Affidavit for a search warrant is different that an affidavit to show probable cause for an arrest. The former is to specifically identify property, things, or persons for which there is probable cause to seize. The latter requires probable cause to believe that the person committed a crime, so it may require a greater explanation of probable cause. (See Treatise \u00a7 3.2.) United States v. Abdallah, 2007 U.S. Dist. LEXIS 94089 (S.D. Tex. December 26, 2007):<\/p>\n
Abdallah’s argument that probable cause to support a warrantless arrest requires the same quantum of proof as probable cause to support a search warrant is not persuasive. “[W]hile it is true that there is … common ground for discussing the quantum of evidence required under the Fourth Amendment’s probable cause test, it does not follow that probable cause for arrest and probable cause to search are in all respects identical.” 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE \u00a7 3.1(b) (4th ed. 2004). Probable cause to arrest exists “when the totality of the facts and circumstances within a police officer’s knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.” Glenn v. City of Tyler<\/em>, 242 F.3d 307, 313 (5th Cir. 2001) (citing Spiller v. Texas City,<\/em> 130 F.3d 162, 165 (5th Cir. 1997)). A probable-cause determination for the issuance of a search warrant is a “practical, common-sense decision as to whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Cavazos<\/em>, 288 F.3d 706, 710 (5th Cir. 2002) (quoting United States v. Byrd<\/em>, 31 F.3d 1329, 1340 (5th Cir.1994)); see also Kohler v. Englade<\/em>, 470 F.3d 1104, 1109 (5th Cir. 2006) (“Probable cause [to support a search warrant] exists when there are reasonably trustworthy facts which, given the totality of the circumstances, are sufficient to lead a prudent person to believe that the items sought constitute fruits, instrumentalities, or evidence of a crime.”) (citing Gates<\/em>, 462 U. S. at 238-39). “In the case of arrest, the conclusion [that probable cause exists] concerns the guilt of the arrestee, whereas in the case of search warrants, the conclusions go to the connection of the items sought with the crime and to their present location.” 2 LAFAVE, SEARCH AND SEIZURE \u00a7 3.1(b).<\/p>\n
The Fifth Circuit has stated that an affidavit supporting a search warrant is sufficient to establish probable cause if the affidavit “make[s] it apparent … that there is some nexus between the items to be seized and the criminal activity being investigated.” Kohler<\/em>, 470 F.3d at 1109 (citing Warden v. Hayden<\/em>, 387 U.S. 294, 302, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967)). In analyzing the sufficiency of an affidavit supporting a search warrant, a court “start[s] with the general proposition that a search warrant, unlike an arrest warrant, may issue, without the slightest clue to the identity of the criminal, if there is probable cause to believe that the fruits, instrumentalities, or evidence of criminal activity are located at the place to be searched.” United States v. Webster<\/em>, 750 F.2d 307, 318 (5th Cir. 1984) (citing 1 LAFAVE, SEARCH AND SEIZURE \u00a7 2.1(b) (1978)). It is not necessary for an affidavit accompanying a search warrant to allege specific intent on the part of an alleged perpetrator to establish probable cause to search the location identified in the affidavit.<\/p><\/blockquote>\n
Prisoner stated a \u00a7 1983 claim sufficient to survive Prison Litigation Reform Act (PLRA), 28 U.S.C. \u00a7 1915A(b)<\/a>, screening. The allegation here was a baseless prison body cavity search conducted in the presence of other guards, including a female guard, without emergency. At the minimum, he can attempt to prove nominal and punitive damages. The district court erred in summary dismissal. Hutchins v. McDaniels<\/a>, 512 F.3d 193 (5th Cir. 2007). (Comment:<\/em> PRLA cases are not cited here because there are many that end up on Lexis, but seldom does one survive. This one did.)<\/p>\n
In Brooks v. Neb. DMV, 2007 U.S. Dist. LEXIS 94168 (D. Neb. December 26, 2007), “Plaintiff here alleges that Defendant Bell pulled his gun out and yelled profanities at Plaintiff during his arrest. Liberally construed, Plaintiff alleges that Defendant Bell knocked him to the ground after he was already handcuffed and cooperating. (Filing No. 1 at CM\/ECF p. 3.) Plaintiff has set forth enough facts to nudge his claims against Defendant Bell across the line from conceivable to plausible. As a result, Plaintiff’s claims against Defendant Bell may proceed.” The claim against the DMV is dismissed under the Eleventh Amendment.<\/p>\n","protected":false},"excerpt":{"rendered":"
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