State v. Moore

Judge PARKER

concurring in the result.

Before a magistrate may issue a valid warrant to search a particular residence, there must be “probable cause” to believe that evidence of a crime will be discovered in that particular dwelling. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed. 2d 930 (1967). In my opinion, the deputy sheriffs affidavit supporting his application for the warrant was insufficient to show probable cause to believe marijuana was in the house; therefore, I do not agree with the majority’s analysis of the validity of the search.

In his affidavit, Deputy Call described the information he had received from his confidential source and stated that he had seen the marijuana field. However, the only statement concerning the house was that Deputy Call had “observed subjects in the and coming out of the . . . residence near the marijuana field.” He did not identify the “subjects” or in any way connect them with the marijuana field. The affidavit is void of any information about marijuana in the house. The officers saw no marijuana or drug paraphernalia in the house and the suspects had no traces of marijuana on them. The mere fact that the house is “near” the field does not sufficiently connect the house to the field to establish probable cause to believe that there will be marijuana in the house. See Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed. 2d 1503 (1958).

However, in light of the recent decision in United States v. Leon, — U.S. ---, 104 S.Ct. 3405, 82 L.Ed. 2d 677 (1984), the marijuana found in the house was still admissible even though the search warrant was invalid. In Leon, the Supreme Court held that

. . . the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution’s case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neu*678tral magistrate but ultimately found to be unsupported by probable cause.

Id. at —, 104 S.Ct. at 3407, 82 L.Ed. 2d at 684.

For the foregoing reasons, I concur in the result.