A panel of the Kansas Court of Appeals has reversed a district judge’s earlier decision to uphold two questioned search warrants issued during a domestic violence investigation.  The opinion reminds law enforcement not to ask to search for things for which probable cause does not exist, and to remember to proof-read the search warrant documents before they are given to a judge to review.  

James Lee, his bail bond business, and Lee’s girlfriend stayed in the north side of a residence.  One of Lee’s friends, and that guy’s girlfriend, stayed in the south side of the house.  A domestic dispute broke out between the friend and the friend’s girlfriend during which the girlfriend was bloodied, and the police were called.  Lee and his girlfriend were not involved but were present.

When the injured girlfriend refused to cooperate, the officers sought a search warrant to search the residence for evidence of the fight including bloody items, damaged furniture, and “evidence to indicate the occupants or residents of the residence including, but not limited to cell phones, receipts, notes ledgers, address books, correspondence, utility bills, photo I.D.’s, photographs, videotapes, and/or DVD’s and digital media including, but not limited to cameras, USB drives, and computers.”  

The search warrant was issued and officers searched the house.  When an officer found  drugs in a small wooden box in Lee’s bedroom, officers obtained a second search warrant to search for additional drugs.  Officers located more drugs, paraphernalia, and cash in Lee’s closet that was used for his bail bond business, and Lee was charged with a drug trafficking offense.  He filed for suppression of both search warrants arguing that the first warrant was “overbroad” as to the “occupant of the residence” search authority; and, nowhere on the second warrant was the house’s address.  Lee’s arguments lost before the trial judge, he was convicted, and Lee was sentenced to 98 months in prison.  An appeal followed. 

Last week, the Court of Appeals reversed.  The opinion reminds us that the Fourth Amendment was enacted as a “response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity . . . [and that] “places to be searched and the items to be seized must be described ‘particularly’ . . . to safeguard against fishing expeditions or other government overreach . . . especially . .  . in searches of one’s home.”

So, as for the first warrant, the panel questioned the need to confirm the identities of the occupants of the residence.  Since the officers already had that information from their initial investigation, allowing for such wide-ranging “occupant evidence” broadened the “scope of the first search warrant to well beyond a search for evidence of the alleged domestic violence incident” that in reality involved only the two persons in the south end of the house.  The panel agreed that there was probable cause to search for evidence of domestic battery, but no probable cause to allow for “a generalized search of all rooms of the residence . . . under the guise of trying to determine the occupancy of those living there.”  Although the panel did not say why, it further held that the good faith of the officers could not save the first warrant. 

As for the second search warrant, it too was D.O.A.  Since the second warrant was 1) based upon evidence of drugs “improperly seized based upon the faulty first warrant, . . . it is also invalid;” and, 2) because the preparing officers had failed to include the address of the residence to be searched, the second warrant too was to be suppressed.  Did good faith save this one?  Nope.  No reasonable officer could have believed that a search warrant that did not identify the place to be searched could be valid.

Bottom line: try not to use someone else’s earlier search warrant template when investigating a different kind of crime with a different kind of evidence; and, read over the SW package more than once.  The defense attorney probably will.        

~ Colin