Omissions from the Affidavit Lead to Suppression

by | February 22, 2023

United States v. Waide, 2023 WL 1961073 (6th Cir. 2023)

A shed either caught fire or was intentionally set on fire on the property next to Quincino Waide’s duplex apartment. Waide lived in one apartment and his mother lived next door in the other. A fire investigator saw sophisticated surveillance cameras attached to Waide’s duplex and asked Waide to turn over his DVR. No one suspected Waide of being involved with the fire and there was no evidence of arson. Waide refused; the investigator obtained a warrant to enter Waide’s apartment and seize the DVR. The affidavit for the warrant contained sparse reference to arson. It simply recited that an unidentified property owner heard from an unnamed witness that someone was seen taking items out of the shed around the time of the fire.

The fire investigator asked for police assistance to serve the warrant and told the officers that Waide smelled of marijuana when he spoke to him. The fire investigator and five others went to Waide’s duplex to execute the warrant. Waide offered to retrieve the DVR, but one of the officers said they intended to serve the warrant. When questioned, Waide admitted his apartment contained a small amount of marijuana. Officers smelled the odor of burnt marijuana coming from Waide’s car, searched the vehicle and found a small amount of marijuana. The officers sought two separate warrants to search both Waide’s and his mother’s apartment for illegal drugs.

While awaiting the return of the officer who left to prepare the subsequent affidavits for additional search warrants, officers heard noises sounding “like they’re pulling the ceiling down.” The officers entered Waide’s apartment to conduct a protective sweep and found a ladder alongside a hole in the dry wall. Officers entered the mother’s apartment and saw the kitchen and bathroom sinks overflowing and clogged with an unidentified white substance (later identified as cocaine).

Waide was charged with possession of cocaine and heroin with the intent to distribute, possession of a firearm in furtherance of drug-trafficking crimes and being a felon in possession of a firearm. Waide asked the trial court to suppress the evidence, claiming the initial warrant to obtain the DVR was unsupported by probable cause. When the trial court ruled against him, he appealed. The court of appeals held that the fire investigator’s affidavit for a search warrant lacked probable cause to believe a crime had been committed: “The affidavit in support of the DVR warrant fell well short of even this low standard” required to show probable cause.

If it isn’t the affidavit, it can’t be considered by the court.

The court began its discussion with a reminder that “probable cause is not a high bar, but neither is it a nonexistent one” (District of Columbia v. Wesby, 138 S. Ct. 577, (2018)). An affidavit for a search warrant must establish that the items sought are fruits, instrumentalities or evidence of a crime, and that the items will be found in the place to be searched. The court held the double-hearsay information that might suggest the fire was a result of arson lacked any statement of the veracity, reliability and basis of knowledge required to support the issuance of a search warrant.

The court applied the fruit-of-the-poisonous-tree doctrine to suppress the evidence obtained as a result of the subsequent warrants. Though the prosecution argued for application of the good-faith doctrine, attenuation doctrine and a claim of inevitable discovery, the appellate court was not persuaded.

When the trial court was presented with Waide’s suppression motion, the fire investigator testified that the house where the shed was located was unoccupied, the personal items burned were actually taken from the shed and burned outside it, the personal items were from the victim’s deceased mother, the fire occurred just after the anniversary of the mother’s death, and the victim had a vindictive ex-spouse. All that information was gathered during the fire investigation but was not included in the affidavit. The affidavit laid out only four relevant facts: (1) the storage shed had contained antique possessions that once belonged to the property owner’s deceased mother; (2) the shed had burned; (3) Waide’s duplex had a surveillance-camera system that might have recorded events connected with the fire; and (4) Waide declined to voluntarily provide the DVR to the investigator.

The question before the court wasn’t really whether there was probable cause to search Waide’s property for the DVR. The real question was whether the affidavit included all the relevant information. In policing, one often hears, “if it isn’t in the report, it didn’t happen.” Well, if it isn’t in the affidavit, it can’t be considered by the court.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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