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Lawsuit of the Day: Selective Perception leads to bad Warrant

December 10, 2011

2. Law, 4. Arrest, 8. Lawsuits

Lawsuit of the Day:  Selective Perception leads to bad Warrant

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Here’s a 9th Circuit Opinion worth reading.  The upshot is this … there was a gang-related shooting.  In this particular gang (and maybe it’s common practice), when one gang member does the shooting, another gang member will stash the gun(s) in their home.  The cops had a list of a dozen or so gang members provided by a witness that attributed the shooting to that gang.  The cops ran NCICs on the folks listed.  They refined the list ever so briefly, then charged ahead with SWAT-team invasions of the homes.  So far, the only issues that arise in determining Probable Cause (the legal standard needed to issue a Search Warrant) are the veracity of the informant and the reasonable investigation of the information – that is, whether there was reason to believe the listed folks were members of that gang.

One of the alleged gang members was Javier Bravo, Jr.  The cops ran his NCIC – long as your arm.  Yep, from all indications that lad be a member of the gang in question.  In fact, a Receiving Stolen Property conviction was specifically mentioned in the Affidavit of Probable Cause supporting the Warrant for his residence.  Ah, but now we find the problem.  Two lines below that conviction was information that six months ago Javier the Younger got and was serving two years in a California State Correctional Facility.  The shooting – and suspected stashing of the guns – happened whilst Javey was probably cuddling with his BFF on the other side of the bars.  His incarceration at all times relevant to the Affidavit was, um, not mentioned in writing or speaking by the cop to the issuing Magistrate.

And, so, at 5:30AM on an otherwise uneventful end to a blissful night’s sleep, Javey’s family was awoken by the crackle of explosive charges blowing their front door off its hinges followed ever so quickly by men dressed in black screaming and pointing multiple guns at mom, dad, and 8-year old sister.  Sucked to be them at that particular moment.

We observe two things:  The Search Warrant was issued based upon an incomplete Affidavit; the execution of the Warrant suggested that a bunch of cops with erectile dysfunction forgot to fill their Viagra scripts and needed a quick fix.

Was the missing information “material” (important)?  The Court did something brilliant and simple (page 20922):

Nonetheless, we must ask whether probable cause remains once the affidavit is supplemented with the challenged omission—here, Javier Jr.’s two-year sentence imposed over six months prior to the incident occasioning the search warrant, and his consequent incarceration in state prison at the time of the drive-by shooting and of the warrant’s execution.

“Let’s put Javey’s incarceration into the Affidavit,” the Court reasoned, “and see if we’d still issue it.”  That’s fricking brilliant, and just amazing coming out of the 9th Circuit – the single most SCOTUS-overturned Circuit in the history of the United States.

With that juicy tidbit added, we have a cop asking a Magistrate Judge to issue a Search Warrant for the home of the family of an incarcerated gang member.  Probable Cause, brothers and sisters, need to be individualized.  Without focusing on a specific person, warrants would issue for people based upon immutable characteristics (hair color, race, ethnicity) or relationships (family, ho, stud puppet).  We don’t do that in this country.  In this situation, the issue becomes whether there was a basis for individualized suspicion of the family beyond Javey.  Besides a general statement that families are sometimes known to look the other way from their punk-ass gang kid, nothing was alleged to bring in his family.  And it is even more acute in this situation because Javey was incarcerated.

The Warrant fails because of the missing information.  Cops cannot selectively include information in an Affidavit and thereby ignore information – known to or knowable by them – that makes the Affidavit misleading.

The Court, however, didn’t stop there.  Not sure why.  Once they defeated the Warrant, they could have moved onto the next case.  But there seemed to be a burr under their saddle:  The manner of executing the Warrant.

Executing a Warrant is classified, in one view, as Daytime or Nighttime.  “Nighttime” execution is the surprise kind – little knock and announce.  Just hook the charges to the hinges, ignite, and everyone run as if there’s a hidden bag of donuts inside – first one to find it gets to eat two.

This nature of execution is valid in some situations.  Ordinarily, a cop knocks and announces their presence.  They wait for the door to be opened.  That would be stupid if they’d reasonably expect the response to be a hail of bullets – “dangerous or futile” is the focus.  Was that suggested with mommy, daddy, and little sister?  No.  The cops were, as mentioned above, enlarging themselves at 5:30AM.  How sad.

Read the whole Opinion.  It’s a great lesson for one reason:  Just because the cops got a Warrant doesn’t mean we can’t kill it.  Kill the Warrant; kill the evidence gathered.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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