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Often: The Search Warrant's Achilles Heel

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by: Ryan • September 12, 2012 • one comment

When attorneys seek my advice on challenging search warrants, I will often ask them to engage in a strictly mechanical exercise: take a highlighter and the search warrant affidavit and highlight every time the word "often" or the phrase "it is common" appears.

I've discussed the reasons why Challenging Search Warrants: 3 simple arguments and [[[Blog:Main/%22common%22-problem-search-warrant-affidavits here]]]. In short, the word "often" is a crutch that affiants will rely on to give the impression of probable cause when in fact it isn't there, e.g., "thieves will often keep property in a storage locker," or "drug dealers often take photographs of their drug activities and store them on their computer."

Recall that search warrants must provide probable cause that evidence exists and it will be found in the place to be searched. As noted previously, the "often" formulation usually fails in both those respects.

Today, a Court of Appeals opinion was issued that didn't involve search warrants: rather, it involved reasonable suspicion to extend a stop. But this quote bolsters the search warrant arguments I've made above.

Likewise, Ledbetter's generalized testimony that, based on his "training and experience," persons who exhibit signs of methamphetamine use may "possibly" have more methamphetamine does not provide a basis for reasonable suspicion. See Jones, 245 Or App at 192-93 (an officer's generalized testimony, that, based on his "experience" as a police officer for over 12 years, persons on post-prison supervision are "oftentimes" not permitted to go to establishments where alcohol is consumed did not provide reasonable suspicion that the defendant was violating his parole or probation).

State v. Farrar.

Fine work by Ken Kreuscher and the unknown trial attorney out of Douglas County.

For more on challenging search warrants, see David McDonald's presentation at the OCDLA conference this weekend (or pre-order a CD of the entire conference at the OCDLA website),