CT: Incorporation by reference of the affidavit without attachment is sufficient under Groh

Incorporation of affidavit by reference is all that is constitutionally required, not incorporation, particularly where the government is seeking to protect the informant’s identity for a while. Here, the officers seeking the warrant were the ones executing it, so they were aware of the limitations on the warrant. Groh leaves this distinction unresolved. State v. Browne, 291 Conn. 720 (May 26, 2009), rev’g State v. Browne, 104 Conn. App. 314, 933 A.2d 735 (2007) (posted here):

In view of the current state of the law on this subject, we believe the correct approach does not require incorporation and accompaniment in every situation. For instance, in a case such as this one, when the warrant application and affidavit are placed under seal to protect the identity and safety of a confidential informant, it is, in our view, well within constitutional limits to determine the particularity of the warrant in light of the supporting documentation as long as it is incorporated explicitly by reference.

A further, related distinction between Groh and this case is the actual knowledge of the parties involved. The federal agents in Groh, as the affiants, were well aware of the contents of the warrant application and the particular items sought, and stated that they orally described the objects of the search to the respondents. The respondents, however, averred that they were given oral notice only that the agents were searching for “an explosive device in a box.” (Internal quotation marks omitted.) Groh v. Ramirez, supra, 540 U.S. 555. Thus, in Groh, there was a real question as to whether the targets of the search ever were made aware of the legitimate objects of the agents’ search. The court was troubled by this issue because the warrant, and the agents’ recitation of its contents, apparently failed to “[assure] the individual whose property [was] searched … of the lawful authority of the executing officer, [the officer’s] need to search, and the limits of his power to search.” (Internal quotation marks omitted.) Id., 561. …

In the present case, by contrast, it is clear that both the officers and the defendant were well aware of the items sought under the warrant. …

In a child porn case, nexus was shown by the fact child pornography is kept for a long time, and it would be kept in the defendant’s house. Particularity was satisfied by the address and color of the house. State v. Burda, 2009 Tenn. Crim. App. LEXIS 391 (May 4, 2009).*

The officer came to a house based on a domestic violence call and attempted to talk to one of the occupants outside, but the neighbors came to kibitz and the officer could not talk with the caller. Frustrated, he asked if they could go inside, and there he could smell marijuana and see some in the living room. Appellant was called, and, on a cell phone speakerphone, he consented to an entry of all but the bedroom. Based on the initial consent entry, the officer had PC for a search warrant. State v. Whitehead, 2009 Tenn. Crim. App. LEXIS 385 (May 22, 2009).*