A Warrant Technicality

The New York Post, never shy when it comes to emotive headlines, spelled it out in a way that couldn’t help but make its readers’ blood boil at the ineffectiveness of the legal system to make sure the bad guys go down.

Judge tosses evidence in gun bust on warrant technicality

And if that’s not enough to make you wonder how law-abiding citizens can survive these crazy, criminal-loving judges, the story that follows will surely do the trick.

A Brooklyn federal judge has tossed critical evidence against a alleged crack-dealing Queens gang member busted with an assault rifle, throwing his case into turmoil, court records state.

Judge Jack Weinstein voided evidence against Shakeel “Blam” Wiggins last week because an NYPD cop didn’t properly fill out a search-warrant application that turned up the weapon as well as a handgun and a cocaine cache last September, court papers say.

The ruling will likely allow Wiggins, a prior felon, to walk.

A cop, trying to take down a crack-dealing, gun-toting, prior felon with a nickname “Blam,” from Queens no less, was going to walk because a cop didn’t fill out a form correctly.  The only thing missing is that Blam molested children and kicked puppies. Crazy, right?

And the Judge? That crazy old coot, Weinstein, who wants to cut kiddie porn lovers a break, wants to put Blam back on the street to rape and pillage. Outrageous!

And Patrick Lynch, president of the PBA, is just ready to spit at Weinstein’s utter disregard for cops:

“New York City police officers put their lives on the line to get these illegal weapons off the street,” Patrolmen’s Benevolent Association boss Patrick Lynch said of the ruling. “There are some technicalities — like if the premise is a single- or multiple-family dwelling — that are so insignificant that suppressing the evidence actually subverts justice and public safety.”

What? So the “warrant technicality” is just some meaningless detail like single or multiple family dwelling?  They got Blam dead to rights, but it gets tossed over nothing?

Then, below the critical quote from Lynch, is a paragraph that might help to explain the problem:

Cops kicked in the door of a second-story unit that housed a family with no relation to Wiggins or his relatives, court papers state. After realizing that he lived in another unit, the cops headed downstairs where they found Wiggins trying to flee.

So it was a bit more than a “warrant technicality,” and this error produced a wrong-door raid?

Judge Weinstein’s decision in Wiggins lacks the pizzazz of the Post story, but explains that the cop who applied for the warrant neglected to perform the necessary steps to determine that this was a two-family building, that a nice family named “Khan” lived there as well as Blam, and didn’t deserve to be the target of their raid, and that they nonetheless had good reason to know that there were two separate units in the building, but failed to mention it when they sought a warrant.

And in the Franks hearing, the carelessness and falsity of the police allegations became apparent.  Had the cops picked the right door the first time, maybe no one would have realized that they blew the warrant application.

But one of the requirements of a warrant is state with particularity the premises to be searched.  Why?  Because there are people like the Khans who get to live happily in their apartment without their door being broken down because a cop blew it, screaming men with guns rushing in and pointing them at their heads.

And, slightly humorously, after the police realized they had the wrong apartment, they conducted a “security sweep” before leaving. Because, doesn’t every innocent family whose door was just broken down deserve a security sweep? You can never be too careful protecting cops. Just ask Pat Lynch, and he will explain in hyperbolic detail.

Judge Weinstein’s opinion is indeed interesting, as it might have gone the other way in the hands of a different judge.  The sort of judge for whom getting such details as the particularity requirement right are, as the Post headline screams, “technicalities.”  But Judge Weinstein wasn’t having any of it.

Although Detective Neve testified that he never saw anyone besides defendant enter or leave the building during months of surveillance, there was ample opportunity to notice the comings and goings of the upstairs family. A failure by the police to observe these comings and goings is not credible.

In other words, Judge Weinstein heard the detective try to talk his way out of his “mistake,” and using the language of the law, “not credible,” called bullshit. Had the officer merely made a mistake, then it would not have been “knowingly false” under Franks, and would fall within the good faith exception.

Evidence obtained from entry into the house is suppressed because the judge issuing the warrant had been knowingly misled. See U.S. v. Leon, 468 U.S. 897, 923 (1984) (“Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing the warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth.”) (citing Franks v. Delaware, 438 U.S. 154 (1978).

So Judge Weinstein didn’t toss the evidence because the cop forgot to fill in a blank on the form, but because the cop lied to obtain the warrant, which is why a family suffered a wrong-door raid on their home.  Sorry, Post, but that’s no technicality.


18 thoughts on “A Warrant Technicality

  1. Lurker

    I really Winder the quality of the detctive work on this question. If the case is sufficiently serious to warrant a SWAT style razzia on the premises, it is also worth planning. And such planning should involve getting the background information on the building from the city building inspection. I think there should exist some bureau which has at least the information on the number of dwellings within a building, most likely also even the archived layout drawings. As far as I’ve got some training on conducting a dynamic entry into a building, that has always been recommended as the first step: get the layout drawings. That way, you can plan the raid with minimal risk if casualties.

    So, this is not just sloppy work causing danger to the innocent persons in a neighbouring apartment but also sloppy work causing needless risk to the police officers concerned.

      1. Lurker

        Sorry. I simply wanted to point out that these were not just zealous, competent police officers cutting corners to make public safe. These guys were not only incompetent in safeguarding the constitutional rights of citizens. They were also incompetent in the following the first rule of policing. If they had planned the raid properly, they would also have avoided sloppy work on warrant request and made the job safer for themselves. Now they did badly on both counts.

        1. SHG Post author

          And that wasn’t so brutally obvious, not to mention utterly off-topic, that you felt compelled to comment about it?

    1. Bill

      And as is all too often the case, we only know about it by a quirk of chance. If it ever happens to a NYPost reporter, they’ll really find themselves in a pickle, won’t they.

      1. SHG Post author

        When one commenter goes totally off-topic into an area that is both so blatantly obvious as to make thoughtful people question Darwin, is it necessary that you make it worse?

  2. Ryan

    Cases like this make me wish for a justice system that imposed official sanctions on incompetent or willfully deceptive investigators/prosecutors instead of excluding evidence that allows a clearly guilty party to walk. I’d much prefer a police officer who misleads a judge on a warrant application (or a prosecutor that obstructs the court) spend a month or two in jail and/or face a significant financial penalty than see someone who is honestly-and-truly guilty of the crime of which they were accused get to stroll off into the sunset. Of course, while I’m at it I might as well wish for world peace and rainbows and fluffy kittens for everyone, I guess.

    In the absence of such a system, Judge Weinstein doesn’t appear to have much choice without tacitly supporting improper/deceptive police conduct. It’s too bad the general public (and the media outlets that pander to them) don’t seem to grasp that.

    1. SHG Post author

      So today’s bit of idiocy is that you want to revisit the exclusionary rule from start to finish? Ryan, this is not the right place for you. No more comments.

      1. Ryan

        *Lament* for an alternative system better than the exclusionary rule is now idiocy? This is what passes for reasoned discussion? Fine, Scott, you won’t see me commenting again.

        1. SHG Post author

          Yes, sheer, unadulterated idiocy, but you’re too clueless to even grasp why that is. This is a law blog, Ryan, not reddit where every non-lawyer gets to revisit the entirety of the law to opine on how he feels about it. And no, I won’t be seeing you comment again. You have no business here.

        2. Andrew2

          Not to pick on you, but there is this huge gap that you just can’t seem to see. To lawyers, this subject was beaten to death 60 years ago. It’s done. Settled. We’re so far past this.

          Then here you come, all bright eyed and bushy tailed, and you want to start it all over again, because this is how you feel!!! SHG isn’t insulting you when he says you’re clueless. You are clueless. It’s not your fault. You aren’t a lawyer. You didn’t read the all the caselaw, stories, law reviews, etc., so you think it’s just a fascinating subject and you’re completely unencumbered by information.

          The problem is that you don’t seem to grasp that you’ve got zero of interest here. Maybe at some cocktail party with equally clueless people, you will be handsome and fascinating. Here, you’re just short, fat and stupid. It’s not personal, but as SHG says, you don’t belong here. As fascinating as you may be to yourself, you are a total, fucking idiot to lawyers.

          Go enjoy. But go.

          1. SHG Post author

            Not exactly. The trend lately, that not only are non-lawyers entitled to raise any issue that they find fascinating, ignore the topic of the post because they’re too unsophisticated to grasp the nuance, and refuse to waste their time learning before demanding that I spend my time discussing the issue with them, but they also demand that I not hurt their feelings in the process.

            This is the sort of absurdity that makes me want to close comments altogether. So while it’s not personal, it is. If they want to “discuss” stuff with grownups, then they need to stop demanding tummy rubs for being adorably ignorant.

            1. AlphaCentauri

              True, but the lede of the post is that the New York Post, completely ignoring all the settled case law, is trying to inflame non-lawyers against the judge. They wouldn’t get away with that if most non-lawyers understood why the judge’s ruling serves their long-term best interests as citizens.

              Appealing to those members of the public on a more concrete level — cops too incompetent to even protect themselves and their colleagues are a danger to the public — could get some people to reconsider opinions they’ve clung to since watching Jack Webb complain about “technicalities” on Dragnet. Once those people’s minds are open, more abstract information may be able to flow in.

            2. SHG Post author

              No. You’ve misunderstood the post. It has nothing to do with the public being clueless, but the Post being deceptive and Judge Weinstein doing what he’s sworn to do. This is not for your IANAL benefit.

  3. Joe

    I think the Khans are probably really happy that no one was playing Wii when the officers arrived at their door due to that technicality.

  4. ExCop-LawStudent

    What concerns me more than the warrant being tossed (as it should have been), is that an officer has been identified as misleading (i.e., lying to) the court, yet there will be not real ramifications to the officer.

    If the department and DA did their job, they would have to identify that fact to every defendant from here on out as Brady material.

    Even more worrisome are the idiotic comments of Lynch.

Comments are closed.