The Chief’s Right to Question

Wednesday, April 4, 2007 | Although the current debate about a search warrant obtained by City Attorney Mike Aguirre in his investigation of Sunroad Enterprises seems to have been beaten into the ground as of late, there still seems to remain some confusion over both the facts that surround the warrant, as well as the law.

First, it is important to understand that the San Diego Police Department had absolutely nothing to do with the city attorney’s investigation into this matter. We were never asked to assist, nor ever consulted on any aspect of the investigation which I understand has been ongoing for some three months.

This is rather unusual, as the SDPD is the primary investigative body for both the District Attorney’s Office, as well as the City Attorney’s Office.

Second, when the City Attorney’s Office presented the proposed search warrant to Judge George “Woody” Clarke, again the SDPD was not present, nor asked to assist. We have no idea what additional information beyond the affidavit was produced by the City Attorney’s Office to the judge. (An important issue when analyzing why the judge issued the warrant while the SDPD still had questions).

Third, the court never ordered the SDPD to serve the warrant. The City Attorney’s Office got the warrant signed by the judge and then the City Attorney then asked the SDPD to serve the warrant, not the court.

Fourth, when the SDPD received the warrant and affidavit for the first time, we had some questions. Not surprising as we had had absolutely no role or information concerning the investigation.

In addition, because the warrant alleged a felony, we felt it appropriate to run it by the district attorney who has primary jurisdiction over all felonies. After reviewing the warrant and affidavit, she recommended that it not be served without further clarification from the city attorney. In addition, the attorney general was consulted who also expressed the same concerns and offered the same advice.

Fifth, as the Chief has stated repeatedly, the SDPD never refused to serve the warrant.  We simply had some questions that needed clarification. When the SDPD set-up a meeting to discuss the warrant with the city attorney, he refused to meet. So, our questions were never answered.

In addition, on late afternoon Thursday (March 22) after a heated discussion with an assistant chief, the city attorney withdrew his request to the SDPD to serve the warrant. Further, sometime shortly thereafter, the city attorney apparently contacted Sunroad, who in exchange for not having the city attorney serve the warrant, agreed to voluntarily comply and produce the material sought in the warrant.

With respect to the legal question (however moot with respect to the instant case) of whether a law enforcement agency must serve a warrant issued after it has been issued by a judge or magistrate, I offer the following:

Due to the pattern being somewhat odd, I’m not sure you will find a case right on point. However, I think the Supreme Court case of United States v. Leon (1984) provides some pretty clear answers through its dicta. In Leon, an officer serves a defective warrant but does so in good faith. The question before the court was whether the exclusionary rule should be implicated and therefore whether the evidence seized through the execution of the defective warrant should be suppressed or excluded, even though the officer had a good-faith belief that the warrant was valid.

The court held that if an officer has a good faith belief that a warrant is valid, the evidence should not be excluded.

However, the court also stated some very clear exceptions to this rule whereby the evidence would be indeed be excluded they include the following:

1. Affidavit contained information that police knew to be false or had a reckless disregard for its truth;

2. Magistrate has wholly abandoned his judicial role by failing to be neutral;

3. Affidavit so lacking in probable cause that belief in it is unreasonable; 4. Warrant is so factually deficient that the officers could not reasonably presume it to be valid.

I am not suggesting that any of these exceptions necessarily applied in this case, I only use this case to stand for the proposition that not only do officers have the right to not serve a warrant if they do not have a good faith belief in its validity, but they have a duty not to serve it. In addition, there are other cases that suggest officers are at risk of personal liability if they knowingly serve a warrant in bad faith.

As a practical matter, when we appear before a judge with a warrant, we seek their judicial approval and what we receive is their authorization to serve it. It would seem rather odd for us to appear before a judge and ask for authorization only to have him/her then say not only do I authorize this warrant but I am now ordering you to serve it. 

The SDPD serves hundreds of warrants each year. Warrants last for 10 days and then

expire.

The SDPD, for a variety of reasons, puts down many, many warrants and many others simply expire. Never has it been suggested that when we exercise our discretion in this regard that we have somehow violated a court order.

Paul Cooper is assistant to the Chief of Police William Lansdowne. Feel free to compose a letter in response.