{"id":1261,"date":"2008-01-25T16:24:09","date_gmt":"2007-08-18T15:52:05","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-08-18T15:52:05","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1261","title":{"rendered":"Affidavit for SW that defendant was involved in a drive-by did not give probable cause to believe there were drugs or weapons at home"},"content":{"rendered":"

Affidavit for search warrant gave probable cause to believe that the defendant might have been in two drive-by shootings but not that he would have drugs or weapons in his house. Accordingly, the affidavit was “bare bones” and the good faith exception did not apply. United States v. Bethal<\/a>, 245 Fed. Appx. 460, 2007 FED App. 0569N (6th Cir. 2007) (unpublished) [2-1; dissenting judge agreeing no probable cause but disagreeing on good faith exception]:<\/p>\n

We have observed that suspects identified as drug dealers routinely keep drugs at home. See, e.g., McClellan<\/em>, 165 F.3d at 546; United States v. Jones<\/em>, 159 F.3d 969, 974 (6th Cir. 1998). However, persons accused of murders often dispose of the guns utilized in the crime soon afterward. See, e.g., Williams v. Withrow<\/em>, 944 F.2d 284, 286 (6th Cir. 1991), rev’d on other grounds<\/em>, 507 U.S. 680 (1993) (gun thrown in river); Smith v. Commonwealth<\/em>, 599 S.W.2d 900, 902 (Ky. 1980) (gun thrown in levy). Additionally, as the Newton<\/em> court observed, “with continuing criminal operations … the lack of a direct known link between the criminal activity and [the] residence[] [to be searched] becomes minimal.” 389 F.3d at 635-36. The affidavit here, however, provided no indication that at the time of the search, Bethal was still participating in gang-related shootings, or was seen carrying a gun. It only asserted that Bethal was identified as one of the drive-by shooters, that he was a gang member, and that he lived at 1624 West Breckenridge Street. The “continuing operation” theory noted in Davidson, Miggins, and Newton does not exist here based upon the factual declaration contained in the affidavit. Because the affidavit fails to establish any relationship between Bethal’s residence and the fair probability that weapons and drugs would be found there, no probable cause existed to support the issuance of the search warrant as to these items.<\/p>\n

. . .<\/p>\n

We conclude the affidavit at issue was “so lacking in indicia of probable cause” that weapons or drugs could be seized from Bethal’s residence “that a belief in its existence [was] objectively unreasonable.” In McPhearson<\/em>, we found that the good faith exception was inapplicable because the affidavit did not contain “a minimally sufficient nexus between the illegal activity and the place to be searched to support an officer’s good faith belief in the warrant’s validity, even if the information provided was not enough to establish probable cause.” Id.<\/em> (quoting United States v. Carpenter<\/em>, 360 F.3d 591, 596 (6th Cir. 2004)). Similarly, the affidavit here failed to contain a minimally sufficient nexus between the illegal activity (drive-by shootings) and Bethal’s home. In fact, it established no connection whatsoever. Therefore, the district court was correct in determining that the affidavit did not provide the executing officers a good faith basis to believe in its validity.<\/p><\/blockquote>\n

Defendant’s own statements to the police gave his sister the authority to consent, so his claim that she lacked common authority was denied. United States v. Hill<\/a>, 237 Fed. Appx. 878 (4th Cir. 2007)* (unpublished).<\/p>\n

Encounter was consensual because the defendant locked her keys in her car and asked for help, which was given by a police officer, but he wanted to see her license before he helped open the car and found out she was driving without a license. “Additional [unstated] facts in the record make clear that the subsequent search of DeLaurier’s vehicle was justified by the automobile exception, which allows police to search a vehicle if they have probable cause to believe that the vehicle contains contraband, provided that the car is ‘readily mobile’ and ‘found stationary in a place not regularly used for residential purposes.'” United States v. DeLaurier<\/a>, 237 Fed. Appx. 996 (5th Cir. 2007)* (unpublished).<\/p>\n","protected":false},"excerpt":{"rendered":"

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