How DEA Lawyers Challenge the Legality of Drug Search Warrants
How DEA Lawyers Challenge the Legality of Drug Search Warrants
When the DEA wants to search someone’s property for illegal drugs, they need to get a search warrant first. But sometimes DEA lawyers run into challenges trying to get warrants approved, especially if the evidence for probable cause is weak. Let’s take a look at how this process works and some of the issues that come up.
First off, what does a DEA lawyer need to show to get a search warrant approved? Basically they need probable cause – some reasonable basis to believe drugs or evidence will be found in the place to be searched. This can be based on an informant’s tip, surveillance, or other intelligence gathered by DEA agents.
But defense lawyers will often argue the probable cause is flimsy, or challenge how the evidence was obtained. For example, if the warrant is based mainly on an informant’s tip, they’ll argue the informant isn’t reliable or credible enough. Or if the DEA used surveillance or searched the suspect’s trash illegally, they’ll try to get any evidence gathered that way thrown out thru the exclusionary rule.
DEA lawyers need to be able to show the judge solid probable cause when applying for a warrant. But sometimes the evidence isn’t all that strong. Like if an informant gives vague or unverified information about drug activity. Or the DEA doesn’t have much to corroborate an informant’s claims. In cases like this, the judge may push back on approving the warrant, questioning if there’s enough justification.
So what can DEA lawyers do to bolster weak probable cause for a warrant? Here’s some tactics they may use:
- Highlight past reliable tips from the same informant – This shows they’ve been credible before
- Note if informant gave very detailed info – More specifics make the tip seem more credible
- Describe surveillance that corroborates parts of the tip – Any confirmation makes the tip more believable
- Play up the suspect’s criminal history – Arguments like “he’s dealt drugs before” or “this matches his MO”
- Use drug dog alerts on suspect’s property or vehicles – Dogs can detect drugs, but this method isn’t totally reliable
DEA lawyers basically cite any facts they can scrape together to bolster probable cause arguments and make the warrant request seem reasonable. They’ll present it as a totality of evidence that justifies searching the property, even if individual pieces are weak.
But defense lawyers often counter that these arguments rely on vague inferences stacking up, rather than hard evidence. For example, they may argue:
- The informant’s past tips weren’t that reliable or are outdated
- The details in the tip are too generic and don’t predict future actions
- The surveillance doesn’t directly tie the suspect to criminal activity
- The suspect’s record doesn’t mean they’re currently dealing drugs
- Drug dogs frequently false alert, so their indication alone isn’t enough
When the probable cause seems questionable, the judge has to make a tough call on whether to approve the warrant. They may push back on the DEA to get more solid evidence first. Or they could decide the warrant request establishes just barely enough probable cause to authorize it.
But borderline warrants based on weak probable cause often don’t hold up down the road. The defense can make strong arguments to suppress any evidence found in the search. Then it gets excluded because the warrant never should’ve been issued in the first place based on flimsy probable cause.
Challenging Warrants Based on False or Misleading Information
Some of the most contentious search warrant battles involve allegations that the DEA included false or misleading statements when applying for the warrant. Defense lawyers will scour warrant applications looking for any inaccuracies they can challenge as intentional or reckless.
If the defense can show the DEA deliberately falsified or omitted important information that affected probable cause, the warrant may get invalidated. This is based on the Franks standard, which says warrants based on intentional or reckless falsehoods violate the 4th Amendment.
For example, a DEA lawyer claimed their informant bought drugs from the suspect 5 times in the past month. But it comes out the informant only bought from them once, a year ago. That kind of factual embellishment could be grounds to challenge the warrant.
Or if the DEA omits that their informant has pending criminal charges and is cooperating to get leniency, a judge may feel that should’ve been disclosed. Omitting material info that undermines an informant’s credibility can be grounds to invalidate a warrant.
But Franks challenges are no slam dunk for the defense. They have to show the inaccuracies were intentional, reckless, or critical to the probable cause finding. If it seems like the DEA just made a mistake or negligent error, that’s not enough to get the warrant thrown out. The falsehoods really have to be serious and deliberate.
DEA lawyers will argue they had no intent to mislead the court, and that any inaccuracies were unintentional and minor. They’ll claim the errors don’t undermine the core probable cause argument, so the warrant is still valid. They put the burden on the defense to conclusively prove intent and materiality.
This sets up contentious “he said, she said” evidentiary hearings where both sides fight over every line in the warrant affidavit. The judge has to decide if any misstatements cross the line into intentional deception, or are just careless mistakes that don’t invalidate the warrant. It’s a very high bar for the defense to clear.
Arguing Confidential Informants Aren’t Credible
Many DEA warrant applications rely heavily on tips from confidential informants or CIs. But the credibility of these informants is often questionable. Many are criminals cooperating for money or leniency. Their info isn’t always accurate or trustworthy.
So the defense will closely scrutinize the DEA’s characterization of the CI. If they find any reason to argue the CI is unreliable, biased, or has suspect motives, they’ll pounce on it.
For example, if the CI has a long rap sheet of dishonest crimes like fraud or perjury, the defense will argue they can’t be trusted. Or if the CI is getting paid for tips, they’ll say the CI is motivated by money to fabricate information.
The defense may also claim the CI has a grudge against the suspect and is using the DEA to harass them. Or that the CI heard drug rumors but doesn’t have firsthand knowledge. Any angle they can take to undermine the CI’s credibility helps their argument against the warrant.
DEA lawyers will counter that the CI has proven reliable in the past, or that their information has been corroborated. They’ll say the CI’s background or motivations don’t necessarily undermine their veracity. And they put the onus on the defense to provide concrete reasons to doubt the CI, rather than just speculating about their credibility.
Fights over confidential informants are heavily fact-dependent. The judge has to weigh whether the defense has made a compelling case that the CI is inherently unreliable based on their background, motivations, or track record. If the defense can’t provide a solid basis to doubt the CI, their credibility challenges will likely fail.
Questioning Probable Cause Based on Hearsay
A lot of probable cause for DEA warrants comes from informants or cooperating witnesses. But technically, this is hearsay – it’s not firsthand knowledge from the DEA agent swearing the affidavit. So the defense will often argue hearsay tips aren’t enough to support probable cause.
For example, if the warrant is based on a CI claiming “John told me he buys meth from the suspect,” the defense will argue that’s unreliable hearsay. The DEA can’t even interview John to vet his story, so it provides weak probable cause.
However, courts often accept hearsay tips if the informant is deemed reliable. In Illinois v. Gates, the Supreme Court said probable cause can be based on hearsay as long as the totality of circumstances shows the tip is credible. So hearsay alone isn’t automatically grounds to doubt probable cause.
Still, the defense may question why the DEA didn’t try to corroborate the hearsay or get firsthand confirmation. Like in the John example above, they could’ve had John make a controlled buy to directly verify the claim. If the DEA opts for hearsay tips when better evidence was reasonably available, that weakens the probable cause argument.
As with other challenges, the judge has to weigh whether the hearsay seems reliable enough under the totality of circumstances. If the DEA did little to confirm vague hearsay tips, that hurts the probable cause claim. But hearsay from proven, credible informants carries more weight. The judge has to make a judgment call based on the specific facts.
Arguing Stale Information Undermines Probable Cause
DEA warrant applications often use tips and intel that is weeks or months old. The defense will argue this “stale” information doesn’t support current probable cause. Just because drugs were present 6 months ago doesn’t mean they still are today.
For example, if a CI claimed he bought meth from the suspect in January, and it’s now July, the info is likely too old to justify a warrant. There needs to be some evidence of ongoing drug activity rather than just old, isolated events.
However, courts don’t take a bright line approach to staleness – there’s no definite cutoff where info is automatically considered too old. It depends on the totality of circumstances and the type of crime alleged. Evidence goes stale slower in drug cases because they involve ongoing operations, versus one-off crimes like a bank robbery.
DEA lawyers argue drug operations are long-lasting enterprises. So even older observations help establish a pattern of ongoing behavior. They’ll cite cases saying even year-old information can support drug probable cause.
But the defense counters that drug stashes and habits change all the time. Just because someone was dealing last year doesn’t automatically mean they still are. Stale evidence alone isn’t enough – there needs to be some reasonably recent confirmation.
As with other issues, judges decide staleness challenges based on the specific facts and parties involved. Information goes stale slower against career drug traffickers than small-time users. And some corroboration showing recent activity helps overcome staleness arguments. It’s a case-by-case determination.
Fighting Vehicle Stop Warrants
A common DEA warrant is for authority to stop and search a vehicle if drugs are suspected. But the defense often argues these warrants lack individualized probable cause. Just because someone has drugs sometimes doesn’t mean they have drugs every time they drive.
For example, if a warrant allows stopping someone’s car anytime in the next 30 days, the defense will argue that’s overbroad. Unless the DEA has evidence drugs are in the car right now, they have no specific probable cause to search it in the future.
DEA lawyers respond that the suspect has an ongoing pattern of using their vehicle to transport drugs. So there is good probability drugs will be in the car multiple times, justifying a longer timeframe.