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Where is the evidence to support probable cause?

On behalf of Steven W. Thayer, P.S. Criminal Defense Attorney on Wednesday, December 12, 2018.

We recently discussed whether a signed warrant could be challenged in court. That story related to a federal appellate decision. Constitutional guarantees against unreasonable searches and seizures is strong in Washington state courts, as well as federal courts. Take for instance the case of State v. Kelley, 762 P.2d 20 (Wn. App. 1988). In that case, attorney Steven W. Thayer challenged the validity of a warrant to successfully defend against several counts of drug charges and an associated allegation involving unlawfully obtained electricity.

The information submitted in support of the search warrant

A Clark County Deputy Sheriff claimed in an affidavit that two people had observed several outbuildings at a property that were padlocked, had plastic wrapping installed, and that the garage had vents installed in the ceiling. Apparently, the citizens said that two Doberman Pinscher dogs were on the premises during one of their visits to the property. One of the informants claimed that he saw a pile of rich dirt in the garage and heard the hum of an exhaust fan.

Members of law enforcement followed up on the information and, using a heat sensing device, jumped to the conclusion that excessive heat was escaping from the garage through the ceiling vents. Officers noted that, in all, five vents could be seen on the garage and outbuildings. Investigators checked public utility records and claimed in the affidavit that discrepancies in power usage from month to month suggested that electricity was being unlawfully diverted to the property.

A man and a woman resided at the residence, according to court records. Authorities noted that neither resident had any drug convictions on their record. Based on the investigation, the deputy submitted the affidavit to a judge to obtain a warrant to search the residence for marijuana and drug paraphernalia that the deputy believed would be found on the property.

A District Court judge signed the warrant, authorizing a search of the one story, wood framed residence, green in color, with an attached carport located at the specific address in Clark County. The warrant did not mention the outbuilding, which included the barn and a garage. The warrant also did not incorporate the information provided in the affidavit concerning the outbuildings.

When law enforcement executed the search warrant, they seized evidence from throughout the property, including the barn and detached garage. In the trial court, Mr. Thayer argued that the searches of the outbuildings exceeded the scope of the warrant. Mr. Thayer also challenged the reasonableness of the search of the residence. None of the allegations mentioned the house itself – the pre-investigation focused on observations concerning the outbuildings.

The trial court agreed that the searches of the detached garage and the barn exceeded the scope of the warrant, and that law enforcement did not have any evidence to support probable cause to search the house. The trial court suppressed the evidence obtained during the search and dismissed all charges against the defendant.

The state appealed to Court of Appeals of Washington, Division Two. The appellate panel agreed with the defense and the trial court judge that searching the outbuildings was not authorized and law enforcement never had any probable cause to search the home. The state also tried to revive the case, arguing that police acted in good faith in their search. The appellate panel disagreed, finding that law enforcement could not rely on exceeding the scope of the plain language of the search warrant to claim that they acted in good faith when they searched the outbuildings. Similarly, the house was never mentioned in the supporting documents for the warrant – the appellate panel found that police could not rely on an argument of good faith to search the house when police never provided any information about the house to show a reasonable likelihood that evidence could possibly be found there.

The chief judge of Court of Appeals of Washington, Division Two, the late Judge Edward Parker Reed, wrote a concise concurring opinion to state that the investigation did not support probable cause to search any aspect of the property for potential evidence of a drug crime. His concurrence adeptly pointed out that based upon the allegations presented in the affidavit, “the defendant could just as well have been growing orchids.”

The state has the burden of proof in any criminal case. However, law enforcement and prosecutors must follow constitutional rules to obtain their evidence. Not every drug charge, and not every criminal case, involves a signed search warrant. Your criminal defense lawyer needs to have the skill and attention to detail to evaluate and analyze every aspect of the case to present the best defense.

Posted on by Steven W. Thayer, PS
Where is the evidence to support probable cause?

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