Police may not knowingly make false statements "in good faith" to a magistrate to attain a search warrant, the state Court of Appeals ruled on July 21. The Court dismissed a man's marijuana conviction because without the false statements, there did not exist probable cause to procure a search warrant.
"It is shocking that this court of appeals decision would be necessary to convince the police in Raleigh that they must be truthful when seeking a warrant to search an individual's home," said NORML Executive Director R. Keith Stroup, Esq. "This case illustrates the corrosive effect the 'War on Drugs' has had on the Fourth Amendment protection against unreasonable search and seizure."
Police officer R.A. McLeod filed an affidavit claiming he recovered "marijuana and cocaine from inside [the defendant's] residence, using investigative means." He subsequently testified that he had not entered the house, but instead discovered marijuana seeds in the defendant's curbside trash. He said he used the phrase "investigational means" because he believed local magistrates understood the term to mean a trash search, whereas the defense would not know the phrase's true meaning. McLeod claimed he did not intend to mislead the magistrate.
"It remains undisputed that no one entered the defendant's residence; the statement to the contrary was false and the affiant knew that it was false," Judge Y. Edward Greene wrote for the unanimous three-judge panel. "Because the statements made by Detective McLeod were false and made in bad faith, they must be stricken from the affidavit."
The Court further determined that the term "using investigational means" supports "our holding that the affidavit was entered in bad faith. [McLeod] testified that he used the words ... to conceal from the defendant how the evidence to support the search warrant was obtained."
A review by a Charlotte newspaper found that nearly one-sixth of all search warrants issued for houses in that county bore the words "using investigational means."
For more information, please contact either Keith Stroup of NORML @ (202) 483-5500 or attorney Tanya Kangas of The NORML Foundation @ (202) 483-8751.