Opinion
Cr. No. S-04-0352-MCE.
October 13, 2005
McGREGOR W. SCOTT, United States Attorney, MATTHEW C. STEGMAN, Assistant U.S. Attorney, Sacramento, California.
MOTION TO DISMISS INDICTMENT; [PROPOSED] ORDER
Plaintiff United States of America, by and through its undersigned counsel, pursuant to Rule 48(a), Fed.R.Crim.P., submits this motion to dismiss without prejudice the indictment filed in this case against ANTHONY ALLAN VALLIER on September 22, 2004.
The defendant has filed a motion to suppress evidence, based in part on a technical omission in the search warrant affidavit regarding the defendant's residence address and facts tying that address to the location of the computer containing child pornography. Although this was a technical oversight by the officer drafting the search warrant affidavit, based on the holding in the Ninth Circuit case of United States v. Hove, 848 F.2d 137 (1988), it appears that the warrant is deficient. Further, it appears from the Hove holding that although the officer relied on the warrant in good faith, the government cannot rely upon the good faith reliance of the officer under United States v. Leon, 468 U.S. 897 (1984).
Therefore, the government moves to dismiss the indictment without prejudice.
Order
The indictment against ANTHONY ALLAN VALLIER in this case, filed September 22, 2004, is dismissed without prejudice.
IT IS SO ORDERED.