DC: Nexus can be based on averment from officer without specific fact

Nexus in the D.C. Cir. can be shown by the averment of the affiant based on his or her experience and training or inference. United States v. Glay, 2009 U.S. Dist. LEXIS 56236 (D. D.C. June 30, 2009):

Whether or not an affiant’s averment, by itself, is sufficient to establish that there is probable cause to believe that evidence of a crime will be found at a specific location varies from circuit to circuit. Compare United States v. Crews, 502 F.3d 1130, 1136-37 (9th Cir. 2007) (holding that a nexus may be established through an officer’s “statements that his experience has shown him that further evidence of possession of firearms is often found at a suspect’s residence”), with United States v. Schultz, 14 F.3d 1093, 1097 (6th Cir. 1994) (holding that an officer’s training and experience “cannot substitute for the lack of evidentiary nexus”), and United States v. Rosario, 918 F. Supp. 524, 530 (D.R.I. 1996) (acknowledging affiant’s “extensive training and expertise” but holding that “[t]o permit a search warrant based solely upon the self-avowed expertise of a law-enforcement agent, without any other factual nexus to the subject property, would be an open invitation to vague warrants authorizing virtually automatic searches of any property used by a criminal suspect”).

This Court, however, is required to apply the law of this Circuit, where the nexus may be established without an independent evidentiary basis–i.e., the nexus may be established by an affiant’s statement that her training and experience provides probable cause to believe that there is a nexus between criminal activity and the place to be searched. For example, in United States v. Thomas, 989 F.2d 1252, 300 U.S. App. D.C. 380 (D.C. Cir. 1993), the challenged affidavit stated that the defendant had been observed selling drugs in Washington, D.C. on the 900 block of N Street, N.W., and the magistrate judge authorized a search of the defendant’s home on the 500 block of 51st Street, N.E. The court found the affidavit adequate, holding that “observations of illegal activity outside of the home can provide probable cause for the issuance of a search warrant … even in the absence of an allegation that any illegal activity occurred in the home itself.” Id. at 1254. And if a defendant has multiple residences, observations of illegal activity outside the home can provide probable cause to search each dwelling. United States v. Johnson, 437 F.3d 69, 71-72, 369 U.S. App. D.C. 321 (D.C. Cir. 2006).

The good faith exception applied because the officer sought advice of an assistant prosecutor in getting the search warrant after having been previously turned down for one. That itself is evidence of good faith. United States v. Lane, 648 F. Supp. 2d 1122 (W.D. Mo. July 1, 2009), objection overruled by 2009 U.S. Dist. LEXIS 93598 (W.D. Mo., Oct. 7, 2009):

Here, the Government argues that Detective Kreissler both consulted with a prosecutor and that a judge–who had previously found no probable cause in an affidavit and application submitted by Detective Kreissler–issued the warrant. While such facts are strong evidence of good faith, the Government has only argued them: there has been no hearing to establish them and the Government does not submit any affidavit or other evidence from which the Court can conclude that the officers acted in good faith in executing the warrant.

Defendant’s 2255 allegation that defense counsel was ineffective for not subpoenaing records that would show that the informant was lying would not have helped him because the Franks doctrine deals only with falsities from the police officer and not the informant. Marshall v. United States, 2009 U.S. Dist. LEXIS 56184 (C.D. Ill. July 2, 2009).*

[posted 7/8/9]