When the police want to seal part of a search warrant application to protect the identity of their informant, they cannot keep the original in the police department. It is a judicial record that belongs to the court. People v. Galland, 146 Cal. App. 4th 277, 52 Cal. Rptr. 3d 799 (4th Dist. December 28, 2006):
The instant case presents a vivid example of why our courts are the preferred record keepers in judicial proceedings. Hankins presented a search warrant with supporting affidavit to the magistrate on August 9, 2001. In 2006, without the benefit of the original warrant affidavit or authenticated copy retained by the superior court, the parties seek this court’s independent review of the magistrate’s probable cause determination and the trial court’s subsequent rulings on motions to suppress and for discovery. The documents included in the appellate record are too far attenuated from the magistrate’s determination of probable cause to serve as a legitimate basis for any decision on the warrant’s validity. The events subsequent to the magistrate’s determination, Hankins retention of the crucial part of the warrant affidavit, the court’s initial handling of the hearing on Galland’s motions to disclose that document, and its subsequent and belated review, which yielded an entirely new page to add to it, provides no reasonable belief in the authenticity of any of the documents not retained by the court after the filing of the return.
The most important part of a search warrant is the affidavit of probable cause. Without good reason, Hankins and his department retained the original affidavit, which no longer exists because of that agency’s actions, and the appellate record supplies scant evidence on which this court can place its confidence in what is included in the record. How much more disturbing to the average citizen to discover the law enforcement agency involved in a criminal case retained the document that provided legal justification for a search of home, possessions, and person. Human nature precludes an unquestioning faith in a legal procedure that cannot guarantee objectivity and proper respect for important documents. Public confidence in our judicial system is founded on its ability to serve as a neutral player in the proceedings before it. Reliable record keeping is a basic component of public trust.
A search incident to a warrant is a governmental invasion of individual liberty and property. The abuse of that process led to the adoption of the Fourth Amendment and legislation prescribing mandatory procedures to be followed when a warrant is issued and thereby given judicial sanction. (Sgro v. United States (1932) 287 U.S. 206, 210.) Essential to this protection is the state’s ability to ensure the authenticity of the supporting affidavit of probable cause. Simply having any judicial officer review an affidavit of probable cause at any point in the criminal proceedings and then conclude the magistrate must have reviewed the same document provides no such assurance. When a police officer submits a written affidavit of probable cause, the issuing magistrate assumes the responsibility of ensuring probable cause existed for the search. It would be much easier to shoulder this responsibility if the magistrate ensures the original affidavit in its entirety is timely filed with the court clerk. We find support for our conclusion in the various statutes governing search warrants.
. . .
We are aware of the practical concerns generated by requiring the magistrate to ensure the entire search warrant affidavit, including any portion ordered sealed, be timely filed with the superior court clerk. Police officers frequently need to secure a search warrant in the middle of the night. Magistrates often live miles from the closest branch of the superior court. The press of work may prohibit the officer affiant from waiting at the courthouse door to file documents. Nevertheless, the entire warrant affidavit becomes a court document when it is presented to a magistrate in support of a search warrant. From then on, the document is a matter of public record to be treated like a public record. It is not evidence of guilt to be produced in a subsequent criminal trial and therefore properly retained by the investigating law enforcement agency. Consequently, to avoid the constitutional and statutory violations that occurred here, the affiant officer must also ensure the entire warrant affidavit, including any portion ordered sealed by the magistrate, is filed with the clerk of the superior court at the officer’s earliest opportunity.
No expectation of privacy in a stolen truck in the defendant’s driveway. United States v. Malady, 209 Fed. Appx. 848 (10th Cir. 2006)* (unpublished).
Defendant’s girlfriend had apparent authority to consent. She left the premises intending not to return but did. She actually consented while not physically there during the hiatus, but that was not fatal to consent. United States v. Ryerson, 2006 U.S. Dist. LEXIS 93244 (W.D. Wisc. December 22, 2006):
Ryerson contends that Lawicki possessed neither actual nor apparent authority to consent to a search of 911 Gillette Lane. Ryerson is incorrect. Lawicki almost certainly had actual authority to consent to the searches. She had lived in the house with Ryerson and their child continuously for over ten months prior to the first search. Lawicki had left for her mother’s with the baby on February 5, 2006 with the stated intent not to return, but in fact she changed her mind and she did return to the area to retrieve the baby from Ryerson. Because Lawicki was scared of Ryerson and his minions, she did not stay in the house between February 5-10, but this does not establish that it was not still her residence. After all, Ryerson didn’t stay there between February 5 – 10 either; during the relevant time period the house was unoccupied. n2 There was no legal or physical impediment to Lawicki continuing to live at 911 Gillette during this time; she simply chose not to do so. Therefore, I conclude that Lawicki had actual authority to consent to the searches on February 9 and 10, 2006.
Two police officers in the same department cannot conspire to violate civil rights under § 1983. Magee v. City of Daphne, 2006 U.S. Dist. LEXIS 93183 (S.D. Ala. December 20, 2006).*
A Fourth Amendment claim litigated on direct appeal cannot be reviewed on a § 2255 claim. United States v. Figueroa, 2006 U.S. Dist. LEXIS 93218 (D. Nev. December 20, 2006).
