Tuesday, October 7, 2008

Law and Argument: Part B


A single search warrant may be issued for the search of certain described premises and also for a described vehicle and in such a case a search of both the premises and the vehicle will be lawful if the supporting affidavit establishes probable cause to both. United States v. Motz 936 F.2d 1021(9th Cir. 1991). Furthermore, a search warrant authorizing the search of certain premises covers automobiles found on those premises. The assumption seems to be that a vehicle should be viewed in the same way as any other personal effects found on the described premises. E.g. United States v. Singer 970 F.2d 1414 (5th Cir.1992).

In Lassiter v. State of Florida 959 So. 2d 360; 2007 Fla. App. LEXIS 9021 (2007), the court held that based on an investigation aided by a confidential informant, defendant’s daughter, the police obtained a warrant to search a home, its curtilage, and any vehicles parked thereon. A vehicle was observed on the property when the police arrived to serve the warrant. Defendant was seen exiting the house, raising and lowering the hood of the vehicle, and then driving off The police allowed him to travel five miles from the house before stopping him so that other occupants in the house would not be alerted to the police presence. MDMA was found under the hood of the vehicle. The appellate court affirmed. Under the warrant, the vehicle could have been searched before defendant drove off. Given the volatile nature of the MDMA being manufactured at the residence, it was both prudent and reasonable for the police to have waited for defendant to leave in the vehicle before executing the warrant. Beyond the warrant, the appellate court also concluded that the police had probable cause to arrest defendant based on the informant’s information and other evidence that arose out of a police surveillance of the house and defendant and other investigative activities.

Mr. Lassiter filed a motion to suppress “all physical evidence gathered from his detention, “including the package of MDMA pills found underneath the hood of his car, and “any and all statements made to law enforcement following his detention and arrest.” He argued that even if the State had the authority to search the Palm Coast house, the State did not have sufficient corroborating evidence creating a reasonable suspicion allowing the authorities to stop Mr. Lassiter when he was miles away from the residence. Id. at 362.

Lassiter asserted that the search warrant did not authorize the stopping and search of his vehicle at some point away from the house and grounds described in the warrant, He points out that the Camaro he was driving was not specifically described in the warrant and was not located within the curtilage of the Palm Coast house when it was searched. He next posits that the police did not have either a reasonable suspicion or probable cause to stop and search his car, irrespective of the warrant. The Court disagreed with both positions.

First, the Court held that the warrant was properly executed. A number of prior decisions are instructive in this regard. In Terhune v. State 470 So. 2d 840 (Fla. 2d DCA 1985), for example, the police obtained a warrant to search a residence and the persons inside for evidence of cocaine distribution, Id. at 364. The house was believed to have weapons within it, and was located near a school that was about to dismiss its students for the day. As a result, the police delayed implementing the search warrant. In the interim, a police officer, posing as a taxi driver, picked up the appellant at the house. A patrol car stopped the cab two blocks from the residence, searched the appellant, and found cocaine in his possession. The appellant filed a motion to suppress, arguing that the police could not execute the warrant on him after he left the curtilage of the house. The Second District concluded, however, that the facts presented sufficient exigent circumstances for the execution of the warrant away from the home, Because the police action was patently reasonable, the evidence seized was not subject to the exclusionary rule. See also Crain v. State 914 So. 2d 1015, 1023 (Fla. 5th DCA 2005), review denied, 940 So. 2d 427 (Fla. 2006); State v. Hendrix 855 So. 2d 662 (Fla. 1st DCA 2003).

Furthermore, the warrant in the Lassiter case authorized law enforcement to search the Palm Coast house as well as the “yard and curtilage thereof and any vehicles parked thereon.” It does not seem to be disputed that the warrant could have been executed while Mr. Lassiter was physically located in the Palm Coast house, and that the Camaro could have been searched pursuant to the warrant while it was parked for a number of hours in the driveway associated with that house. Id.

What is a reasonable search is purely a judicial question, and in determining it the court must look, to all the circumstances. Johnson v. Commonwealth 213 Va. 102, 189 S.E.2d 678 (1972), cert.denied, 409 U.S. 1116, 93 S.Ct. 918, 34 L.Ed.2d 700 (1973).

The standard for determining probable cause is probability, and not a prima facie showing, of criminal activity. Manley v. Commonwealth 211 Va. 146, 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 5. Ct. 2245, 29 L.Ed.2d 716 (1971).

The relevant Virginia Statutory sections are noted below:

Sec. 19.2-52. When search warrant may issue. -- Except as provided in Sec. 19.2-56-1, search warrants, based upon complaint on oath supported by an affidavit as required in Sec. 19.2-54, may be issued by any judge, magistrate or other person having authority to issue criminal warrants, if he be satisfied from such complaint and affidavit that there is reasonable and probable cause for the issuance of such search warrant. (Code 1950, Sec. 19.1-83; 1960, c. 366; 1975, c. 495; 1986, c. 636)

Sec. 19.2-53. What may be searched and seized. —- Search warrants may be issued for the search of or for specified places, things or persons, and seizure therefrom of the following things as specified in the warrant:

(1) Weapons or other objects used in the commission of crime;
(2) Articles or things the sale or possession of which is unlawful;
(3) Stolen property or the fruits of any crime;
(4) Any object, thing, or person, including without limitation, documents, books, papers, records or body fluids, constituting evidence of the commission of crime. Notwithstanding any other provision in this chapter to the contrary, no search warrant may be issued as a substitute for a witness subpoena.

Sec. 19.2.54. Affidavit preliminary to issuance of search warrant;
general search warrant prohibited; effect of failure to file affidavit
. — No search warrant shall be issued until there is filed with the officer authorized to issue the same an affidavit of some person reasonably describing the place, thing, or person to be searched, the things or persons to be searched for thereunder, alleging briefly material facts, constituting the probable cause for the issuance of such warrant and alleging substantially the offense in relation to which such search is to be made and that the object, thing, or person searched for constitutes evidence of the commission of such offense. The affidavit may be filed by electronically transmitted facsimile process. Such affidavit shall be certified by the officer who issues such warrant and delivered in person or mailed by certified mail, return receipt requested, by such officer or other officer authorized to certify such warrants to the clerk of the circuit court of the county or city wherein the search is made within seven days after the issuance of such warrant and shall by such clerk be preserved as a record and shall at all times be subject to inspection by the public; however such affidavit may be temporarily sealed by the appropriate court upon application of the attorney for the Commonwealth for good cause shown in an ex parte hearing. Any individual arrested and claiming to be aggrieved by such search and seizure or any person who claims to be entitled to lawful possession of such property seized may move the appropriate court for the unsealing of such affidavit, and the burden of proof with respect to continued sealing shall be upon the Commonwealth. Each such clerk shall maintain an index of all such affidavits filed in his office in order to facilitate inspection. No such warrant shall be issued on an affidavit omitting such essentials, and no general warrant for the search of a house, place, compartment, vehicle or baggage shall be issued. The term “affidavit” as used in this section, means statements made under oath or affirmation and preserved verbatim.

Failure of the officer issuing such warrant to file the required affidavit shall not invalidate any search made under the warrant unless such failure shall continue for a period of thirty days. If the affidavit is filed prior to the expiration of the thirty-day period, nevertheless, evidence obtained in any such search shall not be admissible until a reasonable time after the tiling of the required affidavit.

Sec. 19.2-56. To whom search warrant directed; what it shall command; warrant to show date and time of issuance; copy of affidavit to be part of warrant and served therewith; warrants not executed within 15 days. The judge, magistrate or other official authorized to issue criminal warrants, shall issue a search warrant if he finds from the facts or circumstances recited in the affidavit that there is probable cause for the issuance thereof.

Every search warrant shall be direct to (i) the sheriff’, sergeant, or any policeman of the county, city or town in which the place to be searched is located, (ii) any law-enforcement officer or agent employed by the Commonwealth and vested with the powers of sheriffs and police, . . .The warrant shall (1) name the affiant, (ii) recite the offense in relation to which the search is to be made, (iii) name or describe the place to be searched, (iv) describe the property or person to be searched for, and (v) recite that the magistrate has found probable cause to believe that the property or person constitutes evidence of a crime (identified in the warrant) or tends to show that a person (named or described therein) has committed or is committing a crime.

The warrant shall command that the place be forthwith searched, either in day or night, and that the objects or persons described in the warrant, if found there, be seized. An inventory shall be produced before a court having jurisdiction of the offense in relation to which the warrant was issued as provided in Sec. 19.2-57.

Any such warrant as provided in this section shall be executed by the policeman or other law-enforcement officer or agent into whose hands it shall come or be delivered. If the warrant is directed jointly to a sheriff, sergeant, policeman or law-enforcement officer or agent of the Commonwealth and a federal agent or officer as otherwise provided in this section, the warrant may be executed jointly or by the policeman, law-enforcement officer or agent into whose hands it is delivered. No other person may be permitted to be present during or participate in the execution of a warrant to search a place except (i) the owners and occupants of the place to be searched when permitted to be present by the officer in charge of the conduct of the search and (ii) persons designated by the officer in charge of the conduct of the search to assist or provide expertise in the conduct of the search.

Every search warrant shall contain the date and time it was issued. However, the failure of any such search warrant to contain the date and time it was issued shall not render the warrant void, provided that the date and time of issuing of said warrant is established by competent evidence.

The judge, magistrate, or other official authorized to issue criminal warrants shall attach a copy of the affidavit required by Sec. 19.2-54, which shall become a part of the search warrant and served therewith. However, this provision shall not be applicable in any case in which the affidavit is made by means of a voice or videotape recording or where the affidavit has been sealed pursuant to Sec. 19-2-54.

The requirements of the Virginia statutes controlling the issuance of search warrants and forbidding searches without a warrant (Sees. 19.2-54 and 19.2-56) are in substance the same as those contained in the Fourth Amendment. Kirby v. Commonwealth 209 Va. 806, 167 S.E.2d 411(1969).

The evidence upon which the issuance of a search warrant is based does not have to be sufficient to establish the fact that the thing sought is on the premises, but merely that the belief of the person making the affidavit that it is there is based on facts which furnish a probable or reasonable cause for such belief. The requirement is practically the same as that contained in the Fourth Amendment of the federal Constitution. Zimmerman v. Town of Bedford 134 Va. 787, 115 S.E. 362 (1922); Tri-Pharmacy, Inc. v. United States 203 Va. 723, 127 S.E.2d 89 (1962), cert. denied.

“The required affidavit” means the affidavit required to support issuance of a search warrant, Under the Fourth Amendment warrant requirement, the content of that affidavit must be sufficient to support a finding of probable cause by a neutral and detached magistrate. The Constitution does not require the magistrate to certify an affidavit. The purpose of that requirement in this section is to ensure that the affidavit filed with the clerk for the information of the accused is the same affidavit upon which the finding of probable cause was based. Quintana v. Commonwealth 224 Va. 127, 295 S.E.2d 643 (1982), cert. denied, 460 U.S. 1029, 103 S. Ct. 1280, 75 L. Ed. 2d 501 (1983).

In Slade v. Commonwealth 43 Va. App. 61, 596 S.E.2d 90, 2004 Va. App. LEXIS 231(2004) facts in affidavit held sufficient. A Magistrate had probable cause to issue a search warrant to search defendant’s apartment where the affidavit supporting the warrant provided a detailed description of a confidential, reliable informant who, after giving “buy money” to an unwitting informant, saw the unwitting informant knock on defendant’s door, walk, in with money, and return to hand the reliable informant cocaine that was purchased. The totality of the circumstances, therefore, provided the magistrate with a substantial basis to find that probable cause justified the search. Slade v. Commonwealth 43 Va. App 61, 596 S.E.2d 90, 2004 Va. App. LEXIS 231(2004).

Under the Constitution of the United States and the statutory law of Virginia it is essential to the validity of a search warrant that it describe with particularity the place to be searched. All that is required, however, is that the description be such that the officer charged with executing the search warrant can, with reasonable effort, ascertain and identify the place intended. Manley v. Commonwealth, 211 Va. 146, 176 S.E.2d 309 (1970), cert. denied, 403 U.s. 936, 91 S. Ct. 2245, 29 L.Ed.2d 716 (1971).

Scope of search was not exceeded in Dotson v. Commonwealth 47 Va. App. 237, 623 S.E.2d 414, 2005 Va App. LEXIS 514 (2005). Defendant’s motion to suppress was properly denied, a safe located during a search of his residence was in plain view, and officers could reasonably expect to find the items listed on a search warrant within the safe. The officers did not exceed the scope of the search authorized by the warrant by delaying some fifteen days to open the safe after it was seized and removed to police property. Dotson v. Commonwealth 47 Va. App. 237, 623 S.E.2d 414, 2005 Va. App. LEXIS 514 (2005). The Dotson court wrote:

“The permissible scope of a search is limited by the terms of the warrant pursuant to which it is conducted.” Kearney v. Commonwealth, 4 Va. App. 202, 204, 355 S.E.2d 897, 898 (1987). However, “a search warrant. . . is not invalid merely because officers seize items not named in the warrant.” Cherry v. Commonwealth 21 Va. App. 132, 138-39, 462 S.E.2d 574, 577 (1995).

Here, the warrant described with particularity the items for which the search of appellant’s residence was to be made, specifying items related to the possession, distribution, or manufacture of marijuana, or any other illicit drugs. ‘A search may be as extensive as reasonably required to locate the items described in the warrant.” Kearney, 4 Va. App. at 205-06, 355 S.E.2d at 899 or, as stated by one court, “the permitted scope of a search is, logically, whatever is necessary to serve the purpose of that particular search, but don’t look for an elephant in a matchbox.” Wilkerson v. State 594 A.2d 597, 605 n.3 (Md. App. 1991).

In the course of conducting the search of appellant’s residence, the officers observed the small portable safe in plain view in the living room of appellant’s residence. Fuller explained that, in his experience, when police find a safe during a search of a residence in a narcotics case, “most of the time there’s money, records, or drugs in the safe.” Clearly, the safe was a container that officers reasonably believed contained items specified in the warrant, particularly illicit drugs, drug paraphernalia, and records of illegal drug sales. Stated differently, the officers were not searching for an elephant in a matchbox.

Appellant’s reliance upon Shearer v. Commonwealth 9 Va. App. 394, 388 S.E.2d 828 (1990), and Arizona v.Flicks 480 U.S. 321 (1987), is misplaced. In Shearer the police searched a residence pursuant to a warrant for clothing suspected to have been worn by an intruder in a break-in at a shopping mall. During that search, police found a metal cash box in a dresser drawer that matched the description of one taken during a recent unrelated burglary. Shearer told police that he purchased the metal box, knew it was stolen, but did not identify the seller. We held that the box was found “in plain view” and subject to seizure as identifiable contraband, despite not being named in the warrant. When officers opened the metal box, they found ear keys that had been stolen in a separate burglary. While concluding that the metal box could not be seized pursuant to the search warrant for clothing, as it was not an item specified in the search warrant, we held that because the officers found the metal box in “plain view” during the search for clothing and recognized it as stolen property, they had authority to seize it as contraband. We noted that the metal box was discovered in a place where the police had a lawful right to be under the authority of the search warrant.

In Hicks the officers were lawfully in an apartment without a warrant and, while there, moved stereo equipment to locate serial numbers that they then used to determine the equipment was stolen. The United States Supreme Court held that the officers tacked probable cause to believe that the equipment was contraband prior to searching for the serial numbers, and, therefore, the seizure of the stereo equipment violated the Fourth Amendment. While the officers were in a place they had a lawful right to be, the serial numbers were not in “plain view.”

Here, officers conducted the search of appellant’s residence pursuant to a search warrant listing “Marijuana Marijuana plants, seeds or any other Illegal Drugs, drug Paraphernalia , weapons, monies, growing equipment, records, or other information pertinent to the possession, distribution or manufacturing of marijuana or any other drugs” as objects of the search. The small locked safe was in plain view, and the officers could reasonably expect to find those items within the safe.

Appellant’s argument that the officers needed a separate warrant to open the locked safe once it was removed from the searched premises is also without merit. It is clear that if the safe had been unlocked when officers at the scene seized it, they would have been permitted to open it to determine if it contained any of the items particularized in the search warrant. The scope of a lawful search of premises described in a warrant “extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search’’ Kearney, 4 Va. App. at 205, 355 S.E.2d at 899 (quoting United States v. Ross 456 U.S. 798, 820-21 (1982)). Other courts considering whether a search warrant also permits the search of locked containers, found during the search and likely to contain items specified in the warrant, have consistently concluded that it does. See United States v. Snow 919 F.2d 1458, 1461 (10th Cir. 1990) (holding that a “locked safe was a likely source for the specified documents and could therefore be opened”); United States v, O'Neill, 27 F. Supp.2d 1121, 1135 (RD. Wis. 1998) (search warrant for firearms permitted search of locked safe and locked opaque canvas bag “as long as those items could possibly fit in the safe or the opaque bag”); United States v. Harris, 961 F. Supp. 1 127, 1134 (S.D. Ohio 1997) (search of residence for vials of bacteria extended to car parked in front of the house and “authorized [ officers] to open the [ locked glove box because vials are small enough to fit in that compartment”); Green v. State, 676 N.E.2d 755, 759 ( Ct. App. 1996) (search warrant for illegal pornographic photographs in defendant’s residence authorized officers to seize locked safe from the premises because “a second warrant to search the safe was not necessary”).

Here, we conclude that it was reasonable for the officers to believe that items listed in the warrant could be found in the locked safe located during the search. We also conclude that the officers did not exceed the scope of the search authorized by the warrant by delaying some fifteen days to open the safe after it was seized and removed to police property. United States v. Johns, 469 U.S. 478 (1985) (search of vehicle held in police custody three days after seizure held to be valid). Fuller explained that the delay resulted because of his difficulty locating a locksmith in a rural area to open the safe. Moreover, the locked safe was portable, and could have been easily removed from the scene by others if the officers left it there. There was a substantial likelihood that items named in the search warrant, including drugs, drug-related items, money, and records of appellant’s suspected drug business would be found within the safe. Under these circumstances, we hold that the trial court correctly found that the removal of the small safe from the searched premises, and its being opened by the officers some fifteen days later, did not violate appellant’s Fourth Amendment protections.

We hold that the seizure of the safe during execution of the search warrant was reasonable and within the scope of the warrant. Furthermore, we conclude from this record that the subsequent search of the safe and seizure of its contents at the narcotics task force office fifteen days after it was removed from the searched premises was reasonable. The trial court did not err in denying appellanfs motion to suppress” Dotson at pg 7.

The Affidavit must include any supplementary facts presented to the magistrate to establish probable cause. MeCary v. Commonwealth, 228 Va. 219, 321 S.E.2d 637 (1984). The McCary court wrote:

The search warrant was issued by a magistrate on the basis of an affidavit made by a law enforcement officer stating that he had personal knowledge of the facts set forth therein. At the suppression hearing, the officer testified that he had no personal knowledge of the facts but set forth in the affidavit information given to him by other law enforcement officers. He further testified, over McCary’s objection, that he had so informed the magistrate when he applied for the search warrant.

The Fourth Amendment requires only that the magistrate have a “substantial basis” for concluding the search will uncover evidence of wrongdoing. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 233 1-32, 76 L.Ed.2d 527 (1983) (replacing the “two-pronged test” of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), with a “totality of the circumstances” test for determining probable cause). Since the affidavit of Officer Blount contained allegations of facts known to victims, eyewitnesses, and investigating officers, the information contained therein supplied probable cause for issuance of the search warrant.

The main thrust of McCary’s attack on the warrant, however, is Blount’s admittedly incorrect statement that he had personal knowledge of the facts contained in the affidavit. We conclude that the error did not invalidate the warrant or the search and seizure conducted thereunder.

The Fourth Amendment requires that the magistrate receive sufficient information, under oath or affirmation, to support a finding of probable cause. Gates, 103 S.Ct. at 2331-32. There is no requirement under the Fourth Amendment that the sworn statement be reduced to writing. United States ex rel. Gaugler v. Brierley, 477 F.2d 516, 522 (3d Cir.1973). Thus, an insufficient affidavit may be supplemented or rehabilitated by information disclosed to the issuing magistrate upon application for the search warrant. Id.; Leeper v. United States, 446 F.2d 281, 286 (10th Cir.1971), cert. denied, 404 U.S. 1021, 92 S.Ct. 695, 30 L.Ed.2d 671 (1972); Whiteley v. Warden, 401 U.S. 560, 565 n. 8, 91 S.Ct. 1031, 1035 n. 8, 28 L.Ed.2d 306 (1971); Aguilar v. Texas, 378 U.S. 108, 109 n. 1,84 S.Ct. 1509, 1511 n. 1, 12 L.Ed.2d 723 (1964).

McCary contends, however, that Virginia Code § 19.2-54 requires that any statement in support of a warrant be preserved verbatim. Therefore, he says, since Blounts explanatory statement to the magistrate was not preserved verbatim, it was inadmissible in evidence, We disagree.

Code § 19.2-54 states what shall be included in the affidavit and defines “affidavit” as “statements made under oath or affirmation and preserved verbatim.” We agree that the affidavit must include any supplementary facts presented to the magistrate to establish probable cause. But here no such additional facts were supplied. A statement of the source of the affiant’s information, while required by the Fourth Amendment, is not mandated by Code § 19.2-54. It was proper to admit Blount’s testimony, given to rebut the charge that the warrant was based on a false affidavit, that he had given the magistrate the correct source of his information. It was also proper for the magistrate to consider Blount’s explanation together with the written affidavit. The affidavit form did not contain a statement to be checked by the affiant when his information was obtained from other police officers. Blount’s explanation did not expand or supplement the facts supporting probable cause for issuance of a warrant. His testimony shows that he supplied accurate information on which the magistrate properly relied in issuing the warrant.

We hold the search was valid for another reason. We embrace the recently announced “good faith” exception to the exclusionary rule. McCary v. Commonwealth, 228 Va. 219, 321 S.E.2d 637, at 644 (1984).

The vehicle in question was listed in the warrant as an item to be searched. Furthermore, as stated above, the warrant sought the search and seizure of any and all ill- gotten gains from the prostitution ring and anything used in the furtherance thereof. Under the warrant the vehicle the Defendants were stopped in can also be classified as a luxury item, as well as, something that furthered the prostitution ring since they also drove to service calls with clients. Finally, the Defendants did not contest the forfeiture of this vehicle during the Virginia Beach RICO forfeiture proceedings.