Post details: Wrong address in warrant and nonincorporation of affidavit was fatal

08/16/07

Permalink 05:22:35 pm, by fourth, 583 words, 4338 views   English (US)
Categories: General

Wrong address in warrant and nonincorporation of affidavit was fatal

The search warrant had one address and the affidavit had another completely different street and number. The affidavit was not incorporated and the owner was not identified. Therefore, the warrant was fatally defective. The state's argument this was a "mere technicality" was rejected. Thomas v. State, 287 Ga. App. 262, 651 S.E.2d 183 (2007):

Based upon this information received from the two responding officers, a detective with the Gwinnett Drug Task Force submitted an affidavit and application for a warrant to search for marijuana and drug-related documents and paraphernalia at “3958 Bailey Castle Court, Duluth Georgia, Gwinnett.” A magistrate granted the detective the search warrant at 11:28 p. m., but the warrant listed the address for the search as “5365 Williams Road, Georgia, Gwinnett.” The warrant did not make mention of Thomas or any other owner or occupant. The warrant also provided that the affidavit submitted by the detective “shall not be served upon the premises--only the [search warrant] shall be served.” After obtaining the search warrant, the detective, along with the two responding officers, searched Thomas' residence in the early morning hours of February 2nd and found over 42 pounds of marijuana.

. . .

Citing to OCGA § 17-5-31, the State argues that the erroneous address in the search warrant was a mere technical irregularity, given that the residence and its occupant was described in the detective's supporting affidavit and application for a warrant. We cannot agree under the circumstances of this case. It is true that even if a search warrant contains an erroneous address, the warrant may nevertheless be valid “where there are other elements of description sufficiently particular to identify the premises to be searched” in the supporting affidavit and application. Lester v. State, 278 Ga. App. 247, 249 (1) (628 SE2d 674) (2006). ... Significantly, however, a court is entitled to construe a warrant in conjunction with the supporting affidavit and application only “if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant.” (Emphasis omitted.) Battle v. State, 275 Ga. App. 301, 302 (620 SE2d 506) (2005), quoting Groh v. Ramirez, 540 U. S. 551, 557-558 (II) (124 S. Ct. 1284, 157 LE2d 1068) (2004) (holding that officer's possession of affidavit at searched premises, without leaving a copy with the occupant, was insufficient to allow for consideration of the affidavit in evaluating the constitutionality of the warrant). Here, the search warrant did not contain words incorporating the detective's affidavit and application, and the warrant expressly stated that the supporting documentation was not to be served upon the occupant. Hence, the warrant cannot be construed with reference to the detective's affidavit and application. Battle, 275 Ga. App. at 303-304.

It is also true that a warrant containing an erroneous address can pass constitutional muster if the warrant itself contains other descriptive elements that would “permit[] a prudent officer executing the warrant to locate the place definitely and with reasonable certainty, and without depending upon his discretion.” Chambless, 165 Ga. App. at 195 (1). ... But, in the instant case, the warrant contained no other descriptive information about the property or the occupant, other than the erroneous address.

Consent was found voluntary of a DWI defendant after officer felt defendant was in sufficient control of his faculties to consent. Davis v. State, 287 Ga. App. 478, 651 S.E.2d 750 (2007).*

Defense counsel was not ineffective for not pursuing a motion to suppress that could not prevail. People v. Morrison, 375 Ill. App. 3d 545, 874 N.E.2d 896, 314 Ill. Dec. 531 (2d Dist. 2007).*

Affidavit for search warrant was not the best, but it was clearly not bare bones, so probable cause was shown. State v. Johnson, 2007 Ohio 4158, 2007 Ohio App. LEXIS 3750 (4th Dist. August 10, 2007).*

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