Kentucky

Search and seizure - Particularized description of place to be search adequately supported the warrant in spite of incorrect address: FENTRESS v. COM. (COA 6/27/2008)

By Michael Stevens

FENTRESS v. COM.
CRIMINAL:  Search and seizure - Particularized description of place to be search adequately supported the warrant in spite of incorrect address
2006-CA-002453
PUBLISHED: AFFIRMING
PANEL: CAPERTON PRESIDING; LAMBERT, THOMPSON CONCUR
GRAYSON COUNTY
DATE RENDERED: 6/27/2008

Deficiencies in the address in the warrant and the amount of pseudoephedrine bought by him was different than what was contained in the affidavit for the search warrant served as the basis of attacking the search.   At trial, the judge denied the motion to suppress noting that the residence listed to be searched was sufficiently described and that any error in the mailing address was immaterial. The court further noted that the address at which rural mail is received is not precise and it is not unusual for multiple families to receive mail at the same address.  As to the wrong amount of pseudoephedrine purchased by Fentress, the court found that this too was immaterial.

First, the log from Wal-Mart was difficult to read. Second, the magistrate probably noted that Fentress purchased two boxes of cold capsules and that McCloud did the same within minutes of Fentress?s purchase. Third, there was no evidence to formulate a belief that the officer attempted to mislead the magistrate in any way, and that exclusion of the incorrect information still provided enough information to establish probable cause in the mind of most magistrates.

To successfully attack a facially sufficient affidavit, the defendant must demonstrate: (1) that the affidavit contains intentionally or recklessly false statements; and (2) the affidavit, purged of its falsities, would not be sufficient to support a finding of probable cause.

The COA held the trial court?s findings were supported by substantial evidence in the record and, therefore, are conclusive. This particularity requirement is satisfied if the description in the search warrant enables the officer executing the warrant to identify the place to be searched with reasonable effort.  Therefore, the particularized description of the trailer sufficiently described the residence to be searched and the inaccuracy of the address, in this case, was immaterial.  The COA agreed with the trial court that the physical description of the property satisfies the particularity requirement.

Based on our review, we find that the trial court?s findings of fact were based on substantial evidence and that the trial court properly applied the law to those facts.

Digested by Michael Stevens

Full post as published by Kentucky Cases on September 16, 2008 (boomark / email).