Can a warrant be issued on the basis of an affidavit that states that there is insufficient probable cause to search the whole premises?

MultiRegion, United States of America

The following excerpt is from U.S.A v. Clark, No. 09-3462-cr (2nd Cir. 2011):

To be sure, the Constitution further requires that warrants be issued only "upon probable cause," but it does not require that probable cause be stated in the warrant itself.See, e.g., United States v. Grubbs, 547 U.S. 90, 98 (2006). Thus, to the extent probable cause was lacking to support a warrant to search the whole of the premises particularly described, the defect lies not in the warrant but in the warrant affidavit. That defect is properly addressed in considering a different Leon concern, whether the lack of probable cause was so obvious as to preclude reasonable reliance. See 1 LaFave, supra 1.3(f), at 87 (noting "[t]his kind of case... does not fit within the Leon third situation [but, rather,] is analytically most similar to that in which it turns out the warrant is lacking in any probable cause showing, and ought to be resolved in the same way" (internal citations omitted)). We turn to that concern in the next subsection of this opinion.

3. The Warrant Affidavit Was Not So Lacking in Indicia of Probable Cause as To Preclude Reasonable Reliance

Page 27

Leon instructs that officers cannot reasonably rely on a warrant issued on the basis of an affidavit "'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" United States v. Leon, 468 U.S. at 923 (quoting Brown v. Illinois, 422 U.S. at 610-11 (Powell, J., concurring in part)).

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