The following is an excerpt from a recent motion I filed attacking a search warrant in Los Angeles for a client in a driving under the influence case involving a blood sample seized pursuant to a search warrant after a traffic collision.
THE WARRANT TO SEARCH THE DEFENDANT WAS NOT SUPPORTED BY PROBABLE CAUSE AS THE AFFIDAVIT FAILS TO ESTABLISH A NEXUS BETWEEN THE OBSERVATIONS OF INTOXICATION AND ANY DRIVING
The affiant fails to state any factual basis under oath to establish a nexus of the observed signs of intoxication with driving, which is required to support a violation of VC 23152, 23153 or 23140.. No personal observations of driving were made, no admission to driving was presented and no facts to prove driving were included in the affidavit. Although the affiant checks a box reflecting alleged “witness statements” and “suspect’s statements”, there is no factual information presented within the affidavit as to what those statements were, so that the magistrate could determine their sufficiency. Only by guess work, speculation and conjecture can it be inferred that defendant was driving in this case.
The affiant stating she determined defendant was the driver based on “witness statements “ and “defendant’s statements “ is no different than if the officer came into court and testified under oath she stopped a defendant based on “officer observations”
The Court would surely not accept that testimony as a basis to justify a detention (which requires only Reasonable Suspicion) or a search, likewise the court should not accept the assertion here that the determination of driving was based on “witness and defendant statements “
In California Penal Code Section 1524(a)(13) authorizes the issuance of a search warrant to draw blood within the context of a DUI only when the evidence “tends to show a violation of VC23140, 23152, 23153″, however each of these statutes requires evidence of driving and here there is none. Because the affidavit is completely devoid of any articulable factual basis to prove driving, no probable cause existed.
THE SEARCH WARRANT FOR BLOOD CANNOT BE SAVED UNDER THE GOOD FAITH DOCTRINE
Due to conclusory information and the absence of police work to show a sufficient factual nexus to driving, the Affidavit lacked probable cause to such an extent it was unreasonable for the Affiant to believe such cause existed and therefore should not have applied for the warrant.
The Court in Leon United States v. Leon (1984) 468 US 897 held, “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” Id. at p. 922. The purpose of the exclusionary rule is, “to deter police misconduct rather than to punish the errors of judges and magistrates.” Id. at p. 916. The Court concluded suppression of evidence is appropriate only if it furthers the purpose of the exclusionary rule.
Motion to Quash Search Warrant.
Matthew J. Ruff, Criminal Defense Attorney 