Can police search a property even if the owner is NOT implicated in the crime? You'd be surprised.

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One might think that someone who didn't commit any crimes or even suspected of committing a crime would be afforded some protection under the Fourth Amendment, one that protects you against unreasonable searches and seizures. That is not so. “In situations where the State does not seek to seize ‘persons’ but only those ‘things’ which there is probable cause to believe are located on the place to be searched, there is no apparent basis in the language of the [Fourth] Amendment for also imposing the requirements for a valid arrest—probable cause to believe that the third party is implicated in the crime.” Zurcher v. Stanford Daily, 436 U.S. 547, 554 (1978) (holding that the Fourth Amendment does not prohibit the issuance of search warrants simply because the possessor of the property is not suspected of criminal involvement).
“Probable cause ‘is not a high bar,’ ” United States v. Sheckles, 996 F.3d 330, 337 (6th Cir. 2021) (quoting District of Columbia v. Wesby, ––– U.S. ––––, 138 S. Ct. 577, 586, 199 L.Ed.2d 453 (2018)), but neither is it a nonexistent one. “[T]o establish probable cause for a search, an affidavit must show a likelihood of two things: first, that the items sought are ‘seizable by virtue of being connected with criminal activity’; and second, ‘that the items will be found in the place to be searched.’ ” United States v. Abernathy, 843 F.3d 243, 249 (6th Cir. 2016) (alteration in original) (quoting United States v. Church, 823 F.3d 351, 355 (6th Cir. 2016)); see also Zurcher, 436 U.S. at 554, 98 S.Ct. 1970 (“[V]alid warrants may be issued to search any property ... at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found.” (original emphasis omitted)).
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Quincino Waide first encountered the Lexington police after a shed fire occurred on the property next to his. Although no one suspected Waide of having anything to do with the fire, the fire investigator noticed surveillance cameras attached to Waide's duplex residence and asked Waide to turn over his digital video recorder (DVR) to see what it might reveal about the shed fire. When Waide declined, the investigator sought a warrant (the DVR warrant) to enter Waide's apartment and retrieve the DVR.
The affidavit in support of the DVR warrant, however, lacked reliable evidence to establish probable cause to believe that the shed fire was due to arson or any ot

Anton Vialtsin, Esq.
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