Search, and seizure law is a tricky thing. A decision that seems an egregious violation of common sense turns out to be not so much when all the facts are known. I have said it before, relying on the Media to explain appellate decisions is a fool’s errand. Broader-good-faith-clause-save-police-cases-tainted-technicalities/

Police arrested a serial rapist. The investigation led the police to believe that he was also a serial murderer. They obtained a search warrant for his home and subsequently recovered jewelry and other items that belonged to four murder victims. The suspect was tried and convicted of several rapes but was never tried for the murders. The reason he was never tried was that the evidence obtained under the search warrant was ruled inadmissible and could not be used at trial. The error was not a lack of probable cause, but the fault of the magistrate who signed the warrant. He didn’t have the authority to do so.

The Fourth Amendment requires that all searches be reasonable and they are reasonable if done under a search warrant issued by a Magistrate. The United States Code and the Code of Criminal Procedure for whatever State defines who is a Magistrate and what their duties are.

Tennesse has what is called a “city judicial commissioner.” The term is not otherwise defined in the article. But since the police went to him to obtain a search warrant I believe the following holds true. A city judicial commissioner is a magistrate, in that, he can accept criminal complaints, issue arrest warrants, approve search warrant applications and issue search warrants for certain crimes. He holds hearings for low-level misdemeanors (traffic and the like). He is not a suitable Magistrate for all purposes.

In Texas, a Justice of the Peace or a Municipal Court Judge (not of a court of record) cannot issue a search warrant that authorizes the seizure of contraband under chapter 59 of the Texas CCP. Likewise, if the evidence is likely to be used to support a Federal prosecution, then warrant must be issued by a Federal Magistrate or a State judge of a court of record.

In Texas, there are roughly fourteen circumstances where a search warrant can be issued. In addition to the restrictions cited above, there is one circumstance that calls for action by the highest trial court judge. If the affiant (guy looking for the warrant) is searching for mere evidence, then the warrant must be signed by a District Court Judge and only one search warrant for mere evidence is allowed. What is mere evidence? Back to Tennesse we go.

Police suspected that their guy was a serial murderer. One of the characteristics of a serial murderer is that they will keep items belonging to the victim as keepsakes. As a serial murderer grows in sophistication, he may assemble a “murder kit,” weapon, tape, glove, rope, plastic restraints or anything else that may be unique to the murder scene. Forensic examination could link these items in the suspect’s possession back to the scene. None of the items would definitively prove the suspect committed the offense but would strongly link him to the crime. So mere evidence tends to show but not definitively prove guilt.

If the affiant had stated, “Affiant has reason to believe and does believe that suspect has a brooch belonging to victim number three described as …. acquired s a result of theft during the commission of murder. Then the warrant could be to recover stolen property and not mere evidence. Could the affiant have made that statement? Not without further information. How about? “During interrogation suspect admitted to killing victim number three and that he took a brooch described as…. The brooch is hidden in the suspects home. Now, do we have stolen property?

In Texas, the allegation of stolen property gets me the search warrant and allows for a survey of the scene. I am not required to close my eyes to other evidence observed during the search. I can develop a comprehensive list of “mere evidence” that I wish to seize and the list to the District Court in the form of a search warrant for Mere evidence, in a less frantic fashion.

I could be wrong, but reading between the lines I think I’m pretty close. If that is the case, there is no miscarriage of justice here. The cops didn’t get blind sided. They got in a hurry for no good reason other than a boss hovering in the background saying, ” Have you got the search warrant? Where’s the search warrant? Why isn’t the search warrant done? Is it almost done? Do you need more help? In my day it didn’t take this long. How about now is it ready?”

Both sides screwed up and ran afoul of the “Exclusionary Rule.” The US is the only country that precludes the use of evidence obtained illegally. Other countries have a variation on the exclusionary rule but do not suppress the evidence obtained as a result.

Blaming the exclusionary rule is a favorite topic for Hollywood. My experience is that many search and seizure issues are the results of poor report writing. The information establishing probable cause is present but poorly stated.