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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel. |
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#1
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People v. Verches - search warrant on your house?
https://casetext.com/case/people-v-verches
Came across this case in an online discussion some time ago; heard it was cited in the original "Freedom Week" last year in Duncan vs. Becerra: https://www.calguns.net/duncaninjunction.pdf It's particularly interesting to me in that the DOJ not only monitored a CA resident buying magazines in Nevada (which in itself, I understand, is NOT illegal) as seen here: https://www.latimes.com/california/s...n-shows-nevada But also used that observation to establish a basis for getting a search warrant on Verches's house to turn up not only the magazines there, but also a featured AR. Most of these undercover stories seem to involve vehicle monitoring and "catching you in the act" crossing state borders. (One could hypothetically get around this by sending whatever contraband they purchased in Nevada, through the mail to their home address in California.) Reading over the case's details: "Agents executed the search warrant at Verches's house on May 31, 2011. In response to questioning, Verches told Agent Bautista that he was at a gun show in Reno on May 21, 2011 and had purchased "magazines and other parts." Verches provided the combination to the safe in his bedroom. Agents found the following items: a .40-caliber assault rifle pistol-type; 2,454 grams of marijuana mostly packaged in one-pound black plastic bags; large-capacity magazines; shotguns, rifles, accessories, a butterfly knife, a throwing star, and another firearm with a large-capacity magazine; $20,500 in United States currency; and a digital scale." Verches definitely messed up by admitting on record to the cops that he'd bought magazines and by handing out the combo to his safe. (I'm not sure though that even if he'd followed proper procedure and clammed up after asking for a lawyer, though, that that would've helped in any substantive way: the police already had him on video at the gun show, and they already had the warrant in hand when digging through his residence.) At any rate I haven't really seen much if any discussion on this particular case; what're your thoughts on it? Is anyone else aware of any other similar cases where out of state purchases were used to justify a warrant in one's home state? |
#2
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It's an unpublished case. That's probably one reason that it didn't get a lot of attention.
There really isn't much notable about the case. California agents made observations at a Nevada gun show of conduct that was legal in Nevada, and that would support a conclusion that California law was being violated at the end of the period of conduct (like when the large-capacity magazines were imported into the state). The real crux of the case is whether the information held by the agents rose to "Probable Cause" particularly since the suspect was observed making multiple stops in Arizona after leaving the gun show and before crossing the border. IMHO, that doesn't rise to the level of PC without there being some additional basis to believe the magazines remained in the suspect's possession at the time of the border crossing. But, as the appellate decision also pointed out, it's a close call and the court called in favor of there being PC. Their opinion counts and mine doesn't. It's important to remember that the conduct giving rise to "Probable Cause" doesn't need to be illegal conduct. It only needs to show that there is a "fair probability" of there being illegal conduct. I have to disagree that the suspect acted unwisely in giving the agents the safe combination. With a warrant, the agents are going to get into the safe regardless. It's just a question of how much damage will be done in the process. I was once involved in the service of a search warrant for narcotics. The location was a two story business and there was a large, bank-type safe on the second floor. Once we had secured the location and the persons inside, we requested the primary suspect to provide the combination as an alternative to forcing entry into the safe. He gave us the customary "F*** Y**" reply. We summoned a locksmith (who was also a retired NYPD officer) who drilled into the safe, and then manipulated the lock mechanism from the inside to open it. The drilling process required the use of a flood coolant which got into the flooring and into the wood structural framing components of the building resulting in very substantial damage. We found the "mother lode" of dope in that safe and the suspect and his colleagues went off to jail. He subsequently made a civil claim against us for the damages which was denied because he had been offered the opportunity to mitigate those damages by providing the combination. He then filed a lawsuit which he lost for the same reason. His property insurance also declined to pay for the damages citing the "failure to mitigate" clause in his policy.
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If you build a man a fire, you'll keep him warm for the evening. If you set a man on fire, you'll keep him warm for the rest of his life. |
#3
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Interesting. So in general, is it pretty much just "game over" question wise if cops show up to your residence with a search warrant? Should you then comply and show them whatever they demand to see, to minimize damage as in the story you brought up?
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#4
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There's no requirement in statute, or in any case law that I'm aware of, that you provide a safe combination. But don't think that you're going to successfully block entry to the safe by declining to provide the combination. But as a simple rule, yes, a search warrant does pretty much mean that the game is over.
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If you build a man a fire, you'll keep him warm for the evening. If you set a man on fire, you'll keep him warm for the rest of his life. |
#5
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"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." ~Ben Franklin 159 |
#6
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LE agencies have service contracts in place for things like locksmiths and jackhammers. If its gonna take a jackhammer to access the safe, then the jackhammer's gonna be bought to the scene. I've had a few warrant services where the suspect's at the scene have been real knuckleheads, about all we can do is handcuff them and put them in the back seat of patrol cars while the warrant is being served (which would also include the time needed to get the jackhammer). They're not gonna be watching the efforts to enter the safe. Please refer to Meuhler v Mena for the specifics of how persons at the scene of a search warrant may be detained.
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If you build a man a fire, you'll keep him warm for the evening. If you set a man on fire, you'll keep him warm for the rest of his life. Last edited by RickD427; 09-09-2020 at 11:07 PM.. |
#7
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Should the suspect read the warrant before providing a combination or other access? Thanks Last edited by sandsnow; 09-10-2020 at 5:44 AM.. Reason: spelling |
#8
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Does the warrant have to specify if safes and locked containers are part of the scope?
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___________ “The people never give up their liberties but under some delusion.” -Edmund Burke, Speech at Country Meeting of Buckinghamshire, 1784 |
#9
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I had about 8 officers rush through my door the second I opened it. I was forced inside, seated near the door, asked for my name and ID, then had a gun pointed at my face for trying to get my ID. They forced entry into my roommates locked desk drawers with a prybar and damaged the wall in the process. Never asked for a key. It changed my opinion of the police for sure.
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NRA Life Member |
#10
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Looks like a classic case of NSA through illegal means passed information to the police who used it to catch and bust him.
Standard procedure these days. Be safe don’t do anything wrong. They are listening and watching everything. |
#11
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Imagine: the police using a 40-ton backhoe to rip your safe from the floor of the house, because you weren’t there to open it for them. In the process to gain access, they demolish the roof, and three walls, and drive it up on the foundation, breaking the stem walls as well. I can see it in a movie, or on the news.
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#12
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One point in this particular case is the volume of drugs found in the safe with the obvious intent to sell and with the amount of cash found not a beginner in drug distribution process. I can see that he was being followed long before he attended the gun show.
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#13
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Having said that, I would routinely take copies of the signed warrant to the scene and would provide them if requested. Even though not required by law, it was a good practice that often produced an increased level of cooperation. There were some cases, where knowledge of the contents of the warrant might compromise future investigation, but those cases were kinda rare. It doesn't hurt to ask for a copy of the warrant, and to read it if provided.
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If you build a man a fire, you'll keep him warm for the evening. If you set a man on fire, you'll keep him warm for the rest of his life. |
#14
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There's nothing really special about safes and locked containers if they otherwise fall within the scope of the warrant, but most warrants will include the phrase "including locked containers" as boilerplate. The LEO writes the language of what is to be searched for, and provides his/her probable cause in a separate document that is included with the warrant application. The Judge reviews the package and then signs the warrant if they find it in order. There is some current tension in the law about computers and electronic storage devices and the law hasn't fully shaken out yet. In my experience, once I got a forensic exam of a suspect's hard drive, it was like finding the "Mother Lode." Early case law has treated them as information containers and they were easily accessed with a conventional warrant. Recent case law is tending to afford them a higher level of privacy and require them to be specifically addressed in the warrant.
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If you build a man a fire, you'll keep him warm for the evening. If you set a man on fire, you'll keep him warm for the rest of his life. Last edited by RickD427; 09-10-2020 at 9:31 AM.. |
#15
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#16
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Yeah pretty much.
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With what they found, it's probably a good assumption that he wasn't some poor random loser picked up on his first ever trip to AZ. I suspect he had been on the radar for a long time and finally did something that allowed for the warrant to be signed sealed and delivered. If it's a good warrant would you rather have everything else in good shape or your whole house in a shambles? |
#17
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Interesting, thanks all for the input.
Yeah, I was wondering what exactly brought attention on this guy to begin with to where he got a warrant on his house rather than just a stop on the way home from Nevada to California. The 20 grand in cash plus the massive quantities of pot (especially prior to legalization for recreational use) probably pointed to how he was already on a ****list. Still scary though how they can throw a tracking device on your car and use that as evidence in court without a search warrant, though. |
#18
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Putting on a tracking device for a short time and following on public streets and roads where a tail could have followed is likely to survive scrutiny, especially on somebody already on the radar.
Using it on a fishing expedition on a regular joe only because you think he might stop at a sporting goods store in an adjacent state is probably not going to survive judicial review. |
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