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How To Avoid a Pot Bust!
Written By a Lawyer,
Part
#1 of 2
Return
To OnlinePot's Legal Section Main Page
US IL: Drug-sniffing Dogs In Traffic Stops Often
Wrong!
Legal Section
AVOIDING AND DEFENDING POT BUSTS IN THE 2001’S
Law Office of Jeffrey Steinborn
157 Yesler Way
Suite 400
Seattle, WA 98104
(206) 622-5117
FAX (206) 622-3848
http://www.potbust.com
How to avoid Pot Busts page #2! Written by a lawyer,
How
to avoid Pot Busts!
I.
INTRODUCTION
Marijuana is a drug of such enormous power that it has driven the
government mad. Where the
prosecution of marijuana offenders is concerned, no expense is too great for the
government. No allocation of
valuable resources such as manpower, equipment, or jail space is beyond the
reach of a police agency dedicated to crushing and fleecing anyone who comes
close to pot. In my state,
Washington, local law enforcement agencies think nothing of sending a dozen
officers, and a large number of vehicles, including planes and helicopters, on a
week long foray across the state and even into Oregon, just to bust a couple of
pounds of pot. Meanwhile in many
counties in Washington, methamphetamine accounts for 75% of all referrals to
Children’s Protective Services. But
no matter the relative harm, marijuana arrests are climbing towards one million
a year – more than all other drugs and violent crimes put together.
And, despite the clear fact that the war on marijuana is a footless
fraud, no end appears in sight. So
you better get ready.
You and your lawyer need to understand that marijuana prosecutions are
different from any other criminal action for at least three reasons:
First, no other type of law violation has spurred police to develop such
intrusive investigative techniques or to habitually bully and terrorize an
entire class of harmless citizens; second, when you defend a marijuana
prosecution it is you, not the government who occupies the moral high ground;
and third, when you try a pot bust case, the only victim in the courtroom is the
defendant!
America’s fastest growing indoor hobby/cottage industry has provoked
law enforcement to respond aggressively with intrusive investigation techniques
– some employing space-age technology and many bringing the eyes, ears and
noses of law enforcement into areas American citizens have long considered to be
at the hard core of the right to privacy. Enforcement
against indoor cultivation has become an issue of primary importance now that
the Drug Enforcement Agency and local law enforcement have prioritized the
“war” on domestic marijuana. In
the State of Washington, for example, where the large majority of the marijuana,
Washington's number one cash crop, is grown indoors, a well-publicized $5000
reward awaits informants who will turn in marijuana farms.
Remarkably, no advertised reward encourages those who turn in murderers,
rapists, robbers, child molesters or criminals who prey on the vulnerable.
Even dealers of the harder drugs have no advertised bounty on their
heads. How can this be?
Marijuana is not a dangerous drug. Its
use is not a danger to society. Extreme
measures to enforce the marijuana laws are not justified.
The resultant pressures on the privacy of the home are difficult to
reconcile with traditional American values such as tolerance, liberty, or
pursuit of happiness. But, privacy
is a fragile right. No one ever got
elected for defending it. It comes
as no surprise that it retreats in the face of three decades in which everyone
has indulged the drug warriors. More
alarmingly, however, as the following discussion will explain, even the usually
robust rights of private property are no longer secure.
The entire U.S. Constitution has retreated in the face of the assault.
Any defense attorney – for that matter, any reasonably industrious
federal agent – knows that for those who depend for protection upon the U.S.
Constitution, few places remain that are truly private.
In many state courts, however, there is room for creative and aggressive
response to the war on privacy. Indoor
marijuana gardens are a relatively new phenomenon.
Many of the intrusions they provoke have not yet been tested under state
constitutional theories. Where
there has been a test, states have often found enhanced protection in their own
constitutions. No defense attorney
practicing in state court can afford to overlook those few remaining
opportunities to have someone in a robe say the word “suppressed.”
Below is an examination of law enforcement techniques I have frequently
encountered in marijuana cases – and often encountered in other types of cases
– and the major legal as well as factual issues that arise from them.
This article suggests some of the most common state constitutional
issues, as well as some of the non-constitutional issues a client and his or her
lawyer will face in defending a marijuana prosecution.
The discussions are not intended to be comprehensive; hopefully they will
be inspirational. Although we
haven't thought of everything, Washington leads the country in arrests for
indoor growing, and we have been forced to pioneer some of these defenses.
In defending these cases and making these arguments emphasize the simple
fact that the Bill of Rights should not be viewed as an impediment to
effective law enforcement. This
fundamental democratic principle has received so little support from our leaders
and jurists that the American Bar Association recently felt it necessary to
conduct a study to reaffirm its continued validity.
Their findings are particularly relevant to the lawyer who would defend
the privacy of the home: the constitution, and in particular the exclusionary
rule,[1]
do not impede effective law enforcement.
Rather, the committee of prosecutors, police, lawyers and judges
concluded, they protect fundamental rights at a very low cost, while encouraging
the
professionalism
that is essential to good law enforcement in a Democracy.[2]
II.
HOW TO GET BUSTED
A.
SEARCH WARRANTS – THE KEY TO YOUR DOOR
1. Home Hygiene
As
you will see from what is written below, it’s not that hard to get a search
warrant for a private residence. If
that happens, you had better hope that there is no money, no guns, no needles or
hard drugs, no financial records or records of safe deposit boxes, no links to
your associates in the marijuana industry, no evidence of prior grows or
unexplained wealth and no fancy toys. It’s
also nice if there are no “indicia of dealing” such as scales, baggies,
lists of who owes what, diaries of past grows or past deals, letters between
associates, or instructions to helpers or distributors.
See Appendix A for a government-generated list of what cops consider
“indicia of dealing.”
If you are growing in the same house with your legal gun collection, or
where your spouse, your mother, or your children reside, you are already two
strikes down. Guns and vulnerable
victims give the police way too much leverage – sometimes so much that you
will even be forced to give up valid defenses rather than risk the enhanced
penalties that guns bring, or the suffering and torture that will surely befall
you loved ones if you have allowed them to get in harm’s way.
If you are breaking any of these rules, be sure to put away quite a bit
of extra money for your lawyer, your family’s lawyer, and your family’s
support while you are away for a long time.
Meanwhile, here is some information about search warrants, how police get
them, and what you can do about them.
2. The Sacred Function of
the Search Warrant
The home is the last place where the law still provides some degree of
privacy. If the crime is being
committed in your home, police will probably need a search warrant to get in and
find it. Even the smell of
marijuana detected by an officer when s/he knocks on your door and you foolishly
open it does not allow police to enter your home without a warrant.
Exceptions to this rule will be discussed later, under “warrantless
searches.”
The
law of search and seizure is all about privacy.
Remarkably, although polls suggest that this is one of the most highly
valued rights among American citizens, most voters seem to accept radical
changes in the rules of privacy which can only be viewed as placing that
fundamental right on the endangered species list.
According to the United States Constitution, police may not enter and
search a private residence or its “curtilage” (except for the unblocked path
to the front door) without prior judicial approval in the form of a search
warrant. How do they get these
warrants?
Although every now and then police actually stumble on a grow without
help, (even a blind chipmunk occasionally stumbles on an acorn), nearly all
search warrants come from tips. Sources
of tips – informants – come in infinite forms.
Informants are much more prevalent in the marijuana trade than in other
situations, since most marijuana growers are non-violent and wisely refuse to
treat informers in ways that are customary if not mandatory when it comes to
other crimes. This benign attitude
allows many to make highly paid careers out of rooting out and turning in
(sometimes after ripping off) grow rooms.
Anyone who spends much time around the criminal justice system knows that
the United States has reversed its moral compass on this issue.
Informants have been universally detested throughout history.
We all remember Judas. Dante
reserved the innermost circle of Hell for informants.
Benedict Arnold was the eponym for the lowest form of biped life in all
of North America. Linda Tripp will
be reviled for all of history. Yet
today, informing is a major part of the growth industry.
Tax-free and inflation proof. Rewards
in five to six figures are common. The government buys the testimony it
wants/needs with freedom, cash and who knows what else.
Without informants our justice system would grind to a halt like pulp
mills without trees. But, I digress . . . .
This is how the government gets the key to your door:
The Fourth Amendment to the United States Constitution, and the
constitutions of the states all require, in some form or another, that searches
of private places be conducted only where a neutral and detached magistrate or
judge has concluded that probable cause exists to search, and has issued a
search warrant. Search warrants are
issued based upon sworn statements from law enforcement officers.
The statement is usually in the form of an affidavit, but maybe a
recorded telephone call to the judge. A
search warrant based upon an affidavit that does not establish probable cause is
not valid. This means that the
evidence it produced should be suppressed – should not be admitted in court.
A
“facial” challenge to a search warrant – usually a challenge to the
adequacy of the facts contained within the “four corners” of the affidavit
– is usually essential in defending most marijuana grow cases.
In many cases it is not only the front line of defense, it is the only
defense. If the evidence comes in
you’re convicted.
If you are desperate enough, you should be able to find an issue in
virtually every search warrant. However, recent developments in Federal
constitutional law leave application of the Fourth Amendment to these cases a
largely academic endeavor. By this
I mean errors, defects, or governmental misconduct that will result in actual
suppression of the fruits of a search warrant under federal law are rare.
If you are busted by the feds, you will need a specialist in federal
search and seizure law to guide you through this contorted area of the law.
By comparison, Alice in Wonderland seems simple and straight – forward.
Things are not quite so bleak in state court, where some jurists still
remember the prophetic admonition of Mr. Justice Douglas:
We
are not dealing with formalities. The
presence of a search warrant serves a high function.
Absent some grave emergency, the Fourth Amendment has interposed a
magistrate between the citizen and the police.
This was done not to shield criminals, nor to make the home a safe haven
for illegal activities. It was done
so that an objective mind might weigh the need to invade that privacy in order
to enforce the law. The right of
privacy was deemed too precious to entrust to the discretion of those whose job
is the detection of crime and the arrest of criminals.
Power is a heady thing; and history shows that the police acting on
their own cannot be trusted.
McDonald
v. United States, 335 U.S. 451, 455-56, (1948).[3]
In other words, for the process to work, the magistrate must be something
more than a "rubber stamp" for the police who want to conduct a
search.
3. Informants who will bust
you: Sources of probable cause for
search warrants
a. General information about
informants:
Few indoor marijuana cultivation cases commence without an initial
tip from an informant. Informants come in
many categories. Any two-bit
criminal who finds him/herself in trouble with the law can trade his cage for
the freedom of a harmless pot outlaw. There
are usually no consequences. They
should be branded as traitors and banished from civilized society.
Some power company employees, who may be allowed to trespass in order to
read meters or repair equipment, have made informing a second, (and more
profitable) career.
The various shipping companies must all be viewed with suspicion.
This writer has had many clients whose packages appeared “suspicious”
to UPS (“Ur Privacy
Sucks”) employees.
Although they maintain regular relationships with law enforcement, and
law enforcement frequently lectures them on what to look for, they are not
considered agents of the government. That
means they can open any package any time for any reason.
If they find contraband, they contact the police, who then get a warrant
– after the real search has taken place.
But it’s O.K. They’re
“private actors.” The
constitution applies only to the government and its agents.
The misconduct of private actors does not result in suppression of
evidence.
What to do if busted by a “private” company?
Bring them in. Using your
discovery rights, expose the relationship between them and the police.
Explore whether their conduct violates local laws or constitutions
regarding the right of privacy. If
it does, sue them. If their
conduct violates local privacy laws, demand that they be prosecuted.
Let the local public know that the company does not honor privacy.
Landlords are always a problem. If
you conspire with them, they have too much to lose (their property) so they will
often turn against you. If you
don’t conspire with them, they’ll usually turn you in if they catch you.
You have to use your ingenuity to deal with this situation.
Just remember. They’re in
it for the money.
Jealous, sanctimonious, or otherwise nosy neighbors bring down many a
farm. Money doesn’t motivate
them. Because they are often only
anonymous sources that inspire the police to try to get a whiff, you never find
out who they are. There’s
not much you can do about them. But
it never hurts to be a good neighbor.
And, of course, there is no informant so common as the rejected lover or
business associate. If you made the
mistake of sharing your private business with someone who later turns on you –
well, so it goes. If you weren’t
so greedy or lazy you’d have done it all by yourself and there would be no one
to snitch you off.
Another problem is ego. Proud
but vulnerable growers still haven't learned not to show off their work. This is
a basic survival lesson: If, like
most law-abiding pot growers, you are not ready to send quick, graphic messages
to the informant community, your only choice (and the safer and wiser one) is to
send them no messages at all. Zip
your lips. Can you do it?
If not, I seriously recommend keeping a short strip of duct tape in your
purse or wallet. When you feel the
urge to talk about your grow, pull the tape out and place it over your lips.
If that doesn’t work, and you become the victim of an informant,
you’ll need some defenses. Here
is a summary of the relevant law of informants:
Under the United States Constitution, the test for whether probable cause
is established in a search warrant is an easy one for the police to meet.
An informant’s tip is evaluated under the “totality of
circumstances” test of Illinois v. Gates, 462 U.S. 213 (1983).
Under this test, with minimal confirmation of a few innocuous facts in
the tip, the police can secure a virtually airtight search warrant for a private
residence based upon little more than the pointing of an anonymous finger.
Many state courts have rejected this rule, instead requiring that an
informant’s tip must still satisfy the more structured two-prong
“Aguilar-Spinelli”[4]
test, which requires the affidavit which supports the search warrant to
demonstrate both the informant’s basis of knowledge, and credibility.
See, e.g., State v. Jones, 706 P.2d 317 (Alaska 1985)
(relying on article 1, § 14 of the state constitution); State v. Jackson,
688 P.2d 136 (Wash. 1984) (article 1, § 9); State v. Horwedel,
674 P.2d 623 (Or.App. 1984) (Or. Rev. Stat. ' 133.545(3); Or. Const. article 1,
§ 9); State v. Kanda, 620 P.2d 623 (Haw. 1980) (article 1, § 7).
Then there’s the “good faith” exception to the exclusionary rule.
If the warrant is later found to lack probable cause, if the officers
relied on it in “good faith,” the evidence still comes in.
If your state has not yet accepted this rule, your lawyer may get some
use out of the brief on the subject I have attached as an appendix to this
article.
Informants come in several different varieties.
The credibility or reliability of informants must be established by facts
in the affidavit, which would support the magistrate’s conclusion that the
informant is telling the truth. The
officer’s opinion that the informant is reliable is not enough.
That the informant is named in the affidavit, disclosed to the judge, or,
at least, known (and identified) by the affiant,[5]
is significant. See, e.g., State
v. Northness, 20 Wn. App. 551 (1978), (defining categories of informants).
b. The anonymous informant.
You will probably never find out who this is.
His/her word is not sufficient to establish probable cause without more.
State v. Bantum, 1 P.2d 861 (Wash. 1931).
Thus the police will
have
to do some work and provide some “corroboration” of the informant’s tip.
If the target is a grow, police will go to the house.
If the front porch is not protected against trespass they will come to
the door to try to get a whiff. They
will look for covered windows, suspicious vents, potting soil, and other
indications of indoor gardening discussed below, and listed in the sample search
warrant affidavit in Appendix A.
In these cases, the challenge by the defense will focus on the
"corroboration" provided by the police to bolster the otherwise
inadequate tip. Is it just
innocuous? Is it really evidence of crime, or are the police just attaching
suspicion to everyday common items and occurrences? This is dangerous in a free
society. As the sage Captain Jean
Luc Picard of the Starship Enterprise once observed, “the road from legitimate
suspicion to rampant paranoia is very much shorter than we think.”
Don't always accept the word of the police when an anonymous informant is
claimed. One clever defense
investigator recently reviewed all search warrants done by a particular officer,
(they should be a matter of public record), and established a pattern which
proved that the officer's informant was nothing more than an "imaginary
friend."
c. The citizen informant.
Citizen informants are ordinary citizens who stumble on or are the
victims of a crime. Where probable
cause relies on the word of non-professional "citizen" informants, the
requirement of a showing of reliability is somewhat relaxed.
Some allegations must nevertheless be made to show that it is a true
"citizen" informant, who may then be presumed reliable.
State v. Chatmon, 515 P.2d 530 (Wash. 1973), (police must still
interview the informant and ascertain such background facts as would support the
inference that he is reliable). The
affidavit should reveal the reasons for the citizen informant being present at
the scene of the crime, since most persons present where drugs are seen are
criminals, not innocent citizens. State
v. Rodriguez, 769 P.2d 309 (Wash. App. 1989).
As Professor LaFave observed:
[C]ourts should be cautious in accepting the assertion that one who
apparently was present when narcotics were used or displayed is a presumptively
reliable citizen-informer . . . . [T]his
is because as a general proposition it is an informant from the criminal milieu
rather than a law-abiding citizen who is most likely to be present under such
circumstances. This is not to
suggest that a person giving information about the location of narcotics may never
qualify as a citizen-informer, for it is sometimes possible to show with
particularity how a law-abiding individual happened to come upon such
knowledge.
1
LaFave SEARCH AND SEIZURE (1987), at 728. (Emphasis
supplied).
State v. Ibarra, 61 Wn. App 695 (1991), is hopeful.
This case reiterates the Northness categories of informants,
observing that "the concern that the informant information may be coming
from an anonymous troublemaker remains when the citizen informant is
unidentified. Therefore, the
State's burden of demonstrating the credibility of a citizen informant is not
necessary lightened when the informant remains unidentified to the
magistrate." 61 Wn. App. 699.
This case holds that the reliability/credibility of the alleged
"citizen informant" was not established, particularly because the
reason why the informant was at the scene of the crime/location of the crime was
not given. The case holds that a
generic recitation of the officer's conclusions is not sufficient to raise the
requisite inference that the informant had a valid reason for wishing to remain
anonymous.
d. The “criminal milieu”
informant.
Some courts recognize the reality that informants from the "criminal
milieu" –criminals in plain English -- are likely to lie and should be
presumed unreliable: "It is to be expected that the [criminal] informer
will not infrequently reach for shadowy leads, or even seek to incriminate the
innocent." Jones v. United
States, 266 F.2d 924, 928 (D.C. Cir. 1959).
Law enforcement officials and prosecutors are at least privately aware of
the likelihood that criminals will lie to stay out of trouble.
For example, the Hon. Stephen Trott, when he was in charge of the
criminal division at the United States Department of Justice wrote:
Criminals are likely to say and do almost anything to get what they want,
especially when what they want is to get out of trouble with the law.
In my personal firsthand experience of over 18 years as a prosecutor,
this willingness to do anything includes not only truthfully spilling the beans
on friends and relatives, but also manufacturing evidence, soliciting others to
corroborate their lies with more lies, double-crossing anyone with whom they
come into contact, including - and especially - the prosecutor.
A drug addict can sell out his mother to get a deal; and burglars,
robbers, murderers and thieves are not far behind.
They are remarkably manipulative and skillfully devious.
Many are outright conscienceless sociopaths to whom "truth" is
a wholly meaningless concept. To
some 'conning' people is a way of life. Others
are just basically unstable people.
Trott,
The Successful Use of Snitches, Informants, Co-Conspirators, and Accomplices
as Witnesses for the Prosecution in a Criminal Case 2, (United Sates Justice
Department 1984). Mr. Trott is now
a judge on the United States Court of Appeals for the Ninth Circuit.
His updated article was recently published at 47 Hastings L.J. 1381.
The title is Words of Warning for Prosecutors Using Criminals as
Witnesses.. He has recently
reiterated these same feelings in a written opinion. United States v. Bernal-Obeso,
989 F.2d 331 (9th Cir. 3/29/93), addresses credibility of informants as trial
witnesses: “Our judicial history
is speckled with cases where informants falsely pointed the finger of guilt at
suspects and defendants, creating the risk of sending innocent persons to
prison.” See also, Zeese, How
Prosecutors Use Informants, 1 DRUG L. REP 130-31 (Sept.-Oct. 1984).
Bernal-Obeso is the exception. Courts
have demonstrated rare ingenuity in developing theories by which to support the
veracity of these inherently unreliable sources of information.
The police may rely on, among others, the following common methods of
showing the veracity of the criminal informant:
(1) A "track
record" of virtually any prior cooperation with the police.
This should not be interpreted to mean that if an informant
predicted the sun would rise, and then it did, his word may now be presumed
reliable. State v. Fisher,
639 P.2d 743 (Wash. 1982), but see, dissent.
Note that a "controlled buy" should not establish reliability
unless the affidavit alleges the informant claimed he could buy at that
location, and then did. State v.
Casto, 692 P.2d 890 (Wash. App.
1984); State v. Steenerson, 688 P.2d 544 (Wash. App. 1984).
(2) A “statement against
penal interest,” State v. O'Connor,
692 P.2d 208 (Wash. App. 1984). The
theory is that when people admit to crimes, it must be true.
This theory should not be applied where it doesn't fit (although it often
is). The statement must be genuinely
against penal interest. Note
here that the naming of the informant in the affidavit is not a passport to
reliability; rather, it is a prerequisite to a finding that a statement
against penal interest supports an inference of reliability.
1 W. LaFave, SEARCH AND SEIZURE, at 644.
This exception should not be used to make a person who confesses to some
crime a more reliable source of information than an honest citizen.
(3) The informant is highly
motivated to provide accurate information, and will not lightly lead police down
blind alleys. State v. Bean,
572 P.2d 1102 (Wash. 1978); State v. Estorga, 893 P.2d 813 (Wash. 1991);
these cases showcase judicial logic at its thinnest.
A criminal caught red-handed who then makes a deal is presumed to be
reliable? This is dangerously
dishonest logic. Often
"prospecting" -- law enforcement's own term for leading police down
blind alleys in the hope of getting lucky and finding something incriminating --
is an informant's only hope.
(4) Merely giving the name
of the informant does not establish reliability.
State v. Sieler, 621 P.2d 1272 (Wash. 1980).
Many search warrants for indoor grows rely almost entirely on the word of
a criminal milieu informant. Where
the "full-court press" is necessary to the defense of the case
investigative opportunities here are many.
When dealing with a criminal milieu informant, the lawyer should check
possible suspects for recent arrests or convictions.
Where there are no clues, check search warrants[6]
in the same jurisdiction for similar warrants or warrants by the same officer.
Then interview other targets of similar searches to see if one name of a
suspected informant comes up twice. Then
interview that one. Often the
informant will have been materially misquoted.
Perhaps he first misled the police before deciding to "tell the
truth" about your client. There’s always something there of value.
Of course, never interview informants alone!
4. Police investigative
techniques that generate warrants
a. Discrediting police
opinions and investigations
Most drug search warrant affidavits contain a routine laundry list of
things that drug dealers routinely keep in their residences – according to the
officer’s experience. An example
of this is attached as Appendix A. Under
federal law, if there is probable cause to believe that you are involved in drug
dealing anywhere on the planet that by itself is probable cause to search your
residence. That means when the feds
bust you selling on the street, growing in a rented building, smuggling in a
boat or at the border, they will come and search your house, usually
immediately. They may also
search you parents’ house, your ex spouse’s house, or your children’s
house. And the search will be
legal.
If the state busts you, it depends where you live.
In Washington, thanks to a case of which I am very proud, the mere
recitation of an officer’s conclusions about what drug dealers keep in their
homes is not enough to get a warrant. There
must be some specific information suggesting that the evidence sought will be in
the place to be searched – some specific evidence tying the place to be
searched to the specified illegal activity.
The case is State v. Thein, 138 Wn.2d 133, 977 P.2d 582 (1999).
The weight of police observations contained in search warrant affidavits
may also be minimized by defense investigation.
Check whether all of the details are accurately reported.
Sometimes a series of superficially harmless errors in reporting by
police officers seeking warrants may form a pattern suggesting intentional
misleading when viewed as a whole. Argue
that every mistake in this particular warrant has the affect of enhancing
probable cause. The odds would be
that if the mistakes are genuine, and random, at least half of them would
detract from probable cause.
As I will discuss later, that is the burden: inaccuracies must be
intentionally misleading before they result in suppression.
Indoor marijuana cultivation investigations have incorporated a variety
of new investigative indicators, tools and techniques.
Some common police techniques are discussed below.
A thread that seems to run through all of the information offered by
police in support of probable cause to search for indoor farms is the tendency
to equate conduct consistent with criminal activity with conduct actually
probative of criminal activity. Heat
escaping from a building, higher than average power consumption, covered windows
or other attempts to protect privacy, even the presence of gardening equipment
such as pots and potting soil, or purchasing something from a gardening store --
all of these innocuous events are often pointed to by police as evidence of
criminal activity.
The Washington Supreme Court's well-reasoned opinion in State v.
Jackson, 102 Wn.2d 432, 439, 688 P.2d 136 (1984) may be useful here:
The independent police investigation should point to suspicious activity,
"'probative indications of criminal activity along the lines suggested by
the informant." Merely
verifying "innocuous details", commonly known facts or easily
predictable events should not suffice to remedy a deficiency in either the basis
of knowledge or veracity prong. Corroboration
of public or innocuous facts only shows that the informer has some familiarity
with the suspect's affairs. Such corroboration only justifies an inference that
the informer has some knowledge of the suspect and his activities, not that
criminal activity is occurring. Corroboration of the informer's report is
significant only to the extent that it tends to give substance and verity to the
report that the suspect is engaged in criminal activity.
(Citations omitted.)
United
States v. Mendonsa, 989 F.2d 366 (9th Cir. 1993) is helpful here in that it,
too, requires something more than
corroboration of innocent details, even in federal court.
b. Surveillance of grow
equipment shops
Particularly
troublesome here is the recent tendency to place stores which sell gardening
equipment under surveillance, then to follow customers to their homes and
attempt to establish probable cause. “Operation
Green Merchant,” as it was called, is an alarming trend in law-enforcement.
Grow shops are like the watering holes in the desert.
The predators hang out there, waiting for their prey to come to them. To
the credit of police, this technique actually generates leads without snitches.
But it has its dangers in a free society.
Gardening has become a common form of recreation in America.
Its popularity, including the popularity of legitimate indoor gardening
is exploding. Thus, not only does
this investigative technique raise an issue of the chilling effect upon
protected legitimate conduct, it also casts doubt upon police observations,
which are as probative of a legal indoor garden as of an illegal one.
If the police spot you at a grow shop, they will investigate you. If your
license plate does not connect to any prior record of drugs or association with
someone with a record, they might ignore you. But, on a slow day, even the
innocent looking shoppers get followed home.
The next step is to sneak around your neighbor’s yard in the dead of
night trying to get a whiff of your crop. In
many neighborhoods, this can lead to some unfortunate confrontations.
Law enforcement will invariably attempt to persuade the courts that only
marijuana is valuable enough to be grown under lights.
This is a clearly and demonstrably false premise.
Across the country modern hi-tech gardens big and small refute this
dangerous misrepresentation. In the
unlikely event that your community has no local experts on legitimate indoor
agriculture, the American Orchid Society, the Indoor Light Gardening Society of
America, the world wide web, and most of the major national/international light
bulb companies, are but a few of the many good sources of evidence to refute
this dangerous lie.
c. Power usage
Examination of power consumption records has become a common
investigative tool since indoor cultivation relies heavily on electricity. If
your use is high, the cops say that’s probable cause.
If your use is low, cops say that’s probable cause, too, because you
must be stealing the power. The
problem is, if you steal the power, not only are you a thief, but power company
employees easily detect it. In the course of lawfully searching for the power
tap they will bring police with them and whatever you’re growing will be
discovered. The solution to this
dilemma is simple: don’t be
greedy. One or two lights are
really all you need unless you are growing for the Green Cross.
If you find yourself in court with this issue, argue that above average
or increased power use has too many legitimate explanations to be considered
probable cause. See, e.g., State
v. McPherson, 698 P.2d 563
(Wash. App. 1984). Compare,
State v. Donahue, 762 P.2d 1022 (Or.App. 1988) (accepting increased power
use as having some significance where the odor of marijuana was also present).
An attorney can minimize the probable cause value of power usage
information with statistics from the power company showing what is average and
what the range of power consumption is, and by employing an expert[7]
to advise the court of the many other innocent explanations for the high power
consumption.
In addition to questions regarding their probative value, police seizure
of power records may raise constitutional and statutory issues.
In Washington state, the Privacy Act prohibits seizure without a written
statement of "articulable suspicion."
Wash.Rev.Code ' 42.17.314 (codifying In re Rosier, 717 P.2d 1353
(Wash. 1986); State v. Maxwell, 791 P.2d 332 (Wash. 1990), (applying the
statutory protection to the search warrant process, while refusing to rule on
the constitutional issue); State v. Butterworth, 737 P.2d 1297 (Wash.
1987) (specifically declining to rule on the Constitutional issue).
There is an argument that such a seizure of power records is
unconstitutional because it violates individual privacy rights.
In an age where computer technology makes every small bit of recorded
information available almost instantaneously, realistic protection of the
fragile right of privacy requires that prior judicial approval precede search or
seizure of information regarding matters occurring within a citizen's home.
The seizure of power records is for the purpose of securing evidence of a
crime; the evidence is of a nature which reflects the private activities of a
citizen within his or her home, and about which the citizen has a reasonable
expectation of privacy. See,
Hearst Corp. v. Hoppe, 580 P.2d 246 (Wash. 1978).
In Hearst, the Washington Supreme Court observed, (in a
non-criminal context):
Every individual has some phases of his life and his activities and some
facts about himself that he does not expose to the public eye, but keeps
entirely to himself or at most reveals only to his family or to close personal
friends. Sexual relations, for
example are normally entirely private matters, as are family quarrels, many
unpleasant or disgraceful or humiliating illnesses, most intimate personal
letters, most details of a man's life in his home, and some of his history that
he would rather forget." (Emphasis
supplied).
580
P.2d at 253, quoting, Restatement (Second) of Torts, '652 D at 383 (1977).
An interesting side issue here comes from the fact that pot growers often
divert (steal) power to keep high power bills from alerting the authorities.
Where a diversion is suspected, power companies will install
"comparator" meters, which show that not all power being used by a
residence is flowing through the meter. Where
this takes place, argue first that the comparator meter requires a warrant, and
second, that probable cause to search for power theft does not constitute
probable cause to search the entire house, since power is stolen outside the
house, before the wires reach the meter.
d. Infrared thermal imagers
Modern technology allows law enforcement to monitor surface temperatures
of residences by flying over in a helicopter, or driving by at a distance.
Where police observe what they consider to be "excessively
high" levels of heat escaping from a residence, they will point to that
factor as a part of probable cause. They
will even argue that they can read the results to identify:
maps that specifically past to grow room.
See Appendix A. Many
defenses are possible:
It's a search. In
Washington, State v. Young, 123 Wn.2d 173, 867 P.2d 593 (1994) holds that
a search warrant based upon probable cause must precede the use of a thermal
imager on a private residence. In State
v. Binner, Walker, and Walker, Harney County (Oregon) Judge Yraguen ruled
that the use of a thermal imager was a search under the Oregon Constitution.
Unfortunately, the federal law is to the contrary.
United States v. Kyllo 190 F.3d.1041 (9th Cir. 1999)
joins most of the other federal circuits in holding that the use of the thermal
imager is not a search and, therefore, does not require a warrant.
But there are still some arguments.
It’s unreliable. In
United States v. Kerr, 876 F.2d 1440 (9th Cir. 1989), the court declined
to rule on the search issue, observing that the information from the thermal
imager had been of limited probative value.
An informant, a drug dog, or even an officer, whose information was
suspect, would not be tolerated as a source of probable cause.
Neither should this device. The
results of this device are inherently unreliable, as well as ambiguous.
Local experts can assist an attorney in demonstrating that heat radiating
from buildings, even in "excessive" amounts, whatever that may mean,
may reflect a number of things, only one of which is unlawful.
Poor insulation, a sauna, a legitimate indoor garden, the color of the
exterior wall, the direction of exposure, shelter, openness to wind or sun, or
even the material from which the wall is constructed, are all variables which
would affect the external temperature of a building wall.
An engineer who is trained in the use of a thermal imager, (if he is not
in the employ of law enforcement) can testify that it is not reasonable to draw
any inferences regarding criminal conduct based upon amounts of heat radiating
from a building.
In one case this writer received a tape of a thermal imager fly over
where the officers were recorded as they observed a target building.
“That’s it! I see the
heat!” But when they conducted
the raid, all they found was an abandoned shack with windows and doors gone.
The “heat” they saw, and upon which they based their successful
request for a search warrant, was a figment of their wishful imaginations. In
other words . . .
The device is like a Ouija® board:
subject to manipulation and misinterpretation by poorly trained,
unethical or suggestible operators. Again,
this is a matter of reliability. By
using this ambiguous information as probable cause, both the risk and reality of
intrusion into the privacy of innocent persons are increased to an intolerable
level. In a surprising number of
cases investigated by this writer no grow room was found where law enforcement
had predicted -- based upon their use of thermal imager technology -- that one
should be. Poor training, too much
enthusiasm, or even outright fabrication are among the explanations for the many
failures of this technology. Must
American citizens refrain from any kind of indoor gardening in order to protect
themselves from warrants based upon rumor and suspicion?
Further, even when the device is properly operated, and its results
accurately reported, these results are inherently equivocal, and therefore lend
themselves to law enforcement officers who seek to undermine the magistrate's
function by passing off conclusions as facts, and elevating their suspicions to
probable cause. Compare U.S. v.
Penny-Feeny, where heat radiating from building was "consistent
with" marijuana grow, with U.S. v. Kerr, 876 F.2d 1440 (9th Cir.
1989) where lack of heat radiating from building was consistent with marijuana
farm because "marijuana growers often insulate their growing areas."
Investigating cases with these devices is a complex subject.
You must try to get a copy of the tape, if any, made by the device.
Ask the court to order that the device be made available to you for
inspection and testing. Demonstrate
to the court the inherent unreliability of the device.
Use of the military. The
thermal imager is often used by the military, at the request of local
authorities. Where the military
have been involved, another universe of defense is opened up.
With very little notice to the public, the military has crept into
civilian law-enforcement for the first time in recent history.
Courts seem ready to stretch the "posse comitatus" act -- the
law that prohibits use of the military--to permit this exception where marijuana
is involved. This, too, is a
subject ripe for litigation, but too complex to address here.
e. Smell of marijuana
Another common piece of evidence in search warrants is the allegation
that someone detected the odor of marijuana.
If the smell of a contraband item is distinctive and the person who
smells it is qualified to distinguish it, that smell provides probable cause.
State v. Compton, 538 P.2d 861 (Wash. App. 1975).
Even where the officer was wrong, but believed in good faith that he was
smelling marijuana, this may yet establish probable cause.
State v. Remboldt, 64 Wn. App. 505, ___ P.2d ___ (1992), review
denied ___ Wn.2d ___. But
note here: in states where
marijuana is a legal medicine, the smell of marijuana coming from a private
residence is not evidence of a crime. In
the future, we must argue, it takes more than just the smell to get a warrant.
If you do have to deal with a smell case, here are a few ideas.
Hopeful here is United States v. DeLeon, 979 F.2d 761 (9th
Cir. 1989), where one of the officers who claimed to have smelled marijuana was
not shown to be qualified to recognize the odor of growing marijuana which
differs from the odor of burning marijuana.
The court observed that odors can be the basis of probable cause only if
the affiant is qualified to know the odor and the odor is sufficiently
distinctive.
Factual issues become more important where the odor of marijuana is
relied on. Some judges have become
suspicious of smell evidence. For
example:
Smell experts can testify that marijuana is difficult to distinguish from
other pungent plants, that smell is not directional, and that the officer had
inadequate training to identify that which he smelled or locate its source.
Physical evidence which casts doubt on the officer's observations, i.e.,
distance from plants, filters, negative ion generators, wind direction,
topography, etc.
The analogy to the Ouija board comes to mind.
If the officer claimed his Ouija board had never been wrong, could it
provide probable cause?
One frequently encountered situation involves a farm so well protected
from the escape of a smell that it is incredible that the officer smelled it,
yet the claim is made, and marijuana is found.
It may well be that the officer had to trespass into the curtilage before
getting the telltale whiff. Neighbors,
footprints, and hidden surveillance cameras, are among the all too rare sources
of information that might establish this trespass.
If a trespass can be established, a following section discusses the
applicable law.
Finally, in states where marijuana is a legal medicine, there may be a
new defense: the smell is no longer
probable cause. The police must
first request to see the paperwork to determine whether the use is medical
f. Garbage searches
Searches of garbage have become a favorite way to develop probable cause
to search a residence. Federal law
permits warrantless searches of garbage. California
v. Greenwood, 486 US 35, 100 L.Ed.2d 30, 108 S.Ct. 1625 (1988).
Whether this permission extends to actual chemical analysis of items
found in the garbage, such as Kleenex, discarded medicine containers, or other
personal matters is still unclear. In
another context, it seems to be forbidden.
In United States v. Jacobsen, 466 U.S. 109, 80 L.Ed.2d 85, 104
S.Ct. 1652 (1984), federal agents acting without a warrant performed chemical
tests on a package which had been previously opened by employees of a private
company. The Jacobsen Court
held that the search and seizure of the package were reasonable because they
were limited in scope to the extent of the private search.
The court then addressed the warrantless testing of the substance found
within the lawfully seized package:
The question remains whether the additional intrusion occasioned by the
field test, which had not been conducted by the Federal Express employees and
therefore exceeded the scope of the private search, was an unlawful
"search" or "seizure" within the meaning of the Fourth
Amendment.
.
. .
A chemical test that merely discloses whether or not a particular
substance is cocaine does not compromise any legitimate interest in privacy. . .
. Thus, governmental conduct that can reveal whether a substance is cocaine, and
no other arguably "private" fact, compromises no legitimate privacy
interest.
80
L.Ed.2d at 100-01. Thus, chemical
analysis that could reveal an arguably private fact would constitute a search
requiring prior judicial approval.
Such a case is United States v. Mulder, 808 F.2d 1346 (9th Cir.
1987). In Mulder, the court
suppressed evidence discovered during sophisticated laboratory testing that
might have revealed a "private fact":
We consider [Jacobsen] determinative of the instant case.
The facts here are sufficiently different from those in Jacobsen
that we do not believe its "field test" exception to the warrant
requirement can be extended to the case at bar.
First of all, this case does not involve a field test, but a series of
tests conducted in a toxicology laboratory several days after the tablets were
seized. Secondly, the chemical
testing in this case was not a field test which could merely disclose whether or
not the substance was a particular substance, but was a series of tests designed
to reveal the molecular structure of the substance and indicate precisely what
it is. Because of the greater
sophistication of these tests, they could have revealed an arguably private
fact. . . .
While the circumstances of the visual search and seizure did not infringe
the fourth amendment, and undoubtedly provided probable cause to seek a warrant,
these circumstances do not justify a further extension of the Jacobsen
field test exception to the warrant requirement. Accordingly, the judgment of
the district court is reversed, and the cause is remanded for further
proceedings.
808
F.2d 1348-49. See also, United
States v. Upton, 763 F.Supp 232 (1991).
g. Phone trap
investigations.
Some police agencies have taken to placing phone traps and pen
registers on the phones of suspects. This
leads to other suspects whose phones are also monitored.
These devices don’t record conversations; they just record who calls
and who is called.
After about a year they take the collective results and make charts about
who calls whom. It doesn’t take too many calls to become a suspect.
Then the investigation comes down.
If the police managed to get a warrant for your house based on this,
let’s hope that you have followed the rules of
hygiene. If not you will
need a lawyer. One technique that worked in one of my previous phone trap cases
might work for you. In this case
the police had identified two dozen different locations they suspected. They got
warrants for some of them, the rest they managed to search by using a “knock
and talk.” (This technique is
discussed later in this writing.) My
investigator contacted every residence that was searched and interviewed the
occupants. The picture that developed was terrifying.
Out of 24 residences searched, only two grow rooms were discovered.
But in the course of the investigation nearly half of the individuals
contacted were subjected to bullying that shocked even the prosecutor.
Picture a bad movie about the Nazis from about 1941.
Drug dogs leaving turds on the couch while the officers laugh. Citizens
treated to gratuitous violence and terrorism beyond belief.
My case turned into a misdemeanor over night.
h. Surveillance of
suspected grow ops.
Where
police suspect a grow operation but don’t know who all is involved, they may
show remarkable patience in their investigation.
Periodic drive-by surveillance over the course of several months is not
unusual. Where that doesn’t yield
results a camera will be placed in a neighbor’s yard or in a disguised
surveillance vehicle parked in the neighborhood. License numbers and faces of
all persons coming and going from the suspected residence will be recorded.
Some of these cameras are remarkably small and virtually impossible to
detect.
If you spot the camera, don’t let on. Resist the temptation to walk up
and look at it, or to parade in front of it wearing Richard Nixon masks.
If the police see that you are on to them, they will simply wait until
they see you leaving carrying bags or other things that could contain plants,
and then stop you. Once you are out
of the house, your protection from warrantless search is considerably less.
How you deal with the problem if you come across this kind of
surveillance is not something that a lawyer can advise you about.
Suffice it to say that any suspicious activity that looks like
dismantling the grow or taking out some of the product will result in aggressive
action by the police.
When it comes time to defend the case be sure to interview the neighbor
who has allowed the police to spy on his neighbor using the privacy of his
residence to conceal it. It may
even be necessary to inspect his home to get a better understanding of the
perspective of the camera. In other
words, treachery should never go unpunished – just stay within the law while
carrying it out.
i. Emergencies and other
random events.
Murphy’s
law states: “If something can go wrong it will.” Anyone who lives in the
real world knows this is not wry humor; it is a basic law of probability. For
the grower this means “if someone can stumble on it, they will.”
Fire and other emergencies, as well as meter readers, tax assessors,
landlords doing repairs, and nosy neighbors must be anticipated.
If the fire department enters your home without a warrant, as they will
if they are called, whatever they see is fair game.
Medical emergencies also provide an opportunity for strangers to spy on
you. If the landlord comes in
illegally it still doesn’t result in suppression of the evidence.
Nosy neighbors, contractors, and displeased landlords are not limited by
the rules that supposedly restrict the police.
They can trespass, break and enter, and do pretty much what they want in
search of information about what
you are doing in your home. When
they tell it to the police, you become fair game, even if the information is
gained by means that would be unavailable to the police.
5.
The search warrant was based on false information – so what?
a. Does the Constitution
require that challenges be permitted?
The rule that a search warrant must be judged by the information
contained within the "four corners" of the face of the affidavit is
not absolute. Certain challenges to
warrants which appear on their face to be valid are grudgingly permitted.
They are called “sub-facial” challenges.
The most frequent avenue, and the most difficult, involves a challenge
based upon misrepresentations in the affidavit which have the result of
misleading the magistrate who issues the warrant.
The Washington rule on this subject began with State v. Goodlow,
11 Wn. App. 533, 535, 523 P.2d 1204 (1974):
[A] defendant is entitled to a hearing which delves below the surface of
a facially sufficient affidavit if he has made an initial showing of either of
the following: (1) any misrepresentation by the government agent of a material
fact, or (2) an intentional misrepresentation by the government agent, whether
or not material. . . .
However, once such a hearing is granted, more must be shown to suppress
the evidence. Evidence should not be suppressed unless the trial court finds
that the government agent was either recklessly or intentionally untruthful.
A completely innocent misrepresentation is not sufficient . . . .
[E]vidence should not be suppressed unless the
officer was at least reckless in his misrepresentation.
Even where the officer is reckless, if the misrepresentation is
immaterial, it did not affect the issuance of the warrant and there is no
justification for suppressing the evidence. . . . However, we conclude that
if deliberate government perjury should ever be shown, the court need not
inquire as to the materiality of the perjury. . . . [8]
The rule we announce today is intended only to test the credibility of
government agents whose affidavits or testimony are before the magistrate. The
two‑pronged test of Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct.
1509, 12 L.Ed.2d 723 . . . sufficiently tests the credibility of confidential
informers. Consequently, defendant may not challenge the truth of hearsay
evidence reported by an affiant. He may, after a proper showing, challenge any
statements based on the affiant's personal knowledge, including his
representations concerning the informer's reliability, his representation that
the hearsay statements were actually made, and his implied representation that
he believes the hearsay to be true.
This was a practical rule, encouraging truthfulness and professionalism
in the process by which the police gain access to a citizen's castle.
Search warrants are an area where truthfulness and professionalism need
some encouragement. For example,
after a study of police conduct made while he was a prosecuting attorney,
one author concluded that the temptation for police to distort facts in
search warrant affidavits rather than lose convictions was so strong that rules
governing searches "should serve to deter, rather than to encourage
submission to the strong urge to commit perjury." Grano, A Dilemma for
Defense Counsel: Spinelli-Harris
Search Warrants and the Possibility of Police Perjury, 1971 U. Ill. L.F.
Another
commentator observed:
Though commentators are not in agreement as to the extent of police
perjury, . . . it does seem fair to say that 'the threat of police perjury is
much greater than most courts are willing to acknowledge.'
1 LaFave SEARCH AND SEIZURE at 704.
A recent study by a special committee of the American Bar Association
reached conclusions which would also argue for the prophylactic rule of State
v. Goodlow. After a study which
considered the opinions of law enforcement as well as the defense bar, the Dash
Committee concluded that the constitution, and in particular the exclusionary
rule, does not impede effective law enforcement, but rather that it protects
fundamental rights at a very low cost, while encouraging the professionalism
which is essential to good law enforcement in a Democracy.[9]
Nevertheless, the rule we live with is much less prophylactic.
The United States Supreme Court rejected the rule of absolute suppression
where perjury was demonstrated, and adopted the more forgiving rule we must work
with today. In Franks v.
Delaware, 438 U.S. 154, 155-56, (1978) the Court held:
[W]here 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 requires that a hearing be held at the defendant's request.
In the event that at that hearing the allegation of perjury or reckless
disregard is established by the defendant by a preponderance of the evidence,
and, with the affidavit's false material set to one side, the affidavit's
remaining content is insufficient to establish probable cause, the search
warrant must be voided and the fruits of the search excluded to the same extent
as if probable cause was lacking on the face of the affidavit.
Id., 98 S.Ct. at 2676-77.
b. What inaccuracies
jeopardize a warrant?
i.) Lies
Franks addresses this question specifically.
The defendant must show "that a false statement knowingly and
intentionally, or with reckless disregard for the truth was included by the
affiant in the warrant affidavit." There
is a clear difference between this and the Goodlow rule where suppression
could result upon the showing of (1) any misrepresentation by the
government agent of a material fact, or (2) any intentional
misrepresentation by the government agent, whether or not material.
Under the current rule, the government is only responsible for
inaccuracies where the defendant can show either a specific intent to mislead,
or reckless disregard for whether or not the magistrate is misled.
Negligent misleading, even if it is clearly material or even critical,
does not require suppression. The
difficulty of meeting a burden which requires a showing of the state of mind of
an officer who may be a professional liar is obvious.
Without commenting about the difference between the Goodlow test
and the Franks test, Washington approved the latter in State v. Sweet,
23 Wn. App. 97, 596 P.2d 1080 (1979).
ii.) Omissions
Franks did not discuss the question of omissions which may
have the same misleading result as affirmative misrepresentations.
Nevertheless, most courts have assumed that misleading omissions could
also result in suppression. In State
v. Cord, 103 Wn.2d 361, 693 P.2d 81 (1985), our supreme court observed that:
[t]he
Franks test for material misrepresentations has also been extended to
material omissions of fact. United States v. Martin, 615 F.2d 318 (5th
Cir. 1980); United States v. Park, 531 F.2d 754, 758‑59 (5th Cir.
1976).
The court declined to adopt the more demanding test of People v.
Kurland, 28 Cal.3d 376, 618 P.2d 213, 168 Cal.Rptr. 667 (1980), cert.
denied, 451 U.S. 987 (1981). Kurland
held that:
negligent omission of a material fact requires
insertion of the fact omitted into the affidavit. If the affidavit then does not
support a finding of probable cause, the warrant is void and the evidence
obtained is excluded.
Cord,
at 103 Wn.2d 368.
Nevertheless, it appears that, where material omissions are found, and it
is further found that their omission -- and their misleading impact -- was
intentional or at least reckless, the "add and retest" formula appears
to be the law. See, e.g., United
States v. DeLeon, 979 F.2d 761, 763 (9th Cir. 1992); State v. Garrison,
118 Wn.2d 870, 873 (1992):
If. . . the false representation or omitted
material is relevant to establishment of probable cause, the affidavit must be
examined. If relevant false
representations are the basis of attack, they are set aside. If it is a matter
of deliberate or reckless omission, those omitted matters are considered as part
of the affidavit. If the affidavit with the matter deleted or inserted, as
appropriate, remains sufficient to support a finding of probable cause, the
suppression motion fails and no hearing is required. However, if the altered
content is insufficient, defendant is entitled to an evidentiary hearing.
iii.) Whose lies or
omissions?
Franks allows recourse only when the misrepresentation is that of a
government agent. Informants are
not government agents. In rare
cases it may be possible to show that the informant's relationship with the
government was so close that the informant may be considered a government agent
for fourth amendment purposes. State
v. Thetford, 109 Wn.2d 392, 745 P.2d 496, (1987).
Nor can the police insulate one officer's misstatement merely by relaying
it through an officer/affiant personally ignorant of its falsity.
United States v. DeLeon, 979 F.2d 761, (9th Cir. 1992).
Probable cause may not be enhanced in the process of communication
between one officer and another. This
is the holding of Whiteley v. Warden, 401 U.S. 560, 568 L.Ed.2d 306, 91
S.Ct. 1031 (1971):
Certainly police officers called upon to aid
other officers in executing arrest warrants are entitled to assume that the
officers requesting aid offered the magistrate the information requisite to
support an independent judicial assessment of probable cause.
Where, however, the contrary turns out to be true, an otherwise illegal
arrest cannot be insulated from challenge by the decision of the instigating
officer to rely on fellow officers to make the arrest.
iv). Consequences of
inaccuracies
If it is shown that an affiant was intentionally or recklessly misleading
exclusion of the evidence will result only if the false statements were
necessary to the finding of probable cause.
Where the offending act is that of omission, the same rule applies,
although in this context it is the intent to mislead, rather than the intent to
omit which triggers the exclusion. United
States v. Colkley, 899 F.2d 297, (4th Cir. 1990).
Worthy of note here is that a misrepresentation adequate to require
suppression under Franks cannot be avoided by the "good faith"
doctrine of United States v. Leon, 468 U.S. 897 (1984), since Leon
expressly stated that its holding left Franks untouched.
c. Procedures:
getting a Franks hearing
The first step here is to get a judge to order a Franks hearing.
To accomplish this, the defendant must make a "substantial
preliminary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant," and that
"the allegedly false statement is necessary to the finding of probable
cause. . . ." Franks,
at 438 U.S. 155-56. The showing is
difficult:
To
mandate an evidentiary hearing, the challenger's attack must be more than
conclusory and must be supported by more than a mere desire to cross examine.
There must be
[1]
allegations of deliberate falsehood or of reckless disregard for the truth, and
those allegations must be accompanied by
[2]
an offer of proof.
[3]
They should point out specifically the portions of the warrant affidavit that is
claimed to be false; and they should be
[4]
accompanied by a statement of supporting reasons.
[5]
Affidavits or sworn or otherwise reliable statements of witnesses should be
furnished, or their absence satisfactorily explained.
[6]
Allegations of negligence or innocent mistake are insufficient.
[7] The
deliberate falsity or reckless disregard whose impeachment is permitted today is
only that of the affiant, not of any nongovernmental informant.
[8]
Finally, if these requirements are met, and if, when material that is the
subject of the alleged falsity or reckless disregard is set to one side, there
remains sufficient content in the warrant affidavit to support a finding of
probable cause, no hearing is required.
438
U.S. at 171.
Important here is State v. Casal, 103 Wn.2d 812, 699 P.2d 1234,
1238 (1985) where the court en banc[10]
held that fairness requires that the defendant's burden under Franks to
make a threshold showing be reduced where "the defendant lacks access to
the very information that Franks requires for a threshold showing of
falsity." See, also, State
v. Thetford, at 109 Wn.2d 403:
Although
Franks requires a substantial showing that a false statement knowingly
and intentionally, or with reckless disregard for the truth, was included by the
affiant in the warrant affidavit before a defendant is entitled to an
evidentiary hearing, Franks also holds that the showing need only be
preliminary. Thus, defendants are not required to prove their charges by a
preponderance of the evidence before being entitled to a Franks hearing.
It is only at the hearing itself that defendants, aided by testimony and cross
examination, must prove their charges by a preponderance of the evidence. See Franks
v. Delaware, 438 U.S. 154, 156, 57 L.Ed.2d 667, 98 S.Ct. 2674 (1978);. . .
Professor
LaFave comments:
One
thing is clear: in a case involving
an anonymous informant, the defendant should not be deemed to have failed in his
"threshold showing" merely because he has no information as to whether
the informant lied to the officer-affiant (no Franks violation) or the
officer-affiant lied to the magistrate. "A
number of . . . courts have acknowledged this dilemma in anonymous-informant
cases and have refused to apply Franks so inflexibly as to make hearings
unattainable" in such circumstances. Another
possible way of dealing with this predicament is to afford the defendant
discovery on grounds short of those required under Franks for an
evidentiary hearing.
2
LaFave, SEARCH AND SEIZURE (1987), at p. 45-46 of 1993 pocket part.
Most courts will not accept live testimony as a part of the proffer.
Affidavits are the usual format. ER
104(a) allows the court to dispense with the Rules of Evidence, except for
privilege.
Your proffer is a matter of your own ingenuity.
The blatant cases are easy. More
difficult are the cases where the misrepresentations are more significant in
their totality than individually. Here is an example of a presentation form I
have used:
THE
AFFIDAVIT: "Clark brought up to 'Skeeter' the subject of a grow operation
he helped maintain in the Maltby area (marijuana grow)."
THE
TRUTH: Clark told Skeeter he wanted
to purchase marijuana, and Skeeter said he didn't have any, but maybe could get
some later. Asked where he was
getting it, "[h]e said that, through the conversation, that he was getting
it from the same place that he was getting it from and whatnot like that."
Clark admitted that Skeeter made no mention of any particular location
more specific than "the same place."
THE
AFFIDAVIT: "Clark knew about this as he had previously helped 'Skeeter' in
the maintenance of the marijuana plants and had been to the growing location
numerous times."
THE
TRUTH: Clark stated that he had
only been there once, did not help with maintenance, and had not told Detective
Bales that he had been to the grow operation numerous times.
He also stated that he had never seen anyone pick up any marijuana at the
Defendant's residence.
THE
AFFIDAVIT: "[T]hese outbuildings were indicated by Clark as being where the
plants were normally grown."
THE
TRUTH: Clark stated specifically
that he had only seen marijuana in one building.
d. The Franks hearing
Franks
provides:
[At the hearing] the allegation of perjury or
reckless disregard [must be] established by the defendant by a preponderance of
the evidence.
This
means that the defendant's initial burden is to prove not only that the
challenged statements were in fact false, but also that their inclusion amounted
to perjury or reckless disregard for the truth.[11]
Where the challenge is to omitted facts, it must be shown that they were
omitted with intent to mislead, or with reckless disregard for whether or not
the affidavit was misleading in their absence.
United States v. Colkley. For
some time, the applicable rule acknowledged the fact that the state of mind of
the officer would always be difficult to prove, and that therefore, on some
occasions, recklessness may be inferred from the critical nature of the
statement or omission. In his
dissent in State v. Cord, Chief Justice Williams observed:
The materiality of the omission to the finding
of probable cause is the threshold issue. Nonmaterial, peripheral omitted facts
have no effect on the determination of probable cause and are not entitled to
review. However, once a fact is determined to be material, it is very difficult
to justify its absence. If inclusion would affect the probable cause
determination, then it should be included.
As
noted in United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980):
[I]t will often be difficult for an accused to prove that an omission was
made intentionally or with reckless disregard
rather than negligently unless he has somehow
gained independent evidence that the affiant had acted from bad motive or
recklessly in conducting his investigation and making the affidavit.
Nevertheless, it follows from Franks that the accused bears the burden of
showing by a preponderance of the evidence that the omission was more than a
negligent act. It is possible that when the facts omitted from the affidavit are
clearly critical to a finding of probable cause the fact of recklessness may be
inferred from proof of the omission itself.
(Italics mine.)
State
v. Cord, at 103 Wn.2d 372. See, also, United States v. Namer, 680
F.2d 1088, 1094 (5th Cir. 1982). (Materiality and recklessness are closely
related. When the misrepresentation
is critical to the finding of probable cause, "the fact of recklessness may
be inferred from the [misrepresentation] itself.")
This rule, which on its face makes good sense, was adopted by the Court
of Appeals in State v. Jones, 55 Wn. App. 343, 777 P.2d 1053 (1989).
Unfortunately, the rule was short-lived.
In State v. Garrison, 118 Wn.2d. 870 (1992), the Washington
Supreme Court, En Banc, with Justices Utter and Anderson not participating,
adopted a rule based upon dictum[12]
in United States v. Colkley, 899 F.2d 297, (4th Cir. 1990):
To prove reckless disregard of the truth, as is defendant's burden,
defendant relies solely on State v. Jones, 55 Wn. App. 343, 777 P.2d 1053
(1989) which seems to hold that an inference of reckless disregard must be made
from the omission of facts "clearly critical to a finding of probable
cause". The Court of Appeals relied on State v. Jones, supra, and dicta
in United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980). . . .
Relying on such an inference to establish reckless disregard is not
proper. The court in United States v. Colkley, 899 F.2d 297, 301 (4th
Cir. 1990) cogently recognized the error in such reliance: "[S]uch an
inference collapses into a single inquiry the two elements ‑
'intentionality' and materiality' ‑ which Franks states are independently
necessary.
The test, according to Colkely, is whether the affiant had an
intention to mislead. Since the
facts omitted in Colkley were not material, and therefore not
"clearly critical" to the probable cause determination, it didn't
matter, and the rejection of the rule which would allow an inference of
recklessness in certain circumstances is but dictum.
Nevertheless, dictum in Colkley became law in Garrison.
The defendant must prove that omissions were either made with the
intention to mislead, or made with reckless disregard for the misleading
consequences of the omission. Remarkably,
suppression will not result, even if the omission was clearly critical to a
finding of probable cause, unless something can be shown about the affiant's
state of mind. This may be an impossible burden, although it may be approached
tangentially by arguing that the affiant had reasons to doubt, or in fact
"entertained serious doubts as to the truth of his [allegations]. United
States v. Williams, 737 F.2d 594 (7th Cir. 1984).
Recklessness is shown
where
the affiant "in fact entertained serious doubts as to the truth" of
facts or statements in the affidavit. Davis[13],
at 694 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 20 L. Ed. 2d
262, 88 S. Ct. 1323 (1968)). Under Davis,
such serious doubts can be shown by (1) actual deliberation on the part of the
affiant, or (2) the existence of obvious reasons to doubt the veracity of the
informant or the accuracy of his reports.
State
v. O'Connor, 39 Wn. App. 113, 118, 692
P.2d 208 (1984). O'Connor
and its progeny remain good law, and may still be of value in arguing that the
clear materiality of the fact gave the affiant "obvious reasons to doubt. .
. ."
Having established intentional or reckless manipulation of the truth, you
have still not achieved your goal of suppression.
Clearly, the affidavit must be reconstructed, with the perjury stricken,
and the material omission added. Here
is where a secondary burden of proof becomes significant.
The initial magistrate's decision to approve a warrant is ordinarily
reviewed deferentially at every level. The
law favors search warrants and close cases are decided in favor of the warrant. State
v. Jackson, 102 Wn.2d 432, 688 P.2d 136 (1984).
In other words, search warrants, on their face, are presumed to be valid.
But what of an affidavit which is shown to be materially misleading?
Does the presumption still favor the warrant?
Although the issue was not before the Garrison court, it was
nevertheless addressed:
The challenged information must be necessary to the finding of probable
cause. Franks v. Delaware, 438 U.S. 154, 156, 57 L.Ed.2d 667, 98 S.Ct.
2674 (1978). The Court of Appeals' statement confuses materiality or relevance
as it relates to establishment of bad motive with the separate inquiry whether
the information is necessary to the probable cause determination. See United
States v. Reivich, 793 F.2d 957 (8th Cir. 1986). A court finding
"materiality" in the sense that an omission may be said to rise to the
requisite level of misrepresentation under Franks may think it has made
the second Franks finding and may invalidate a warrant after concluding
only that the additional information might have affected the probable cause
determination and not that the supplemented warrant could not have supported the
existence of probable cause. Reivich, at 962. See, Colkley, at 301
("[o]mitted information that is potentially relevant but not dispositive is
not enough to warrant a Franks hearing."
118
Wn.2d at 875.[14]
It is unfortunate that our state supreme court chose to venture into this
area without the benefit of adequate briefing.
Strong arguments support the position that where intentional or reckless
misleading has taken place, the presumption which favors search warrants is
vitiated, -- in fact, capsized -- and the matter should be dealt with as though
there were no warrant: the
presumption should favor suppression. State
v. Buccini, 810 P.2d 178 (Arizona Supreme Court, En Banc, 1991) so holds.
In Buccini, a consent search was followed by a search based upon
an affidavit which the trial court found to be materially misleading.
The court held:
Although
in most instances a magistrate's finding that sufficient probable cause
exists to issue a search warrant will not be overturned unless it is clearly
erroneous, this rule does not apply when a trial court reviews an
affidavit that was submitted to the magistrate and later found to have been
supported by false statements. . . . Under
these circumstances, the trial court must undertake an independent review of the
effect of the false statements on probable cause because "the question
turns on the consequences of a fraud on the issuing magistrate which that
magistrate was not in a position to evaluate."
810
P.2d at 183. (Emphasis in original,
citations omitted.)
The
Buccini court continues:
The
rule in non-Franks cases considers the general presumption of validity of
a search warrant and the deference given to a magistrate's determination of
probable cause in concluding that in a "doubtful or marginal case a search
under a warrant may be sustainable where without one it would fail."
See, 2 LA FAVE, SEARCH AND SEIZURE ' 4.4 at 199 (2d ed.
1987) (quoting United States v. Ventresca, 380 U.S. 102, 85 S.Ct.
741, 13 L.Ed.2d 684 (1965)). The same rule, however, does not apply to a Franks
case. To the contrary:
[W]hen
it has been established that the earlier finding of probable cause was based
upon a broader set of "facts," some of which are now shown to be
false, there is no longer any reason to give deference to that earlier finding.
Thus, when a court reassesses a search warrant affidavit with
the false allegations excised, a "doubtful or marginal case"
should be resolved in the defendant's favor.
That is, in such circumstances the probable cause determination should be
made as it would upon a motion to suppress evidence obtained without a warrant.
Id.
The
policy underlying Franks seeks to mitigate the dangers of the ex parte
procedure used to obtain a search warrant, and to deter over-zealous officers
from supplying false information in their efforts to obtain access to the
constitutionally protected privacy of one's home or car.
See Franks, 438 U.S. at 168-169,
. . . . We firmly adhere to
these policies and believe that where the officer has deliberately or recklessly
made material misstatement and omissions in the original affidavit, it is
appropriate to resolve marginal probable cause determinations in such a manner
as will best uphold the integrity of the fourth amendment.
810
P.2d at 186.
Two wiretap cases also support this rule, although wiretaps, unlike
search warrants, begin with the presumption that they are not constitutional.
In United States v. Carneiro, 861 F.2d 1171, 1176, 1182 (9th Cir.
1988), the court held that fruits of a wiretap would be suppressed for material
misrepresentations where, if given the true facts, "a reasonable district
court judge could [not should] have denied the application . . . ."
United States v. Ippolito, 774 F.2d 1482, 1486-87 (9th Cir. 1985)
upon which Carneiro is based, holds the same.
The integrity of the procedures before the judge or magistrate who issues
a search warrant requires meticulous scrutiny.
Since a search warrant is issued ex parte, "the magistrate's only
check on the affiant's veracity is a search for internal consistency . . .
." 2 LA FAVE, SEARCH &
SEIZURE (2d ed. 1987) at 187. Evidence
that the affiant has misled the magistrate, and thus undermined the usual
presumption supporting the magistrate's decision, properly will result in
exclusion:
. . . The Fourth Amendment exclusionary rule
by its nature bars reliable evidence. And
as the court has repeatedly emphasized, the primary justification for the
exclusion is to serve the deterrence function.
When the cause of exclusion is the actions of the officer-affiant
misleading the magistrate, certainly that function is being served particularly
well."
2
LA FAVE at 188.
e.
Future development of the rule
State v. Garrison has taken much of the punch out of Franks.
The determined practitioner should remember that the Franks rule
has been adopted by the Washington courts with only superficial analysis and
with very little thought to its inadequacies.
Fortunately, Garrison, a case which seizes upon shallow dictum
from the most miserly cases among Franks' progeny, did not consider any
independent State Constitutional arguments. Garrison's most offensive
language is also dictum. Whether
recklessness has some relationship to materiality, and whether the presumption
shifts when misrepresentations are shown are two issues on which Garrison
may be vulnerable.
Professor LaFave criticizes the Franks rule lavishly.
His treatise contains many seed from which good arguments may be
sprouted. The early favorable
treatment of this subject in this state, as reflected in Jones and Goodlow,
and the relatively superficial analysis with which this excellent rules were
abandoned should be viewed as a challenge to us all -- an invitation to State
constitutional litigation.[15]
6.
Other sub-facial challenges to search warrant
a. Information tainted by
prior unlawful police conduct
Often the unlawful police
conduct takes place before the warrant is secured, and forms a part of the
probable cause for the warrant. For
example, where the fruit of a prior unlawful trespass, unlawful search, unlawful
arrest, or a coerced (invalid) consent is included in a search warrant
affidavit, the offending information must be removed, and the remaining
information examined to determine whether it still establishes probable cause.
Wong Sun v. United States, 371 U.S. 471, 484-85, 9 L.Ed.2d 441, 83
S.Ct. 407 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385,
392, 64 L.Ed. 319, 40 S.Ct. 182 (1920); State v. Maxwell, 114 Wn.2d 761,
769, 791 P.2d 223 (1990). This
argument is particularly useful where evidence offered in support of the warrant
request is the result of a trespass, see State v. Petty, 48 Wn. App. 615
(1987), or other unlawful conduct.
b. Trespass onto private
property
Very often in order to make the observation on which they base probable
cause, police must trespass on private property.
This may be an interesting and fruitful area.
Federal law allows police to do whatever they want until they reach
"curtilage." Police,
without a warrant, may ignore fences and even "no trespassing" signs
which do not define the curtilage. As
a practical matter, if you live in a remote area or on large piece of land, the
feds can trespass without a warrant. They
can come to the “curtilage.” This
is where it gets fuzzy. From a
practical matter, the curtilage is the area immediately surrounding your home
where you would expect to have complete privacy.
An outbuilding 50 yards away from the residence might not get that same
protection. It helps if
it’s in the same fenced, landscaped area as the residence, and it’s not
visible from the public road.
A posted locked gate is useful too, although absent some conspicuous
excuse other than crime, most local law enforcement considers locked gates to be
probable cause.
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