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EXISTENCE OF WARRANT

On August 1, 1995, officers of the Dekalb County Police Department executed a search warrant at the home of Mary Jane Smith on Briarcliff Road. The search warrant was apparently issued by the Chief Magistrate of Dekalb County based upon a controlled buy of marijuana from Ms. Smith at the Briarcliff Residence. During the search the officers discovered approximately 75 pounds of marijuana and charged Ms. Smith with Trafficking in Marijuana.

Ms. Smith's attorney, as a matter of standard procedure, filed a boiler-plate motion to suppress arguing unconstitutional search under the federal and state constitutions. At the hearing on the motion to suppress, the district attorney was unable to produce the original search warrant. In fact, neither the D.A. nor the Police officers could locate the original or any copy of the warrant or the supporting affidavit. Instead, the D.A. offers to prove-up the warrant and its contents with the testimony of the officer who made the supporting affidavit and the magistrate who issued the warrant.

(A)Can the state establish the existence, contents, and therefore validity of the warrant with oral testimony?
What testimony is necessary to justify the receipt of a copy and what burden does the state have to prove loss or destruction? See United States v. Lambert, 887 F.2d 1568 (11th Cir. 1989) (receiving copy of the supporting affidavit in lieu of original where testimony was "that for unknown reasons the application and affidavit had subsequently become separated before docketing and filing, resulting in the loss of the affidavit). Those cases accept copies of the original but not oral testimony. But see Fed. R. Evid. 1004 and Ga. Code Ann. 24-5-4 & -5 (allowing oral testimony to prove existence and contents of lost writing).

(B)Consider that the officers left a copy of the search warrant at the home with Ms. Smith. She gave that copy of the warrant to her attorney and he still has it in his possession. The warrant appears valid on its face. Assuming the jurisdiction will not allow oral testimony to prove the warrant but will accept a copy in lieu of the original, can the court require the defendant to produce her copy of the warrant? Is she protected from disclosure by the Fifth Amendment privilege against self-incrimination?

Submitted by Jim Thornton
Emory Law School

Answer
(A)
Generally, NO.
See Campofreda v. State, 292 A.2d 703 (Md. Ct. Spec. App. 1972) (disallowing oral testimony to prove warrant; suggesting that a "copy" would be received if sufficient explanation that the original warrant was lost or destroyed); State v. Freeman, 459 S.E.2d 867 (S.C. Ct. App. 1995) (to the same effect).  However, under at Federal level See Fed. R. Evid 1004 (allowing oral testimony to prove existence and contents of lost writing)

(B)
The 5th amendment only protects against compulsion to give testimony or communicative evidence.  Physical procedures such as fingerprinting are not included.  The warrant will probably not be considered testimony or communicative evidence; therefore, it is discoverable and the defendant must produce it.
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