WRONG DATE IN YOUR SEARCH WARRANT AFFIDAVIT MAKE IT STALE? DOESN’T MATTER … YOU WERE IN A HURRY … THE COURT WILL FIX IT FOR YOU.
The Superior Court has decided the case of Commonwealth v. Leed, No. 1231 MDA 2015 (June 01, 2016), holding that considering the “informal, often hurried context” of the search warrant application process, it was not improper for the trial court to overlook an incorrect date in a search warrant affidavit, deem it a typographical error, and determine that sufficient probable cause existed, notwithstanding the error.
County detectives were investigating the possibility that Leed had drugs concealed in a storage unit at Lanco Mini Storage. A magisterial district judge issued a search warrant on March 21, 2014 based, in part, on an averment in the Affidavit of Probable Cause that a police canine dog alerted on the unit, indicating the presence of narcotics. The canine alert occurred, according to the Affidavit, on March 21, 2013. Officers searched Leed’s storage unit on the same day the warrant was issued and seized approximately fifteen pounds of marijuana, $9,900, plastic bags, and a scale.
Detective Lombardo filed a criminal complaint charging Leed with PWID. Two subsequent warrants were obtained resulting in the seizure of additional evidence.
Leed filed an omnibus pretrial motion, which included a motion to suppress the evidence from his storage unit. At the suppression hearing, Leed’s counsel argued the March 21, 2014 warrant for his storage unit was “stale” and “the affidavit of probable cause failed to state specifically enough information to warrant the magisterial district judge to issue the search warrant.”
The trial court summarized Leed’s “staleness issues” as “the indication on the search warrant that it was March 21, 2013 that the K-9 search was conducted” when the canine search was actually conducted on March 21, 2014. The Commonwealth, over Leed’s objection, called Detective Lombardo to testify that the canine sweep occurred on “March 21, 2014, the same day that the detective completed the search warrant or application.” When asked by the Commonwealth whether the March 21, 2013 date in the affidavit of probable cause was “a typographical error,” the detective replied, “Yes.”
The trial court denied Leed’s suppression motion. It first indicated that it would not consider Officer Lombardo’s testimony which it permitted at the suppression hearing over Leed’s objection. Nevertheless, it found that “when reviewing the four corners of the application in a common sense and realistic fashion, it is clear that the K9 sweep took place on March 21, 2014 and that the indication that it occurred on March 21, 2013 reflects an obvious typographical error.”
After acknowledging that the case law was not “precisely on-point with the facts” of Leed’s case, the trial court applied “guiding principles” to determine the existence of a typographical error and find that the canine sweep occurred on March 21, 2014, the same day Detective Lombardo applied for the first search warrant. Accordingly, the trial court determined that “the magisterial district judge … could reasonably have concluded that there was sufficient probable cause to issue the warrant” to search Leed’s storage unit.
After the denial of his suppression motion, Leed proceeded to a stipulated non-jury trial at which the trial court found him guilty and sentenced him to twenty to sixty months’ imprisonment for PWID.
Did the trial court commit error when it concluded that the affidavit of probable cause for Leed’s storage unit warrant contained sufficient facts amounting to probable cause when that finding also required the reviewing court to ignore or change an explicit date contained in the warrant’s affidavit?
(1) Considering “the informal, often hurried context” of the application process, the Superior Court did not fault the parties for overlooking the error and (2) A substantial basis supported the issuing authority’s probable cause determination, notwithstanding that error.
Among the arguments presented by Leed, he contended that the information in the Affidavit was stale. The Superior Court conceded that had the canine sweep occurred on March 21, 2013 — five months before Leed actually leased the unit and one year before the application for the search warrant – the logical connection between Leed’s alleged criminal conduct in 2014 and the possibility that his storage unit contained evidence would be untenable. Accordingly, the Superior Court concluded that Leed’s first argument, i.e. – that the information on the face of the affidavit was stale, had arguable merit.
In fact, the Superior Court deemed this issue “the crux” of the appeal, namely, the trial court’s determinations that the March 21, 2013 date was a typographical error and the magisterial district judge could find probable cause notwithstanding that error.
Ultimately, the Superior Court concluded that the trial court’s finding was supported by common sense when it concluded that Detective Lombardo’s statement the canine sweep occurred on March 21, 2013 was a typographical error. Specifically, the Superior Court referred to the oft-cited principle emphasized by both the United States and the Pennsylvania Supreme Courts that “probable cause determinations must be based on common sense non-technical analysis.” The Superior Court then went to great lengths to explain how the Affidavit – when read in conjunction with the assumption that the date of the canine sweep was 2014 – provided sufficient probable cause for the issuance of a warrant. The fact that the wrong date escaped detection by the detective, the reviewing assistant district attorney, and the magisterial district judge, in light of chronological structure of the affidavit and its placement on the last page of the affidavit immediately before the request for the warrant, was of no moment. In fact, considering “the informal, often hurried context” of the application process, it did not fault the parties for overlooking the error since the remaining allegations in the Affidavit, as well as the indication that the canine sweep occurred at a specific time, all suggested that the canine sweep was the final event before the detective sought the search warrant.
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