Page 38 - May June 2020 TPA Journal

When the search warrant is read in conjunction We therefore conclude that the district court did
with the affidavit, it is clear that the target of the not err in denying Scully’s motion to suppress the
search was the residence of [the defendant’s evidence found in his home office.
father]. There was no danger that the less-than- [Sections of the opinion dealing with due process
perfect description on the face of the warrant and speed trial issues are omitted. Ed.]
allowed the officers to conduct a random search. For the foregoing reasons, the judgment of the
When the warrant is read in circumstances’ light, district court is AFFIRMED.
the object of the search authorized was clear. U.S. v. Scully, No. 16-51429, 5th Circuit, Mar.
04, 2020.
Similarly here, the officer who executed the ****************************************
warrant, Agent Ploetz, was also the agent who
submitted warrant and the affidavit in support to
the magistrate judge. The affidavit, which was CHALK-MARKING TIRES FOR PARKING
submitted to and signed by the magistrate judge ENFORCEMENT: Unconstitutional????
alongside the warrant, described Scully’s home
office, explained that Scully did work for Gourmet The Sixth Circuit Court of Appeals recently (April
there, and that the agents were looking for 22nd, 2019) held in a case out of the Federal
business records contained in the home office. The District Court in Michigan that marking tires with
judge found probable cause to search the property a chalk marker was an “unreasonable search” and
as described by Agent Ploetz, and the search was therefore a violation of the Fourth Amendment.
confined to the areas described by him. Note, this is a Sixth Circuit case and is not
binding here in Texas until/unless the holding is
Prior to executing the warrant, Agent Ploetz met adopted by the U.S. Supreme Court or the Fifth
with the other executing agents to make sure they Circuit Court of Appeals. Further proceedings
knew what to search, and he testified that “we are likely on this case. Unless this holding is
were clear that we were going to be searching the reversed, we can expect claims such as this in
main house and the additional structures on the Texas. xcerpts from the Sixth Circuit opinion are
property,” except for the “rented” structure, which below:
Ploetz instructed not to search. It is “clear that the
executing officers were in a position to be aided Alison Taylor, a frequent recipient of parking
by [the affidavit]” because Agent Ploetz, as the tickets, sued the City and its parking enforcement
affiant, knew what the affidavit contained and was officer Tabitha Hoskins, alleging that chalking
instructing agents while executing the warrant. violated her Fourth Amendment right to be free
Because Agent Ploetz was both the affiant and from unreasonable search. The City moved to
executing officer, and because he instructed the dismiss the action. The district court granted the
other officers on what places to search, “[t]here City’s motion, finding that, while chalking may
was no danger that the less-than-perfect have constituted a search under the Fourth
description on the face of the warrant allowed the Amendment, the search was reasonable. Because
officers to conduct a random search.” “When the we chalk this practice up to a regulatory exercise,
warrant is read in circumstances’ light, the object rather than a community-caretaking function, we
of the search authorized was clear,” and therefore REVERSE.
the officers acted in objectively reasonable good
faith in believing that the warrant in this case To determine whether a Fourth Amendment
authorized a search of the home office. violation has occurred, we ask two primary

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