How to Obtain Your Search Warrant Affidavit

Were you arrested based on items found pursuant to a search warrant?  Is so, the recent case of Hill v. State shows how your lawyer may be able to obtain and then review the affidavit underlying the warrant for errors and constitutional infirmities.  If such defects exist, your lawyer may be able to invalidate your warrant and have your case dismissed.

In Hill, the police obtained a warrant to search Hill’s former girlfriend’s residence where she lived with their children. Hill frequently stayed at the residence. The judge later sealed the affidavit that was submitted to get the warrant issued.

Law enforcement subsequently executed the warrant at the residence. Hill was present. The search yielded large quantities of cannabis and cocaine, drug paraphernalia, two loaded firearms, and $3,800 in cash.

Based on the evidence obtained from the search, Hill was arrested and charged with trafficking in cocaine, possession of cannabis with the intent to sell, possession of drug paraphernalia, and possession of a firearm by a convicted felon.

During the discovery phase of Hill’s case, the State provided him with a copy of the search warrant, but it did not produce a copy of the sealed affidavit used in obtaining the search warrant. Hill’s lawyer moved to unseal the affidavit, asserting he needed to review it to determine whether the affidavit omitted material facts or contained false statements and whether there was probable cause to justify the issuance of the warrant.

In opposing the motion, the State argued Hill failed to allege with specificity the parts of the affidavit he believed to be false, incorrect, or misleading. The State also asserted unsealing the affidavit could adversely affect ongoing criminal investigations by revealing confidential informants and ongoing criminal investigations.

At the hearing on the motion, Hill conceded he had the burden to show good cause why the trial court should unseal the affidavit. Hill asserted good cause existed because the affidavit and resulting search warrant were based on stale information. In that regard, Hill testified at the hearing he did not sell, distribute, or manufacture drugs at the residence in the thirty days before the officers executed the warrant. Hill argued if the affidavit was not based on recent sales or buys, he had a right to know what other information was used to obtain the warrant.

The State contended it did not charge Hill with sale of cocaine or cannabis, so his testimony that he had not sold drugs from the residence in the past thirty days did not indicate any defect in the affidavit. And Hill did not testify he had not possessed drugs at the residence in the past thirty days. The prosecutor insisted Hill’s request for the affidavit was an indirect attempt to discover the identity of the confidential informant. The State then explained if it were to redact from the sealed affidavit all information related to the confidential informant and the investigative techniques used by the police, there would be no meaningful information for Hill to review.  The trial court denied Hill’s motion.

At trial, the officers testified Hill confessed to selling drugs from the residence.  The State also presented an audio recording in which Hill confessed to possessing and selling cocaine and cannabis.  Hill was convicted.  He then appealed.

On appeal, Hill argued he was entitled to a new trial because the trial court denied him due process and his right to criminal discovery when it denied his motion to unseal the affidavit used to obtain the search warrant. Hill further asserted the trial court had to review the sealed affidavit in camera before it denied his motion,. The appellate court affirmed.

The appellate court first noted under Florida Rule of Criminal Procedure 3.220(b)(1)(I) the State must reveal to a defendant who has elected to participate in criminal discovery “whether there has been any search and any documents relating thereto.” The court further noted, however, not all documents related to a search are discoverable under the rules.

The State asserted it did not have to produce the affidavit to Hill because it contained information that could reveal the identity of a confidential informant and information on ongoing criminal investigations. The court noted under Florida Rule of Criminal Procedure 3.220(g)(2), the State need not disclose a confidential informant “unless the confidential informant is to be produced at a hearing or trial or a failure to disclose the informant’s identity will infringe the constitutional rights of the defendant.” Nor must the State reveal the identity of a confidential informant “who merely furnishes the probable cause basis for a search or arrest.” The State must reveal information about a confidential informant only when the defendant demonstrates the disclosure is necessary for a specific defense.

Hill argued he did not need to make such a showing because he was not seeking information about a confidential informant. But the State claimed the sealed affidavit concealed so much sensitive information that redaction of the information about the confidential informant would leave a document containing only boilerplate language.

So, based on the State’s assertion, the court found regardless of whether Hill was actively seeking the identity of the confidential informant, unsealing the search warrant affidavit could reveal his or her identity. And because the State asserted the sealed affidavit included information exempt from disclosure, the burden shifted to Hill to show a specific reason why disclosure was still warranted. Hills general argument in the trial court that he needed the affidavit to prepare his  defense was therefore not sufficient to compel the trial court to unseal the affidavit.

Hill’s specific reason for seeking disclosure also was insufficient to make to unseal the affidavit. He argued the affidavit stemmed from stale information, as no sales or distribution took place at the residence in the thirty days before the officers executed the search warrant.

The State countered the lack of drug activity at Hill’s home before the execution of the warrant was immaterial because the State charged Hill with possession, not sales. And Hill did not testify he did not possess drugs at the residence. After the State challenged the basis for Hill’s motion to unseal the affidavit, Hill advanced no other reason why the information in the affidavit was necessary to prepare his defense. Because Hill did not meet his burden to show a specific reason why he needed access to the sealed affidavit that the State asserted contained information about a confidential informant, the court found the trial court did not abuse its discretion by denying the motion without conducting an in camera review of the affidavit.

Because Hill did not meet his burden of showing the disclosure of the affidavit was essential to a specific defense, the appellate court concluded the trial court did not abuse its discretion in denying Hill’s motion to unseal the search warrant affidavit.

If you were arrested as a result of a search pursuant to a warrant, you should consult with a Jacksonville criminal defense attorney knowledgeable about how to obtain the affidavit underlying the warrant.  Doing so will give you the best chance of having your charges dropped or reduced on the ground your warrant was based on a defective affidavit.  Call me for a free case strategy session to discuss how I can best help you with your search warrant case in Jacksonville, Fernandina Beach, Yulee, Macclenny, Green Cove Springs, Middleburg, St. Augustine or surrounding areas.


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