What is a motion to quash a search warrant?
A motion to quash a search warrant is essentially a motion to suppress. However, it is more difficult to demonstrate that police acted unreasonably when they did in fact obtain a search warrant from a judge before conducting a search. Yet, there is still hope to invalidate the search and suppress the evidence.
I. An Affidavit Is Reviewed For Probable Cause
An affidavit is reviewed for sufficiency of probable cause:
“Defendant maintains that without the results of the impermissible thermal scan made of her residence the affidavit providing a basis for issuance of the search warrant falls short of establishing probable cause. Probable cause is a ‘strong suspicion’ that what is being sought will be in the location to be searched. ( Wimberly v. Superior Court (1976) 16 Cal. 3d 557, 564 [128 Cal. Rptr. 641, 547 P.2d 417].) The magistrate who issues the warrant must conclude whether, given the totality of the circumstances set out in the affidavit, there is a fair probability that the evidence sought will be located at the scene of the search. ( Illinois v. Gates (1983) 462 U.S. 213, 238-239 [76 L. Ed. 2d 527, 548-549, 103 S. Ct. 2317].) On appeal we accord the magistrate’s determination great deference, inquiring only whether there was a substantial basis to conclude that the warrant would uncover evidence of crime. ( Id. at p. 236 [76 L. Ed. 2d at pp. 546-547].)”
(People v. Deutsch (1996) 44 Cal.App.4th 1224, 1232 [52 Cal.Rptr.2d 366].) Probable cause is not to be analyzed in a technical manner. (United States v. Ventresca (1965) 380 U.S. 102, 108.) The officer’s belief that the defendant is selling drugs is not enough. (State v. Thieling (N.D. 2000) 611 N.W.2d 861, 865.) Although “common sense” should always be a benchmark of sound judicial reasoning, it cannot be invoked as a substitute for analysis. (Township of Cinnaminson v. Bertino, N.J. Super App.Div. (2009) 966 A.2d 14.)
II. The Information In the Affidavit May Not Be Stale
Delays of more than four weeks are generally considered insufficient to demonstrate probable cause unless there is evidence that the crime is ongoing. (People v. Hulland (2003) 110 Cal.App.3d 1646, 1652.) A search warrant executed thirty-four (34) days after the information on which the warrant was based was held to be stale. (Hemler v. Superior Court (1975) 44 Cal.App.3d 430.) Twelve day delay was “on the fringe of unreasonableness.” (People v. Hernandez (1974) 43 Cal.App.3d 581, 585.)
III. The Information In the Affidavit May Not Be Unattributed Hearsay
Hearsay upon hearsay may be used in search warrant affidavits but there must be a substantial basis for crediting the hearsay. (Illinois v. Gates (1983) 462 U.S. 213, 241-242.) Hearsay cannot be based on unattributed hearsay. (2 La Fave, Search and Seizure: A Treatise on the Fourth Amendment (5th ed. 2012) Probable Cause, § 3.2(d) pp. 70-71.)