Monday, April 4, 2011

But if you got a warrant, I guess you're gonna come in

The title refers to a Grateful Dead song. Warrants are the hallmark of the Fourth Amendment. They must be particular, a requirement placed by the Founders who reviled the use of general warrants by English Crown officials who "search[ed] where they pleased," the Supreme Court wrote in 1965. But even defective warrants can pass constitutional muster.

The case is U.S. v. Clark, decided on March 8. The warrant in this case allowed the police to search the entire premises of a particular multi-family dwelling. An informant of "unknown reliability" told the police that Clark was selling drugs from the building, over which he had "full control." The police found drugs during the search, and Clark was arrested, but the trial court suppressed the evidence because the warrant was defective.

The Court of Appeals (Raggi, Sack and Lynch) reverses, and Clark is therefore back in trouble. The Second Circuit agrees that something is wrong with this warrant because "we cannot identify a 'substantial basis' for the issuing judge to have authorized a search of the entire multi-family dwelling ... and all persons in it." While courts require that warrants "for a multiple-occupancy building be supported by a showing of probable cause as to each unit," that didn't happen here, and it is not enough for the informant to say in a conclusory manner that Clark had "control" over the building.

What saves the arrest is the "good faith" exception to the Fourth Amendment. That's right: the Fourth Amendment has an asterisk, placed there by the Supreme Court in U.S. v. Leon (1984). The good faith exception ensures that the police are not punished for the judge's error in issuing the bad warrant. It applies here because the judge did not abandon his judicial role and serve as a rubber stamp for the police. In order for that to happen, the judge has to effectively allow himself to become a member of the search party. No evidence of that here. The good faith exception also applies because, while the warrant was problematic, it was not facially deficient as that term has been defined by the courts. Since the warrant identified the place to be searched and the items to be seized (drugs and paraphernalia), it's good enough. And the affidavit in support of the warrant was not so bare-boned as to suggest the police were playing games with the system in order to search as they pleased.

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