Re: Contesting probable cause for issuence of Search Warrant
"David Martel" <marte005@xxxxxxxxxxxxx> wrote in message
news:CO4Ef.9935$vU2.9527@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
> Larry,
>
> I think that there was no probable cause to search the house for drugs
> but when the "stolen weapons" issue came up it supplied a reason to enter
> and search so the vice squad tagged along. Mr. Metcalfe initially seemed
to
> suggest that the police supplied the "white powders" that were discovered
on
> one of the arrestees. His strategy right now seems to be to show that
there
> was no probable cause for the "weapons" case and thus no legal search. I
> presume he will try the fake evidence ploy at a later date.
> From some police documents that Metcalfe posted it sounds as if the
> weapons probable cause rests on a phone call to a pawn shop which was
traced
> back to the house that was searched. These phone records may be examined
so
> it's not clear why they have not been by Metcalfe. The man at the pawn
shop
> should be interviewed as well.
>
> Dave M.
>
>
>
Ok, Dave, during my first conversation with the Defendant, he explained to
me as follows:
A friend came over with a note listing the model of the shotgun and Olympic
AR 15 rifle and asked if he knew what the value was for the guns. It seems
that he wanted to buy a 4 wheeler from him for 400 dollars, and he knew
where he could get what seemed like a good price. He was checking to see if
he might buy them and make some money on a re-sale.
When asked if the guns were stolen, the visitor explained that he didn't
know, to which he was informed that if the guns were stolen, they "ain't
worth ***."
Defendant told him to call the gun shop to find out, but he lives at a dead
spot where cellular wont transmit, so he just picked up the phone and dialed
up the shop himself. When the gun shop employee began questioning him about
specifics of the guns, Defendant would relay the question to the prospective
buyer, who would answer accordingly.
When later the same day he received the call from the rightful owner
inquiring if he had the guns for sale, he alerted to the fact that something
was wrong. To protect his friend he made up the name.
He also informed me that he guessed the search team had found some crank in
his garage, because they had arrested him and told him he was charged with
crank. Maybe it was his that he had misplaced at some time or other, or
perhaps someone else had lost it there, because he has numerous visitors in
his garage, where he has set up sort of a shop, and he is a trader in
addition to that.
What he couldn't understand though, was why, if they had found drugs, and
after they had searched his person at the scene of the search, did they feel
compelled to manufacture evidence on his person during book-in procedure?
Since the "plant" was a small amount it wasn't able to change the status of
his charges from simple possession to poss w/intent.
I wondered also. But that's irrelevant.
The reason I made my initial posts only mentioning what is believed to be
fabricated evidence and excluding what I believed to have been actually
discovered in the search,is simply because I knew that if the facts of the
probable cause in his case were of a nature that the search could be
attacked successfully, I might have a bigger problem to solve, and that is
the Claim by the State that even if the evidence obtained in the search had
to be suppressed under the exclusionary rule, the illegal evidence
discovered by the officer who was booking him into the jail was not under
the same rule, as the book-in officer was acting in good faith.
Keep in mind that, at that time I had not seen the affidavit, so I was not
even able to begin formulating any thoughts as to whether he even had any
legitimate issues that could be brought up to contest the search, nor any
idea of what basis to begin any research upon, and so that is why I might
have appeared to have vacillated upon the issue as to whether the drugs were
planted by the police, or discovered in an illegal search.
It was only when I obtained the affidavit that I discovered that it was
claimed that officials witnessed him dropping the pill bottle to the ground,
this being incriminating enough for them to conduct a warrantless search of
same.
So, the facts shown as presented have further convinced me in the truth of
Defendant's version of events. But, like I said initially, I at first
believed that the pill bottle drugs had been planted as well, thinking
perhaps the plan had been made by the police to protect themselves from
liability in the even no illegal acts by the Defendant were uncovered by the
search. Further I reasoned that perhaps the left hand didn't know what the
right hand was doing.
But upon further thought I finally concluded that an OSBI agent with over 20
years with the service would probably not jeopardize his career over
something as trivial as planting drugs on a nobody like the defendant.
Discussing it over with the Defendant he agreed that it was probably
discovered pursuant to an unlawful search of the pill bottle, and the facts
were fabricated to fit the model constructed by the courts establishing the
criterea of probable cause of a warrantless search. And I have no doubt that
none of the bunch involved in the search would have second thoughts about
that, as it's second nature for local officials to routinely violate every
legal right it takes to arrest and convict the target of their
investigation.
The way things stand at the moment, I see practically no chance of digging
out the truth concerning the manufactured evidence, if true, and I just
can't see much better odds of establishing to the satisfaction of the court
that the fabricated evidence is the fruits of an illegal arrest that based
upon a warrantless search of the pill bottle, and so therefore is "fruit of
the poisonous tree."
Thus, from what I am able to discern from my limited research conducted on
the matter, I have few other options but to proceed against the probable
cause and the lack of the necessary exigent circumstances for the level of
the intrusion of privacy imposed by the unannounced entry.
If you can think of any alternative idea's, I will certainly give them the
appreciative consideration they deserve.
Dane
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