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  1. #1
    Join Date
    Aug 2007
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    Default Re: Is Probable Cause Adequately Established to Support a Search Warrant

    Amendment IV

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


    From what you have listed, it would seem more than adequate to comply with the 4th.

    PC is a lower standard than "proof beyond a reasonable doubt".

    Any attempt to quash a SW based on lack of PC would have to be attacked from another angle, lies/deceit, a Franks challenge.

    Held: Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment, as incorporated in the Fourteenth Amendment, requires that a hearing be held at the defendant's request. The trial court here therefore erred in refusing to examine the adequacy of petitioner's proffer of misrepresentation in the warrant affidavit.

    http://caselaw.lp.findlaw.com/script...=438&invol=154

  2. #2
    Join Date
    Mar 2009
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    Key West, FL
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    Default Re: Is Probable Cause Adequately Established to Support a Search Warrant

    Everyone is presumed innocent, and that is the only reason I would even give your question a passing glance.

    There is plenty of probable cause for the issuance of a search warrant. You should have an attorney look at it, needless to say.

    It is missing one big thing that could invalidate it all, but so much is at the judge's discretion, there are too many factors to even guess what might happen on a trial or appellate level.

    The officer asking for the search warrant when using an informat, confidential or otherwise, needs to make a statement attesting to personal knowledge that the informat is known to be reliable.

    You or an attorney needs to research your state law on this issue.

    Otherwise, see you in five or ten, unless the feds decide to prosecute you too. Yes, another ten or so consecutive. There is no double jeopardy as the elements of the crimes are different.

  3. #3

    Default Re: Is Probable Cause Adequately Established to Support a Search Warrant

    Thank you. The reason I posted this thread seeking your opinions is that I value your insight. Again, thank you.

    Perhaps it would be helpful if I listed what I consider the most glaring issues I have with this affidavit and someone could point out how and why I am wrong.

    1. The informant gives no information, nor does it appear he was asked, HOW he came to know the information he provided concerning the “counterfeit operation”. The first paragraph lays out a method of counterfeiting, but there is no information that the informant gained this information by either witnessing or participating in the activity.
      • My understanding is that there must be a basis of knowledge established to give weight to statements made by the informant.
      • Should the informant be required to make a statement against penal interest to be considered reliable if no other basis exists?
    2. The only information that could be considered corroborated were the counterfeit bills the affiant obtained from the informant. Although there seems to be a discrepancy in the number of bills the informant provided to the affiant. The significance of this will come to light.
      • All of the counterfeit bills used to establish probable cause came from the informant.
      • The affiant made no effort to establish how or why the informant was in possession of these counterfeit bills. So, could anyone simply buy some illegal drugs, then call the police and tell them his neighbor gave them to him six months earlier? And then, could the police use this to establish probable cause to get a search warrant?
      • The assertion that the suspect “gave” the bills to the informant, even if it was corroborated, happened six months prior to this affidavit. Doesn’t there need to be a basis established that a crime is currently being committed at the time of the warrant?
    3. The affiant gives no information describing any independent investigative work done to determine whether the allegations were founded.
    4. The affiant gives no information that establishes the veracity of the informant or whether to consider his allegations believable or reliable.
      • The fact is there are a number of statements that should cast suspicion on the motives of the informant and make his statements highly questionable.
      • “Mr. INFORMANT told me his wife is involved but not willingly. He said the suspects have BECKY hooked on methamphetamine and she will not come home”.
      • “She frequents the suspect’s home to see her mother, BECKY, who is now living with the suspect GARY”.
      • “Due to the way the suspects are treating his wife, Mr. INFORMANT decided not to give GARY’s wallet to him”.
      • The passage of so much time between the informant coming into possession of his “evidence” and him contacting the police.
    5. The informant alleges he “found” a wallet containing one thousand dollars in counterfeit bills on the suspect’s property and asserts that it was GARY’s wallet.
      • There wasn’t any identification in the wallet and therefore nothing to establish whose wallet it was.
      • The informant states that he “hid the wallet” in the suspect’s truck because he was mad at him.
      • The informant all but admitted to planting evidence on the suspect’s property. How could this be used to support probable cause?
      • Why couldn’t anyone plant anything on anyone’s property and use it to frame someone?
      • What would happen if someone did plant evidence on their neighbor’s property then tell the police that they found it in that neighbor’s driveway, and instead of calling the police they hide it in the neighbor’s vehicle where it sits for two months before the police are contacted?
      • Is this sufficient to support probable cause?
    6. The informant asserts that “On Thanksgiving in 2007, Mr. INFORMANT saw GARY and LARRY SUSPECT smoking methamphetamine in GARY’s home”.
      • Is this sufficient to support probable cause for a search warrant being granted to storm a house in April 2008?


    ------

    I understand that the judge considers the information in its entirety and specific points are not dissected.
    But, there seems to be so many things wrong with this, IMHO of course.

  4. #4
    Join Date
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    Default Re: Is Probable Cause Adequately Established to Support a Search Warrant

    That's too complicated legally to decipher. It needs the evaluation of a Criminal law attorney. As said, regardless if a Judge signed it or not if was based on lies/deceit/fraud, it can be challenged.

    Based on the SW, what, if any contraband was seized you are trying to subsequently suppress?

  5. #5

    Default Re: Is Probable Cause Adequately Established to Support a Search Warrant

    Thank you for looking at this. I understand that it's complicated, and I have bounced this off an attorney. I'm interested in this warrant precisely because it's complicated. I wanted to get bounce it around and get some insight from intelligent people such as yourself.

    It actually gets more complicated as subsequently there was a search warrant granted in Arizona to search suspect LARRY's residence based on this affidavit.

    To answer your question, the contraband seized as a result of the search warrant was a small empty (except for residue) baggie containing meth. Also, not surprisingly, a wallet located right where the informant said he put it (the green pickup) that contained twelve (not the ten the informant stated) counterfeit $100 bills.

    I'll also add that when the report of the search was filed it did not mention that the wallet found in the truck with the bills was placed there by the informant or even that they had information that it would be there. They put in a context that implies that they simply discovered it there as a result of a good and thorough search of the property.

    I guess what intrigues me most are the statements the informant made that demonstrated hostility he had for the suspects, and that all the "evidence" was given to the police, or planted by, the informant. And the Judge's apparent disregard of the implications.

    When I read this information I had the feeling that probable caused was established; to get a search warrant for the informants residence. He was the one that without question was in possession of the counterfeit money, and was in possession of it for a long period of time.

    Again, thank you for your attention.

  6. #6
    Join Date
    Sep 2005
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    California
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    Default Re: Is Probable Cause Adequately Established to Support a Search Warrant

    As was stated, apparently this was sufficient to convince a judge that probable cause existed to issue a search warrant of a search for wherever it was they issued the warrant. Also, since you are here, I think we can assume that the police found evidence of criminal activity as a result of the search warrant, correct?

    As pointed out, the affidavit for the search warrant need only show that there is probable cause to believe that a crime was committed and that evidence of that crime might be in the place where they are asking to search. Absolute certainty is NOT a requirement. The fact that there could be another interpretation of the event(s) does not mean that the affidavit was improper. Unless you can show that the affidavit was false and based on intentional and knowing lies, quashing the warrant will be near to impossible.

    Admittedly, if that is the affidavit en toto (and no other supporting documents were submitted with the affidavit - and there might have been and you do not have them, then it is poorly formatted and lacks an assertation of the officer's training and experience. But it was apparently sufficient to pass muster with a judge. I imagine that your defense attorney will have nothing to lose by challenging the warrant at trial and praying he succeeds. Most do not, but you never know. The defense can also argue that the informant is the culprit if the facts can be twisted that way.

    - Carl

  7. #7
    Join Date
    Sep 2009
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    Default Re: Is Probable Cause Adequately Established to Support a Search Warrant

    Homework? Where do you go to school?

  8. #8

    Default Re: Is Probable Cause Adequately Established to Support a Search Warrant

    Whew! Please let me clear some things up.

    I posted this thread in an effort to get YOUR feedback concerning the information this judge found convincing enough to support probable cause and grant a warrant. I assumed that it would be viewed and commented on based primarily and the question(s) I had in the initial post. My first question, the question that is in the title of this thread. DO YOU think this is sufficient to support probable cause? I am only seeking your personal opinions concerning the information I provided.

    I am aware and fully understand that a judge found this sufficient to grant the search warrant. I do not think I implied that he didn't. It wasn't relevant because it was YOUR opinion that I was seeking.

    I appreciate the guidelines, requirements, tests, etc. that a Judge generally needs to follow to find information provided by affidavit sufficient to establish probable cause. I do. But what I am interested in is YOUR opinion concerning the information I provided and whether you find it sufficient to establish probable cause. And if so, what and why? And if not, what and why?

    If I have posted this in the wrong forum or I am not following the expected format to post here, please let me know. If I have it was not intentional and I apologize to all.

    If I lead you to believe that the information I provided was the ENTIRE application, it was in error. I included the "Statement for Probable Cause" portion of this application. Naturally there was other information provided by the affiant and you can assume it to be sufficient to satisfy the requirements of the court.

    I really want to know what YOUR opinion would be if you were presented this information to support probable cause. I understand this is not legal advise and I certainly do not intend to hold anyone to any opinions given.

    Homework? Are you asking me if this is homework? Or did I suggest that this was homework? It's not...

    Thank you, again.

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