Ken at Popehat provides a textbook example of why many of us in the criminal defense racket think the warrant process is a joke (disclosure: I am still a law student, not a practicing attorney):
Witness tells Cop that she saw a photo of guns in Defendant’s house a year ago, and thinks she saw guns there at one point more than a year ago.
Cop tells judge, in warrant application, that Witness says that Defendant is currently an arms trafficker. It is undisputed that Witness did not say that — that Witness did not say a blessed thing about Defendant selling or transferring guns.
Judge issues warrant.
We challenge warrant.
Reviewing judge says that Cop’s statement — that Witness said Defendant was engaged in arms trafficking— is just an “exaggeration,” not a false statement vitiating the warrant.
That. That right there. That’s what it is like.
I’d be interested to know if the warrant in this case was signed by one of those fancy ‘didn’t even go to law school’ magistrates, who may or may not have had any substantial legal training sufficient to develop a nuanced understanding of what probable cause even is, or a nuanced understanding of the Fourth Amendment, or a nuanced understanding of the Aguilar-Spinelli test, or a nuanced understanding of how Illinois v. Gates modified it, or a nuanced understanding of what the difference between probable cause and reasonable suspicion is, or a nuanced understanding of how to apply Kentucky v. King’s holding to cases involving police-created exigent circumstances (hint: nobody really knows, although Orin Kerr thinks he does).
But in the back of our imagination, we like to hope and pray that we can expect better from a judge, who at least theoretically has legal training as a lawyer (in many smaller jurisdictions they often don’t), and who hopefully has a nuanced understanding of what “objective reasonableness” under the Fourth Amendment actually means, and how to apply it in a pre-trial suppression hearing where a warrant (or the absence thereof) is being challenged.
Nope. What we get is a judge telling us that when a witness does not say something, and the prosecution does not dispute that the witness didn’t say something, and that thing just so happens to be that special something which gave police probable cause to secure a warrant, and without that special something, there’d be no probable cause, and no suspicion of criminal activity, and therefore no warrant, no search, and consequently no arrest; when that happens, it’s baaaasically the same as if the witness had said the thing everybody agrees he didn’t say. It’s close enough.
And that’s why we get upset.