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3 Simple Arguments

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This wikilog article is a draft, it was not published yet.

by: Ryan • January 15, 2011 • no comments

Defense attorneys frequently believe that search warrants are very difficult to beat. They believe warrantless searches are easier, given the oft-repeated claim that warrants are favored by the state and federal Constitutions.

It simply isn't true. Search warrant affidavits are usually flawed, and many of these flaws are fatal. The same might be true of the police reports in warrantless searches. The difference is, the police can fix the flaws in a warrantless search when they testify at the motion to suppress. Most of the challenges to a search warrant affidavit do not allow the affiant to testify.

What I've listed below aren't the most important challenges to search warrant affidavits. They're just challenges I don't think come to mind for most defense attorneys.

(1)(a) "Often" is not Probable Cause

Search warrant affidavits are usually infested with the word "often." It's a substitute for actual evidence. "I know from my training and experience that drug dealers often keep electronic records of their transactions." Leaving aside whether that's bullshit, it's certainly not probable cause. If I say I often take my wife out to dinner (which I do), that doesn't mean I do it four times a week.

In State v. Keerins, 197 Or App 428 (2005), the Oregon Court of Appeals stated, in a footnote:

"No question is raised on appeal about whether statements in the affidavit that drug-related evidence is 'often' found at the residence of someone engaged in the distribution of controlled substances are sufficient to establish that it is probable that such evidence will be found at the residence to be searched. We therefore do not consider that question." [Emphasis in original.]

The first thing a defense lawyer should do is go through the affidavit with a highlighter and just highlight every use of the word "often." Then note that there almost certainly isn't probable cause to seize whatever evidence that "often" exists.

(1)(b) The officer's training and experience

Going hand-in-hand with the word "often" is an overreliance on "officer training and experience" regarding what drug dealers do.

In State v. Evans, 119 Or App 44 (1993), the court found the officer's claimed knowledge of common practices to be insufficient. The following quote is worth reading in full.

"In a marijuana growing case, an affidavit must satisfy two requirements in order to support a search warrant of a residence. State v. Anspach, 298 Or 375 (1984). First, the affidavit must set forth objective observations sufficient to allow a disinterested magistrate to conclude that there is probable cause to believe that there is a relationship between the people residing on the premises and the marijuana plants. Second, 'the affidavit must contain additional facts to support probable cause to believe that marijuana or certain kinds of implements of cultivation or paraphernalia for processing or sale of marijuana are probably in the building to be searched.' 298 Or at 381, citing State v. Anspach, 68 Or App 164, 171 (1984). (Emphasis supplied.)

This affidavit failed to meet the second requirement. There are no facts whatsoever linking the marijuana plants to anything in the residence, which was more than 35 miles away from the garden. Standing alone, the officer's intuition or professed knowledge of the common practices of people who grow, distribute and sell marijuana is not an additional fact supporting probable cause that this particular residence contained any particular evidence."

(2)(a) Drug Dogs - there needs to be proof of reliability, not just training

See United States v. Spetz, 721 F2d 1457, 1464 (9th Cir 1983): A canine sniff alone can supply the probable cause necessary for issuing a search warrant if the application for the warrant establishes the dog's reliability. This holding was affirmed in United States v. Lingenfelter, 997 F2d 632 (1993), where the court noted that the search warrant affidavit included "a two-page unsigned expertise statement concerning [the canine's] reliability that" the affiant had obtained from the dog's trainer. This statement of expertise was deemed sufficient.

And those of you who do a lot of drug cases in Oregon know that the dogs ARE NOT reliable. In fact, there's a case right now pending with the Oregon Supreme Court that hinges on the fact, apparently, that Oregon's training of drug dogs "often" doesn't meet national standards.

(2)(b) I've long thought that the reliability requirements should also apply to NIK tests

If the affiant has been involved with controlled buys against the suspect, usually using a CRI, they might confirm that the CRI purchases actual cocaine by using a NIK test. And the affidavit will aver that NIK tests are highly reliable; that's a claim for greater than the manufacturers of NIK tests are willing to make. So, can an affiant get away with saying the tests are reliable without any proof of reliability (see drug dogs above)? Can you controvert an affidavit for claims of reliability that are not true?

(3) Getting the CRI's name via a protective order

Many defense attorneys have probably made a half-hearted effort to get the name of the CRI. The hope is that the state would rather dismiss than burn their CRI. But if you really want the CRI, include in the request a protective order, as you would if seeking confidental materials submitted to the parole board (or you were seeking Grand Jury notes).

In Fisher/Gordon v. Board of Parole, ___ Or App ___ (Dec 22, 2010), the Court of Appeals ordered the Board to turn over otherwise exempt documents, but with a couple of conditions. "(1) petitioner's counsel is not permitted to inspect the confidential sealed material until counsel has submitted a statement that counsel will not disclose the material to petitioner and, if necessary, will file a redacted or confidential brief; and (2) counsel must comply with an order barring further disclosure of the sealed material."

You have just eliminated any justification for keeping the CRI a secret, and a motion defense lawyers frequently lose should be granted easily.