Affidavit (for Probable Cause, see 330)
Category > Affidavit (for Probable Cause, see 330)
Updated 9/14/2023Police should include actual images purporting to establish probable cause when preparing a warrant to search for child pornography.Defendant pled guilty to possession of child pornography after the trial court denied his motion to suppress evidence found during a search of his residence and electronics. He argued the search warrants were invalid because the descriptions of four images were faulty. However, the warrant applications contained sufficient factual detail to establish probable cause. The fact that the officer misdescribed one of the images and was taught not to include images of suspected child pornography in warrant applications was troubling, and the officers should include the actual images purporting to establish probable cause.id: 27918
Court erred in failing to conduct an in camera review of the sealed affidavit of probable cause before ruling on motions to quash or traverse the warrant.Defendant moved to suppress evidence seized pursuant to a search warrant based on information furnished by a confidential informant. The magistrate sealed the affidavit supporting the warrant in order to protect the informant's identity. When defendant moved to discover the sealed materials, traverse and quash the warrant, and suppress the evidence obtained from the search, the court denied the motions without first conducting an in camera review of the sealed materials. The refusal to conduct the in camera review was erroneous and required reversal to allow the appropriate review.id: 17767
The magistrate erred by directing that the original sealed portion of the affidavit be retained by the police department. Defendant moved to quash and traverse the search warrant, and to suppress the evidence gathered from the search. A portion of the search warrant affidavit was ordered sealed to protect the identity of the confidential informant. After the motions were denied, the magistrate erred by directing that the original sealed portion of the affidavit be retained by the police department (who subsequently lost the affidavit). The prosecution failed to make a showing justifying the need to have the documents retained by police. However, the magistrate’s error and the loss of the affidavit did not make appellate review impossible where the prosecutor submitted a five page unsigned document that was identical to the affidavit the court reviewed before denying defendant’s motions.id: 20728
No contest plea does not preclude appellate review of the denial of motion to disclose the sealed portion of an affidavit and to discover an informant's identity.Defendant's plea of no contest did not preclude appellate review of the denial of her motions to disclose the sealed portion of the search warrant affidavit and discover the identity of the confidential informant. From the date defendant simultaneously filed her written pleadings seeking access to Exhibit C and to quash and traverse the warrant, through each of the several hearings held to resolve her challenges to the warrant defendant, the court, and the prosecutor treated her request for disclosure of the contents of Exhibit C as an integral part of her motions to quash and traverse the warrant. At no time did the prosecutor object to this approach.id: 11066
An affidavit supporting a search warrant may not be sealed in its entirety.The only portion of an affidavit that may be concealed from the defendant is that portion which necessarily would reveal the identity of a confidential informant. When the affidavit is in the form of a transcript which does not lend itself to a partial sealing, the problem can be solved by the addition of a written affidavit narrating those facts upon which probable cause is based that do not reveal the identity of the informant.id: 11064
Illegally seized evidence cannot be relied upon in search warrant affidavit.Appellant argued the search pursuant to the warrant was unlawful because the fruits of the initial unlawful search were used in the underlying affidavit. Since the officer erred in entering defendant's room absent exigent circumstances, and used evidence seized at that time as a basis for the search warrant, the evidence obtained pursuant to the warrant had to be suppressed.id: 11065
Updated 6/19/2023The trial court properly denied the request to unseal the search warrant affidavits where doing so would reveal the identity of the confidential informants.The Electronic Frontier Foundation moved to unseal search warrant affidavits in a case involving confidential informants to learn more about the sheriff’s use of cell-site simulators. The trial court did not abuse its discretion in denying the request where unsealing the affidavit would tend to reveal the identity of the informants, and that fact outweighed the EFF’s alleged First Amendment right to the information. Redacting the necessary information would have made the resulting paragraphs unintelligible.id: 27567
Updated 6/19/2023Cybertips made from a third party electronic service provider in a search warrant affidavit was presumed reliable and did not require independent corroboration.Although the search warrant affidavit did not name the employee who submitted two child pornography cybertips to the National Center for Missing and Exploited Children or the person who forwarded the cybertips from the NCMEC to the police, the circumstances supported a determination that the cybertips came from unbiased citizen informants who could be presumed reliable and this did not need any independent corroboration.id: 27561
There was insufficient probable cause to support a warrant where the police corroboration of the informant’s statements and interlocking details related only to “pedestrian” facts. A search warrant affidavit contained information from three informants, none of whom were reliable. Each informant said two named individuals were selling drugs from a particular residence and drove a particular vehicle. The affiant officer corroborated these facts and determined one of the alleged drug dealers had a history of drug offenses, but he failed to include any details of the offenses in the affidavit. The affidavit was insufficient to establish probable cause to issue the warrant, in part because the police corroboration of the informants’ statements and the “interlocking” details of those statements related to “pedestrian” facts. However, the good faith exception to the exclusionary rule applied where the existence of probable cause was debatable.id: 22527
The search warrant affidavit was supported by probable cause where the child reported a recent molest and defendant had taken steps to make sure no one had access to his computer which was found to contain child pornography.Following a no contest plea, defendant appealed the denial of his motion to traverse and quash a search warrant and suppress child pornography evidence found on his computer. He argued the probable cause affidavit failed to establish that child pornography would be found on his computer. However, the search warrant application was supported by more than the detective's opinion that child molesters collect and store pornography. It was supported by statements of the child that defendant recently molested her, and by his storing the computer in a hot garage and asking his mother not to let anyone "mess with it." The search warrant was supported by probable cause.id: 20071
A search warrant affidavit that relied on facts taken from firearms records defendant was required to keep did not result in a violation of the privilege against self-incrimination.Defendant was convicted of unlawfully possessing firearms. He
argued that including in the affidavit for the search warrant information from records his federal firearms license required him to keep and from an inspection he was required to submit to under federal firearms laws was a violation of his privilege against self-incrimination. However, there was no Fifth Amendment violation and the search warrant properly incorporated facts derived from the firearm records the defendant was required to keep under federal law.id: 19408
The oath signed on the face of the search warrant necessarily implies that the facts in the statement of probable cause are true.An officer signed an oath on the face of a search warrant. He swore that he had probable cause to believe the property described in the warrant could be legally seized and that his belief was based on the statement of probable cause found in the warrant. Defendant argued the warrant was defective as defendant did not swear the content of his statement of probable cause was true under penalty of perjury. However, the warrant was valid because the oath necessarily implies the facts in the statement of probable cause are true.id: 18807
Good faith exception applied where the officer omitted from the search warrant affidavit information that was favorable to the probable cause finding.The trial court granted defendant's suppression motion after finding the search warrant affidavit did not establish probable cause. However, the officer had omitted facts which were favorable to the issuance of the warrant. The trial court erred in ruling that the officer conducting the search could not rely on the warrant in good faith under <i>United States v. Leon</i> (1984) 468 U.S. 897, because the officer had omitted from his affidavit in support of the application the favorable information which supported the probable cause finding.id: 14911
Affidavit edited to conceal the informant's identity need not contain probable cause so long as the original version considered by the court established such probable cause.Because of the privilege not to disclose the identity of the confidential informant, the portions of the search warrant affidavit which necessarily disclose identity are not provided to the defense but are considered by the court in determining probable cause. The edited version of the affidavit does not become a new affidavit which must itself contain probable cause.id: 11063
Search warrant affidavit may remain sealed under the official information privilege whether or not charges have actually been brought.A search warrant was executed at the offices of an environmental consultant hired by defendants. The affidavit in support of the warrant was ordered sealed. Defendants complained the sealing of the affidavit violated Penal Code section 1534 which provides that documents associated with a warrant are public 10 days after its execution. There is no exception where the search does not result in an arrest but is used to further an ongoing investigation. However, such information may be privileged as official information under Evidence Code sections 1040, subdivision (a) and 1042, subdivision (b). The official information privilege applies whether or not charges have actually been brought. The affidavit was to remain sealed until the court held a hearing to determine whether the official information privilege applies.id: 11067
Search warrant affidavit was not fatally defective where it failed to contain an express reference date linked to the phrase within the past seventy hours.The magistrate was presented with a sworn statement that a suspect had sold cocaine within the past seventy hours. The trial court found the search warrant affidavit was fatally defective because it failed to contain, on its face, an express reference date linked to the phrase within the past seventy hours. The court concluded the handwritten entry reflecting the date the affidavit was executed was insufficient to provide a time reference. However, under these facts, a magistrate could and would rationally infer that the sale took place within seventy hours of the time the affidavit was presented and sworn to before him. Even if the affidavit was assumed dateless the good-faith exception to the exclusionary rule would apply because the officer testified he prepared the affidavit on the same day it was presented to the magistrate and it was served five days later.id: 11068
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Geofence search warrants were impermissibly overbroad and violated the particularity requirement of the Fourth Amendment but the good faith exception applied and suppression was not required.Defendants were identified as murder suspects after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of the murder. The geofence warrants complied with the California Electronic Communications Privacy Act of 2016 (Cal ECPA) but they violated the particularity requirement of the Fourth Amendment and were impermissibly overbroad as the warrants placed no meaningful restrictions on the police search. However, suppression of the evidence was not required where the officers reasonably relied on the new geofence warrant in good faith.id: 27850