Friday, November 15, 2013

Tenth Circuit US v. Harris 12-5174

Decision here.

   Police were investigating the contract killing of a businessman, and one of their suspects was a guy named Johnson.  They had evidence associating Johnson to a stolen van which had been used in the murder, but they were still looking for the van's keys, the murder weapon, paperwork related to the killing, and cell phones.  Eighteen months after the killing, they were following Johnson in his car while he was driving erratically in an apparent attempt to lose them.  Eventually, they followed him to Harris' auto shop.  Johnson parked his car, unlocked the shop, went inside, and left a short time later on a motorcycle.

   Officers applied for a warrant to search Harris' shop for evidence related to the murder.  Aside from the above information, they explained in the affidavit that Harris shop had been used as a front for illegal activity before, and that individuals connected to a violent conspiracy are known to sometimes hide evidence at a friend's house or at a common "clubhouse" (such as the auto shop) rather than keep it in their own homes.  

   The warrant was granted, and a search of Harris' shop led to the discovery of an illegal gun and drugs totally unrelated to the murder.  Harris was charged and convicted.

   Harris appealed his conviction, arguing that the evidence should have been inadmissible because the warrant was not based on probable cause.  He argued that there was no indication in the affidavit that evidence related to the crime would be found at the shop, that the information in the affidavit was stale because the murder had been a year and a half earlier, and that the warrant was invalid because the affidavit referred to statements made by a CI without containing information about the CI's reliability.

   The Tenth held that the affidavit did establish probable cause (which is just a fair probability that evidence will be found, and doesn't even half to be more likely than not).  There may not have been probable cause to search every place that Johnson had a key to or had access to, but the combined facts of this case were enough to establish a fair probability.  As for the staleness of information, the question isn't how long ago a crime had occurred (which would be ridiculous), but whether or not the information suggests that evidence is currently in the place to be searched.  In this case, the police had followed Johnson to Harris shop on the same day as they applied for the warrant, so the information was not stale.  And the affidavit had enough to establish PC without the informant's statements (the CI just said that Johnson was paid for his involvement in the murder, and implicated someone else).

   Even if the affidavit didn't establish probable cause, it wasn't "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable," so the evidence would still have been admissible under the good faith exception.

   Finally, Harris argued that PC for the search was nullified by statements made by another member of the conspiracy saying that the gun had been disposed of somewhere else.  The court held that there was still PC because the police were searching for more than just the gun, and also because the police weren't under any obligation to credit the statements of another suspect.

   Harris' conviction was affirmed.  

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