{"id":3215,"date":"2009-06-28T12:31:12","date_gmt":"2009-06-28T12:29:30","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-06-28T12:29:30","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3215","title":{"rendered":"MD: Trial testimony about CI’s information was prejudicial"},"content":{"rendered":"

A police detective was allowed to testify at trial that he received a tip from a confidential informant that a black male wearing a blue baseball cap and a black hooded sweatshirt was selling heroin at a particular intersection. That tip led to defendant’s arrest. The testimony was inadmissible hearsay because it contained too much specific information about defendant and his criminal activity to be justified by the proffered non-hearsay purpose of establishing why the detective was at the intersection. The court found that the specificity of the informant’s extrajudicial statement created a danger that the jury would misuse the information as substantive evidence of the defendant’s guilt and the State proved that point by referencing the informant’s tip for the truth of the matter asserted in closing argument. It was not harmless. Parker v. State<\/a>, 970 A.2d 320 (Md. May 4, 2009).<\/p>\n

Consent can be inferred from conduct. Here, defendant effectively consented with conditions. He never said no. United States v. Riekenberg, 2009 U.S. Dist. LEXIS 53351 (D. Neb. June 24, 2009):<\/p>\n

When Sergeant Morrow asked if the officers could enter the defendant’s apartment, the defendant stated the key was in his right pants pocket. He then asked what the officers were looking for, and when told they wanted to confirm no one else was present in the apartment, the defendant stated he wanted to accompany the officers into the apartment. The defendant never said the officers could not enter the apartment; rather he placed a condition–his presence–on that entry. Viewed in the totality, a reasonable officer would have believed the defendant was agreeing to allow the officers to enter his apartment provided the defendant was with them, and any limitation on that consent applied to the scope of the search conducted once the officers entered, not whether they could enter.<\/p><\/blockquote>\n

The stop of defendant’s tractor-trailer for a safety inspection was valid, even without reasonable suspicion, which there was for a continued detention. United States v. Paez, 2009 U.S. Dist. LEXIS 53556 (D. Kan. June 18, 2009):<\/p>\n

Irrespective of reasonable suspicion, Trooper Wolting stopped the vehicle in order to conduct a CVSA inspection. In Kansas, it is permissible for law enforcement officers to stop commercial vehicles without suspicion that any traffic offense has been committed. The Court adopts Judge Crow’s reasoning in Rios-Pinela that the warrantless inspection of commercial vehicles under the Kansas regulatory scheme is reasonable under the Fourth Amendment. On this basis, the initial stop was justified at its inception.<\/p><\/blockquote>\n

Having lost the motion to suppress, the government sought to reopen after Herring<\/a>, which the court does not find controlling. The prior decision is adhered to. Moreover, the good faith exception does not apply because of the invalidity of the warrant and the officers’ failure to pay attention to it. United States v. Ryan, 2009 U.S. Dist. LEXIS 53644 (D. Vt. May 26, 2009):<\/p>\n

Second, given the privacy interests in a person’s home and the extensive nature of the search here (the application for the search warrant described the scope of the search of Ryan’s home to include computers, related equipment, and records related to such equipment; books and magazines; originals, copies and negatives of photographs; motion pictures, videos, films and other recordings; envelopes, letters and other correspondence; books, ledgers or other records; credit card information; and records reflecting ownership of the premises, such as utility and telephone bills, mail or other correspondence) (see Attach. C, Application & Aff. for Search Warrant) (Doc. 1) the agents’ failure to even read the warrant constituted gross negligence.<\/p>\n

This is a critical distinction from Herring. The law enforcement officers in Herring relied upon apparently reliable information that existed. In this case, the agents relied upon a facially invalid warrant that failed to particularly describe the items to be seized. Exclusion is appropriate where a “warrant was so lacking in the indicia of probable cause that an objectively reasonable officer should not have relied on it.” United States v. Lindsey, 596 F. Supp. 2d 55, 62 (D. D.C. 2009)(finding, post-Herring, that the good faith exception in Leon did not apply where “an objectively reasonable officer could not have relied on the warrant in this case” and suppressing evidence found in search of home where search warrant was based on stale evidence); see also United States v. Lester, No. 1:09cr00002, 2009 WL 902354, at *6-7 (W.D. Va. Apr. 1, 2009) (distinguishing Herring and finding that officers could not reasonably rely on search warrant because it was not based on probable cause).<\/p>\n

The government cites Massachusetts v. Sheppard<\/a>, 468 U.S. 981 (1984) to support its contention that the errors in the warrant here are the result of mere negligence and therefore do not warrant exclusion. See Gov’t Supp. Mem. (Doc. 97). Sheppard<\/a> is easily distinguishable. …<\/p>\n

By contrast, in this case the Magistrate Judge did not affirmatively assure Agent West that the search warrant was valid, and the agents did not take “every step that could reasonably be expected of them.” Agent West did not inform the Magistrate Judge that the face of the warrant failed to particularly describe the items to be seized. “The mere fact that the Magistrate issued a warrant does not necessarily establish that he agreed that the scope of the search should be as broad as the affiant’s request.” Groh<\/a>, 540 U.S. at 561, n.4 (pointing out the difference between Groh<\/a> and Sheppard because the officer in Groh<\/a> “did not alert the Magistrate to the defect in the warrant.”). More importantly, the agents admitted that they did not read the warrant before executing it. At a minimum, this is one step that any officer would reasonably be expected to take before searching a person’s home. In short, Sheppard offers little support for the government’s position.<\/p>\n

The government also asserts that suppression will not serve the exclusionary rule’s important purpose to deter future conduct because “the conduct here that gave rise to the error involved the judiciary and not the police.” Gov’t Mot. 7 (Doc. 80). Even assuming that the lack of particularity in the warrant was the Court’s error, the warrant was clearly invalid on its face and the agents “‘would have known that the search was illegal’ in light of ‘all of the circumstances.'” Herring<\/a>, 129 S.Ct. at 703 (quoting Leon<\/a>, 468 U.S. at 922 n.23); see also Groh<\/a>, 540 U.S. at 561 n.4 (“Nor would it have been reasonable for [the officer] to rely on a warrant that was so patently defective, even if the Magistrate was aware of the deficiency.”). The agents here should have read the warrant, especially since they used the warrant to seize an assortment of items and documents.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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