Q. And during your 17 years of swearing in criminal complaints with requests for arrest warrants, did you know what probable cause was?

A. No.

Q. Had you ever made a probable cause determination?

A. No.

* * *

Q. Did any of [your] training include making a probable cause determination?

A. No, it did not.

Pretty astonishing, given that the text of the Fourth Amendment says, “no warrants shall issue, but upon probable cause.”

In the new decision, the Supreme Court of Ohio recognizes the flagrant constitutional violation but concludes that the evidence in this case should not be suppressed because of the good-faith exception. An intermediate state case, State v. Overton, had involved a similar warrant, and the Overton court had held in a one-paragraph summary that the warrant had established probable cause. The Ohio Supreme Court concludes in Hoffman that Overton was binding appellate precedent under Davis at the time the warrant was issued in Hoffman, essentially trumping the text of the Fourth Amendment for purposes of the exclusionary rule.

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I find Hoffman puzzling in two ways. First, I think the scope of the exclusionary rule for a defective warrant is set by United States v. Leon, 468 U.S. 897 (1984), not Davis. Leon lays out the standards for when the good faith exception applies to defective warrants, and it clearly does not apply here: Leon says that the good faith exception only applies if “[s]ufficient information [was] presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” This case involves exactly that mere ratification that Leon says won’t suffice. Given the clarity of Leon on this point, coming straight from the U.S. Supreme Court, it seems strange to me to apply Davis instead based on the conclusory decision in Overton.