Term Paper on "Defective Search Warrant"

Term Paper 6 pages (1967 words) Sources: 6

[EXCERPT] . . . .

Defective Search Warrant Case Study

A Defective Search Warrant: A Case Study

What constitutes the nature of the legal search and seizure? Throughout the years, people have been exercising their rights under the Fourth Amendment to protect themselves against illegal search and seizures. In many cases, the constitutionality of police action has been questioned, including in the context of this current case under review. Both Mr. Wrong and Mr. Right are now challenging the actions of Saint Leo Police officers in regards to the nature of the searches that led to their arrest on drug charges. The following content review the facts and provide recommendations; primarily that the case against Mr. Right be dropped, based on the fact that his residence was not included in the initial search warrant.

Summary of Facts

There has recently been an incident within the execution of a warrant procured by the Saint Leo Police Department regarding a suspected drug stash within the convenience store. A brand-new informant, who himself was facing his own criminal charges, led police to believe that marijuana and cocaine would be found within a particular convenience store. The credibility of this witness had not been validated, and he had been promised a good recommendation to the prosecutor who was working his case. This was the sole evidence used to generate a request for a warrant to search the property in question. The supervisor of the unit then took the warrant to court, but was forced to settle with the clerk signature on the warrant based on the fact that the judge was out to lunch. With this warrant, the Leo Police Department then executed their search of the property, finding trapdoor filled with marijuana and cocaine. This led to the arrest of store owner Mr. Wrong. During the process of the warrant execution, a K-9 team was used to help locate the exact location of the hidden drug stash. After finding the stash underneath the floor, one K-9 notified his handler of possible drug presence in a private residence 10 feet away from the convenience store. Based on this, the police believed they had enough probable cause to search the residence of Mr. Right. This search did lead to evidence of cocaine in small plastic baggies, suggesting intent to sell. Thus, Mr. Right was charged by the supervisor with possession with intent to distribute. Currently, only one week later, both Mr. Wrong and Mr. Right are challenging the credibility of the warrant in question. Mr. Wrong is claiming that the warrant was defective, while Mr. Right is threatening to sue for the police department violating his Fourth Amendment rights which protect them from illegal search and seizure. Thus, he is threatening to file a Section 1983 lawsuit in regards to the police violating his Constitutional rights.

Issues Presented

Within the context of this case, there are a number of legal issues. The issue of the defective search warrant is brought up by Mr. Wrong's position, as he believes that a warrant signed by a clerk would not be considered a valid warrant. Moreover, the informant's testimony was the sole evidence used to generate the warrant, which could be considered as circumstantial.

There are also issues in regards to a potential illegal search and seizure of Mr. Right and his property. In this case, the K-9 alerted the police officers serving the warrant to drugs on Mr. Right's property, which was not clearly defined in the search warrant procured by the officers. Under the Fourth Amendment of the Constitution, this could be considered illegal search and seizure.

This case also tests the power of evidence produced by a K-9 in regards to defining the degree of probable cause that is appropriate enough to act on the scene to arrest and search an individual. Both individuals were discovered to have illegal narcotics because of the signals provided by a police K-9. Yet, they may try to question the validity of a K-9 signal as enough probable cause.

Arguments Presented by Each Side

There are three major sides within this particular case. First is Mr. Wrong, who believed that the search conducted on the property of the convenience store was based on a defective search warrant. This boils down to the clerk having signed the warrant and not the judge, who was out to lunch at the time. In addition, Mr. Right has his own argument in regards to the illegal nature of his arrest and the search of his private residence that was adjoining to the convenience store. There are essentially two elements to the argument being presented by Mr. Right's attorney. At the present moment, Mr. Right's attorney is threatening to bring a Section 1983 lawsuit against the Saint Leo Police Department. Then finally, there is the side being argued by the Saint Leo Police Department. They wish to show their actions were under the complete authority of the letter of the law, but would also want to rectify the situation as easily as possible, as to not incur any penalties on behalf of the department loosing a Section 1983 lawsuit based on constitutional violations.

Applicable Law

There could be an issue with using only the testimony of the informant to procure a warrant against Mr. Wrong. The original evidence for the warrant, the informant's testimony, is also regulated by court precedent. Some might question as to whether or not this was enough evidence to sign off on a warrant. Many court cases have had to deal with only informant testimony to generate the call for legal action, as seen recently in 2009 in State v. Dark.

. This decision helped secure the use of informant's as reason for executing police action, while maintaining the anonymity of the informant. This evidence combined with the evidence from the K-9 response suggests a strong enough case to validate the execution of the warrant against Mr. Wrong. Moreover, in regards to the issue of the clerk signing the warrant, there is precedent showing that is acceptable for the execution of a search warrant. According to the law, a warrant must be signed by a magistrate, which "actually refers to a class of individuals who are authorized to perform certain functions, and therefore may be a number of different officials."

As such, the clerk was allowed to sign off on the warrant, showing no grounds for calling it defective.

Under the Fourth Amendment, citizens of the United States are protected against illegal search and seizure. The content of the Fourth Amendment protects "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."

As such, there are clear restrictions to police searches of property that would require specification set out in a legal warrant.

Additionally, stop-and-frisk policies created from past precedent still could possibly allow the Saint Leo Police Officers enough justifiable probable cause to arrest Mr. Right. According to the research, "arrests are subject to the requirements of the fourth amendment, but the courts have followed the common law and upholding the right of police officers to take a person into custody without a warrant if they have probable cause to believe that the person to be arrested has committed a felony or has committed a misdemeanor in their presence."

Yet, the fact that his residence was searched without the acquisition of a warrant dictating the specific property, makes any seizures within the residence and not on his persons, open to questioning under the regulations presented in the Fourth Amendment. Thus, because of this perceived violation of his Constitutional rights, Mr. Right is threatening to file a Section 1983 lawsuit against the department. This regulation was passed after the Civil War in 1873 and is "a law that allows people whose constitutional rights have been violated by government officials the chance to sue those officials in court."

In regards to the validity of the probable cause provided by the K-9 team, there is also a set precedent seen in recent court cases. Mr. Wrong and Mr. Right could argue that the K-9 might not be enough evidence. Yet, a recent 2013 case, Florida v. Harris,

illustrated the Supreme Court's recent move to judge probable cause based on K-9 signals alone is enough for commencing a search on someone's property. According to the research, "the Court overturned the Florida Supreme Court ruling and held that police officer had probable cause based on the dog's reliability."

As such, as long as the dog had been properly trained and tested in the field, the probable cause would stand firm.

Recommendation

The warrant against Mr. Wrong should be able to stand strong. It is not defective, and thus his charged should stand as they were initially written. Recommendations to the Sheriff also include dropping charges… READ MORE

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