Fourth Amendment:
A. Reasonable Expectation of Privacy
B. Reasonable Suspicion/Vehicle Stops
C. Warrant Exceptions
D.Consent Searches and Seizures
E. Search Warrants
F. Arrest Related Issues
G. Miscellaneous Fourth Amendment
Search Warrants
Supreme Court Decisions
• Search Warrant - Detention of Occupants
Muehler v. Mena, 03-1423 (3/22/05)
> Mena was an occupant of a home that was the subject of a search
warrant for evidence of a drive-by shooting, including deadly weapons
and evidence of gang membership. During the 2-3 hour execution of the
search, Mena was detained in handcuffs in a converted garage. While
being detained, Mena was questioned about her immigration status. After
the search was concluded, Mena was released and never charged with any
crime. Mena then sued pursuant to 42 U.S.C. § 1983 for a violation
of her Fourth Amendment rights based upon an unlawful detention. The
jury and the Ninth Circuit ruled in Mena’s favor.
* Relying on Michigan v. Summers, the Court held that officers may
detain persons found on the premises during the execution of a lawful
search warrant. The Court ruled that Mena’s detention in the
garage in handcuffs was neither unreasonable in its scope nor its
duration in light of the serious nature of the crime being investigated
and the potential danger to the officers. Further, the Court held that
questioning Mena about her immigration status was not a Fourth
Amendment violation because she was lawfully detained at the time, and
mere police questioning does not constitute a further seizure. Under
the circumstances, the officers did not need reasonable suspicion to
ask about immigration status. Accordingly, the Ninth Circuit decision
was reversed.
• Search Warrants - Anticipatory Warrants
U.S. v. Grubbs, 04-1414 (3/21/06)
> Defendant ordered child porn on-line from a site that was actually
run by law enforcement. The government then obtained an anticipatory
warrant, requesting to enter and search defendant’s home only if
someone at his residence accepted delivery of the child porn package.
Defendant’s wife accepted delivery of the package and the
government executed the search warrant, seizing the child porn and
other evidence. Defendant was charged in a child porn case and moved to
suppress the evidence. The district court denied the motion, defendant
appealed, and the Supreme Court ultimately granted certiorari.
* Holding: Anticipatory warrants are constitutionally permissible if
two requirements are met. First, the government must establish probable
cause to believe that contraband or evidence will be found at the place
to be search if the triggering condition occurs. Second, the government
must demonstrate probable cause to believe that the triggering
condition will occur. The Court held that the government had met both
of these requirements, and found that the anticipatory warrant was
proper.
• Search Warrants - Particularity
U.S. v. Grubbs, 04-1414 (3/21/06)
> The government obtained an anticipatory warrant to search
defendant’s home. The triggering condition to execution of the
warrant was that someone at defendant’s residence accept delivery
of a package containing child pornography. The triggering condition was
not listed on the face of the warrant, nor was it incorporated by
reference. The triggering condition was instead listed in a supporting
affidavit. Defendant challenged the validity of the warrant in the
district court and the court denied defendant’s motion. Defendant
appealed, and the Supreme Court ultimately granted certiorari.
* Holding: The Court held that the particularity requirement of the
Fourth Amendment does not require that a triggering condition to an
anticipatory warrant be listed, or incorporated by reference, into the
face of the warrant. The face of the warrant need only describe, with
particularity, the place to be searched and the persons or things to be
seized. The Court also noted that a warrant need not be presented to
the property owner at the time of the search. Accordingly, the district
court ruling upholding the warrant was affirmed.
• Search Warrant-Knock and Announce
Hudson v. Michigan, 04-1360 (6/15/06)
> Officers obtained a warrant to search defendant’s home for
narcotics and guns. The officers failed to sufficiently knock and
announce their presence prior to entering defendant’s home to
execute the warrant. The state court in Michigan held that, although
the knock-and-announce rule had been violated, exclusion of the
evidence seized was not required. Defendant was convicted, lost his
appeals in the state courts, and certiorari was granted in the Supreme
Court.
* Holding: The Court held that suppression of evidence is not an
appropriate remedy for a violation of the knock-and-announce rule. A
defendant’s only remedy in such a situation is a civil law suit.
Thus, defendant’s conviction was affirmed.
• Search Warrant - Execution
Los Angeles Co. v. Rettelle, 06-605 (5/21/07)
> Officers obtained a warrant to search the home of three black
suspects wanted for an identity theft ring. One of the suspects was the
registered owner of a firearm. The search warrant affidavit cited
various sources to show that the suspects lived at the residence,
including BMV reports, mailing address listings, an outstanding
warrant, and an internet telephone directory. What the officers did not
know was that the home had been sold three months prior to Rettelle,
who lived there with his wife and 17 year old son, all of whom were
white. Officers arrived to execute the search warrant and the 17 year
old son answered the door. The officers ordered the son to lie on the
floor, and went into Rettelle’s bedroom, getting he and his wife
out of bed. After a few minutes, officers allowed them to get dressed,
and then subsequently realized that they had made a big mistake. The
officers apologized and left, the whole incident taking approximately
15 minutes. Rettelle and his family subsequently sued the county under
42 USC § 1983 claiming a violation of their Fourth Amendment
rights. Rettelle did not challenge the search warrant, but only that
its execution was unreasonable. The district court awarded summary
judgment to the county, and the Ninth Circuit reversed, finding that
the execution of the warrant was unreasonable. The Supreme Court
granted certiorari.
* Holding: In executing a valid warrant, officers may take reasonable
steps to secure the premises and to ensure the officers’ safety
and the efficacy of the search. In the case, the Court found that the
officers’ actions in briefly detaining Rettelle and his family
were reasonable given that the officers had a legitimate safety concern
because they knew that one of the suspects owned a firearm.
Accordingly, the Court held that the execution of the warrant was
reasonable and reversed the Ninth Circuit ruling.
Sixth Circuit Decisions
• Search Warrant - Particularity
Knott v. Sullivan, 04-3045 (8/9/05)
> Knott’s son was being investigated in a double murder, and the police obtained a search warrant to search a car that belonged to Knott’s family. The search warrant, however, mistakenly described a completely different vehicle. The police nonetheless seized and searched the correct vehicle, but did substantial damage to the vehicle in the process. Knott subsequently sued the police, under § 1983, for an unlawful seizure and search of the vehicle without a proper warrant. The district court granted summary judgment to the police, and Knott appealed.
* Holding: In order for a warrant to meet the particularity requirement, it must describe the place to be searched with sufficient particularity to allow the police to identify the premises with reasonable effort, and to avoid any reasonable probability that the wrong premises will be mistakenly searched. In the case, the court found that virtually every descriptor of the vehicle was incorrect, and in fact, the warrant actually described a different car owned by Knott’s family. The court held that reliance on the warrant was objectively unreasonable, and that the warrant was not saved by the fact that one of the officers executing the warrant was the one who had obtained the warrant. Accordingly, the summary judgment was reversed.
• Search Warrant - Particularity
U.S. v. Tran, 04-1801 (1/5/06)
> Defendant’s place of business was searched for evidence of arson. The search warrant listed the wrong street address for defendant’s business, but otherwise described the name of the business and the details of the building accurately. After the warrant was issued by the judge, the police officer corrected the address on the warrant. Defendant moved to suppress the evidence seized based upon the defect in the warrant and the district court denied the motion. Defendant appealed.
* Holding: A search warrant is sufficient with regard to description of place if it (1) describes the location with sufficient particularity as to enable the officers to locate and identify the premises with reasonable effort, and (2) there is no reasonable probability that the wrong place will be mistakenly searched. The court held that, because the business was otherwise correctly identified, the mixing up of one number on the address did not invalidate the warrant. Further, the court held that, although it was improper for the officer to alter the warrant after issuance by the judge, the alteration did not invalidate the warrant because there was no “bad faith, deception, or prejudice as a result.” Accordingly, the district court ruling was affirmed.
• Search Warrant - Particularity
U.S. v. Abboud, 04-3942 (2/17/06)
> The government obtained a warrant to search defendant’s business. On its face, the warrant requested to search for property that constituted evidence of bank fraud, in violation of 18 U.S.C. § 1344. The affidavit attached to the warrant listed additional crimes including numerous tax and money laundering offenses. The warrant specifically incorporated the affidavit only for purposes of a description of probable cause, but did not incorporate the affidavit for purposes of the additional offenses. On appeal, defendant challenged the validity of the warrant.
* Holding: The court held that an applicant for a warrant must either list the violations of law for which the warrant is requested on the face of the warrant, or, if incorporating an affidavit, the applicant must make clear with the incorporation clause that the affidavit contains the relevant violations. Thus, the court ruled that the warrant only authorized the seizure of records relevant to bank fraud, not the seizure of any other documents.
• Search Warrant - Particularity
Baranski v. 15 Agents, 03-5582 (7/13/06)
> Baranski’s warehouse was searched based upon an ATF search warrant seeking to locate 425 illegal machine guns. The warrant itself did not specifically list the items to be seized (the 425 machine guns) but insead referenced the affidavit and incorporated it by reference. The affidavit, however, was sealed by the issuing magistrate, and was not presented to the warehouse manager with the warrant at the time of the execution of the search. After Baranski’s conviction and loss on appeal, he filed an action pursuant to 42 USC § 1983 against the ATF agents involved in the execution of the search warrant based upon a violation of his Fourth Amendment rights. The district court found no Fourth Amendment violation, but the Sixth Circuit reversed on appeal finding the warrant invalid because the sealed affidavit (containing the description of the items to be seized) did not accompany the warrant upon execution. (See P.V., Issue #1). The Sixth Circuit granted rehearing en banc.
* Holding: Reversing the decision of the original panel, the en banc court held that the Fourth Amendment does not require a per se rule that an affidavit must accompany a warrant upon execution of the search. If a warrant is valid upon its issuance, then the Warrant Clause of the Fourth Amendment is satisfied. The only remaining question is whether the execution of the warrant is reasonable. In this regard, the court found that, although the affidavit describing the items to be seized did not accompany the warrant, the agents told the warehouse manager orally what was authorized to be seized, the agents had a clear plan on conducting the search, the agents seized only things allowed by the warrant, no breach of the peace occurred or was threatened, and the agents otherwise acted reasonably. Accordingly, the court held that the failure to produce the affidavit did not render the search unreasonable, and the court ruled, reversing the panel decision, that the Baranski’s Fourth Amendment rights had not been violated.
• Search Warrant - Scope - Plain View
U.S. v. Garcia, 03-2152 (8/8/07)
> Police officers stopped a vehicle in which defendant was a passenger and, based upon evidence acquired in the search, obtained a state warrant to search defendant’s residence. The state warrant permitted a search of the residence only for cocaine. During the execution of the search, officers were accompanied by several DEA agents, who seized over a hundred documents. During defendant’s prosecution for conspiracy, he moved to suppress the documents as being outside the scope of the warrant. The district court denied the motion and defendant appealed.
* Holding: First, the court held that the seizure of the documents was clearly not covered by the warrant, which authorized only the seizure of cocaine. Second, the court found that the plain view doctrine did not justify the seizure. In order to justify a plain view seizure, (1) the object must be in plain view, (2) the officer must be legally present, (3) the incriminating nature of the object must be immediately apparent, and (4) the officer must have a right of access to the object.
Regarding the second element (officers legally present), the court held that federal officers may not assist in the execution of a state search warrant if (a) the federal officers have probable cause to obtain separate warrant, (b) they have an opportunity but fail to obtain a separate warrant, and (c) the federal officers are searching for items different than those authorized in the state warrant. In the case, the court found that the DEA agents were searching for the same thing as the state officers – drugs – and thus the DEA agents were legally present at the search.
Regarding the third element, the court found that the incriminating nature of the documents was not immediately apparent. Because the district court made the factual finding that the agents had to read and examine the documents before determining that they were incriminating, the court held that the plain view exception did not apply. Thus, the seizure of the documents violated defendant’s Fourth Amendment rights.
Nonetheless, the court held that admission of the documents at trial constituted harmless error. The court found that the evidence against defendant was otherwise overwhelming, and thus, defendant’s conviction was affirmed.
• Search Warrant - Probable Cause
U.S.v. Frazier, 04-5719 (9/6/05)
> The government obtained multiple search warrants, one of which was for defendant’s residence. The affidavit supporting the warrant was based upon information provided by two confidential sources. The affidavit did not establish either of the informants’ reliability, and it did not contain any corroboration of their statements. Further, the affidavit included information that was provided to the federal agent by a state police officer who was told by an informant that he had purchased drugs from defendant on multiple occasions. Defendant moved to suppress drugs seized at his home pursuant to the search warrant. The district court concluded that the affidavit was not supported by probable cause, but that the search was saved by the good faith exception. Defendant appealed.
* Holding: In considering whether a warrant, based upon an affidavit, is supported by probable cause, the court may consider only the four corners of the affidavit. Where the affidavit is supported by information from an informant, the court must consider the veracity, reliability, and basis of knowledge for the informant’s information. Where there is no indicia of the informant’s reliability in the affidavit, the court insists on substantial independent police corroboration. In the case, the court concluded that the affidavit contained neither indicia of the informants’ reliability, nor evidence of corroboration by the police. Further, the court ruled that, although there was information about defendant’s drug dealing, there was nothing to tie the drug dealing to defendant’s residence. Lastly, the court noted that the information provided by the state police officer contained multiple levels of hearsay, and was not particularly reliable. Accordingly, the court found no probable cause to support the warrant. Nonetheless, the court found that good faith saved the subsequent search. (See, infra).
• Search Warrant - Probable Cause
Armstrong v. Melvindale, 04-2192 (1/6/06)
> Police obtained a warrant to search a business for the purpose of seizing inventory and assets in regard to a forfeiture action in a drug case. While at the business, Armstrong appeared and claimed ownership of the computers that the officers were seizing, but he failed to produce any ownership documents. The police subsequently obtained a warrant to search Armstrong’s business for documents that would substantiate his ownership in the computers. Upon searching Armstrong’s business, the police found no documents, but did find marijuana. After state court proceedings were dismissed, Armstrong filed an action against the city under 42 U.S.C. § 1983 for a wrongful search of his business in violation of the Fourth Amendment. The district court refused to grant summary for the city judgment on the issue, and the city appealed.
* Holding: The Fourth Amendment permits the issuance of a search warrant solely for the purpose of seeking evidence of a crime. The court held that because the search warrant issued for Armstrong’s business was not for the purpose of seeking evidence of a crime, but only for evidence of ownership of computers, the warrant was invalid and the search violated the Fourth Amendment. For purposes of the § 1983 action, however, the court found that the officer’s mistake was not beyond the scope of “reasonable professional judgment” and thus they were entitled to qualified immunity for their actions, in spite of the Fourth Amendment violation.
• Search Warrant - Probable Cause
U.S. v. Tran, 04-1801 (1/5/06)
> Defendant’s residence was searched for evidence of arson. The affidavit attached to the search warrant provided an adequate description as to why defendant was suspected of arson, but failed to link defendant to her residence. The officer testified, however, under oath to the judge at the time the warrant was issued and provided the necessary link. Defendant moved to suppress the evidence found in the search, and the district court overruled the motion. Defendant appealed.
*Holding: The court held that probable cause for a search warrant may be established by an affidavit and supporting sworn testimony to the issuing judge, even if the testimony is not recorded. Accordingly, the district court ruling was affirmed.
• Search Warrant - Probable Cause
U.S. v. Coffee, 04-1758 (1/20/06)
> Officers learned from an informant that he had purchased drugs from defendant at a rental residence on several occasions. The officers set up a controlled purchase where they observed the informant enter the residence and return with drugs that he had purchased. Based upon this information, officers obtained a search warrant for the residence and found narcotics and firearms. In the search warrant affidavit, the officers did not indicate who the informant was, nor did they list anything upon which to assess the informant’s reliability. Defendant was subsequently charged with narcotics and firearm offenses and moved to suppress the evidence found in the search. The district court denied the motion and defendant appealed.
* Holding: Where the information in an affidavit comes mostly from a confidential source, the court must consider the veracity, reliability, and basis of knowledge for the informant’s information. If the reliability of the information is lacking, probable cause may still be established under the totality of the circumstances by sufficient corroborating information. The court held that, even though no information was provided in the affidavit about the informant’s identity or reliability, the warrant was justified based upon the “substantial independent police corroboration” of the informant’s information. Accordingly, the district court’s ruling was affirmed.
• Search Warrant - Probable Cause
U.S. v. Abboud, 04-3942 (2/17/06)
> The government obtained a warrant to search defendant’s business for evidence of bank fraud. The probable cause for the warrant was based upon a three month time period in 1999 wherein the FBI analyzed defendant’s check kiting activities. In its request to seize records subsequent to 1999, the warrant relied upon several vague statements regarding suspicious activities that were reported by bank officials. Defendant challenged the warrant on appeal.
* Holding: The court found that the warrant was supported by probable cause pertaining to the year 1999. The court held, however, that the warrant was not supported by probable for check kiting activities for the subsequent years. The court ruled that the evidence provided in the affidavit was merely a recitation of a third party’s suspicion of criminal activity. The court therefore held that the issuing magistrate erred in permitting a search for records after 1999. The court ruled that the error was harmless because the government only charged defendant with bank fraud for the 1999 activities and his defense was not prejudiced by admission of the records from subsequent years.
• Search Warrant - Probable Cause
U.S. v. Wagers, 05-5296 (6/27/06)
> Agents determined that defendant had subscribed to three websites that exclusively contained child pornography. Additionally, agents found that defendant had a prior conviction for child pornography. Based upon this information, agents obtained search warrants for defendant’s law office, his home, and AOL for defendant’s account information. Upon being subsequently charged with child pornography, defendant moved to suppress the evidence seized pursuant to the search warrants claiming that the warrants were not supported by probable cause. The district court denied the motion and defendant appealed.
* Holding: The court held that the warrants were supported by probable cause. Specifically, the court found that the warrants did sufficiently connect the charged offenses with defendant’s home through the reference to billing records. Second, the court ruled that the district court properly relied upon defendant’s prior conviction for child pornography as support for probable cause for the warrant. The court held that a prior conviction for the exact same type of conduct that is being investigated is relevant, though not dispositive, to the probable cause determination. Finally, the court found that the intricacies of internet communications and website usage do not require any new standard of evidence for dealing with probable cause inquiries. Accordingly, the conviction was affirmed.
• Search Warrant - Probable Cause
U.S. v. McPhearson, 05-5534 (11/27/06)
> Officers went to defendant’s home to arrest him on a warrant for minor assault. Upon arrival, defendant answered the door and the officers arrested him. After placing defendant in the patrol car, the officers discovered 6.5 grams of crack in his pocket. When defendant refused consent to search the house, the officers prepared a search warrant. In the affidavit accompanying the warrant, the officers indicated only that they had arrested defendant on a minor assault warrant, that defendant had crack in his pocket, and that the residence was defendant’s. The warrant was issued by a state court judge, and upon its execution, officers discovered “distribution” amounts of drugs and a firearm. Upon being charged in federal court, defendant moved to suppress the evidence and the district court granted the motion. The government appealed.
* Holding: The court held that the warrant was not supported by probable cause because it did not establish a sufficient nexus between the place to be searched and the items sought to be seized. The court emphasized that a suspect’s mere presence at a residence is an insufficient connection to the residence to support probable cause for a search. Some other evidence was necessary in order to provide the necessary nexus, such as evidence of known drug trafficking activities by defendant. Because no such other evidence was provided in the affidavit, the court affirmed the district court ruling.
• Search Warrant - Probable Cause
U.S. v. Jackson, 05-6338 (11/30/06)
> The government obtained a warrant to search defendant’s residence. The warrant was based upon an affidavit that detailed a monitored purchase of drugs from defendant at the residence by a confidential informant. The affidavit said nothing about the informant’s reliability. Upon being charged with drug and firearm offenses, defendant moved to suppress the evidence seized from his residence. The district court denied the motion and defendant appealed.
* Holding: Where a search warrant affidavit contains little or no indication about an informant’s reliability, it must provide “substantial independent police corroboration” in order to establish probable cause. In the case, the court found that the detailed explanation about the monitored purchase of drugs from defendant at the residence three days before the warrant issued provided sufficient corroboration to justify probable cause to support the warrant. Accordingly, the district court’s ruling was affirmed.
• Search Warrants - Probable Cause
U.S. v. Kenny, 05-2195 (10/10/07)
> Officers executed a search warrant and located a meth lab in a pole barn. Defendant was also found in the pole barn. Further, the officers had information from an informant that defendant was associated with the informant’s meth supplier. Based upon this information, officers obtained a search warrant for defendant’s residence. Upon execution of the search warrant, officers found firearms and meth paraphernalia. Defendant was charged with being a felon in possession of a firearm and moved the suppress the guns found in the search of his residence. The district court denied the motion and defendant appealed.
* Holding: The court held that the warrant to search defendant’s residence was supported by probable cause to believe that evidence of a crime would be found. The court ruled that the fact that defendant was present and apparently in charge at a meth lab upon his arrest, combined with the fact that an informant indicated that defendant was associated with a meth supplier, provided sufficient information for the officers to believe that defendant was a manufacturer of meth. Given this conclusion, it was reasonable to believe that defendant’s residence would contain evidence relating to the manufacture of meth. Accordingly, the district court’s ruling was affirmed.
• Search Warrants - Probable Cause
U.S. v. Smith, 06-2525 (12/26/07)
> Through the use of a confidential informant, officers investigated defendant and his home in regard to drug trafficking. The investigation culminated in an application and affidavit for a search warrant for defendant’s residence. The affidavit did not identify the informant, but it did provide information about his past reliability. The affidavit also indicated that the informant observed an individual go into defendant’s residence on two occasions and return with narcotics. Further, the officers received an anonymous tip that defendant was dealing drugs from his residence. Finally, the officers confirmed that defendant lived at the residence and that he had two prior cocaine convictions. Based upon this information, the officers obtained a warrant, executed it, and found evidence of drug trafficking. Upon being charged with drug trafficking offenses, defendant moved to suppress the evidence. The district court found that the warrant was supported by probable cause and denied defendant’s motion. Defendant appealed.
* Holding: In reviewing a search pursuant to a warrant, the court must consider whether there was a “substantial basis” for the issuing judge to find probable cause, considering the totality of the circumstances. First, the court found that the failure to identify the informant was not fatal because the informant’s reliability was well documented. Further, the court ruled that the officers’ failure to corroborate the informant’s information and the fact that the informant did not have personal knowledge of the drug dealing did not invalidate the warrant. In the end, the informant’s reliability, the anonymous tip, and the confirmation that defendant had prior cocaine convictions all supported the finding of probable cause. Accordingly, the district court ruling was affirmed.
• Search Warrant-Probable Cause/Good Faith
U.S. v. West, 06-6109 (3/26/08)
> Defendant was a suspect in a murder investigation. Officers obtained a warrant to search his home and his van. In the warrant, the officers averred that defendant was the last person seen with the victim, that defendant was previously convicted of murder, and that information was received that defendant dealt drugs. Subsequently, officers obtained a second search warrant for the van. In the second warrant, officers averred that an inmate told the officers that defendant confessed that he killed the victim and dumped the body in a well. The officers failed to disclose in the warrant that they investigated the inmate’s story and were unable to corroborate it in any fashion. The officers then searched defendant’s van and found ammunition. Defendant was charged with being a felon in possession of ammunition, and moved to suppress the evidence. The district court found that the warrants were supported by probable cause and denied the motion. Defendant appealed.
* Holding: Regarding the first warrant, the court held that it was “bare bones,” and did not support probable cause for its issuance. Specifically, the court found that the information that defendant had a prior murder conviction was false. Further, the hearsay evidence that defendant was the last person seen with the victim, and that defendant sold drugs, was unreliable and not sufficiently specific to justify the warrant. The court likewise ruled that the second warrant was “bare bones,” and that it contained recklessly false information. The evidence regarding defendant’s confession was “weak and sparse,” and the officers failed to disclose that their independent investigation undermined the reliability of the confession. Thus, the court held that neither warrant was supported by probable cause. Further, the court found that the good-faith exception did not save the warrants because both were “bare bones.” Accordingly, the district court ruling was reversed.
• Search Warrant - Probable Cause
U.S. v. Terry, 07-3757 (4/15/08)
> The government obtained a child porn image that was sent in two separate e-mails. The government learned that the e-mail account belonged to defendant’s father and, five months later, obtained a search warrant for the father’s home. Upon executing the warrant, the father informed the government that defendant used the e-mail from his residence. Thus, the government obtained second warrant to search defendant’s home, and discovered numerous items of child pornography. In the district court, defendant moved to suppress the evidence based on the grounds that the search warrant was not supported by probable cause. The district court denied the motion, and defendant appealed.
* Holding: The court held that the search warrant was supported by probable cause. Specifically, the court ruled that a sufficient link was established between the illegal conduct and defendant’s residence by the following facts: (1) two e-mails were sent from the e-mail account, at 2:30 a.m.,containing a known child porn image; (2) defendant was the registered owner of the screen name; (3) defendant lived at his address at the time the e-mails were sent; and (4) defendant had a computer at the address and accessed the e-mail account through that computer. The court noted that it was troubled by the fact that the government had not preserved the content of the e-mails, and thus it was impossible to know the context in which they were sent, but the court nonetheless found that the information in the warrant supported a finding of probable cause. Accordingly, the district court’s ruling was affirmed.
• Search Warrants - Probable Cause
U.S. v. Martin, 06-5002 (5/23/08)
> Officers obtained a warrant to search defendant’s home. In the warrant application, the officers attested that they received information from a reliable informant that drugs were being sold from the home. The information did not identify any specific individuals that were involved, nor did it indicate a time period. The application also indicated that officers checked the trash from the residence and found cocaine residue. Further, the officers attested that defendant was identified as the person living at the address, and that he had prior drug convictions. The officers searched the home and found a firearm. Upon his prosecution, defendant moved to suppress the firearm, and the district court denied the motion. Defendant appealed.
* Holding: The court held that the totality of the circumstances supported probable cause for the warrant. Although the information provided by the informant was relatively weak and non-detailed, the officer attested to the informant’s reliability and the officers found corroborating evidence by way of the cocaine residue in the garbage. Further, defendant had prior convictions for drugs. Accordingly, the district court ruling was affirmed.
• Search Warrants - Probable Cause
U.S. v. Williams, 06-2018 (10/16/08)
> Officers obtained information from two informants and through other sources that, over the course of a few weeks, defendant stole two firearms, used one of the firearms during a robbery, was arrested carrying a gun, and was arrested on a separate occasion in a stolen vehicle with one of the stolen firearms. Officers determined the location of defendant’s residence and obtained a search warrant. Upon the search, officers found crack cocaine and a firearm. Defendant moved to suppress the evidence on the grounds that the search warrant did not establish probable cause to believe that firearms would be found at his residence. The district court denied the motion and defendant appealed.
* Holding: The court held that the warrant was supported by probable cause. The information from the two informants, which was corroborated by officers, was sufficient to establish that defendant may be in possession of firearms based upon the theft of the guns, the robbery, and the two arrests of defendant while carrying guns. Further, the continued nature of defendant’s conduct involving firearms provided a sufficient inference that defendant would keep the firearms at his residence. Accordingly, the district court’s ruling was affirmed.
• Search Warrants - Probable Cause
U.S. v. Gunter, 07-5277 (1/8/09)
> Officers utilized an informant who made numerous recorded phone calls and transactions with a target. During the course of the calls, the target indicated that he was repeatedly selling large quantities of cocaine to defendant. The officers subsequently obtained a warrant and searched defendant’s residence. Upon his prosecution, defendant moved to suppress the fruits of the search. The district court denied the motion, and defendant argued on appeal that the warrant was lacking in probable cause and that it did not provide a sufficient nexus to his residence.
* Holding: The court held that the warrant provided sufficient information to establish probable cause for the search. The officers attested to the informant’s reliability in the affidavit. Further, the information provided by the target was reliable because he “had nothing to gain by implicating [defendant] in the context of a drug deal that was surreptitiously recorded and that implicated [the target] as well.” Additionally, the court held that the nexus to defendant’s residence was established by the fact that defendant was engaged in repeated purchases of large amounts of cocaine. The court concluded that, given the evidence on ongoing drug trafficking, it was “reasonable to infer” that drugs would be found at defendant’s home. Accordingly, the district court ruling was affirmed.
• Search Warrant- Probable Cause/Staleness
U.S. v. Gardiner, 05-1247 (9/12/06)
> During the investigation of defendant on a RICO conspiracy, the government obtained a search warrant for defendant’s residence. The warrant was based upon information from several witnesses that defendant had been engaged in an ongoing criminal conspiracy over the course of several years. In the two years leading up to the issuance of the search warrant, however, the only acts of defendant were a meeting with a coconspirator to discuss concealing the conspiracy and a denial of criminal involvement by defendant to investigators. Upon being charged with conspiracy, defendant moved to suppress evidence found at his residence claiming that probable cause did not support the warrant and that the information was stale. The district court denied the motion and defendant appealed.
* Holding: First, the court held that the affidavit was clearly supported by probable cause because it listed information provided by several witnesses that defendant repeatedly received illegal payments and free services from contractors to whom contracts were awarded. Second, the court held that the information in the warrant was not stale. In analyzing staleness, the court considered (1) the defendant’s course of conduct, (2) the nature and duration of the crime, (3) the nature of the relevant evidence, and (4) any corroboration of the older and more recent information. The court found that, even though several years had passed before the search warrant was obtained, defendant had been engaged in an extensive and ongoing conspiracy involving numerous individuals. Further, three months before execution of the warrant, defendant had taken actions to continue to conceal the conspiracy. Under these circumstances, the court found that the probable cause to support the warrant had not grown stale, and accordingly affirmed the district court ruling.
• Search Warrant-Probable Cause/Good Faith
U.S. v. Higgins, 08-5114 (2/26/09)
> Officers conducted a traffic stop and found a large amount of narcotics. The driver of the car told the officers that he purchased the drugs earlier in the day from defendant at his residence. The other two passengers in the car confirmed the information. The officers took the driver to defendant’s house, and he identified the house. Further, officers identified a motorcycle in front of the home as belonging to defendant, and they confirmed that defendant had prior convictions for drug trafficking. The officers prepared a warrant application with the above facts, and provided the name of the driver to the issuing magistrate. Officers subsequently searched defendant’s residence and found narcotics. Upon defendant’s prosecution, he moved to suppress the evidence based on a claim that the warrant was not supported by probable cause. The district court denied the motion, defendant was convicted, and he appealed.
* Holding: First, the court held that the warrant was not supported by probable cause. The court found that the warrant provided no basis for the reliability of the informant, and that the police had obtained insufficient corroboration of the informant’s information. Further, the warrant did not establish a sufficient nexus between drugs and defendant’s home because the informant had not been inside defendant’s home, nor seen any narcotics there. Accordingly, the warrant was not supported by probable cause.
Second, the court held that, even though the parties had not raised the issue, the good-faith exception applied. The court found that there was no false information in the affidavit, the magistrate did not act as a rubber stamp, the affidavit was not bare bones, and the warrant was not so facially deficient as to make the officers reliance on it objectively unreasonable. Accordingly, the district court’s ruling was affirmed.
• Search Warrants - Probable Cause
U.S. v. Berry, 08-1048 (5/14/09)
> Agents filed a search warrant application for defendant’s residence based on the following: (1) defendant had a prior conviction for drug trafficking, was on probation for the conviction, and was arrested outside the residence for a probation violation; (2) defendant had cocaine in his pocket upon his arrest; (3) defendant rented the residence under an alias and paid in cash; (4) an informant indicated that defendant lived at the residence; and (5) defendant was in violation of his probation by failing to notify his probation officer that he lived at the residence. Upon the search, officers found drugs and firearms. In defendant’s subsequent prosecution, he moved to suppress the evidence and the district court denied the motion. Defendant appealed.
* Holding: Distinguishing the case from its prior decision in U.S. v. McPherson, the court held that the affidavit contained sufficient information to establish probable cause to believe that defendant was involved in drug trafficking, and that evidence of such would be found in his residence. Accordingly, the district court’s ruling was affirmed.
• Search Warrants - Probable Cause
U.S. v. Lapsins, 07-4387 (7/7/09)
> Agents obtained a warrant to search defendant’s house based on the fact that defendant e-mailed a child porn image, engaged in an on-line chat about child porn and abuse, and uploaded 132 images of child porn to a website. During the search, agents found numerous child porn images on defendant’s home computer. Upon defendant’s subsequent prosecution, he moved to suppress the evidence and argued that the search warrant did not contain enough evidence to establish (1) that the images were of real children, and (2) a sufficient nexus between the images and defendant’s home. The district court denied the motion and defendant appealed.
* Holding: First, the court held that the warrant contained sufficient evidence that the children depicted in the images were real children. Regarding the e-mail image, the National Center for Missing and Exploited Children (NCMEC) viewed the image and determined that it was a real child. Further, NCMEC confirmed that a police officer in Belgium determined that the image was of a known, real child. Additionally, the investigating agent viewed the image and the warrant “implied” his belief that the image was child porn. Finally, NCMEC had a report, albeit unsubstantiated, that defendant uploaded 132 child porn images using his screen name to a website. The court found a “fair probability” that at least some of the images were of real children. Thus, taken in totality, the evidence supported probable cause that the child porn contained pictures of real children.
Second, the court found a sufficient nexus between the child porn and defendant’s residence. The e-mail and uploaded images were sent from a screen name associated with defendant. Further, the uploaded images were sent from a residential IP address in the town where defendant lived. The images were sent at a time that suggested that defendant would be at home (6:30-8:30 a.m.) and the agents confirmed precisely where defendant lived. The court found that this evidence provided a sufficient nexus in terms of the probable cause analysis. Accordingly, the district court’s ruling was affirmed.
• Search Warrants - Probable Cause
U.S. v. Dyer, 08-5671 (9/8/09)
> Officers obtained a search warrant based on information provided by a confidential informant. The warrant did not attest to reliability of the informant, or identify the informant, but it indicated that the officers met with the informant, thus knowing his identity. The warrant provided that the informant observed a drug transaction at a cabin rented by defendant’s girlfriend, and it described the room in which the transaction occurred, defendant and his girlfriend, and the vehicles they were driving. The warrant also confirmed that defendant and his girlfriend were staying at the cabin, their vehicle matched the informant’s description, and defendant had an open warrant and a prior conviction for narcotics. Upon executing the warrant, officers found narcotics and defendant was prosecuted. Defendant moved to suppress the evidence, and the district court denied the motion. Defendant appealed.
* Holding: The court first noted that the warrant did not contain an indication of the informant’s reliability. The court ruled, however, that the warrant otherwise contained sufficient information to support probable cause. The informant was known to police, provided specific information about a drug transaction, and details about the cabin, defendant, and his vehicle. This information was confirmed by police. Further, officers determined that defendant was wanted and had a prior record for narcotics. Accordingly, the district court’s ruling was affirmed.
• Search Warrants-Probable Cause-Staleness
U.S. v. Frechette, 08-2191 (10/8/09)
> Defendant purchased a one month subscription to a child pornography website for $80. In paying for the subscription, defendant opened a PayPal account using his own name and home address. Defendant put the money into the PayPal account using his bank’s debit card. In investigating the matter, agents learned that defendant was a convicted sex offender with a duty to register, and they confirmed that defendant lived at the address listed on the PayPal account. As a result, agents obtained a search warrant for defendant’s residence sixteen months later. Upon execution of the search, agents discovered child pornography and defendant was prosecuted. Defendant moved to suppress the evidence obtained in the search based on staleness and a lack of probable cause for the warrant. The district court denied the motion, and defendant appealed.
* Holding: The court first held that the search warrant information was not stale. In making this analysis, the court considers four factors: (1) the character of the crime, i.e., whether a chance encounter or ongoing; (2) whether the criminal is nomadic or entrenched; (3) whether the thing to be seized is perishable or enduring; and (4) whether the place to be searched is a mere criminal forum or a secure operational base. The court found that child pornography tends to be an ongoing crime, defendant had lived in the home during the entire sixteen months, digital child porn images tend to be enduring, and defendant’s home was akin to a secure operational base. Accordingly, the evidence was not stale.
Second, the court ruled that defendant’s registry with the child porn site, his payment of $80, and his prior sex offense conviction supported probable cause for the warrant. Therefore, the district court’s ruling was affirmed.
• Search Warrant - Probable Cause
U.S. v. Brooks, 08-4280 (2/5/10)
> Officers went to defendant’s home to arrest him on a warrant. Upon arrival, officers smelled marijuana, saw marijuana seeds in an ashtray, and found $1000 in cash in defendant’s pocket. Officers secured defendant and applied for a search warrant. The warrant detailed the items observed by the officers, and included information about defendant’s drug trafficking activities over the previous five years, the most recent incident being six months earlier. Upon execution of the warrant, officers discovered crack cocaine. In his subsequent prosecution, defendant moved to suppress the evidence and the district court granted the motion. The government appealed.
* Holding: The court held that the warrant was supported by probable cause based solely on the observations of the officers at the time of defendant’s arrest. Thus, the court found that the warrant was justified by the smell of marijuana, the marijuana seeds, and the cash in defendant’s pocket. The court determined that the prior evidence of drug sales by defendant was stale, but specifically reserved the question for another day as to whether such information was properly considered in issuing the warrant to “add flavor and force to the non-stale information” in the affidavit. Accordingly, the district court’s ruling was reversed.
• Search Warrant-Sufficiency-Reckless Falsity
U.S. v. Moncivais, 02-6457 (3/24/05)
> Officers prepared an affidavit that was attached to a criminal complaint charging drug trafficking. In the affidavit, the officers summarized a taped conversation wherein defendant was recorded discussing drugs. Defendant challenged his arrest upon the grounds that the officers’ assertions in the affidavit regarding the taped conversation were recklessly false about what was actually said on the tape. The district court denied the motion to suppress.
* Holding: A defendant must make a substantial showing that an affidavit is deliberately or recklessly false. In the present case, the court held that, although the affidavit did not contain a literal translation of the tape, and did contain some interpretative license as to what was actually said, the affidavit was not so far off the mark as to render it recklessly false. Accordingly, the court found the affidavit was supported by probable cause.
• Search Warrants - Reckless Falsity
U.S. v. Stuart, 06-2279 (11/7/07)
> Defendant was charged with drug trafficking and possession of a firearm in furtherance of drug trafficking. Defendant filed a motion to suppress evidence obtained during the execution of a search warrant and claimed that the search warrant affidavit contained false information. The defendant based this claim on the fact that the police officer relied, almost entirely, on statements made by an informant who had been arrested and was trying to extricate himself from trouble. The district court refused to hold a Franks hearing, and defendant was subsequently convicted. Defendant appealed.
* Holding: In order to obtain a Franks hearing to challenge the falsity of an affidavit, a defendant must make more than conclusory allegations, and must allege deliberate or reckless falsity on the part of the affiant. In the case, the court held that the mere use of an informant’s statements, where the informant may have a motive to lie, was insufficient to require a Franks hearing. Thus, the court found that the officer was not unduly reckless in relying on the informant’s statements, and the district court ruling was affirmed.
• Search Warrant - Sufficiency/Good Faith
U.S. v. McCraven, 03-6311 (3/17/05)
> Officers obtained a search warrant for defendant’s home based upon an affidavit that indicated that an informant, who had previously given reliable information, saw defendant selling cocaine and marijuana inside his house within the five days prior. The officers obtained no corroboration of the information prior to executing the search warrant. In the subsequent prosecution for drugs and firearms, defendant moved to suppress the evidence based upon the insufficiency of the affidavit, and the district court denied the motion.
* Holding: The court held that the case presented a very close call as to whether the affidavit was sufficient to support probable cause. The court decided not to resolve the question, however, because it found that the officers’ execution of the warrant was proper under the good-faith exception of U.S. v. Leon.
• Search Warrant - Good Faith
U.S. v. Frazier, 04-5719 (9/6/05)
> The government obtained multiple search warrants, one of which was for defendant’s residence. The affidavit regarding defendant’s residence averred that information had been obtained from several informants, but the affidavits did not provide any basis for assessing the reliability of the informants, nor did it contain any evidence of police corroboration. The police actually had tape recorded two sales of narcotics by defendant to the informants, and that information was told to the issuing magistrate, and included in other affidavits, but not in the affidavit for defendant’s home. The district court denied a motion to suppress evidence found at defendant’s residence based upon the good faith exception to the warrant requirement, and defendant appealed.
* Holding: The court first held that the affidavit for defendant’s residence was insufficient because it did not establish probable cause for the search. (See, supra). The court then held that a defective warrant is saved if the officers acted in good faith in executing it. The good faith exception does not apply if (1) the affidavit contained a knowing or reckless falsity, (2) the magistrate abandoned her judicial role, (3) the affidavit is bare bones such that reliance on it was objectively unreasonable, or (4) the officers reliance on the affidavit was not in good faith or objectively reasonable. Defendant challenged the application of the good faith rule based on the second and third exceptions. The court ruled that the magistrate did not abandon his judicial role in issuing the warrant, and that the affidavit was not so “bare bones” that the officers’ reliance on it was objectively unreasonable.
Notably, with regard to the “bare bones” issue, the court held that it was permitted to consider the fact that the government had tape recorded two drug sales by defendant to the informants, even though such information was not included in the affidavit. Distinguishing the prior Sixth Circuit decision U.S. v. Laughton (See P.V., Issue 2), the court held that it may consider information that was actually conveyed to the magistrate, but not included in the affidavit, in determining whether the officers exercised good faith.
• Search Warrant - Good Faith
U.S. v. Laughton, 03-1202 (5/17/05)
> Police officers requested a search warrant, and indicated in the affidavit that an informant had purchased drugs from defendant. The officers, however, failed to make a connection between the place to be searched and the drug purchases. The officers knew that the drugs had been purchased from the defendant at his home, but such information was not conveyed in the affidavit. Defendant was charged with distribution of narcotics, and moved to suppress the evidence by alleging that the affidavit did not establish probable cause. The district court agreed that the affidavit did not establish probable cause, but refused to suppress the evidence because the officers acted in good faith. Defendant appealed.
* Holding: An officer may not rely on the good faith exception to the warrant requirement if the affidavit requesting the warrant is “so lacking in indicia of probable cause that a belief in its existence is objectively unreasonable,” also known as a “bare bones” affidavit. The court held that the affidavit was completely lacking in any connection between the place to be searched and the illegal activity. Accordingly, the court ruled that the warrant was not saved by good faith. Notably, the court held that, in considering whether an affidavit is “bare bones” or not, the court may only consider the face of the affidavit itself, and not other information possessed by the officers. Thus, the case was reversed.
• Search Warrant - Good Faith
U.S. v. McClain, 04-5887 (12/2/05)
> Officers conducted an illegal warrantless search of a home based upon suspicion of a burglary. (See supra, Exigent Circumstances). During the illegal search, officers discovered the beginnings of a marijuana grow operation. The officers subsequently conducted surveillance on defendants which led to multiple search warrants. Defendants moved to suppress the evidence obtained as a result of the execution of the search warrants because such searches were the fruit of the poisonous tree from the warrantless search. The district court agreed and suppressed the evidence and the government appealed.
* Holding: Ordinarily, the fruit of an illegal search must be suppressed unless circumstances support one of three narrow exceptions: (1) the government also learned of the evidence from an independent source; (2) the connection with the unlawful search becomes so attenuated as to dissipate the taint; or (3) the evidence would have inevitably been discovered. In the case, the court found that none of these traditional exceptions applied. Instead, the court determined that the search warrants could be saved under the good faith exception of Leon. The court found that the officers who executed the search warrants were different officers from the ones who conducted the illegal search. Further, the court held that the facts of the illegal search were fully disclosed in the affidavit to the magistrate who issued the warrants. Thus, the officers executing the warrants had no reason to believe that the warrants may be invalid and clearly were acting in good faith in their execution. Finally, and most importantly, the court held that the unlawful warrantless search was “close enough to the line of validity to make the officers’ belief in the validity of the warrant objectively reasonable.” Accordingly, the court held that the good faith exception barred application of the exclusionary rule, in spite of the earlier Fourth Amendment violation, and reversed the district court ruling.
• Search Warrant - Good Faith
U.S. v. Hython, 05-3008 (4/6/06)
> Police obtained a warrant to search a residence based upon a controlled purchase of drugs from the residence. The affidavit failed to identify when the controlled purchase occurred, however, and the affidavit did not identify any other sales that had occurred at the residence. Defendant challenged the search warrant claiming that the information in the warrant was stale because it contained no date of sale. The district court agreed that the warrant was stale, but nonetheless found that it was saved by good faith. Defendant appealed.
* Holding: Where a search warrant is found to be defective, evidence seized as a result of the search is not barred from admission where the police acted in reasonable, good-faith reliance on the warrant. This good-faith rule does not apply in four situations: (1) the affidavit is knowingly or recklessly false; (2) the magistrate abandoned her judicial role and acted as a rubber stamp for the police; (3) the affidavit is so lacking in probable cause as to render official belief in its existence entirely unreasonable; and (4) the officer’s reliance was not in good faith, such as where the warrant is facially deficient.
In the case, the court found that the third exception to the good faith rule applied because the warrant was entirely lacking in probable cause. The court ruled that any reasonable officer would realize that there was no indication in the affidavit as to when the drug sale had occurred. Further, the court specifically found that the district court erred in justifying the search by assuming that the officer would not have sought the warrant unless the controlled delivery was recent. A district court must consider only the four corners of the affidavit in assessing whether officers acted in good faith. Accordingly, the district court ruling was reversed and the evidence suppressed.
• Search Warrant - Good Faith
U.S. v. Pruitt, 05-3577 (8/11/06)
> Officers obtained a search warrant to search a residence from which they believed defendant was selling drugs. The search warrant affidavit was accidentally left blank in the section where the officer was supposed to list the facts establishing probable cause. The officer did provide sworn testimony to the magistrate to establish probable cause, but the testimony was not recorded or transcribed. After defendant’s arrest, he moved to suppress the evidence seized, but the district court denied the motion. On appeal, defendant argued that the affidavit was invalid on its face, and that it was not saved by good faith.
* Holding: The court held that the affidavit did not provide probable cause to justify the warrant because it did not list any facts to support the search. Further, the sworn testimony provided to the magistrate was insufficient because it was not recorded or transcribed as required by Fed. R. Crim. P. 41(2)(d)(B)-(C). Finally, the court ruled that the warrant was not saved by good faith because it was “bare bones,” and pursuant to the Supreme Court decision in Leon, a bare bones affidavit will not support a finding of good faith on the part of officers. Thus, the search warrant was invalid. The court nonetheless affirmed the search on other grounds. See infra.
• Search Warrant - Good Faith
U.S. v. McPhearson, 05-5534 (11/27/06)
> Officers obtained a warrant to search defendant’s residence based solely on the fact that defendant was arrested at the residence on a minor assault warrant, defendant had 6.5 grams of crack in his pocket when arrested, and defendant lived at the residence. Upon searching the residence, the officers found drugs and a firearm, and defendant was charged accordingly. The district court held that the warrant was not supported by probable cause, and that the execution of the warrant was not saved by the good faith exception. The government appealed.
* Holding: An otherwise invalid warrant may be saved based upon its good faith execution by police officers unless (1) the warrant affidavit is knowingly or recklessly false, (2) the issuing magistrate wholly abandoned her judicial role, (3) the affidavit is “bare bones,” or completely lacking in probable cause, or (4) the warrant is obviously facially deficient. In the case, the court found that the warrant was based upon a “bare bones” affidavit and thus was not saved by the good faith rule. The court emphasized that there was simply no evidence in the affidavit to raise the inference that drug evidence would be found in the home. The court ruled that the information in the affidavit connecting the crime to the residence was “so vague as to be conclusory or meaningless.” Accordingly, the district court’s ruling was affirmed.
• Search Warrants - Good Faith
U.S. v. Hodson, 07-5504 (9/19/08)
> Defendant solicited sex via an internet chat from a person he believed to be a 12-year-old boy. Defendant mentioned in the chat that he had previously molested his young nephew. The “boy” was actually a police officer, and three months later the officer obtained a warrant to search defendant’s home. Although the warrant did not make any connection between child molestation and child pornography, the warrant sought approval to search defendant’s home for evidence of child pornography. Officers executed the warrant, found child pornography, and defendant moved to suppress the evidence. The district court held that warrant was lacking in probable cause, but that it was saved by the good faith exception. Defendant appealed.
* Holding: The court held that the warrant was not saved by good faith because it was “so lacking in probable cause as to render official belief in its existence unreasonable.” Specifically, the court found that it was unreasonable for the officer executing the warrant to believe that probable cause existed to search defendant’s home and computer for child pornography based solely on a suspicion that defendant solicited, and engaged in, child molestation. Accordingly, the warrant was not saved by good faith, and defendant’s conviction was reversed.
• Search Warrant-Particularity-Good Faith
U.S. v. Watson, 06-6021 (8/15/07)
> Officers obtained a search warrant based upon an affidavit that described a residence and four suspects. The warrant, however, requested only a search of the individuals and not the residence itself. Officers arrived at the location and searched the residence and the individuals, finding evidence of firearm possession and drug trafficking. Defendant was one of the four suspects searched, and upon being charged with narcotics and weapons violations, defendant moved to suppress the evidence found in the search of the residence. The district court denied the motion, defendant entered a conditional plea of guilty, and he appealed.
* Holding: The court presumed that the warrant was defective for failing to list the residence in the warrant and proceeded to the issue of the officers’ good faith in executing the warrant. Generally, evidence obtained from an invalid warrant is nonetheless admissible if the executing officer’s reliance on the warrant is objectively reasonable. A recognized exception to the good faith rule is where “the officer’s reliance on the warrant was not in good faith or objectively reasonable, such as where the warrant is facially deficient.” Distinguishing the case from the Supreme Court decision in Groh v. Ramirez, the court found that the warrant was not facially deficient. The warrant in all respects was clearly geared toward a search of the residence. The warrant provided extensive detail regarding the description of the residence. In the section indicating the place to be searched, it merely omitted the residence and listed only the individuals expected to be in the residence. The court found that the officer’s and issuing judge’s failure to notice this “minor deviation” did not evince an absence of good faith. Accordingly, the district court ruling was affirmed.
• Search Warrant - Knock and Announce
U.S. v. McCraven, 03-6311 (3/17/05)
> Officers went to defendant’s home armed with a search warrant for cocaine and marijuana. Officers arrived in the daytime, knocked on the door, announced their presence, and then waited between 6 and 12 seconds before entering the home. In the district court, defendant challenged the subsequent search and seizure of drugs and a firearm based upon an insufficient knock and announce. The district court denied the motion to suppress.
* Holding: The court found the knock and announce to be reasonable under the circumstances. The court held that, because the search occurred during the day, and because the nature of the evidence (drugs) was that it was easily destroyed, 6 to 12 seconds was a reasonable period to wait before entry. Accordingly, the district court ruling was affirmed.
• Search Warrant - Staleness
U.S. v. Abboud, 04-3942 (2/17/06)
> The government obtained warrants to search defendant’s business and home in 2002 based upon a bank fraud investigation. In the affidavit, the last illegal act for which probable cause was established occurred in 1999. Defendant moved to suppress the evidence seized upon execution of the warrants, and the district court denied the motion. Defendant challenged on appeal that the search warrant information was stale as of the time of execution of the search warrant in 2002.
* Holding: In assessing the issue of staleness of a warrant, the court must consider the following: (1) the character of the crime;(2) the criminal; (3) the nature of the things to be seized; and (4) the places to be searched. First, the court found that the crime included repeated acts of bank fraud over a several month period in 1999, suggesting ongoing criminal activity. Second, the court held that defendant was entrenched in the area, owning several businesses and a home, thus increasing the likelihood that the evidence would still be available. Third, the court ruled that the things to be seized were business records, which, by their nature, tend to be kept for long periods of time. Fourth, the court found that the places to be searched were defendant’s long standing places of business and his home, not places that were mere “criminal forums of convenience.” Accordingly, the court found that the search warrants were not stale.
• Search Warrant - Staleness/Overbreadth
U.S. v. Paull, 07-3482 (1/9/08)
> Agents obtained a search warrant for defendant’s home based on his subscription to child porn websites over a two year period. The agents waited thirteen months after defendant’s last subscription to a child porn website, however, before obtaining the warrant. Upon execution of the warrant, agents found numerous child porn images in defendant’s garage. Defendant moved to suppress the evidence based upon the staleness and overbreadth of the warrant. The district court denied the motion, and defendant appealed.
* Holding: The court held that the 13 month delay did not render the search warrant stale because of the nature of child porn and the fair probability of on-going criminal activity on defendant’s part. Further, the court held that the search warrant was not overbroad in authorizing a search of defendant’s garage because, “where the evidence sought includes images that the defendant likely wants to keep secret, even from his wife, and can easily be concealed in storage in a garage or basement, a reasonable search includes those areas.” Accordingly, the district court’s ruling was affirmed.
• Search Warrants - Franks Hearing
U.S. v. Fowler, 04-4472 (8/1/08)
> Agents obtained a warrant to search defendant’s home based on information provided by a confidential informant. The search warrant affidavit stated that the informant sold meth to defendant, that defendant had meth in his car, and that defendant had firearms in his home. Defendant was subsequently charged with RICO violations and a drug conspiracy, and he moved to suppress the evidence found in his home during the execution of the search warrant. Defendant requested a Franks hearing based upon his claim that the affidavit failed to disclose that the confidential informant was engaged in ongoing criminal activity. The district court refused to hold a Franks hearing, and denied defendant’s motion to suppress. Defendant appealed.
* Holding: In order to obtain a Franks hearing based on a challenge to the veracity of a search warrant affidavit, the defendant must (1) make a substantial preliminary showing that the affiant engaged in a either a deliberate falsehood or a reckless disregard for the truth in omitting information, and (2) prove that the affidavit would not be supported by probable cause if the information were properly included. The bar for obtaining a Franks hearing is significantly higher for a defendant claiming a material omission, as opposed to an affirmative misstatement. In the case, the court held that defendant was not entitled to a Franks hearing. The affidavit apprised the issuing magistrate that the informant sold meth to defendant, thus alerting the magistrate that the informant was engaged in illegal activity. Even if this information was not included, however, the court held that this omission would not have negated probable cause. The court noted that “it is often people involved in criminal activities themselves that have the most knowledge of other criminal activities,” and thus, it is no surprise that an informant may be engaged in crime. Accordingly, the district court ruling was affirmed.
• Search Warrants - Franks Hearing
U.S. v. Mastromatteo, 06-2349 (8/19/08)
> Officers obtained a warrant to search a building in regards to a meth lab. Defendant subsequently challenged the search upon the grounds that the warrant contained false statements and he requested a Franks hearing. Defendant alleged that the warrant contained the following falsehoods: (1) information that a suspect truck was registered to defendant; (2) inaccurate allegations about items defendant purchased; and (3) misstatements about smells emanating from the building in question. The district court refused to hold a Franks hearing, and defendant appealed.
* Holding: The court held that the warrant would be supported by probable cause even if all of the allegedly false information were stricken. The warrant otherwise contained substantial information regarding meth manufacturing and distribution activities, and thus, the district court’s ruling denying a Franks hearing was affirmed.
• Search Warrants - Anticipatory Warrant
U.S. v. Penney, 05-6821 (8/7/09)
> Officers obtained an anticipatory warrant to search defendant’s home. The warrant was based on historical information about defendant’s drug trafficking activities and current information from an informant who had arranged to deliver drugs to defendant who was the middleman for a buyer. The triggering condition for the warrant was defendant meeting with the informant to examine and attempt to purchase the narcotics. During the transaction, however, defendant never dealt with the informant; instead, the buyer dealt directly with the informant, and the drugs never entered defendant’s residence. Upon the buyer showing the money to the informant, the officers approached and executed the warrant. Defendant was prosecuted and he moved to suppress the evidence seized. Defendant claimed that the anticipatory condition never occurred and that there was an insufficient nexus between the drugs and defendant’s residence. The district court denied the motion and defendant appealed.
* Holding: First, the court held that, although the triggering condition did not occur in a “hypertechnical” sense, all of the operative transactions expected by the warrant occurred: Defendant arranged, as a middleman, a meeting between a buyer and the informant, and funds were actually obtained for the drug purchase. Thus, the triggering condition for the anticipatory warrant was sufficiently satisfied. Second, the court ruled that there was a sufficient nexus between the illegal activity and defendant’s residence. The court acknowledged that the typical standard for an anticipatory warrant is that the contraband must be on a “sure and irreversible course” to the destination to be searched before the triggering condition is satisfied. The court held, however, that this standard applies only where the contraband to be delivered is the only evidence of criminal activity that the officers believe will be found in the place to be searched. In the case, the court found that there was sufficient evidence, through the historical information in the affidavit about defendant’s prior drug trafficking activities, to believe that drugs would be found in defendant’s residence even though the contraband delivered by the informant did not enter defendant’s residence. Accordingly, the district court’s ruling was affirmed.