Good faith can't save biological material search warrant

Korey A. Kaul won in State v. Powell, No. 102,749 (Kan. June 6, 2014), obtaining a reversal in a Greenwood County vehicular theft prosecution.  The primary issue was whether a search warrant authorized blood, hair, fingerprints, and buccal (cheek) cells.  The district court that had issued the warrant had already found upon review that the affidavit in support of the search warrant had lacked probable cause because it lacked information that DNA evidence had been found in the car.  The only issue was whether the good-faith exception applied to avoid exclusion.

The KSC agreed that the affidavit was lacking, even more so than the district court:

The search warrant application does not clearly identify the crime alleged. Instead, it generalizes that the "[a]ffiant has probable cause to believe and does believe that an offense against the laws of the State of Kansas, has been committed." It goes on to explain only that the biological material sought was located on Powell. 

But other information needed to discern the purposes for obtaining this biological material is left to the imagination. For example, one must gather from the nature of the anonymous tips that the crime at issue is the patrol car theft, and the warrant does not explain how the biological material sought would aid in prosecuting the crime. Clearly, the affidavit supporting the warrant fails to meet the nexus requirement, which is especially troublesome given that the evidence sought from Powell involved intrusions beyond the human body's surface without any justification alleged in the warrant for that intrusion.

With regard to the good-faith analysis, the KSC held that the deficiencies discussed, plus the fact that the information included in the affidavit included anonymous informants made it so lacking, good-faith could not apply:

Knowing the tips were not sufficient, a reasonably well-trained officer would also not believe the affidavit established probable cause. There is the obvious omission of any explanation of how Powell's biological material would aid in apprehending or prosecuting those who stole the police car. In addition, the affidavit relies primarily on anonymous, unverified, and uncorroborated tips containing no indicia of reliability to connect Powell to the theft. And based upon our binding judicial precedent on probable cause, these types of anonymous tips have little value.

As a result, the KSC ordered suppression.

As an interesting aside, the KSC explicitly avoided an alternative ruling that K.S.A. 22-2502, does not authorize seizure of biological materials in any case.  But the KSC noted that "this presents a question of first impression for this court and may merit further legislative consideration given the lack of express statutory language."  Particularly given the KSC's interest in enforcing search and seizure statutes (see blog here for example) if I had a warrant for blood under K.S.A. 22-2502, I would sure be raising this issue.