The affidavit for search warrant was \u201csomewhat conclusory,\u201d but it incorporated defendant\u2019s indictment which had specific allegations of overt acts. Taking the two together showed probable cause. United States v. Alvarez, 2016 U.S. Dist. LEXIS 72791 (N.D.Cal. June 3, 2016):
\n<\/p>\n
The Affidavit itself is somewhat conclusory. However, the Indictment (which is incorporated by reference into the Affidavit) contains a number of specific facts. It describes specific acts which Mr. Hernandez carried out on the behalf of the 19th Street Sure\u00f1os: He “agree[d] together and with” thirteen other individuals to kill and\/or assault enemies of the Sure\u00f1os. \u00b6\u00b6 20, 22, 45. He murdered someone in order to enter and maintain his position in the Sure\u00f1os. \u00b6 25. He used a gun in this murder, \u00b6\u00b6 26, 27, and it was committed “with malice aforethought,” \u00b6 46.<\/p>\n
The Affidavit and the Indictment therefore set forth facts establishing Mr. Hernandez’s active involvement in the 19th Street Sure\u00f1os gang. And they do so with fair specificity. The Indictment describes (1) Mr. Hernandez’s conduct, (2) the date on which that conduct occurred, (3) against whom Mr. Hernandez acted, (4) with whom Mr. Hernandez acted, and (5) why Mr. Hernandez performed this act.<\/p>\n
Mr. Hernandez argues these statements still are too conclusory, and demands a level of specificity down to e.g., naming which assailant pulled the trigger on August 30, 2011. But that level of detail makes little difference to the question of whether Mr. Hernandez is actually involved in the gang. For instance, the fact of the agreement “to kill” and “to assault” on behalf of the Sure\u00f1os would establish Mr. Hernandez is a member of the Sure\u00f1os, regardless of whether Mr. Hernandez was the triggerman. While the Government must set forth facts which the magistrate judge may assess in determining probable cause exists (and not just rely on the affiant’s conclusions), the Government need not prove its case in order to obtain a search warrant. See Armstrong v. Asselin, 734 F.3d 984, 990 (9th Cir. 2013) (“all that is needed for a search or arrest warrant is probable cause, not proof”). Thus, the affidavit need not set forth all the specific proof of the murder and Mr. Hernandez’s involvement.<\/p>\n
Mr. Hernandez argues, however, that Underwood prohibits judges from relying on conclusory statements. But Underwood addresses the lack of probative facts, not the conclusory nature of statements. In Underwood, the Ninth Circuit affirmed a district court’s decision to grant the defendant’s motion to suppress. 725 F.3d at 1078. Federal agents had swept the defendant’s home while arresting him in connection with the investigation of a drug trafficking ring. Id. at 1078-79. Rather than obtaining a federal search warrant for Underwood’s house, the agents asked local law enforcement to obtain a state search warrant. Id. at 1079. A member of the Los Angeles Police Department (“LAPD”) applied for the warrant. Id. Rather than drafting the supporting affidavit from scratch, the LAPD officer copied and pasted an affidavit from the federal investigation. Id.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
The affidavit for search warrant was \u201csomewhat conclusory,\u201d but it incorporated defendant\u2019s indictment which had specific allegations of overt acts. Taking the two together showed probable cause. United States v. Alvarez, 2016 U.S. Dist. LEXIS 72791 (N.D.Cal. June 3, 2016):<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[20],"tags":[],"class_list":["post-22458","post","type-post","status-publish","format-standard","hentry","category-probable-cause"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/22458","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=22458"}],"version-history":[{"count":1,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/22458\/revisions"}],"predecessor-version":[{"id":22459,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/22458\/revisions\/22459"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=22458"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=22458"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=22458"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}