Lost warrant was held recreateable despite possible tampering allegation

Potentially altered copy of search warrant where original was lost (maybe left at the scene) was an insufficient ground to suppress, despite the appearance of a possible alteration. State v. Shumaker, 945 So. 2d 277 (La. App. 2d Cir. December 13, 2006):

Deputy Langley testified that when he prepared the search warrant, he printed two copies, placed a piece of carbon paper between the copies, and had the judge sign the top copy in blue ink-the bottom copy had a carbon-copy of the judge’s signature. At the hearing on the motion to suppress, the state presented the original affidavit, signed in blue ink, and a duplicate original of the search warrant with the carbon-copy signature. Deputy Langley testified that he normally left the duplicate original of the search warrant with the carbon-copy signature at the residence and that the back side of that document contained a carbon-copy of the return from the search warrant, showing what was seized from the residence. This duplicate original of the search warrant with the carbon-copy signature contained the original return on the search warrant, showing what was seized from the residence. Deputy Langley testified that he believed the original warrant signed in blue ink was left at the residence instead of the duplicate original with the carbon-copy signature.

The duplicate original presented by the state at the hearing on the motion to suppress contains language authorizing a nighttime search of the described premises to be searched. Shumaker presented a copy of the search warrant left at his residence, not the original document left at his house, but that document does not contain language authorizing a nighttime search. Both La. C. Cr. P. art. 163(B) and La. R.S. 40:985 state a search or seizure shall not be made during nighttime unless the warrant expressly permits it. When comparing the two documents, it is obvious that one of the documents was altered. The signatures and handwritten date on both copies appear to be identical, but the signature line and date line are much higher on the page of Shumaker’s copy than it is on the page of the state’s copy. The state’s copy clearly contains a carbon-copy of the signature and the date. If Shumaker’s copy was truly representative of the original search warrant signed in blue ink, the date and signature line would be placed lower on the page. Accordingly, the trial court did not err in finding that the state’s duplicate original was representative of the original search warrant. The trial court also was reasonable in dismissing Shumaker’s claim that the original search warrant did not contain language authorizing a nighttime search.

Ultimately, a practical, common-sense evaluation of the circumstances set forth in the affidavit established a fair probability that evidence of methamphetamine use and production would be found at Shumaker’s residence, and the issuing magistrate had a substantial basis for concluding that probable cause existed to search Shumaker’s mobile home. The trial court’s decision to deny his motion to suppress is due great weight, and the preponderance of the evidence does not favor suppression. Therefore, Shumaker’s claim that the search warrant was not supported by probable cause is without merit.

Frisk of passenger’s coat for weapons was justified under the “circumstances of this case.” The officer had reasonable suspicion of drugs, and where drugs are is where guns might be. Drugs were found in her coat. State v. Banda, 2006 S.C. LEXIS 394 (December 11, 2006):

We hold that under the circumstances of this case, Lawson had reasonable suspicion to frisk Banda for weapons pursuant to a valid automobile stop. This Court has recognized that because of the “indisputable nexus between drugs and guns,” where an officer has reasonable suspicion that drugs are present in a vehicle lawfully stopped, there is an appropriate level of suspicion of criminal activity and apprehension of danger to justify a frisk of both the driver and the passenger in the absence of other factors alleviating the officer’s safety concerns. Butler, 353 S.C. at 391 (quoting U.S. v. Sakyi, 160 F.3d 164, 169-170 (4th Cir. 1998)). In this situation, the police clearly had reasonable suspicion to suspect that drugs were present in the vehicle. The police had observed the car leave the residence of a known drug dealer. Furthermore, the car displayed stolen Georgia license tags and the police knew from their confidential informant that the target’s drug shipments came from Georgia. Even though the police shortly realized that Banda was not their target, the fact that the activity observed at the target’s house corroborated the informant’s statements was enough to give the officers a reasonable suspicion that Banda was in some way involved with the target’s drug activity and that drugs might therefore be in the vehicle. See Cortez, 449 U.S. at 417. Given the frequent association between drugs and guns, Lawson’s safety concerns were justified based on the vehicle’s apparent connection to a known drug dealer.