S.D.W.Va.: Lost warrant could be proved by unexecuted copies from the officer’s file

The affidavit and search warrant were lost, but they could be recreated by unexecuted copies from the officer’s file and the associated materials used with them, such as the criminal complaint which used the same information. United States v. Richardson, 2015 U.S. Dist. LEXIS 86609 (S.D.W.Va. July 2, 2015):

Here, the Government is unable to produce the search warrants, but has entered items into evidence that effectively prove the exact language describing the places to be searched and the persons or items to be seized. First, supported by the testimony of both Magistrate Black and Trooper Williams, the Government provided the Affidavit and Complaint for both search warrants. See Gov. Exs. 1 and 2. These materials represented the identical attachments to the warrants, and those attachments sufficiently described the location to be search and the items to be seized. Id. In addition, Trooper Williams provided unexecuted copies of the original search warrants printed from his files. See Gov. Exs. 3 and 4. In short, though we do not have the single page search warrants, there is clear and convincing evidence of the attachments constituting the substance of the search warrants.

Admittedly, the practice or inattention that led to the lost search warrants here is unfortunate and well short of ideal. However, that less than ideal practice does not amount to a constitutional violation. To the contrary, the officers made appropriate efforts to ensure that a neutral and detached magistrate made an independent probable cause finding based on sufficiently particular information. Moreover, even if we were imagine a constitutional violation occurred here, there is no indication of bad faith warranting application of the exclusionary rule.