EIGHTH CIRCUIT UPHOLDS SEARCH OF RESIDENCE FOR GUNS DESPITE TECHNICAL VIOLATIONS IN THE AFFIDAVIT SUPPORTING THE SEARCH WARRANT

Conservation Officer Jeremy King cited Dale Thurman for illegally baiting deer on property that his father owns. The property had a two story house on it with the address 1025 Zeller Avenue and a mobile home with the address 1035 Zeller Avenue. Thurman told King that he lived in the mobile home. After being cited Thurman asked King if he could use pistols to hunt deer. King told him he could. Thurman said he had pistols and pointed towards the two story house. King later learned that Thurman was a convicted felon and could not legally possess the pistols. He got a warrant for “1035″ Zeller, which the affidavit wrongly claimed was the two story house. In the affidavit it said that Thurman possessed “1035″ Zeller without giving any basis for the statement.

At trial and on appeal to the Eighth Circuit Court of Appeals Thurman argued that the magistrate did not have probable cause to issue a warrant for 1025 Zeller.

Of course the question is not whether Thurman lived at 1025 Zeller ¹ Rather the question is whether the affidavit exhibited probable cause to search 1025 Zeller. The Eighth Circuit said it did. Thurman’s pointing to 1025 Zeller when he told King that he had pistols apparently was sufficient cause to search the residence.

Thurman also argued that the affidavit did not particularly describe the place to be searched, a basic requirement under the Fourth Amendment. It described the residence as “the two story framed residential dwelling and outbuildings of 1035 Zeller Ave. located approximately one & two thirds mile north of Hwy. 96 on Zeller Avenue”. The Court found that even though the actual address was 1025 Zeller, the description provided sufficient guidance to the searching officers that they knew which residence to search and therefore it met the Constitutional requirements.

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