Earlier this wk, Judge Gull denied Allen’s suppression and motion in limine w/o hearing. This order is problematic. When contesting a search warrant, an evidentiary hearing is mandated if 1) there are allegations of deliberate falsehood or of reckless disregard for the truth 2) and these allegations are accompanied by an offer of proof (affidavits, sworn statements, etc). Nevertheless, a hearing is not required if there remains sufficient content in the affidavit after the contested content is removed.
In this instance, Allen contends the State recklessly disregarded the truth, in part, by omitting several statements: Betsy Blair’s description of the vehicle and the suspect appearing younger; Sarah Carbaugh’s statement of no blood and observing a different color jacket; and, Allen’s statement that he was not on the trail after 1:30pm. Accompanying the motion and memorandum was a number of exhibits. The State filed a response stating information was not omitted but didn’t provide any further argument in support. Good luck finding probable cause after removing these statements from the affidavit. Thus, IMO, a hearing is required.
Also note, if granted, the suppression would be dispositive of this case. In other words, Allen’s liberty is dependent on this motion. Further, it involves the search of one’s home. Indiana has consistently held that “[w]hen protected property interests are implicated, the right to some kind of…hearing is paramount.” Parker v. Indiana State Fair Bd, 992 NE2d 969, 978 (Ind Ct 2013). All the more reason a hearing should have been conducted.
Further, the court is not using the correct standard of review. Gull found there was a “reasonable belief” evidence of a crime would be found in Allen’s home. But the standard of review for a challenged search warrant isn’t a ‘reasonable belief.’ Instead, a reviewing court is tasked w/ determining whether the judge had a substantial basis for concluding probable cause existed.
