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Tuesday, December 7, 2004

Breaking Case News: Ninth Circuit Holds Warrant Invalid If Affidavit Not Presented To Resident Along With Warrant Itself

Ninth_circuit_1The Ninth Circuit ruled yesterday in U.S. v. Grubbs that an anticipatory search warrant is not valid if the facts triggering the search are set forth only in the affidavit, and the affidavit is not formally presented  to the residents along with the warrant itself.  The court stated:  "We have long held . . . that the purpose of the particularity requirement is not limited to the prevention of general searches. A particular warrant also assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search."  In addition, "[W]e have unequivocally held that the defect is not cured if the officers fail to present the affidavit--that is, an affidavit that is not shown to the persons being subjected to the search does not have a curative effect on a facially defective warrant."  This holding is required because "[i]f the officers conducting the search were not required to present the affidavit to the residents of the house being searched, law enforcement personnel would be free to search as they like, and homeowners and others would have no effective way to ensure that the search of their premises conformed to the lawful constraints approved by an impartial magistrate."  Because the triggering facts in the anticipatory warrant were contained only in the affidavit, and the affidavit was present with the officers during the search but not formally presented to the occupants along with the warrant, the search violated the Fourth Amendment.  [Mark Godsey]

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Comments

This decision was pre-saged by Groh v. Ramirez,
which is the only known U.S. Supreme Court case to be argued and won by a practicing marine biologist.

Posted by: Jeffrey Renz | Dec 7, 2004 12:28:44 PM

Not being an attorney, I am probably missing something here, but . . .

Why is it neccessary to present the entire affidavit? The warrant itself, along with the credentials of the officer, shows that he or she has the authority to search.

And I would argue that the warrant also shows that there is a need to search since the magistrate signed it and, in doing so, commands the officer to conduct the search.

So that leaves the issue of "homeowners and others [having] no effective way to ensure that the search of their premises conformed to the lawful constraints approved by an impartial magistrate."

Well, wouldn't presenting the list of the "items to be searched for and seized" satisfy the remainder of the particularity requirement, without providing the WHOLE affidavit?

Posted by: David | Dec 9, 2004 6:03:02 PM

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