Search Warrants

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

by: Ryan • January 16, 2013 • no comments

Today's COA opinion in State v Miller is a good one. Search warrant case, in part. It reminds us that it isn't enough that there is probable cause that evidence of a crime exists. There must also be probable cause that it will be found in the place to be searched.

Key quote:

In addition, Hatten indicated that, based on his training and experience,"people often keep controlled substances, scales, :packaging material, cutting agents and currency from drug sales in a safe or other type locking container" and "[i]tems of value including drugs, currency, records of sales, or purchase of drugs are often kept in automobiles by persons trafficking in control[led] substances" because that "enables the trafficker to quickly depart a residence and ensure that the necessary tools are readily accessible for the purpose of selling or purchasing drugs." None of those generic averments, however, establishes that, where a person is using a vehicle to engage in drug transactions, evidence of possession, manufacturing, or distribution is likely to be located in his or her residence.

If the drugs aren't seen or purchased at the defendant's home, this can create quite a problem for the state. Not just because the officer's training and experience is insufficient, but also because such training and experience often requires the opposite conclusion. I've seen affidavits where the affiant--because he wants to search a place where my client is known to sleep, but not his primary residence--will assert that, based on his training and experience, he knows that drug dealers will often have a stash house where they keep all their drugs and drug paraphernalia.

Funny story about that. I recently read an affidavit where the officer wanted to search my client's residence for drugs and, as is typical, most of his affidavit was boilerplate. The problem was, he used the boilerplate about stash houses, and the fact that drug dealers don't normally keep stuff in their home.

Well, I guess I don't have to argue too hard that the affidavit fails to allege probable cause. The affidavit itself seems pretty clear, based on the officer's training and experience, that there wouldn't be any evidence at my client's home.

For a related problem with search warrants, see this post from 2011, which is just as relevant today as it was then.