¶1dissenting.
¶2Merna Kann appeals her conviction in two cases for possession of marijuana and codeine urging that the only evidence of her guilt should have been suppressed because it was obtained in violation of her Fourth Amendment right to privacy. I would reject Kann’s complaint of error and affirm.
¶3The record reflects that officers executing a search warrant of Kann’s townhouse found 46 growing marijuana plants in a fenced back yard, marijuana joints in Kann’s purse, and loose marijuana leaves and seeds on a coffee table. The search warrant was issued by a magistrate in reliance upon an affidavit of an Officer Acord of the Richardson police substantially stating that she received a telephone call with the caller identifying himself as Officer Myers of the Irving Police; that an informant had told him (Myers) that a woman named Merna was growing marijuana in the back yard of a house on Towne House Lane in Richardson; that she (Acord) had found a Merna Kann subscribing to city water service at 601 Towne House Lane.
¶4At the subsequent suppression hearing it was further developed that she (Acord) had driven to the street location and had found that No. 601 was one of a block-long series of two-story town houses each with an open front yard, no side yard, a fenced back yard, and outside of the fence, a block-long continuously built series of carport spaces entered from an alley; and that she (Acord) had walked the depth of the carport and peeked through a natural space in the fence of No. 601 and had seen growing marijuana plants which she recognized from her prior training. On the basis of the evidence found when the warrant was executed, Kann was convicted.
¶5Kann argues that she had a “constitutionally protected reasonable expectation of privacy” in her fenced back yard which society, and its law enforcement officers, were bound to accept as “justifiable”, as in Oliver v. United States, — U.S. —, 104 S.Ct. 1735, 1740, 80 L.Ed.2d 214 (1984), and that her motion to suppress should have been sustained. The State responds that the magistrate’s warrant for the search of Kann’s premises renders the search reasonable, rather than unreasonable, in keeping with the Fourth Amendment. The State further argues that, whether or not it is subsequently determined that the officer may have “unreasonably” peeked through Kann’s fence in order to make her affidavit to the magistrate, the exclusionary rule urged by Kann is inapplicable to evidence discovered in the execution of the magistrate’s warrant. I would agree with the State.
¶6The history of the exclusionary rule urged here by Kann is recited in United States v. Leon, — U.S. —, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). As Leonmakes clear, the rule was formulated and imposed by the Court, not the Constitution, 104 S.Ct. at 3412; the Court’s prior opinions erroneously implied that the rule was a necessary corollary to the Fourth Amendment or that the rule was required by the conjunction of the Fourth and Fifth Amendments, Id. at 3412; the rule was designed to operate through its deterrent *163effect upon law enforcement officers but creates no personal constitutional right in the person aggrieved, Id. at 3412; the rule is not to be applied on a per se or but for basis but only where the deterrent effect is more desirable than the truth-finding function of the judge and jury, Id. at 3413. Leondirects that the rule is to be applied by balancing the “social costs” between the transgressions of law enforcement officers unpunished and a guilty defendant unpunished. Id. at 3413. Leonperceives that the Court’s prior opinions have already directed that the rule is not to be applied where “the connection between police misconduct and evidence of the crime may be sufficiently attenuated ... that the deterrent effect of the exclusionary rule no longer justifies its cost.” Id. at 3415.
¶7The issue addressed in Leonwas whether the rule should be applied to exclude evidence of guilt discovered under a search warrant duly issued by a magistrate, but which search warrant was subsequently held to be invalid. Leonreasons that the rule was to be applied to officers, not magistrates, as a deterrent, Id. at 3417; but that the deference given the magistrate’s warrant was not “boundless,” Id. at 3417; and that the rule might yet be applied if (1) the affidavit upon which the magistrate acted was knowingly or recklessly false, (2) the magistrate did not perform his “neutral and detached function” but served “merely as a rubber stamp for the police”; or (3) there was the absence of any substantial basis for determining the existence of probable cause. Id. at 3417.
¶8Leonholds:
We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion. We do not suggest, however, that exclusion is always inappropriate in cases where an officer has obtained a warrant and abid-ed by its terms. “[Sjearches pursuant to a warrant will rarely require any deep inquiry into reasonableness,” Illinois v. Gates, 462 U.S. [213], at 267, 103 S.Ct. [2317], at 2347 [76 L.Ed.2d 527] (WHITE, J., concurring in the judgment), for “a warrant issued by a magistrate normally suffices to establish” that a law enforcement officer has “acted in good faith in conducting the search.” United States v. Ross, 456 U.S. 798, 823, n. 32, 102 S.Ct. 2157, 2172, n. 32, 72 L.Ed.2d 572 (1982). Nevertheless, the officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, cf. Harlow v. Fitzgerald, 457 U.S. 800, 815-819, 102 S.Ct. 2727, 2737-2739, 73 L.Ed.2d 396 (1982), and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.
Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); in such circumstances, no reasonably well-trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Brown v. Illinois, 422 U.S. [590], at 610-611, 95 S.Ct. [2254] at 2265-2266 [45 L.Ed.2d 416] (POWELL, J., concurring in part); see Illinois v. Gates, supra, 462 U.S., at 264, 103 S.Ct., at 2344 (WHITE, J., concurring in the judgment). Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient, i.e., in failing to particularize the place to be searched or the *164things to be seized that the executing officers cannot reasonably presume it to be valid. Cf. Massachusetts v. Sheppard, — U.S. [-], at-, 104 S.Ct. [3424], at 3427 [82 L.Ed.2d 737]. [Footnotes omitted].
¶10The evidence before us reflects that the officer’s affidavit which was put before the magistrate reflected fully and accurately all the information obtained. Whether the informants’ information alone supported probable cause for the search warrant, or whether the officer’s investigation, alone or in conjunction with the informants’ information supported probable cause, were issues put squarely to the magistrate’s decision. There is nothing in our record to indicate that the magistrate abandoned his judicial role in determining the existence of probable cause to issue his warrant. There is nothing in the record that would occasion a reasonably well-trained officer, in good faith, to believe that the magistrate’s decision to issue the warrant was unsupported. I find no reason to apply here the exclusionary rule and suppress evidence of the guilt of Kann discovered by the officer in obedience to the order of the magistrate.
¶11Kann argues that, upon reflection, the information of an unknown informant, relayed through an unconfirmed member of the Irving Police to a Richardson policeman, cannot be said to provide “probable cause” justifying the search warrant. For the sake of argument, I agree. Kann further argues that, upon reflection, the officer’s trespass into someone’s carport and peeking through someone’s fence was an invasion of Kann’s reasonable expectation of privacy, which claimed privacy was one that society would deem justified, and that the evidence thus secured should have been disregarded by the magistrate in determining whether to issue the search warrant. For the sake of argument, I agree. Nevertheless, absent allegation and proof, which is absent in this record, Leondoes not permit this eourt, or counsel, to speculate on these arguments abstractly. Leonspecifically holds that:
In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.
¶12Leon, 104 S.Ct. at 3423. Kann did not urge in her motion, or elicit evidence to support, any of the Leonexceptions to nonapplication of the exclusionary rule to evidence discovered by execution of a search warrant. See Adams v. State, 683 S.W.2d 525, 530 (Tex.App. — Dallas 1984, no writ).
¶13I would hold that the trial court was justified by the holdings in Leonand Adamsto determine that the deterrent effect of the exclusionary rule’s application here was outweighed by the needs of the truth-finding functions of the judge and jury.