contain
narcotics and so he secured the van and called for the evidence
and narcotics units. Carter and Ross were then placed in
separate police cruisers.
     Lowe said the package was field tested and determined to
be two pounds of cocain and he then ordered the police to
secure the residence at 2010 West Grand Avenue until a search
warrant could be obtained. The gray material Ross was carrying
was determined to be gray pants or jeans.
     Lowe admitted upon cross-examination that he did not
observe Carter or Ross violate any law. Lowe made the
following explanation:
     "[THE WITNESS:] At that particular time, I didn't feel as
a major and as a police officer that I needed to see him
violate any statute in that he was in a high drug area.
     "[MR. RION, attorney for defendants:] Objection, Your
Honor. Move it be stricken.
     "[MR. HECK, prosecuting attorney:] Let him finish,
Judge. I wish you would instruct counsel to let him finish his
answers.
     "[MR. RION:] Your Honor, he is loading the record and --
     "[MR. HECK:] He doesn't like what he was going to hear.
Let's let justice come out.
     "[THE COURT:] Continue your answer.
     "[THE WITNESS:] The Bronco was in a high drug activity
area. It was backed or pulled up against a garage in this high
crime area. I felt, and I feel all our officers should feel,
anything that suspicious, the vehicle will be stopped."
     On cross-examination, Lowe admitted he had no information
prior to February 19 concerning drug activity at 2010 West
Grand Avenue. He admitted he had not seen Ross enter or leave
any residence.
     Lowe further explained his reason for ordering the felony
stop of Carter and Ross:
     "[THE WITNESS:] I see another subject walking between a
fence and a garage out of a back yard with an arm of something
in the middle of the daytime, which is very suspicious to me,
and what I did, after he got in the car, I thought I had
probable cause to stop it.
     "[BY MR. RION:]
     "Q. Didn't you just testify under oath, sir, that the
broadcast gave no color about the type of Bronco that you had
heard a week or two before?
     "A. Sir, I just said I saw a Bronco sitting at the rear
of 2010 West Grand Avenue that fit the description of the one I
was just trying to check out. I wasn't going to stop the car
for the gun thing or whatever. My intention was to get the
license number on the Bronco, call in for backup in case some
type of violation would have occurred so that this Bronco could
have been stopped.
     "Q. Well, you clearly went beyond that when they arrested
them with guns drawn, didn't you?
     "A. After I saw him come out of the back yard with
something in his arms --
     "Q. With a handful of jeans.
     "A. It contained something else."
     Lowe testified that he ordered the officers to conduct a
felony stop on the car because he suspected that a breaking and
entering had occurred, because he noticed a subject carrying a
bundle from the rear of a residence with another subject in a
van parked at the rear of the residence. When asked what
evidence he had to support his conclusions that a breaking and
entering had occurred, Lowe answered:
     "[Lowe:] There was no evidence, counselor, of that
happening. That just happened to be a procedural type of
thing."
     Later that day Officer Chris Weber appeared before Dayton
Municipal Court Judge Daniel Gehres in order to obtain a search
warrant for 2010 West Grand Avenue in Dayton. Weber's
affidavit provided in pertinent part:
     "On Wednesday, February 19, 1992, at approximately 10:30
a.m. Major Lowe observed a white Ford Bronco, License HB 2283
driving up Everette Dr. Major Lowe recalled a broadcast last
week by the dispatcher. The dispatcher at the time advised a
light colored Bronco was involved in shooting guns in the area
of W. Third and James H. McGee. Major Lowe called for a crew
to stop the Bronco for F.I.C.'S in reference to the broadcast
by the dispatcher. Major Lowe lost the vehicle for a few
seconds and then observed it stopped at the rear of 2010 W.
Grand Ave. Major Lowe observed the driver, later identified as
Larry T. Carter seated in the truck. Major Lowe observed the
passenger, later identified as Chris R. Ross walking from the
rear of 2010 W. Grand and go to the Bronco, indicating the
driver was waiting for Ross to make a pick up or a delivery.
Major Lowe observed Ross carrying a pair of brown jeans bundled
up as if to hide something. Major Lowe noted that there was a
six foot fence surrounding the back yard. Det. Miller later
checked and found that there is no gate in the front, the fence
abuts the front of the house on both sides. The fact that the
yard was surrounded by a six foot fence made it unlikely that
Ross could of [sic] been in any other house. The Bronco pulled
off and Major Lowe gave directions to the responding crews.
     "The Bronco was stopped on Riverview at Philadelphia by
uniform crews. Uniform officers and Major Lowe approached the
passenger side and Ross was ordered out of the vehicle to check
for weapons. Both subjects were patted down for officer
safety. Major Lowe checked the brown jeans (now on the
floorboard) and found a package inside the jeans. The package
was approximately 6" by 6" and 2" thick, wrapped in tan tape.
Major Lowe believed the contents of the package to be drugs.
The driver advised he had the permission of the owner, Raymond
McDonald to drive the vehicle. Sgt. Weber later field tested
the contents of the package and it tested positive for
cocaine. Carter refused to give permission to search the
vehicle."
     The municipal judge issued a search warrant for 2010 West
Grand Avenue based on the preceding statement as well as
additional information. Police officers recovered thirty
pounds of cocaine and $146,550 as well as numerous guns in the
search.
     The defendants moved to suppress the evidence obtained
from the search of the Bronco and of the residence. In a
lengthy decision, the trial court found that Officer Lowe had
failed to articulate facts which would raise a reasonable
suspicion that either Carter or Ross had engaged in criminal
activity which would justify their being stopped by police
officers. Consequently, the trial court ordered that the
cocaine which was found in the Bronco was to be suppressed.
Additionally, the trial court found that the evidence seized at
2010 West Grand Avenue must be suppressed because the affidavit
for the search warrant contained tainted evidence found as a
result of the illegal stop. The court also found that the
good-faith exception to the exclusionary rule as announced by
the United States Supreme Court in United States v. Leon
(1984), 

, 

, 

, had no
application to the facts as presented to the court.
     In its first assignment the state of Ohio contends that
the trial court erred in finding that Carter and Ross possessed
standing to challenge the search and seizure of the evidence
found in the Bronco. The state contends that since the cocaine
was found in a vehicle belonging to Ray McDonald, Carter and
Ross lacked standing to object to the police officers' search
of McDonald's Bronco.
     In Jones v. United States (1960), 

, 

, 

, the United States Supreme Court held that
automatic standing applied to any person charged with an
offense in which possession is an essential element, and that
any person legitimately on the premises where a search takes
place could challenge the lawfulness of the search.
     Automatic standing was eliminated in Rakas v. Illinois
(1978), 

, 

, 

. In Rakas,
the defendants were passengers in an automobile that had been
lawfully stopped on reasonable suspicion but unlawfully
searched. The search uncovered a sawed-off rifle under the
passenger seat and a box of shells in a locked glove box, which
helped link the defendants to a robbery. The defendants never
asserted a property interest in the evidence but claimed
standing because of their lawful presence as passengers in the
vehicle.
     The issue before the court in Rakas was whether the Jones
test conferring standing on one "who is lawfully on the
premises" applied to automobiles. Justice Rehnquist noted that
the inquiry requires a determination of whether the disputed
search and seizure have infringed on an interest of the
defendant which the Fourth Amendment was designed to protect.
Justice Rehnquist contended the phrase "lawfully on the
premises" created too broad a gauge for measurement of Fourth
Amendment rights.
     The court noted that the defendants asserted neither a
property nor a possessory interest in the automobile, nor an
interest in the property seized, nor did they have a
"legitimate expectation of privacy" in the glove compartment or
the area under the seat of the car in which they were merely
passengers.
     The concurring opinion recognizes, as does the dissent,
that the Fourth Amendment also protects the security of the
person and this aspect of the amendment was not in issue in
Rakas because the defendants "do not challenge the
constitutionality of the police action in stopping the
automobile in which they were riding; nor do they complain of
being made to get out of the vehicle." Rakas, 

, 

, 

 (Powell, J.,
concurring). So the question before the Rakas court was a
narrow one: Did the search of their friends' automobile after
they left it violate any Fourth Amendment right of the
petitioners? Two thirds of the United States Supreme Court
(the two concurring justices and the four dissenters)
recognized that a passenger does have standing to object to
police conduct which intrudes upon his Fourth Amendment
protection against seizure of his person. If either the
stopping of the car or the passenger's removal from it is
unreasonable in a Fourth Amendment sense, then surely the
passenger has standing to object to those constitutional
violations and to have suppressed any evidence found in the car
which is their fruit. LeFave, Search and Seizure (1987)
323-327; United State v. Williams (C.A.5, 1979), 

;
People v. Bradi (1982), 

, 

;
State v. Epperson (1985), 

, 

; State v.
Carter (1985), 

, 28 OBR 101, 

.
     Both passengers and the driver have standing regarding the
legality of a stopping because when the vehicle is stopped,
they are equally seized, and their freedom of movement is
equally affected. State v. Eis (Iowa 1984), 

;
State v. DeMasi, (R.I. 1980), 

, vacated on other
grounds (1981), 

, 

, 

.
Additionally, the driver of an automobile who demonstrates that
he has the owner's permission to use the vehicle has a
reasonable expectation of privacy in the vehicle and standing
to challenge its stop and search. United States v.
Rubio-Rivera (C.A.10, 1990), 

. The
appellant's first assignment is overruled.
     In its second assignment the state contends that the trial
court erred in finding that the officer's observations of
Carter and Ross and their vehicle and the reasonable inferences
from these observations did not warrant an investigatory stop
under Terry v. Ohio (1968), 

, 

, 

.
     "The Fourth Amendment provides that 'the right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated ….' This inestimable right of personal security
belongs as much to the citizen on the streets of our cities as
to the homeowner closeted in his study to dispose of his secret
affairs." 

, 

, 

.
     In Terry, the United States Supreme Court addressed for
the first time the constitutionality of the practice of police
officers stopping and frisking suspicious persons.
     In that case the state of Ohio argued that in dealing with
the rapidly unfolding and often dangerous situations on city
streets the police are in need of an escalating set of flexible
responses, graduated in relation to the amount of information
they possess. The state argued that the police should be
allowed to stop a person and detain him briefly for questioning
upon suspicion he may be connected with criminal activity.
     The United States Supreme Court in Terry rejected the
notion that the police conduct involved in a stop and frisk was
outside the purview of the Fourth Amendment because neither
action rises to the level of a search or a seizure. The court
emphatically rejected that notion and held that whenever a
police officer accosts an individual and restrains his freedom
to walk away, he has seized that person. The court also noted
that a frisk is not a petty indignity but a serious intrusion
upon the sanctity of the person.
     In Terry, the court held that where an officer observes
unusual conduct which leads him to conclude in light of his
experience that criminal activity may be afoot and that the
persons which whom he is dealing may be armed and dangerous,
and where nothing in the initial stages of the encounter serves
to dispel his reasonable fear for his own or others' safety, he
is entitled for the protection of himself and others in the
area to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons
which might be used to assault him. Chief Justice Warren
further elaborated:
     "… And in justifying the particular intrusion the police
officer must be able to point to specific and articulable facts
which, taken together with rational inferences from those
facts, reasonably warrant that intrusion. The scheme of the
Fourth Amendment becomes meaningful only when it is assured
that at some point the conduct of those charged with enforcing
the laws can be subjected to the more detached, neutral
scrutiny of a judge who must evaluate the reasonableness of a
particular search or seizure in light of the particular
circumstances. And in making that assessment it is imperative
that the facts be judged against an objective standard: would
the facts available to the officer at the moment of the seizure
or the search 'warrant a man of reasonable caution in the
belief' that the action taken was appropriate? Cf. Carroll v.
Unites States 

 [

, 

],
(1925); Beck v. Ohio, 

 [

, 

], (1964). Anything less would invite intrusions
upon constitutionally guaranteed rights based on nothing more
substantial than inarticulate hunches, a result this Court has
consistently refused to sanction. See, e.g., Beck v. Ohio,
supra; Rios v. United States, 

 [

, 

] (1960); Henry v. United States, 

 [

, 

] (1959). And simple '"good faith on
the part of the arresting officer is not enough." … If
subjective good faith alone were the test, the protections of
the Fourth Amendment would evaporate, and the people would be
"secure in their persons, houses, papers and effects," only in
the discretion of the police.' Beck v. Ohio, supra, at 97 [

, 

]." (Emphasis added; footnotes
omitted.) 

, 

, 

.
     The propriety of an investigative stop by a police officer
must be viewed in light of the totality of the surrounding
circumstances. State v. Freeman (1980), 

, 

, 

. Furthermore, these circumstances
are to be viewed through the eyes of the reasonable and prudent
police officer on the scene who must react to events as they
unfold. A court reviewing the officer's actions must give due
weight to his training and view the evidence as it would be
understood by those in law enforcement. United States v.
Cortez (1981), 

, 

, 

;
State v. Andrews (1991), 

, 

.
     Although the investigative stop took place in a high crime
area, that factor alone is not sufficient to justify an
investigative stop. Brown v. Texas (1979), 

, 

, 

 (being "in a
neighborhood frequented by drug users, standing alone, is not a
basis for concluding that appellant himself was engaged in
criminal conduct"). To hold otherwise would result in the
wholesale loss of the personal liberty of those with the
misfortune of living in high crime areas.
     Major Lowe's articulated reason for ordering Officers Bean
and Martin to engage in a felony stop of the Bronco was that he
suspected that Carter and Ross were involved in a breaking and
entering. When asked to justify that conclusion Lowe
responded: "There was no evidence, counselor, of that
happening. That just happened to be a procedural type of
thing."
     The trial court appropriately found that the facts
available to Major Lowe at the moment of the seizure of Carter
and Ross would not warrant a man of reasonable caution in the
belief that the action taken by him was appropriate.
     Lowe stated the evidence that supported his suspicion that
a breaking and entering had occurred was "the bundle, time of
day and area of the occurrence." Lowe observed Ross apparently
leave a residence at 11:00 a.m. in the morning carrying a
bundle and enter a vehicle and drive away with a waiting
companion. There was no evidence of a reported burglary. Ross
was not observed running away from the residence. He entered a
vehicle which proceeded in a normal fashion from the
residence. Lowe knew nothing about Carter or Ross at that
time. In short, Major Lowe was unable to point to specific
articulable facts that would lead a reasonable person to
believe a breaking and entering had been committed by Carter
and Ross. An officer's inarticulate hunch will not provide a
sufficient basis for an investigative stop. The appellant's
second assignment is also overruled.
     In its last assignment, the state contends that the trial
court erred in suppressing the evidence seized from 2010 West
Grand Avenue pursuant to a search warrant because the
good-faith exception to the exclusionary rule applies to this
search.
     The state argues that even if the stop of the Bronco was
unlawful, the evidence seized as a result of the search warrant
for 2010 West Grand Avenue should not be suppressed because the
officers executing that warrant relied in good faith on the
validity of the search warrant, citing United State v. Leon
(1984), 

, 

, 

.
     In 

 the United States Supreme Court held that
the Fourth Amendment exclusionary rule should not be applied so
as to bar the use, in the prosecution's case in chief, of
evidence obtained by an officer's acting in reasonable reliance
on a search warrant issued by a detached and neutral magistrate
but ultimately found to be invalid.
     The court in Leon held that the exclusionary rule is
designed to deter police misconduct rather than to punish the
errors of judges and magistrates. The court further held that
even assuming that the exclusionary rule effectively deters
some police misconduct and provides incentives for the law
enforcement profession as a whole to conduct itself in accord
with the Fourth Amendment, it cannot be expected, and should
not be applied, to deter objectively reasonable law enforcement
activity. Also, a police officer's reliance on the
magistrate's probable cause determination must be objectively
reasonable.
     In Leon, police officers provided the magistrate with
extensive facts relating to an intensive narcotics
investigation. The police officer's application was even
reviewed by a deputy district attorney. A facially valid
search warrant was issued by a magistrate, but the trial court
judge granted the defendant's motion to suppress, finding that
the affidavit lacked sufficient probable cause. A divided
court of appeals affirmed the trial court's determination.
Under these circumstances, Justice White concluded in Leon that
the officer's reliance on the magistrate's determination of
probable cause was objectively reasonable, and application of
the extreme sanction of exclusion was inappropriate.
     The trial court in the present case found that the
exclusionary rule reaches not only primary evidence obtained as
a result of an unlawful search or seizure, but also the
derivative evidence which is the indirect product of unlawful
police conduct, citing Segura v. United States (1984), 

, 

, 

. The court found that
without the tainted evidence, i.e., the cocaine found as a
result of the illegal stop of the Bronco, the search warrant
would not have been obtained for the residential search.
     The exclusionary rule reaches not only primary evidence
obtained as a direct result of an illegal search or seizure,
but also evidence later discovered and found to be derivative
of an illegality, or "fruit of the poisonous tree." Nardone v.
United States (1939), 

, 

, 

. The reason for the rule is the concern that if derivative
evidence were not suppressed, police would have an incentive to
violate constitutional rights in order to secure admissible
derivative evidence even though the primary evidence secured as
a result of the constitutional violation would be
inadmissible. See Katz, Ohio Arrest, Search and Seizure (3 Ed.
1992), Section 2.07. Justice Frankfurter explained in Nardone,
"To forbid the direct use of methods thus characterized but to
put no curb on their full indirect use would only invite the
very methods deemed 'inconsistent with ethical standards and
destructive of personal liberty.'" 

, 60
S.Ct. at 267, 84 L.Ed. at 311.
     The exclusionary rule does not apply, however, if the
connection between the illegal police conduct and the discovery
and seizure of the evidence is so attenuated as to dissipate
the taint, as where the police have an independent source for
discovery of the evidence. Silverthorne Lumber Co., Inc. v.
United States (1920), 

, 

, 

.
     In Segura v. United States, police officers observed
Segura sell cocaine to two individuals. These individuals were
followed and arrested. The police were then instructed to
secure Segura's apartment while a search warrant could be
obtained for it. Later that day Segura was arrested and police
entered his apartment without his permission. Later the search
warrant was obtained and a search of the apartment revealed
cocaine and drug transaction records.
     The Supreme Court found beyond dispute that the
information possessed by the agents before they entered the
apartment constituted an independent source for the discovery
and the seizure of the cocaine and drug records. The court
held that the information on which the warrant was secured came
from sources wholly unconnected with the initial entry into the
apartment and was known to the agents well before the entry.
The court thus held the exclusion of the evidence was not
warranted as "fruit of the poisonous tree."
     Segura and Leon were decided by the United States Supreme
Court on the same day. Although Leon does not directly
confront the issue of whether evidence should be suppressed
when the only information in the affidavit for the search
warrant that could have provided probable cause was illegally
obtained, the decision in Segura implies that such an unpurged
illegality irreparably taints the search warrant when evidence
is illegally obtained, and thus the specific deterrance
rationale upheld by Leon dictates that suppression be granted.
     In Murray v. United States (1988), 

, 

, 

, the United States Supreme Court held
that evidence observed by police during an illegal entry need
not be excluded if the evidence is later discovered during the
execution of a valid search warrant issued on information
wholly unconnected to the prior entry. The court said the
government must establish that (1) no information presented in
the affidavit for the warrant was seen during the initial
entry, and (2) the agents' decision to seek the warrant was not
prompted by what they had seen during the initial entry.
     The good-faith exception does not apply where a search
warrant is issued on the basis of evidence obtained as a result
of an illegal search. United States v. Vasey (C.A.9, 1987),

; United States v. Wanless (C.A.9, 1989), 

; United States v. Scales (C.A.10, 1990), 

.
     It is important to note that the Supreme Court in Leon was
willing to provide a good-faith exception to the exclusionary
rule where the police officer heeds the command of the Fourth
Amendment and seeks the approval of a detached magistrate
before conducting a search. In Leon, the police officers had
not violated the Fourth Amendment in attempting to acquire the
needed probable cause necessary for the proper issuance of the
search warrant. See United States v. Broadhurst (D.C. Cal.
1985), 

.
     We agree with the trial court that the municipal court
judge would not have issued the search warrant for 2010 West
Grand Avenue had he not been provided the evidence of the
cocaine found in the Bronco as a result of a violation of the
Fourth Amendment rights of Carter and Ross. Accordingly,
evidence gained in the execution of the search warrant of 2010
West Grand Avenue must likewise be suppressed. The third
assignment of error is accordingly overruled.
     In 1914 the United States Supreme Court adopted the
exclusionary rule in Weeks v. United States (1914), 

, 

, 

, holding that evidence obtained
in violation of an accused's Fourth Amendment rights could not
be used in a federal criminal prosecution against him. The
Supreme Court refused to sanction in federal courts "a manifest
neglect if not an open defiance of the prohibitions of the
Constitution." 

, 

, 

.
The court noted that while efforts to bring the guilty to
punishment are praiseworthy, those efforts "are not to be aided
by the sacrifice of those great principles established by years
of endeavor and suffering which have resulted in their
embodiment in the fundamental law of the land." 

, 

, 

.
     It was not until 1961 that the Supreme Court extended the
exclusionary rule for Fourth Amendment violations to state
criminal proceedings. Mapp v. Ohio (1961), 

, 

, 

. The court said that failure to
apply the exclusionary rule would make the right of privacy
meaningless and amounted to a withholding of its privilege and
enjoyment. Justice Clark wrote in 

, 

, 

:
     "The ignoble shortcut to conviction left open to the State
tends to destroy the entire system of constitutional restraints
on which the liberties of the people rest. Having once
recognized that the right to privacy embodied in the Fourth
Amendment is enforceable against the States, and that the right
to be secure against rude invasions of privacy by state
officers is, therefore, constitutional in origin, we can no
longer permit that right to remain an empty promise. Because
it is enforceable in the same manner and to like effect as
other basic rights secured by the Due Process Clause, we can no
longer permit it to be revocable at the whim of any police
officer who, in the name of law enforcement itself, chooses to
suspend its enjoyment. Our decision, founded on reason and
truth, gives to the individual no more than that which the
Constitution guarantees him, to the police officer no less than
that to which honest law enforcement is entitled, and, to the
courts, that judicial integrity so necessary in the true
administration of justice."
     One commentator has noted:
     "The critics [of the exclusionary rule] forget that
neither the rule nor the fourth amendment exists to protect the
criminal in whose case the rule is applied. Both exist to
protect society -- all those citizens who never break laws more
serious than those prohibiting overtime parking. … Narrowly
viewed, the exclusionary rule is very unattractive, because in
the vast majority of cases in which it is applied the immediate
result is to free an obviously guilty person. But the guilty
defendant is freed to protect the rest of us from unlawful
police invasions of our security and to maintain the integrity
of our institutions. Thus to suggest that the exclusionary
rule fails to aid the innocent or that society rather than the
policeman suffers for the policeman's transgression is
nonsense. The innocent and society are the principal
beneficiaries of the exclusionary rule." Dworkin, Fact Style
Adjudication and the Fourth Amendment: The Limits of Lawyering
(1973), 

, 330-331.
     The judgment of the trial court is affirmed.
                                              Judgment affirmed.
     Grady, P.J., and Wolff, J., concur.