No Nexus – No Warrant

By Brett A. Purtzer; Sept 1999

     The Washington Supreme Court recently decided that searching an individual’s residence who is believed to be involved in criminal activity is illegal absent some nexus between the criminal activity and the place to be searched.  State v. Thein, 138 Wn.2d 133, 977 P.2d 582 (1999).  In an excellent decision by Justice Johnson, the court held that generalizations about activities of suspected drug dealers are insufficient to establish probable cause to search their residences absent some factual showing to conclude that evidence of illegal activity will likely be found at the place to the searched.

     Thein overrules State v. O’Neil, 74 Wn.App. 820, 879 P.2d 950 (1994) and disapproves State v. Gross, 57 Wn.App. 549, 789 P.2d 317 (1990) to the extent its opinion is inconsistent with the Thein ruling.  Importantly, however, Thein acknowledges that evaluating probable cause is on a case-by-case basis.  Nonetheless, in a break from prior rulings of both trial and appellate courts, the boilerplate language found in probably every search warrant drafted is no longer sufficient to obtain search warrants on residences and other areas associated with individuals suspected of engaging in criminal activity.  The generalized statements of law enforcement affiants regarding common habits and techniques of drug dealers no longer suffice to establish probable cause to search every residence, vehicle, storage locker or other locked and private places simply because some officer’s “training and experience” has told him that contraband and/or proceeds of suspected criminal activity may be present.

     Thein’s application applies to residences, but should logically be expanded to seemingly random searches of almost any structure or closed area absent some factual showing that could establish probable cause to search an area where evidence of criminal activity could be located.  Necessarily, this should extend to storage units, boats, safe deposit boxes and any other area that law enforcement typically like to search because they “believe” evidence or fruits of illegal conduct might be found.  Thein also requires that before a search warrant can be issued more investigative work must be completed before a place can be searched.  And because of this requirement, such additional investigation, or lack thereof, may provide opportunities to raise Franks-type hearings if you can establish that the “facts” are not as represented in the warrant, and likely gives more effect to argue that many warrants are over-broad.

     What is also satisfying about Thein is that it is a unanimous opinion, which helps limit any wiggle room that might potentially exist when you have concurring or dissenting opinions.

     As stated previously, although Thein states that probable cause is to be evaluated on a case-by-case basis, the decision sets forth the ground rules that must be followed before search warrants can be issued and does away with generalizations that have been allowed for so long.