The affidavit for the search warrant satisfied probable cause to believe items were stolen, but the search warrant’s particularity failed because “The description ‘stolen property’ is no description” at all. More is required. Sutton v. State, 2018 Miss. LEXIS 128 (Mar. 15, 2018):
B. The search warrant was invalid.
1. The warrant did not sufficiently describe the things to be seized.
P23. Sutton argues that the search warrant did not adequately describe the property to be seized. After review, we agree.
P24. “The description ‘stolen property’ is no description. For property other than what is illicit or contraband, the thing or things to be seized must be described with some particularity.” Conn v. State, 170 So. 2d 20, 24 (Miss. 1964) (citing 79 C.J.S. Searches and Seizures § 81c (1952)). “‘Descriptions in search warrants need not be positively specific and definite, but are sufficient if the places and things to be searched are designated in such a manner that the officer making the search may locate them with reasonable certainty.'” Barrett v. Miller, 599 So. 2d 559, 566 (Miss. 1992) (quoting Hamilton v. State, 556 So. 2d 685. 689 (Miss. 1990), and Cole v. State, 237 So. 2d 443, 445 (Miss. 1970)).
…
P26. Upon review, we find that the trial court erred here in this conclusion for a number of reasons. First, the Affidavit for Search Warrant was not incorporated into the issued search warrant and, therefore, did not describe the items to be seized with any particularity for the executing officers. Second, even considering the Affidavit for Search Warrant, it does not describe the items to be seized with any more particularity than “stolen items.” Third, while the Logan Court did not record the specific language at issue in the search warrant, Logan is distinguishable from the instant facts as the items sought in that search were particular: “… any documents relating to vehicles rebuilt or repaired by Logan at his shop facility ….” Logan, 773 So. 2d at 344. Fourth, the trial court’s order did not analyze the description of the things to be seized in the warrant under Article 3, Section 23, of our State Constitution, which has been held to “provide[] greater protections to citizens than … the United States Constitution.” Woods, 866 So. 2d at 425.
P27. With the trial court’s order addressed, we now turn to the description of the things to be seized in the warrant. Here, the description of “stolen items” was wholly inadequate to inform the officers executing the search as to which items in the Muscadine house were to be seized. The description “stolen items” is even less descriptive than the conclusory description “stolen property.” There simply was no means for the executing officers to distinguish any stolen items from any items that rightfully belonged in the Muscadine house. Indeed, after the search, Sutton had to reclaim a number of his items that were confiscated from the Muscadine house as a result of the warrant’s execution.
P28. Also, despite the claims that the Muscadine house was a “warehouse” for stolen goods, the warrant should have included a more particularized description of at least some of the property to be seized—especially since it is clear from the record that it could have.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)