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Can I sue over incorrect information in an affidavit used to

obtain a search warrant if...
Can I sue over incorrect information in an affidavit used to obtain a search warrant if the warrant was not executed because I let the officers in because I had nothing to hide. Their case against me must have been based on some false premise. They can't tell me due to an ongoing investigation. I beleive someone may have lied or made a mistake in the affidavit.
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Answered in 46 minutes by:
8/16/2013
Lucy, Esq.
Lucy, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 30,596
Experience: Criminal Justice Degree, JD with Criminal Law Concentration. Worked for the DA and U.S. Attorney.
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Hi,

My name is XXXXX XXXXX I'd be happy to answer your questions today. I'm sorry to hear that this happened.

An affidavit need only establish probable cause to believe that evidence of a crime will be found at a specified location. The fact that evidence was not found does not per se make a warrant unconstitutional. A person can only sue for a civil rights violation if there is evidence that the officer acted with malice, which could mean showing that he knowingly lied. If he made a mistake that was reasonable based on the evidence available to him, or if he simply turned out after the fact to be wrong, that would usually not allow for damages.

Your consent would be an issue if it was granted before they ever mentioned having a warrant. But if they knocked, said, "We have a warrant" and you said "OK, come in," that's not really voluntary consent - they were coming in either way.

If you have any questions or concerns about what I've written, please reply so that I may address them. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service positively so that I get credit for answering your question. Thank you.
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Customer reply replied 4 years ago


Thanks for the great information. I'll give you a little more on my story. I was stopped outside my house by several detectives while walking the dog and told they had a warrant to search my house for cultivation of marijuana. I walked the detectives back to my house and let them in without them showing me the warrant since I wasn't cultivating marijuana and had no reason not to. I wasn't charged, and they found no evidence of cultivation.


 


At this point my end goal is to understand what information was used to get the search warrant, get a copy of that information, and see that there are no errors, like mistaken criminal history, or lies by detectives. The detectives made mention of my previous criminal history while in my house. I was confused by this because I have no history. I was not provided a copy of the warrant when I asked on the basis that I let them in without them "executing it" - detectives words. In a phone conversation after the incident the lead detective said the warrant was not returned because nothing was found and it wasn't executed. The lead detective also said that he could not give me any details as to what led them to me because of an ongoing investigation. He tried to give me some assurance that I was in the wrong place at the wrong time. I wasn't satisfied with that response.


 


Will I be able to request a copy of the warrant and or affidavit from the court even though it was supposedly "not executed or returned"?. It was still filed and issued, right?


 


If I am denied access to this information based on an ongoing investigation, but have reason to believe that there was an error or lie in the affidavit can I take legal action then get access to the affidavit through discovery?


 


I'm not looking for money with this. I just want to know what happened, and if someone lied, made a mistake, or profiled me, I want it recognized and fixed.


Thanks again!


 

If your consent was based on police telling you that you have a warrant, there is an argument that the consent was invalid and they therefore needed a warrant. If you had a pending lawsuit against police, you could subpeona that information.

The problem is, to recover, you need a legal wrong. Usually, the remedy for an illegal search is suppression of evidence, or maybe compensation for time spent in jail or reimbursement of court costs. If nothing was found, you weren't charged, and there was no evidence, you don't seem to be injured from a legal standpoint.
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Customer reply replied 4 years ago

To clarify I am not claiming there was an illegal search, damages from the search, that I'm due time compensation, or concerned if what I did was considered consent.


My questions are about the process. If documents are retained in this scenario?, should they be available to me upon request?, and in the case they are not due to an investigation, how I could go about obtaining them? (sue for something dumb like 1$ cause they stepped on a flower?)


Until I have a copy of the affidavit I can't know if I have a "legal wrong" or was "injured from a legal standpoint". If I find evidence that a detective lied specifically about me, "I saw Mr.x do this". Would I have any case, even if it's only slander? Also, if I wasn't legally injured or entitled to sue, if I find evidence of anyone lying in an affidavit, that is illegal. I would pass this on to the local authorities to prosecute, correct?

A search warrant must be backed by an affidavit which establishes probable cause to believe that there will be evidence of a crime at the place being searched. The warrant itself and the affidavit are saved as part of the case file. If criminal charges were filed, you would get a copy from the DA as part of discovery. They will not hand over the information if doing so could jeopardize an ongoing investigation. Outside of you being charged with a crime, you would have to subpeona the information, which would require an ongoing case.

Statements made in a court proceeding are privileged and cannot be the basis for a slander action. Further, police officers are immune from liability for damages caused in the performance of their duties - you wouldn't even be able to file a suit for $1 for damaging a flower (and you'd risk sanctions for filing a frivolous lawsuit).

Lying on an affidavit is perjury, but perjury is rarely prosecuted. We hear about high-profile cases because they make the news, but that's really the exception, not the rule. There is no way to make the DA prosecute.
Lucy, Esq.
Lucy, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 30,596
Experience: Criminal Justice Degree, JD with Criminal Law Concentration. Worked for the DA and U.S. Attorney.
Verified
Lucy, Esq. and 87 other Criminal Law Specialists are ready to help you
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Customer reply replied 4 years ago

Thanks for that clear response. Excellent service!!


 


 


I figured I would have zero recourse, though I still feel violated. Your last statement suggests what I suspect; the system is corrupt and broken by design.


 


On a separate note the initiative to "fight the war on drugs" is ridiculous. These detectives, judges, and DAs that even pursue this type of thing are a dying legacy of ignorance. People cultivating marijuana aren't hurting anyone, and neither are the people using it. Just because it's a law doesn't mean it should be the priority. Where is the crime? There are lots of REAL crimes in south Florida all the time. What a waste of detective’s resources, time, and my money especially because in this case they were WRONG and found NOTHING... dummies. Locking these people up and throwing away the key for stuff like this is the real crime. That's what turns non-violent criminals in to real criminals, destroys families, and contributes to the economic downfall of our nation. WAKE UP politicians.

I'm afraid I can't dispute your sentiments about the war on marijuana. I can only tell you the current state of the law, unless or until it changes. Change happens slowly. We've seen a lot of it over the last ten years or so, and I expect to see more.
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Lucy, Esq.
Lucy, Esq.
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Category: Criminal Law
Satisfied Customers: 30,596
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Experience: Criminal Justice Degree, JD with Criminal Law Concentration. Worked for the DA and U.S. Attorney.

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