This case started with a cell phone stolen from a customer in a grocery store. The police pinged the phone and it came back as being located at defendant’s house. Police went there to talk to defendant, and he had a story about kids having brought the phone there, and he told them to return it, which he said happened. The police went to the grocery store to find a few turned in phones, but the victim couldn’t ID one as his. Police went back to defendant who had a slightly different version. “Suspicious of Defendant’s answers, Officer electronically applied for, and received, a warrant to search Defendant’s residence for the phone and its SIM card. Officer served the warrant on Defendant and began the search” finding prescription drugs in bottles not prescribed for him. The officer applied for a second electronic warrant for that offense, and it was granted, and the officer searched this time for drugs, for which defendant was charged. The motion to suppress the second search warrant is denied. The fact the magistrate was quick in ruling on it is attributed to the fact he or she was familiar with the facts already. Also, the fact defendant had prescriptions not in the bottle is a question for trial and doesn’t undermine probable cause just because they could be his. State v. Roberts, 2018 Utah App. LEXIS 102 (May 25, 2018). Note 4:
Defendant further argues that the magistrate’s determination should be viewed with skepticism because the magistrate issued the warrant “less than five minutes” after the application was electronically sent. We find this argument unpersuasive. Judges take turns acting as the “on-call” magistrate for the purpose of electronically reviewing search warrant applications, and receive a text message (or other electronic alert) the moment an application comes in. Often, the applications are reviewed immediately upon receipt of the electronic alert. In this particular case, Officer’s search warrant affidavit was only two pages long, with the probable cause statement—where all of the operative facts were contained—taking up only three paragraphs on the second page. Moreover, the magistrate was already familiar with some of the relevant facts (the identity and experience of the officer, the location of the residence) from issuing the first warrant earlier that day. Under the circumstances, five minutes was not an unreasonably short time for a diligent magistrate to read, review, and comprehend the submitted material. Time is often of the essence in reviewing warrant applications. In some cases, the suspect is detained pending issuance of the warrant. Expeditious consideration of warrant applications serves the interest of justice, and we commend the magistrate in this case for his promptness.
I was confronted with an obvious issue of a judge not reading search warrants long ago. He liked to “hold court” in chambers before court each morning with the lawyers because of his social and gregarious nature. Police officers came in with search warrant applications he never read, just swearing the officer and signing the warrant. When I encountered a search warrant that he signed, there would always be probable cause shown. Therefore, I concluded that there was no point in a motion to suppress that he was not a “neutral and detached magistrate” because there was probable cause, and, even if he didn’t read it, a circuit judge finding probable cause wouldn’t result in suppression.
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)