When is offsite criminal activity sufficient to permit a warrant to search one’s home?
Search warrants of people’s homes often are issued as a result of alleged criminal activity that takes place far from the suspect’s home.
When is alleged offsite criminal activity sufficient to permit a warrant to search one’s home? In such a jurisdiction as Maryland, a limited nexus is needed between the criminal activity that has already taken place and the suspect’s home. In such other jurisdictions as Virginia, a stronger nexus is required.
Virginia’s intermediate appellate court wrote in 2007:
“[W]e have held that [the inference that the suspect “’was engaged in the sale of illicit drugs and that evidence of such criminal activity would probably be found in his home.’”] can be permissibly drawn in some cases and provide the necessary factual nexus between the crime and place to be searched. In Gwinn, the police observed seven drug transactions where a drug seller went to Gwinn’s store, returned with the cocaine, and went back to the store after the sale. 16 Va. App. at 974, 434 S.E.2d at 903. Shortly before several of those transactions, Gwinn’s automobile arrived at the store from Gwinn’s residence. Gwinn was present at the store for several of these occasions, and one time he and the seller left the store simultaneously in different automobiles and met at a separate location. Id. We recognized that “’[a] magistrate is entitled to draw reasonable inferences about where incriminating evidence is likely to be found, based on the nature of the evidence and the type of the offense.’” Id. at 975-76, 434 S.E.2d at 904. Thus, we concluded that the magistrate was entitled to infer from the evidence that Gwinn was supplying the seller with cocaine and to further infer “’the probability that drugs . . . or other evidence of Gwinn’s suspected drug-related activity would be found in his residence.’” Id. at 976, 434 S.E.2d at 904.
“In Anzualda, 44 Va. App. 764, 607 S.E.2d 749, where the evidence did not show a pattern of transactions, the plurality opinion reached a different conclusion. There, the police obtained a warrant to search Anzualda’s residence for a gun, which they suspected was a murder weapon in another case and which they had been told was traded to Anzualda for marijuana. Id. at 771, 607 S.E.2d at 752. We held in a plurality opinion that the affidavit “’fail[ed] to provide a sufficient nexus between the item sought (the pistol) and the premises to be searched.’” Id. at 777, 607 S.E.2d at 755. We noted, however, that generally evidence is likely to be found where ‘drug dealers’ live, but that the affidavit for Anzualda’s residence only contained an account of an isolated drug transaction and did not suggest that Anzualda was a known drug dealer. Id. at 777-78, 607 S.E.2d at 755-56; see also Lalor, 996 F.2d at 1579-83 (holding that the affidavit in support of the warrant lacked probable cause even though it included facts indicating Lalor sold cocaine regularly, because it did not ‘describe circumstances that indicate[d] such evidence was likely to be stored at Lalor’s residence’).”
Sowers v. Virginia, 49 Va. App. 588, 597-99 (2007).