The Tenth Circuit Court of Appeals upheld the conviction of Manuel Roach despite the lack of probable cause to support the search warrant for his girlfriend’s house and despite the judge’s failure to determine whether or not the expert had sufficient knowledge to testify about gang culture.

On appeal the defendant objected to the search of this girlfriend’s house on the two grounds. First he said that there was not probable cause to support the search warrant. Second he said that there was an insufficient nexus between the residence and any evidence of criminal activity. The court agreed with Roach on both grounds.

The search warrant was based on Roach’s former membership in the Northside Crips in Wichita. But his last documented membership in the gang was years before the warrant was served and while he admitted a gang lifestyle that too was a year and a half before the warrant. The last evidence of his being involved in drugs was in 2002, five years before the warrant. Based upon this information the court found the evidence stale and therefore the warrant was not supported by probable cause. The only evidence in the affidavit attempting to show a nexus between the residence and criminal behavior evidence was a statement about the residences of fifteen alleged members of the gang. The affiant said:

“[O]fficers have verified that the individuals listed below live at the following addresses, through investigations, which included
checking for utilities information, driver’s license records, real estate records, Wichita Police Department records, tax records, social security records, US Postal Service records, interviews and/or surveillance.”

The court found this statement to be conclusory and it failed to state what methods had been used on the girlfriend’s residence. Thus it did not show a nexus between the residence and criminal evidence.

However under Leon if a search warrant is not supported by probable cause evidence received as a result thereof is admissible if the officer carrying out the warrant does so in good faith. The court found that the officer could have believed that their was probable caused based upon Roach’s long history of participation in the gang and in drugs. Furthermore since there was some evidence that the officers confirmed that Roach lived at the residence the officer search the residence could have believed that a nexus existed. As a result the officer acted in good faith and the evidence was admissible.

In Daubert the Supreme Court ruled that in Federal cases expert testimony is admissible if the judge makes a finding that it is both reliable and relevant. The trial judge did not make the necessary finding but the court found the government’s gang expert’s testimony admissible anyway because the jury could have believed the gang evidence true based upon other evidence. In other words it was harmless error to admit the expert evidence.

Sometimes the law is funny. Here the trial court violated the United States Constitution and the Rules of Evidence. Yet the appellate court found the evidence admissible and upheld the conviction.