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Warrants will now undergo added scrutiny

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Hubbard County warrants may get some additional scrutiny after drug charges were dismissed earlier this month against a Park Rapids family.

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The dismissal of charges against Clifford James, Penny James, Cody James and Emily Johnson Aug.1 triggered some heated comments on the Enterprise Web site. One reader questioned whether "Barney Fife" had been the officer that applied for the warrant.

District Judge Paul Rasmussen dismissed the charges because of a technical glitch in the warrant application - the confidential informant didn't state when he observed drugs in the Main Avenue home of the James family.

Rasmussen wrote in his opinion that because the warrant application was missing a crucial time frame, the warrant didn't contain the requisite probable cause to execute a search at the James family home, so the evidence seized was inadmissible.

Today in his regular monthly column, Rasmussen expands on the issue of having probable cause before officers invade the sanctity of a person's home under the 4th Amendment.

"I'm disappointed in the decision in that someone that obviously had drugs can't be prosecuted now," said county attorney Don Dearstyne late last week in discussing the dismissal. "I don't fault the judge for that. The judge looked at the warrant and made a decision on it.

"Quite frankly if that warrant had been presented to my office for review we would not have OK'd it as it was written," he added. "I would have made some changes. So I'm disappointed in that but I'm hoping something positive comes out of this."

There is no requirement that law enforcement officers seek an attorney's opinion before presenting a warrant to a judge, said Stacy Sundstrom, education director of the Minnesota County Attorneys Association.

"We don't keep any statistics but it does vary county by county, depending on the county attorney and how they wish to have search warrants done in their county," she said.

Sundstrom said the association hasn't heard of any widespread problems with warrants, but also hasn't conducted any warrant training for several years.

"We're pretty much staying on the same page," Hubbard County chief deputy Frank Homer said. "Overall it's not changing a whole lot but we're paying a little more attention."

Homer said a three-tiered review process takes place in-house when officers apply for a warrant. The officers themselves review their evidence, have investigators review the warrant, then present the application to sheriff Gary Mills for final review.

If the sheriff or investigators have doubts, "it's a done deal," Homer said.

But if the sheriff OKs the application, it often goes to a county attorney for another layer of scrutiny. The James warrant went directly to the judge from the officers who drafted it.

Dearstyne said he met with law enforcement officers after the dismissal to fine-tune the warrant process.

"We want to eliminate and minimize any potential challenges to these in the future," Dearstyne said.

The James warrants were presented to a judge at 1 a.m. to sign.

But Dearstyne said the time of day doesn't matter. It's not inconveniencing him or his staff to wake them up in the middle of the night to review a warrant, since officers also have to wake up a judge to sign one, he maintained. It goes with the territory.

Homer said the early morning wakeup calls are judgment calls for the officers. "This is where it gets tough at times," he said. "When you get woken up at 3 in the morning you're not so clear-headed. So those are the times when we reflect whether we should wake them or not and more and more we're finding out it's a good thing that we do."

Dearstyne said he subscribes to the "ounce of prevention" theory.

He'd rather lose an hour of sleep "and make sure they have a constitutionally valid warrant then to go through all this work and time and have a neutral judge look at it and suppress the evidence," he said.

"In this instance I believe the officer truly had all the information, it just didn't get down on the paper," Dearstyne said. "In reviewing these documents, the judge is limited to the four corners of the warrant."

Judges can't second-guess whether the officer knew when the drugs were present.

Law officers regularly attend search warrant classes to keep up with the ever-changing law and to refine their warrant writing skills, Homer said. Officers can attend the classes as part of their continuing educational requirements to maintain their licenses.

"That's something I can't repair after the fact," Dearstyne said of a defective warrant. "After the judge signs it, we're essentially stuck with what we've got. To analogize to a farm, it doesn't do any good to close the barn door after all the cows are out."

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