Post details: CA6: SW affidavit failed to show nexus, but good faith saves the search

04/19/13

Permalink 07:52:40 am, by fourth, 525 words, 632 views   English (US)
Categories: General

CA6: SW affidavit failed to show nexus, but good faith saves the search

The search warrant target’s name over the doorbell of a house isn’t enough to link him to it. While there may be reason to believe defendant had drugs in his bedroom, the affidavit doesn’t link that address to the offense and the probability of evidence being found. Still, the good faith exception applies because it was not bare bones. United States v. Rose, 714 F.3d 362, 2013 FED App. 0108P (6th Cir. 2013):

[More:]

Here, although the search warrant provided a description of the property that tenuously linked the property to Rose by explaining that the name "Rose" appeared over the doorbell of apartment number one, the affidavit did not provide a link between the property and Rose. The affidavit merely explained that the victims testified that criminal activity took place in Rose's bedroom and nothing more. There is no way to read the affidavit and to conclude that the magistrate judge had a substantial basis for thinking that there was a fair probability that evidence of the crimes described in the affidavit would be found at 709 Elberon Ave. As a result, the affidavit did not provide probable cause to believe that the items sought in the warrant were located at 709 Elberon Ave.

Giving the magistrate judge's probable cause determination the deference that it is due, we still find that probable cause does not exist in the present case. The affidavit undoubtedly links Rose, and Rose's bedroom, to evidence of criminal activity, but because it fails to link Rose to 709 Elberon Ave., it does nothing to establish the required nexus between the place to be searched and the evidence sought. If, for example, the affidavit stated that the victims alleged that the sexual misconduct took place at 709 Elberon Ave., or that an investigation revealed that Rose lived at 709 Elberon Ave., there would be probable cause to believe that evidence of the crimes described in the affidavit would be found at 709 Elberon Ave. There was no probable cause to search 709 Elberon Ave. because the affidavit failed to establish the nexus between 709 Elberon Ave. and the evidence sought in the investigation of Rose.

. . .

Finally, the good-faith exception is premised on the idea that "the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates." United States v. Leon, 468 U.S. 897, 916 (1984). The facts of this case do not raise fears of police misconduct. Officer Schroder conducted an investigation into allegations by several victims that Rose sexually abused them and showed them pornographic images on his computer in his bedroom. It is fair to presume that, given his investigation and the number of witnesses, Officer Schroder secured Rose's address with relative ease. The affidavit provided overwhelming evidence linking Rose and his residence to a crime and to the evidence sought in the search warrant. The affidavit simply failed to provide the link between Rose and 709 Elberon Ave. Although such an oversight should not be taken lightly, the facts of this case support the application of the good-faith exception. Rather than fears of police misconduct, this case merely raises concerns about sloppiness in drafting affidavits within the Cincinnati Police Department.

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