Police had a search warrant for defendant’s computer after obtaining information that it contained child porn. When executing the warrant, the officer discovered that the issuing magistrate accidentally dated the warrant the day after the search. They called before completing the search and were told to continue. Defendant cannot show prejudice [indeed, his prejudice argument was counter intuitive], and the search was not unconstitutional or unreasonable because there was no police misconduct to justify suppression of evidence. United States v. Butts, 2007 U.S. Dist. LEXIS 52475 (D. Ariz. July 17, 2007):<\/p>\n
When an issuing magistrate judge makes “an error of a constitutional dimension” by failing to take the steps necessary to conform a search warrant to constitutional requirements after assuring police officers that such steps would be taken, it is reasonable for the officers to rely on the magistrate judge’s assurances “that the warrant authorized the search they had requested.” Id.<\/em> (citing Massachusetts v. Sheppard,<\/em> 468 U.S. 981, 990 n. 6, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984)).<\/p>\n
When evidence is seized pursuant to a defective search warrant, suppression under the exclusionary rule is not automatic. The “prim[ary] purpose of the exclusionary rule is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.” Illinois v. Krull<\/em>, 480 U.S. 340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) (internal quotation marks omitted).<\/p>\n
In the interest of deterrence, “evidence should be suppressed ‘only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.'” Id.<\/em> at 348-49 (quoting United States v. Peltier<\/em>, 422 U.S. 531, 542 (1975)); see also United States v. Leon<\/em>, 468 U.S. 897, 918 (1984) (“[S]uppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.”).<\/p>\n
By all accounts, the error of having the date on the search warrant post-dated by one day appears to have been done inadvertently by the magistrate judge. The evidence indicates that Agent Andrews had no knowledge of the incorrect date on the search warrant until the search had been nearly completed, and that Agent Andrews exercised no bad faith in executing the search warrant on October 6, 2005. Moreover, it was reasonable for Agent Andrews to rely on the magistrate judge’s willingness to issue the search warrant for the day she requested. Moreover, the search was conducted within the 10 days allowed for a valid search warrant.<\/p>\n
Defendant claims that a prejudicial change occurred between the date on the search warrant and the following day when the search warrant was executed, which was that there was time for more evidence to accumulate. Defendant’s argument is not compelling, as it means that Defendant may have downloaded additional child pornography in the 24 hours before the search was conducted.<\/p>\n
Finally, Krull<\/em> instructs that the exclusionary rule is restricted to instances that will advance its remedial purpose–to deter future unlawful police conduct. Here, Agent Andrews always intended to conduct the search on October 6, 2005. Before initiating the search, Agent Andrews did not have knowledge that the date on the search warrant was off by a day. Furthermore, there is no evidence of unlawful police conduct. Accordingly, Defendant’s Motion to Suppress Evidence from Search and Derivative Evidence is denied.<\/p><\/blockquote>\n
Police with an arrest warrant waited for defendant to come out of the house. A protective sweep for other persons was conducted after defendant was in handcuffs. When the sole leaseholder arrived, she consented to a search of the premises without knowledge of the protective sweep, which produced 10 ounces of marijuana and a handgun in the possession of a felon. The protective sweep was not shown to be justified, but the consent without knowledge of the protective sweep was free and voluntary. United States v. Edgerson<\/a>, 243 Fed. Appx. 974, 2007 FED App. 0498N (6th Cir. 2007) (unpublished):<\/p>\n
A protective sweep of a residence, conducted after an arrest has been made outside the residence, is justified only if the officers can demonstrate an articulable basis for their reasonable belief “that someone else inside the house might pose a danger to them.” United States v. Colbert<\/em>, 76 F.3d 773, 777 (6th Cir. 1996). Here, the government contends that the police had an articulable fear because one officer saw movement inside the house before Edgerson surrendered and because the tip contained information that Edgerson was armed. The dangerousness of an individual already in custody, however, “is not germane to the inquiry whether the police may conduct a protective sweep.” Id.<\/em> Consequently, the government has not demonstrated any articulable facts that would lead to the rational inference of a threat after Edgerson had surrendered, unarmed. See id.; Maryland v. Buie,<\/em> 494 U.S. 325, 334 (1990). We therefore disagree with the district court’s conclusion that the initial “protective sweep” was lawful, and must consider the effect of Ms. Manley’s consent.<\/p>\n
. . . Although the protective sweep was unlawful, Ms. Manley was not aware that it had occurred when she gave her consent, and she was not facing arrest herself. Moreover, the district court expressly found that the drugs and the gun were “discovered without reference to the police error or misconduct,” and “there is no nexus sufficient to provide a taint.” See Nix v. Williams<\/em>, 467 U.S. 431, 448 (1984). Edgerson has failed to demonstrate clear error.<\/p><\/blockquote>\n
Comment:<\/em> The opinion never says that the protective sweep revealed the marijuana, so what difference does it make? Consent is consent, and there was no showing that anything was found by the protective sweep. The opinion is trying to show that the consent was not coerced by the protective sweep.<\/p>\n
Officer’s testimony that the defendant was walking in a park masturbating rather than walking while urinating was credited by the district court and was “virtually unreviewable on appeal,” quoting United States v. Hernandez,<\/em> 281 F.3d 746, 748 (8th Cir. 2001) The police officer that came upon defendant and found him stopped him and asked about what was in his backpack. “[Officer] Ihde asked, ‘Are they naughty pictures?’ When Boston replied ‘Yes,’ Ihde told him to step away from the backpack. Ihde opened the bag and saw an 8″ x 10″ computer printout of a 12 or 13 year old boy with his genitals exposed.” The search of the backpack and seizure of 163 Polaroid pictures of young boys and a production of child porn count was affirmed once the boy in a picture was identified. United States v. Boston<\/a>, 2007 U.S. App. LEXIS ____ (8th Cir. July 16, 2007).<\/p>\n
Defendant officer had probable cause for plaintiff’s arrest for DUI finding him stuck on a concrete barrier, with bloodshot and watery eyes, slurring his words. Biehl v. Salina Police Dep’t., 2007 U.S. Dist. LEXIS 52473 (D. Kan. July 18, 2007).*<\/p>\n","protected":false},"excerpt":{"rendered":"
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