N.D.W.Va.: Just because what was sought in a SW was not found does not mean PC was lacking

The proof is not in the pudding on execution of a search warrant that the warrant was not particular or lacked probable cause. The fact the exact things sought are not found does not mean the warrant was lacking probable cause. United States v. Gaschler, 2009 U.S. Dist. LEXIS 48449 (N.D. W.Va. June 3, 2009):

In his objections to the magistrate judge’s report and recommendation, the defendant contends that the magistrate judge erred by finding that probable cause supported the issuance of the warrant because the evidence actually seized from the defendant’s residence is vastly less than what the officers sought to seize, and because the property seized provides no evidence of child pornography. In the defendant’s view, the discrepancy between what was sought and what was seized demonstrates that the information supporting the affidavit was unreliable, and that, therefore, the search warrant lacked probable cause. This contention lacks merit. The pertinent inquiry is not, as the defendant suggests, whether the items sought to be seized must in fact be seized to establish probable cause at the time the search warrant is executed. Rather, the question is whether “the facts alleged in the warrant furnish probable cause to believe, at the time the search was actually conducted, that evidence of criminal activity was located at the premises searched.” United States v. McCall, 740 F.2d 1331, 1336 (4th Cir. 1984). In this case, the affidavit described detailed information from cooperating witnesses who were known to have previously provided reliable information, and the search warrant specifically sought, among other items, computer records, heroin, and firearms and ammunition. The facts set forth in the affidavit provided probable cause to believe that evidence of the alleged possession of child pornography and alleged drug dealing was located at the defendant’s residence at the time it was searched. Accordingly, this Court rejects the defendant’s objections.

[I’ve tried that argument myself because it intuitively seems correct that the product of the search shows that probable cause for the things sought to be seized is lacking when the things sought under the warrant are not found. But, there is little defense against the lying informant, and plenty of PC can be shown by a lying informant that the defendant possesses something that he doesn’t. Thus, the police are blameless in that.]

Defendant’s stop was based on a traffic violation, and it was not unreasonably extended because he was excessively nervous, could not explain where was going, and was in a high crime area. State v. Nelson, 2009 Ohio 2546, 2009 Ohio App. LEXIS 2141 (2d Dist. May 29, 2009).*

Under Montana’s rule that a teenager under 16 cannot consent to a search of the family house, the Montana Supreme Court holds that a 13 year old victim of sexual assault by her father in her bedroom could not consent to a search of the sheets of her bed, but could of her underwear, where there was his DNA on the sheets. Inevitable discovery was also held not to apply. State v. Ellis, 2009 MT 192, 351 Mont. 95, 210 P.3d 144 (2009) (5-2).*