A Common Problem with Search Warrant Affidavits
I was reading a search warrant affidavit earlier today as a favor to a friend and I noticed what I suspect is a change in the standard Multnomah County affidavit boilerplate.
I have Challenging Search Warrants: 3 simple arguments - and spoken at OCDLA conferences on - the fact that search warrant affiants will try to prove probable cause by an over-reliance on the word "often."
"In my training and experience, people who sell drugs often videotape their own drug sales."
"In my training and experience, people who steal often put the stolen property into a storage locker."
As I discussed, even if true, the fact that some criminals somewhere often do something does not make it probable that the defendant did so in this case. Husbands often make dinners for their wives. That does not mean that it's more likely than not that this husband will make dinner for his wife four nights this week.
Today's search warrant affidavit did not rely on the word "often." Instead, it had a different formulation.
"In my training and experience, it is common that people who steal will hide the stolen property in a variety of locations."
Really? Again, leave aside the fact whether or not the claim is true. "It is common" doesn't even rise to the level of "often," much less probable cause.
At the risk of repeating myself: too many lawyers think search warrants are tougher to beat than warrantless searches. In fact, the opposite is true. You just need to know what to look for.