Another 4th Amendment Victory The Law Office of Flynn M. Owens Attorneys Baltimore Maryland

These days, getting a judge to invalidate a search warrant is hard enough, but getting it to happen twice in two weeks-impossible you say....well, read on.

Our client (my partner and I) was charged with possession of marijuana with the intent to distribute, a felony carrying up to 5 years in prison. Due to his prior record, the client was actually facing a mandatory minimum sentence of two years in prison, without the possibility of parole. The charged stemmed from the execution of a search warrant at the client's residence, resulting in the recovery of a rather substantial quantity of marijuana.

There was however, in my opinion, a fatal flaw in the warrant-the police officer who wrote the warrant, which was submitted to a judge, and signed by the judge as well, neglected to write in the warrant the year the underlying event, which was the basis for seeking the warrant, took place. In other words, the officer wrote that certain events took place on February 25th, leading him to believe that the client's home contained marijuana. However, the officer neglected to specify the year these events took place (i.e., did the events occur on 2/25/09, or 2/25/08?) Due to this omission, I argued the warrant was invalid, for there was no way a judge could find probable cause if he or she did not even know what year the events giving rise to the alleged probable cause took place. I relied on a Maryland Court of Appeal case named Greenstreet. There, the court threw out a warrant where the police wrote in a warrant that they found evidence of drugs in the defendant's garbage on 4/13/03, but did not actually apply for a warrant for the defendant's home until 4/14/04. The state argued 4/13/03 was a typo and that the garbage was really searched on 4/13/04, otherwise why would the police wait a year and a day to seek a warrant. However, the court rejected this argument, finding that it is not the job of a court reviewing a search warrant to engage in guessing games and in the process fix errors that were not corrected by the officer who wrote the warrant, or the judge who originally signed the warrant.

To make a long story short, the court agreed with my analysis, and suppressed all the evidence seized from the client's home. This comes on the heels of another judge throwing out a search warrant in another client's case just last week. (See my previous blog titled "nice 4th amendment victory.") It remains to be seen whether good things really do happen in three's.

Another 4th Amendment Victory

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