Opinion
I.D. 9909006734.
Date Submitted: May 9, 2000.
Date Decided: June 27, 2000.
Letter Opinion and Order on Defendant's Motion for Reargument of the May 3, 2000 Order by this Court — MOTION DENIED
Dear Ms. Wright and Mr. Hurley:
This Motion for Reargument arises from a suppression hearing which was held in the aforementioned case. The facts are quite simple. The Defendant was arrested following a search for drugs. He was served a Search Warrant which identified the item to be searched for as "cocaine." However, in both the Search Warrant Application and the Affidavit for the Search Warrant, the item identified for search was "marijuana." Thus, it appears that inadvertently the word "cocaine" was used instead of "marijuana" in the actual Search Warrant. This was apparently due to the fact that the Officer used a form from a prior case and neglected to make the change.
Following the suppression hearing, on May 3, 2000, this Judge issued an Order which held that the use of the word "cocaine" in the Search Warrant was a result of excusable neglect on the part of the Magistrate and the Police Officer. In that same Order, this Court additionally held:
it further appearing there is no question of probable cause and good faith and it appearing that the Search Warrant Application and Affidavit and the Search Warrant itself were served together on the Defendant, the Court concludes that there was no substantive prejudice to the Defendant and the exclusionary rule does not require the evidence to be suppressed and excluded from trial.
Footnote I of the May 3, 2000 Order, regarding the service of the Affidavit and the Search Warrant Application served simultaneously with the Warrant, states: "The Court is relying on the excellent memorandum of the State for this last fact since the Court does not recall the precise testimony. If there is any question about the record in this regard, the Court accepts the State's representation as a proffer and suggests the record be supplemented at trial."
Mr. Hurley has filed a Motion for Reargument, claiming: "[t]here was no testimony in the record regarding how the [D]efendant was provided with the documentation obtained from the Court regarding the search." Def.'s Mt. at 1, Dkt. No. 26. Additionally, Mr. Hurley argues that it is the standard operating procedure that only the Warrant itself is delivered to the Defendant and a copy of the Application and Affidavit are not normally served. Therefore, he argues that the Court's Order was based on a factually inaccurate premise.
The Court DENIES the Defendant's the Motion for Reargument. The Court relied on the State's representation that the Search Warrant Application and Affidavit were provided simultaneously with the Search Warrant when the Warrant was served. May 3, 2000 Order, n. 1. The State again represents that Detective Dowe testified at the hearing that the Search Warrant Application and Affidavit and the Warrant itself were served on the Defendant together. See accord, State's Op. Br. at 2, Dkt. No. 25. I am satisfied from an informal review of the record with a Court Reporter other than the one who took the notes that the State is correct. The Defendant, of course, may want to get a transcript to test my conclusion. Defendant's Motion for Reargument is DENIED. IT IS SO ORDERED.