Archives for: November 2007, 24
11/24/07
GA: Defense waived argument that no search warrant actually issued by not specifying the issue in the motion to suppress
The motion to suppress did not adequately put the state on notice that the defendant was arguing that no search warrant actually issued. The officer presented an affidavit for a search warrant to the magistrate, but no search warrant. Based on the affidavit alone, the officers conducted the search. The issue first arose during the suppression hearing, and the state made an impromptu argument that the affidavit should suffice, but that did not cure the defense failure to put the state on notice. Young v. State, 282 Ga. 735, 653 S.E.2d 725 (2007):
Again, the question is whether Young's motion to suppress sufficiently put the State on notice that the very existence of a search warrant was being challenged, i.e., that the document that Young himself referred to as the warrant was not in fact a warrant, and that this legal issue would be resolved at the motion to suppress hearing. And it is plain that the State was not on such notice. Examination of the transcript of the suppression hearing compels the conclusion that the State's argument to the trial court was nothing more than an impromptu attempt to respond to Young's unexpected challenge to the lack of an actual search warrant.
. . .
The Court of Appeals did not err in finding waiver under the circumstances of this case.
2255 petitioner could not show that his counsel was ineffective for not arguing inapplicability of the good faith exception under Leon because it would have failed. Seckman v. United States, 2007 U.S. Dist. LEXIS 85798 (E.D. Okla. November 19, 2007).*
IN: "Catchall" provision in the warrant made it overbroad
A drug search warrant had a "catchall" provision that made it constitutionally overbroad. Only marijuana was mentioned, and meth was found.
"instruments used to manufacture, introduce into the body or deal marijuana," (App. at 28), money records, notes, documents, or videotapes "relating to the use, dealing, or manufacture of marijuana," (id.), instruments used in growing or processing marijuana, paraphernalia "and any other item of contraband which are [sic] evidence of a crime." (Id.) (emphasis supplied).
The evidence sought to be suppressed was all within the coverage of the "catchall" provision, and the state failed to show that it was otherwise in "plain view." Levenduski v. State, 876 N.E.2d 798 (Ind. App. 2007):
In the case before us, by contrast, all the methamphetamine-related evidence Levenduski sought to suppress was obtained pursuant to the illegal "catchall" provision in the warrant and should accordingly have been suppressed. The warrant authorized police to enter Levenduski's house and search for marijuana, hashish, "instruments used to manufacture, introduce into the body or deal marijuana," (App. at 28) (emphasis supplied), money records, notes, documents, or videotapes "relating to the use, dealing, or manufacture of marijuana," (id.) (emphasis supplied), instruments used in growing or processing marijuana, paraphernalia "and any other item of contraband which are [sic] evidence of a crime." (Id.) (emphasis supplied). As to the evidence unrelated to marijuana or hashish, the warrant was invalid to the extent it "[left] the executing officer with discretion," Warren, 760 N.E.2d at 610, and the trial court should have granted Levenduski's motion to suppress that evidence.
The State acknowledges the language in the warrant purporting to authorize a search for and seizure of "any other item of contraband which are [sic] evidence of a crime" is "perhaps a bit too general in its description of the items permitted to be searched for by the warrant." (Br. of the Appellee at 19.) But it asserts the discovery and seizure of the methamphetamine was reasonable because the "methamphetamine evidence" was discovered "primarily in plain view." (Id. at 19-20.) It was not.
. . .
The State has not demonstrated the evidence obtained pursuant to the illegal "catch-all" provision of the search warrant was found in plain view. It therefore should have been suppressed. See Chandler v. State, 816 N.E.2d 464, 468 (Ind. Ct. App. 2004):
Nor is there evidence the marijuana was in plain view. Officer James Walsh testified some marijuana 'was found in the middle bedroom' and 'in the living room.' There was no direct testimony this marijuana was in plain view; as the State bears that burden of proof, we will not presume it was.
(Internal citations and footnote omitted).
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