MS: “The description ‘stolen property’ is no description” for particularity

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.

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