¶1Dissent.
¶21 I see absolutely no reason-legal, moral, practical, or otherwise-to apply the exclusionary rule's harsh sanction to the facts of this case, for there is no overreaching police conduct to deter. Therefore, I dissent to the Court's opinion and its narrow reading of 22 0.8.2001, § 1222.
¶3T2 Time after time, this Court has instructed police officers who are actively investigating crimes and seeking to conduct a search in that regard to first "obtain your warrants." The policy reason, of course, is that warrantless searches are to be the exception not the rule. Our statutes strongly encourage the participation of a neutral magistrate, detached from the underlying investigation and applying an objective eye to the facts and law involved. This protects all parties involved.
¶413 On this occasion, however, the authorities followed our advice and obtained not one warrant, but two. Through the use of good police work, drugs that were in the process of being illegally distributed from one person to another through a private mail delivery service were intercepted while in transit. After a drug dog hit on a suspicious package, authorities obtained a warrant to open the package.
¶5T4 At this point, officers had probable cause to search the place where these illegal drugs were scheduled to be delivered, i.e., Appellant's residence. See eg., United States v. Walker, 324 F.3d 1032, 1038 (8th Cir.2003)(finding an anticipatory warrant of a residence issued under similar cireumstances was supported by probable cause). Exercising extreme caution, they obtained another warrant and prepared to serve the warrant at a time when they knew beyond a shadow of a doubt that drugs would be located on the premises. This was extraordinary. See United States v. Limares, 269 F.3d 794, 799 (7th Cir.2001)(finding issuance of an anticipatory warrant at a private residence under similar circumstances was the "model of good, even over-cautious, police work" and that "suppressing the evidence found by these agents would be a travesty.")
¶6€5 So now we will punish those same officers for their good work by dismissing the case and allowing another drug trafficker back on the street. And we do this by taking an unconvincing position on the law, a position that is both ill-advised and not required under the statutory language. In other words, the Court is, for some inexplicable reason, straining a gnat's hair to reverse this case.
¶7T 6 Under paragraph two of section 1222, a search warrant may issue and property seized when that property "was used as the means of committing a felony, in which case it may be taken on the warrant from any house or other place in which it is concealed, or from the possession of the person by whom it was used in the commission of the offense, or of any other person in whose possession it may be." It takes no legal gymnastics to find this section may be used to support the warrants issued here. Likewise, the fourth paragraph may be used as the "property" here, the mailed package of drugs, "constitutes evidence that an offense was committed or that a particular person participated in the commission of an offense."
¶817 Even if we were to accept the hyper-technical and parsed legal position in the Court's opinion, the inevitable discovery rule would be applicable. See Limares, 269 F.3d at 799. Officers could have had the magistrate ready to issue the warrant once the drugs were on the property and then executed it minutes later. However, the problem with that scenario is that drugs are too often easily destroyed, i.e. flushing down the toilet, and time, as well as stealth, is of the essence. That is why this case is evidence of nothing more than good, professional police work and that type of professionalism should be commended, not condemned. In addition, for once the Federal Courts have been more reasonable in their application of the exclusionary rule than the draconian action taken by the Court in this case. In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the United States Supreme Court held the Fourth Amendment exclusionary rule does not ban evidence obtained by officers acting in reasonable reliance on a search warrant issued by a neutral magistrate, but later found to be invalid for lack of probable cause. In this case, there was not only probable cause, but good faith by the officers that they were, in fact, following the law. This Court should exercise the same type of practical, common sense shown by the United States Supreme Court and definitely not exclude the evidence obtained by the execution of the warrants.
¶9. It is interesting to note that a drug dog hit on a suspicious vehicle in transit would suffice for probable cause to conduct a search of the vehicle.