W.D.Mich.: Circumstances of issuance of SW are excluded from trial on defense motion

Testimony about the issuance of the search warrant is excluded at trial. United States v. Rodgers, 2009 U.S. Dist. LEXIS 99605 (W.D. Mich. October 26, 2009):

The government contends that the evidence of the warrant is necessary to prevent jury confusion regarding the details and timing of the investigation. According to the government, agents obtained consent from the owner of a residence to conduct the search of that residence, but did not immediately search a locked room used by Defendant until they obtained a warrant.

The probative value of evidence regarding the warrant depends upon how it arises. Generally, the Court will permit limited references to the search warrant if given as part of an officer’s testimony for the purpose of explaining his course of conduct; however, the Court generally will not permit testimony as to the procedures for obtaining the warrant, or that a judge approved the warrant, unless the validity of the search and/or the warrant is in issue at trial.

The USMJ’s conclusions on the credibility of the witnesses is supported by the evidence, so it is affirmed. United States v. Hudson, 2009 U.S. Dist. LEXIS 99673 (S.D. Fla. October 26, 2009).*

Defendant’s stop by a patrol officer was made at the request of a narcotics officer, and it was without reasonable suspicion. State v. Estabillio, 121 Haw. 261, 218 P.3d 749 (2009):

The evidence before the circuit court at the suppression hearing relating to Vice-Officer Prudencio’s reasonable suspicion that Estabillio was in the possession of drugs was that Vice-Officer Prudencio (1) had information from a confidential informant that Estabillio was a mid-level drug dealer and (2) observed Estabillio to “be very nervous.” Inasmuch as no evidence was presented during the suppression hearing regarding the identity or previous reliability of the “confidential informant,” the tip that Vice-Officer Prudencio garnered from such informant was akin to an anonymous tip. The ICA has previously held that “an anonymous tip that [the d]efendant ‘might have [drugs] in his possession'” was not sufficient to establish reasonable suspicion for an investigatory detention. Kachanian, 78 Hawai’i at 480-81, 896 P.2d at 936-37. Thus, Vice-Officer Prudencio’s statement that a confidential informant had provided him with such information was insufficient to form the basis for a reasonable suspicion.

Additionally, nervous, evasive behavior can be a pertinent factor in determining reasonable suspicion, see Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000); however, “unless it is unusually severe or persistent, or accompanied by other, more probative, grounds for reasonable suspicion, it is of limited significance in determining whether reasonable suspicion exists.” United States v. Santos, 403 F.3d 1120, 1127 (10th Cir. 2005) (citations and internal quotation marks omitted). In our view, Vice-Officer Prudencio’s observation that Estabillio was “very nervous,” without more, “is of limited significance in determining whether reasonable suspicion exists.” Id. We, therefore, conclude that Vice-Officer Prudencio’s separate drug investigation was not supported by reasonable suspicion. Consequently, the investigation constituted an unconstitutional seizure. Accordingly, all of the evidence recovered as a result of the unconstitutional seizure must be suppressed as fruit of the poisonous tree.