Rosenblum Schwartz & Fry

Court: can't reach gun-crime evidence when warrant is invalid

Government: He is a known gang member, and we saw him throw a gun out an apartment window. What is wrong with our seizure of the weapon and his subsequent conviction for illegal possession of a firearm?

Court: There is plenty wrong with the seizure, most centrally the fact that police officers had no legal right to even be at the suspect's home to conduct a search for criminally related evidence.

That was essentially the bottom line in a recently concluded court case in which appellate judges threw out incriminating evidence because of what they viewed as a fundamentally flawed search warrant.

Federal authorities thought they got it right and had a resounding victory once they saw the gun exit the dwelling. Instead, they were reminded by an appeals panel from the U.S. Court of Appeals for the District of Columbia that evidence will be suppressed when its discovery is linked with an underlying search warrant that does not conform with legal requirements.

In the instant case, a magistrate issued a warrant based on a detective's affidavit that the suspect might have a cellphone with incriminating evidence concerning a crime. The detective informed the magistrate that gang members customarily communicate by phone.

The appellate court -- in a 2-1 ruling -- found such support for warrant issuance to be woefully insufficient. It stated that the affidavit "provided virtually no reason to suspect that [the targeted individual] in fact owned a cell phone," much less one "containing incriminating information [that] would be found in the residence."

That is, the warrant failed for its lack of specificity and overly broad reach. Because it was found to be constitutionally invalid, so too was the evidence that was seized in connection with it.

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