Getting a Home Search Warrant Should Be Difficult

You know, police work can be real easy–in a police state. I’m sure that the police in China, North Korea, or even Cuba don’t have to jump through the hoops that police in free societies must jump through. So, it’s also fair to say that we Americans probably have some of the best police officers in the world, given how hard they must work to satisfy the demands of a free people. That is, so long as our judges keep them in line.

That being said, if you want to search somebody’s home, this is one of the toughest things a government official can ask of another government official. Our judges must scrutinize these “affidavits” in support of home search warrants. I personally know several judges that are so demanding of law enforcement regarding this important issue, that they claim the police rarely ask them to sign warrants anymore! But put yourself in the shoes of a neutral judge. He or she is an elected official, and part of that job requires that they sign warrants to search homes, should the warrant contain enough evidence of a crime to permit such. And, that’s the question we’re going to delve into today–just how much evidence, written down on a few pieces of paper, is enough to permit the government to search your wife’s drawer of undergarments? Yes, they’re searching that drawer first, trust me.

The invasion of one’s personal space is beyond comprehension in cases of home search warrants (second only to a body cavity search, I presume). Let’s face it, the police always show up to serve their warrant late at night, when everybody is home sleeping, and many folks are not wearing much in the way of clothing. No, citizens are not permitted to get dressed during a search warrant, nothing in the law permits such, unless the police allow it. Now, in my over twenty years of experience, I have noticed that old, hairly, ugly men are entitled to put some pants on. But if you’re a young hot female, you must simply sit there wearing next to nothing while half the police force trample through your home–with half of the problem being the embarrassment of a dozen strange men staring at you in your undergarments–the other half of the problem being that it is simply too cold to be dressed as such without snuggling under some covers. Hey, don’t kill the messenger here, I’m just reporting what’s going down out there. But, a blanket for a shivering half dressed woman would be nice, right? Oh no, the blanket might have a gun or drugs hidden inside, so the police cannot take a chance on her grabbing a blanket and shooting up the place Angela Jolie style (ever see Mr. & Mrs. Smith? Mrs. Smith had weapons everywhere in that house. That movie is a police academy training video of what to look out for when entering a nice suburban home, and how violent an attractive suburban mommy can be…I’m just saying). Anyway, that’s the side of home search warrants that you won’t see addressed by the appeals court. Now, let’s get back to understanding how in the heck the government is able to enter someone’s home legally.

Today’s case is Barrentine v. State, 107 So.3d 483 (2d DCA 2013). Barrentine was convicted of possession of a controlled substance and possession of equipment for animal fighting. Now, these charges began with the execution of a search warrant at Barrentine’s home. Barrentine’s criminal defense lawyer appealed these convictions, claiming that the original search warrant did not contain enough evidence to establish that, indeed, there was animal cruelty and fighting on his property. So, what evidence was presented to the initial judge that signed off on the home search warrant? Here it is.

As usual, this started with a few “concerned” neighbors. The neighbors called the police in September of 2003, telling the police that they suspected dog and rooster fighting. But, you know, the police were really busy in 2003, 2004, 2005, and most of 2006, so nothing was done. Then, in September of 2006, a land surveyor called the police claiming to have seen malnourished pit bulls on the property. These pit bulls had scars on their faces and necks, chained with heavy chains, and dirty water bowls. Now, we Americans love our pets, so there’s probably quite a few of you out there ready to storm this property and rescue some cuddly little pit bulls, right? Well, not so fast PETA-man, we have laws to follow, remember? Also, the land surveyor noticed roosters that were missing feathers, with their legs tied to the ground by a rope. But, nobody really cares about roosters. Puppies, of course, lets get several search warrants! Helicopters. Swat team. Roosters, well, “we’ll look into it”. Just saying.

Oh, there’s more. The property appraiser’s website published some aerial photographs of the property, and these photos showed numerous dogs confined all over the property. And, when police went to the property for further investigation, they found a large privacy fence blocking their view. Now that’s icing on the cake! How dare he have a privacy fence. Finally, an officer with experience in animal cruelty/fighting cases added all of this together and concluded that there was probable cause to believe a crime was being committed. As such, he drafted an affidavit requesting that a judge permit them to search this home. What happened, you ask?

The appeals court overturned the search warrant in this case, thus (temporarily) overturning the convictions as well. Here’s why. Remember the old saying, timing is everything? That’s what happened here. The officer’s search warrant never established any relevant time periods. The appeals court reasoned that “the neighbors’ reports from three years previous were obviously too remote in time to establish probable cause. And while the land surveyor made a report to the Sheriff’s Office the day before the warrant application was signed, there is no information regarding when the land surveyor made the observations that were the subject of his report. There is similarly no indication of the date of the photographs that were obtained from the Property Appraiser’s website. Without information establishing that the animals were observed on Barrentine’s property at some point in the not-too-distant past, the magistrate did not have probable cause to issue a search warrant.” Id.

Now, the appeals court did give the state a bit of breathing room on this overturned warrant. They are giving the state a second bite at the apple to re-argue the motion to suppress to the trial court, this time arguing that (we presume) the officers acted in good faith when executing this search warrant. This may turn out to be the case, and if so, Barrentine’s convictions will be re-instated. So, we may never know how this case turns out (because, I’m probably not going to follow up on this when it goes back to court! I have a job, remember?), but, we did learn how difficult it should be to obtain a search warrant.