Search and Seizure - Probable Cause

Illinois v. Gates, 462 U.S. 213 (1983)

An issuing magistrate is simply to make a practical commonsense decision of whether, given all the circumstances set forth in the search warrant application affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Florida v. Harris, 133 S. Ct. 1050 (2013)

In this unanimous decision of the Supreme Court, the Justices held that a dog alert can amount to probable cause. A per se rule, which had been adopted by the Florida Supreme Court (and supposedly based on the Fourth Amendment) that required certain evidence to be introduced to support the legitimacy of the dog alert, was rejected by the Court. Whether a particular dog’s alert amounts to probable cause in any given case must be evaluated by the trial court on a case-by-case basis and is not subject to any rigid rules.

United States v. Raymonda, 780 F.3d 105 (2d Cir. 2015)

The government was aware that the defendant had viewed thumbnails of child pornography for a few seconds. This did not provide a probable cause basis to obtain a serach warrant to search his computer nine months later. Leon applied, however, so the evidence was not subject to the exclusionary rule.

United States v. Glover, 755 F.3d 811 (7th Cir. 2014)

The failure of the search warrant application to reveal any information about the informant rendered it devoid of probable cause. Though a close call, the exclusionary rule would not apply because of Leon. However, because of the absence of information about the informant’s credibility, a Franks hearing was necessary to determine whether the omission of this information would taint the search warrant. The informant, unbeknownst to the magistrate, had more than a dozen prior criminal convictions, including several while he was working as an informant. He was also a gang member and was receiving payments from the police department.

United States v. Gifford, 727 F.3d 92 (1st Cir. 2013)

The police obtained a search warrant for the defendant’s house to search for a marijuana grow operation. The basis for the search was (1) an informant’s tip; (2) information that the electricity usage at the defendant’s house exceeded the neighbor’s electricity usage; and (3) an officer visited the house and smelled burnt marijuana when the defendant opened the door. The First Circuit upheld the lower court’s decision granting the motion to suppress. Regarding the informant’s information, other than the statement that the informant was reliable, no information was provided in the warrant to support the claim that the informant was, in fact, reliable. There was also no information about the informant’s basis of knowledge. Regarding the electricity usage, the lower court found that the officer was reckless in failing to include in the warrant application information that the neighbor’s house was considerably smaller and the fact that the defendant had a horse boarding business on the premises; this was a Franks violation that altered the probable cause calculus. The smell of marijuana was not necessarily indicative of a grow operation.

United States v. Underwood, 725 F.3d 1076 (9th Cir. 2013)

The Ninth Circuit concludes that a state search warrant for the defendant’s house lacked probable cause and also was so deficient, that the Leon good faith exception to the exclusionary rule did not apply. The warrant application simply recited the contents of a related federal search warrant affidavit (which was used to search other conspirators’ houses) and, with regard to the defendant, noted that he had been seen delivering crates to alleged co-conspirators (in a suspicious manner) three months earlier and a personal-use amount of marijuana was observed in his house. Additional conclusory opinions were of no value in establishing probable cause.

United States v. Funds in the Amount of $100,120.00, 730 F.3d 711 (7th Cir. 2013)

In this forfeiture case, among other factors, the government relied on a drug dog alert to the currency to establish that the funds that were seized by agents was connected to drug dealing. The government relied on studies that it claimed showed that what drug dogs smelled on currency was only recent contact with cocaine, because the dogs were detecting something that quickly evaporates. The defense introduced contrary evidence, and relied on the generally-known contamination theory, that is, that most currency has trace amounts of cocaine. The Seventh Circuit held that this dispute foreclosed granting summary judgment to the government, because the disputed facts regarding what drug dogs alert to required resolution by the trier of fact. The defense also mounted a successful attack on the dog’s certification, including demonstrating that during training sessions, the dog could not differentiate between pure cocaine and cutting agents that might be added to cocaine, and that these cutting agents might be present on money without cocaine. This case includes an excellent primer on methods of challenging drug dog alerts.

United States v. Needham, 718 F.3d 1190 (9th Cir. 2013)

Though the suppression of evidence was not required, because of the good faith exception to the exclusionary rule, the Ninth Circuit holds that evidence that the defendant has engaged in acts of child molestation does not suffice to establish probable cause to issue a search warrant to seize the defendant’s computers to search for evidence of child molestation. The officer’s expression of his opinion that “individuals who have sexual interest in children often possess child pornography” does not amount to probable cause.

United States v. Harrison, 689 F.3d 301 (3rd Cir. 2012)

The Third Circuit noted that if the police make a reasonable mistake of fact (such as whether an apartment is abandonded, as in this case), that does not negate probable cause. A mistake of law, on the other hand, is per se unreasonable.

United State v. Doyle, 650 F.3d 460 (4th Cir. 2011)

The search warrant in this case failed to allege that pictures possessed by the resident of a house were pornographic and failed to allege when – or where – the pictures were possessed. This warrant lacked probable cause and did not even survive a good faith Leon review. The probable cause basis of the warrant provided, the following: “Three minor children have come forward and stated that [Doyle] has sexually assaulted them at the Doyle residence. One victims [sic] disclosed to an Uncle that Doyle had shown the victim pictures of nude children.” This description failed to state that the “nude pictures” were pornographic (i.e., lewd depictions) and because there was no statement of when these events occurred, the information was stale (the court noted that the notion of staleness when it comes to computer evidence is rarely a basis to deny a search warrant, but in this case, there was no indication of when the pictures existed). In addition, the statement does not indicate where the pictures were shown to the child, so there was scant basis for believing that the evidence sought by the search warrant would be located at the residence, though the appellate court did not base its ultimate conclusion on this flaw in the warrant. With regard to the absence of probable cause, the court also noted that evidence of child olestation does not automatically authorize the search for child pornography.

Virgin Islands v. John, 654 F.3d 412 (3rd Cir. 2011)

The defendant was known to have committed child molestation. There was no information to support the claim that there would be child pornography on the defendant’s computer. Issuing a search warrant for the defendant’s computer was not proper and the exclusionary rule applied.

United States v. Clark, 638 F.3d 89 (2d Cir. 2011)

The search warrant authorized the police to search the premises located at a certain address which was described as a “multi-family” dwelling. The warrant did not specify which unit to search, nor did it reveal how many units were present in this “multi-family” dwelling. The warrant lacked probable cause to the extent that it authorized a search of the entire structure at that address. However, the Second Circuit concluded that Leon saved the search.

United States v. $186,416.00, 590 F.3d 942 (9th Cir. 2009)

The search that resulted in the seizure of the money in this case was not lawful. The search was conducted pursuant to a state search warrant that alleged a violation of state law. There was, however, no law against medical marijuana in California, so there was no state law violation. The money was then transferred to the federal government for forfeiture. The illegal search, however, was illegal regardless of the venue in which the forfeiture case was tried and the evidence, including the fruits of the illegal search, could not be used in the federal forfeiture case.

United States v. Roach, 582 F.3d 1192 (10th Cir. 2009)

The search warrant affidavit documented years of gang activity by numerous members of the gang. The incidents involving the defendant were numerous, but the last identified offense was years prior to the issuance of the warrant. The warrant was issued for the defendant’s girlfriend’s house, where he was believed to be living. The only link to the house was the assertion in the affidavit that the officers believed that he was living there. The Tenth Circuit held that the information was insufficient, as well as being stale, to support a search warrant for the house. But the search was saved by the good faith exception to the exclusionary rule.

United States v. Falso, 544 F.3d 110 (2d Cir. 2008)

The FBI determined that the defendant had a prior conviction from eighteen years ago for misdemeanor child sex abuse and may have accessed a child pornography web site. On the basis of this information, the agent obtained a search warrant to search the defendant’s computer for child pornography. The Second Circuit held that this information was not sufficient to authorize a search warrant. However, the court concluded that the evidence would not be suppressed in light of the officer’s good faith in executing a warrant signed by the judge.

United States v. Hodson, 543 F.3d 286 (6th Cir. 2008)

The fact that the defendant was indisputably a child molester did not provide probable cause to believe that there was child pornography on his computer. The officer, moreover, could not have executed the warrant in good faith, because the application contained virtually no information that would have supported the search for pornography.

United States v. West, 520 F.3d 604 (6th Cir. 2008)

Two search warrants were issued in this case. The first was devoid of probable cause, because it contained bare bones assertions about the defendant (all of which were based on hearsay statements that the affiant learned from other officers and individuals). The warrant also failed to link any criminal activity on the part of the defendant with the location that the police wanted to search. The warrant did not even satisfy the Leon good faith standard. The second warrant set forth facts that an informant told the affiant that the defendant confessed to a murder and the body could be found in a well at a certain location; the warrant sought authorization to search the defendant’s van. The affiant, however, failed to reveal that the informant was serving time in federal custody and that the police went to the location where the body was supposedly located and found nothing – not even a well.

United States v. Virden, 488 F.3d 1317 (11th Cir. 2007)

The police stopped the defendant’s car after watching it leave the location where a search was about to occur. Because a drug dog was not available at that location, the police put the defendant in a police car in handcuffs and brought the car to a location two miles away where the dog was located. The Eleventh Circuit held that this exceeded the bounds of a Terry stop and amounted to a seizure requiring probable cause. Because there was no probable cause, the search of the car was unlawful.

United States v. Kennedy, 427 F.3d 1136 (8th Cir. 2005)

The defendant’s girlfriend said that the defendant “deals” drugs and “keeps” drugs in his car. This did not establish that the defendant then had drugs in his car.

United States v. Luong, 470 F.3d 898 (9th Cir. 2006)

The linchpin of the basis for obtaining the search warrant was an unverified tip that someone arriving on a plane from overseas was a chemist who was involved in methamphetamine manufacturing. The affidavit did not even identify who the suspect was. There was insufficient probable cause to support the issuance of a search warrant and the affidavit was so lacking in probable cause that Leon did not apply. The Ninth Circuit also held that where a search warrant application is so lacking in probable cause, the court would not consider any supposed oral communications made by the affiant to the issuing magistrate.

United States v. Shaw, 464 F.3d 615 (6th Cir. 2006)

A woman reported to the police that her three-year old child reported that he had been sexually molested by a relative. Based only on that report, the police arrested the defendant (the relative). After his arrest, the relative confessed. The Sixth Circuit held that the second-hand report from the mother was not sufficient to support an arrest. There was no corroborating evidence (a medical examination produced no physical signs of trauma or sexual penetration). The confession was tainted by the unlawful arrest.

United States v. Gourde, 382 F.3d 1003 (9th Cir. 2004)

The FBI learned about a website that permitted members to download child pornography. Defendant Gourde was determined to have been a member of the web site for two months. The FBI obtained a search warrant, claiming that any member would have had access to the child pornography. The affiant offered various expert opinions about the M.O. of child pornographers on the internet. The Ninth Circuit held that there was no probable cause to search the defendant’s house and seize his computers based on this information. Moreover, Leon did not apply, because no officer could have relied in good faith on this warrant. There was no information that Gourde had actually downloaded any files from the website, though the FBI acknowledged that it had the capability of determining whether he did prior to the time the search was executed. See also United States v. Weber, 923 F.2d 1338 (9th Cir. 1990). REVERSED BY EN BANC COURT: 440 F.3d 1065 (9th Cir. 2006) (en banc).

United States v. Zimmerman, 277 F.3d 426 (3rd Cir. 2002)

The police obtained a search warrant to search the defendant’s home to look for child and adult pornography. There was no information in the warrant application that indicated that any pornography would be found in his home, though there was information that one clip of adult pornography was seen in the home months earlier by one (or perhaps more than one) high school student. That information, however, was stale. The police relied for the most part on evidence that the defendant was believed to have molested numerous high school students (he was a high school teacher). The police also offered expert opinion in the warrant application that child molesters often keep child pornography in their houses. The Third Circuit held that the warrant was lacking in probable cause and, in fact, could not even have been executed in good faith, given the absence of any evidence that pornography was then located in the house. The use of a seven page, single spaced, affidavit which never even mentioned child pornography could not reasonably have been relied upon to obtain a search warrant. Addressing the boilerplate “expert” opinion, the court wrote, “Rambling boilerplate recitations designed to meet all law enforcement needs do not produce probable cause . . . Experience and expertise, without more, is insufficient to establish probable cause.”

United States v. Ricciardelli, 998 F.2d 8 (1st Cir. 1993)

An anticipatory warrant is permissible. This type of warrant, which authorizes the agents to delay executing the warrant until a triggering event occurs – such as the delivery of contraband to the premises – must establish that the presence of the sought after item will be on the premises inevitably after the triggering event. Here, however, the search of the premises was authorized upon the delivery of the pornographic tape to the defendant, regardless of where this delivery occurred. This was an invalid anticipatory warrant and was not saved by the good faith exception.

United States v. Diaz, 841 F.2d 1 (1st Cir. 1988)

An affidavit in support of a search warrant suggested that the defendant engaged in fraudulent transactions with a Department of Agriculture inspector, that is, that the inspector was bribed with cash. The search warrant, on the other hand, authorized the seizure of all bank account records. The First Circuit holds that the search warrant was not supported by probable cause.

United States v. Hyppolite, 65 F.3d 1151 (4th Cir. 1995)

A defendant’s refusal to consent to a search cannot establish probable cause to search. See United States v. Alexander, 835 F.2d 1406, 1409 n.3 (11th Cir. 1988). In this case, the magistrate considered the form in which the defendant declined consent – in a loud and aggressive manner. The court holds that although there may be some cases where the form of a suspect’s assertion of rights may support a finding of probable cause, officers and magistrates cannot rely solely on the form in which a suspect asserts constitutional rights to establish probable cause for a search warrant. Nor should such factors be the prominent factors supporting a warrant. The good faith exception to the exclusionary rule applied in this case.

Bigford v. Taylor, 834 F.2d 1213 (5th Cir. 1988)

A truck was missing its federal inspection safety sticker and the VIN number on the doorjamb had apparently been altered. Nevertheless, the deputy sheriff did not have probable cause to search and seize the truck.

United States v. Barrington, 806 F.2d 529 (5th Cir. 1986)

A conclusory affidavit does not establish probable cause for the issuance of a search warrant. The affidavit here stated only that the affiant had received information from a confidential informant who had provided information in the past leading to an arrest and conviction.

United States v. Weaver, 99 F.3d 1372 (6th Cir. 1996)

An informant went to the defendant’s house with $100 of government money to attempt to buy marijuana. The government agents did not provide surveillance, or in any other way corroborate the informant’s statement that he did, in fact, buy the marijuana at that location. This information did not support the issuance of a search warrant. Nowhere in the affidavit did the affiant disclose where the marijuana was kept or stored, the quantity of marijuana in the house, or any other particularized information that would have supported the belief that there was currently marijuana on the property. Also, the affidavit did not provide any information about the informant’s reliability, other than boilerplate language about his being reliable in the past. For example, the affidavit did not say that the informant’s past reliability related to drug cases. Finally, the corroboration of innocent details, such as the name on the utilities records for the residence, was meaningless. The court also held that when a police officer supplies a bare bones affidavit which is insufficient, and then executes the warrant himself, he cannot rely on the good faith exception to the exclusionary rule. Here, the officer did not attempt any meaningful corroboration of the informant’s information and conducted no other independent investigation, other than learning the identity of the occupant of the residence. The unlawful search, therefore, was not saved by Leon.

United States v. Czuprynski, 8 F.3d 1113 (6th Cir. 1993)

After the police were unsuccessful in convincing two judges to issue a search warrant, a magistrate (who the defendant had tried to have fired from his prior job) finally signed the warrant. The warrant was based entirely on the allegations of the defendant’s former law partner who claimed that the defendant/lawyer had marijuana at his home and office. No effort was made to support the allegations of the informant. It was clear that she was angry at having been fired by the defendant. The warrant in this case was not based on probable cause and the officers could not have relied on it in good faith. Reviewing the case en banc, the Sixth Circuit re-affirms its holding that the affidavit did not establish probable cause, but held that the officers were acting in good faith when they executed the warrant. 46 F.3d 560 (6th Cir. 1995)(en banc).

United States v. $7,850, 7 F.3d 1355 (8th Cir. 1993)

The defendant purchased a ticket with cash to fly from Minneapolis to Nebraska; he carried no identification or baggage; he was seen by the ticket agent to have a large wad of cash; he lied to an officer about whether he had been at the airport the day before (he had been seen there by another officer); a NADDIS report indicated that he had a heroin supplier in Nebraska. These facts did not amount to probable cause to seize the currency. (Because the district court did not consider whether there was an articulable suspicion justifying the seizure, that was not addressed by the appellate court).

United States v. Clark, 31 F.3d 831 (9th Cir. 1994)

The search warrant affidavit stated that the defendant’s home had unusually high electrical usage – but failed to compare it to other residential homes in the area. The affidavit also contained the allegations of an unknown informant that the defendant was associated with a known marijuana cultivator. This information was insufficient to establish probable cause to search the premises. Nevertheless, the good faith exception applied.

United States v. Brown, 951 F.2d 999 (9th Cir. 1991)

Though there was considerable evidence that members of a law enforcement narcotics team were corrupt and that members stole evidence, including money which was seized, this did not authorize the search of each member’s house. There was not enough specific information dealing with each member’s culpability to justify the search of every house. Also, the narcotics unit was not a “wholly illegitimate” organization, thus justifying the search of every member’s residence. Nevertheless, the officers consulted with an AUSA before obtaining the search warrant and acted in good faith, thus the evidence would not be suppressed.

United States v. Weber, 915 F.2d 1282 (9th Cir. 1990)

The defendant’s house was searched pursuant to a search warrant which was directed at the presence of obscene material in the defendant’s home. The search warrant, however, allowed officers to search for a wide variety of magazines and advertising materials, none of which was backed up by probable cause. The only evidence against this defendant was the fact that a couple of ads addressed to him apparently depicted child pornography. The affiant’s statement about the “proclivities of pedophiles” did not support a wall-to-wall search of the house. The affidavit simply did not support a search for child pornography in general. The court rejected certain aspects of the warrant as “rambling boiler-plate recitations designed to meet all law enforcement needs.” Finally, the court concludes that the good faith exception to the exclusionary rule did not apply. The court’s amended opinion, 923 F.2d 1338 (1990), abides by the initial decision suppressing the evidence.

United States v. Hove, 848 F.2d 137 (9th Cir. 1988)

In the affidavit in support of the search warrant, the police officers failed to link the suspect with the residence which was sought to be searched. This inadvertent failure to link the suspect to the premises rendered the affidavit insufficient and the officers could not have relied on it in good faith in searching the premises. This absence of good faith exists even though the officer in fact knew the link between the suspect and the residence.

United States v. Dimick, 990 F.2d 1164 (10th Cir. 1993)

The defendant was travelling from Los Angeles to St. Louis. He paid for his one-way ticket in cash, remained in his compartment the entire trip; tipped the train conductors with $20 bills; ordered his meals delivered to his compartment; lied about his name when questioned and claimed to have no luggage. Based on this information, the DEA entered his compartment and found a suitcase, which was then subjected to a dog sniff. The dog alerted and narcotics were found in the suitcase. The entry into the train compartment required probable cause which was lacking at that time. Absent probable cause, even with reasonable suspicion, which did exist, the officers could not enter the compartment. This case was overruled by the Tenth Circuit later, not on the issue of probable cause, but on the defendant’s expectation of privacy in a train compartment. United States v. Little, 18 F.3d 1499 (10th Cir. 1994).

United States v. Maxwell, 920 F.2d 1028 (D.C.Cir. 1990)

In order for an affidavit to be viewed as limiting the scope of a warrant, the warrant must not only attach the affidavit, but must also contain “suitable words of reference” evidencing the magistrate’s explicit intention to incorporate the affidavit. Only in this way will the warrant be sufficiently limited to allow it to pass the probable cause test. That is, the warrant may be overbroad if it is not limited by the accompanying affidavit.