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Form Search warrant for DNA that had errors was deemed admissible


In 2009, just after closing, two armed black males, with their faces masked, approached an employee taking out the trash at a Sonic Drive In in Poplarville, Mississippi. They directed all employees into the cooler and then stole the cash drawer and a green Bank Plus deposit bag full of cash.

Approximately an hour before the robbery, Ricky Graham, who lived seventy five yards away from the restaurant, called the Poplarville Police Department about a suspicious silver truck parked in front of his house. Graham told the police he had seen two black males leave the truck on foot.

A responding officer found the silver truck unlocked with the keys in the ignition. He removed the keys, locked the truck, and asked Graham to call him if anyone returned for the vehicle. Graham called back fifteen minutes after the robbery. He reported that the two men had returned and, finding the truck locked, fled on foot.

Another officer, responded to a call that a man, wearing only underwear and tennis shoes, was stranded at a carwash 50 yards away. Jay Magee claimed he had been jumped by two men. This officer later testified that, as a wrecker towing the silver truck passed by, he heard Magee say, “That’s my truck.”

Officers impounded the truck, obtained a search warrant, and found a green Bank Plus bag with “Sonic” written in black marker and a .9 mm handgun on the back seat. They also found a Walmart employee ID with Magee’s photo and the name “Jay.”

Duputy Sheriff Gary Lumpkin, trained in K-9 detection, used his German Shepherd, Nix, to track a scent from the silver truck to a nearby wooded area. There, officers found clothing, including a ski mask, and cash.

Magee and his accomplice was arrested. A similar armed robbery had occurred at a Sonic in Picayune, Mississippi, five weeks earlier. Picayune officer Blaine Heath had recovered a red baseball cap in the woods near the Picayune crime scene.

Officer Heath obtained search warrants to collect Magee’s DNA. Heath told Magee he had a search warrant for his DNA. Magee appeared eager to prove the red baseball cap found in Picayune was not his and, according to Heath, did not object to providing a DNA sample. Magee’s sample connected him to the ski mask found in the woods in Poplarville near where Magee had been picked up.

Magee was convicted of armed robbery and kidnaping and sentenced to 60 years. On appeal, he argued the search warrant was deficient. MCOA affirmed.


In Daniel v. State, 536 So. 2d 1319 (Miss. 1988), the MSC said that an intrusion into the human body for testing, such as taking a DNA swab, is a search and seizure protected by the Fourth Amendment. So, absent an emergency, a search warrant was required to take Magee’s mouth swab.

As to the consent finding by the trial judge, it appears Magee consented only after being advised of the search warrant. The U.S. Supreme Court in Bumper v. North Carolina, 391 U.S. 543 (1968) held there can be no consent after the officer conducting the search has asserted he possesses a warrant.

So we must decide whether the warrant was sufficient on its face to authorize the collection of Magee’s DNA. And, if not, whether the DNA was admissible under the good faith exception.

A. Search warrant

The affidavit supporting the warrant is based on a general form utilized by various law enforcement agencies in Mississippi. The warrant listed the address of the Poplarville Jail as the place to be searched. It identified Magee as controller of the place to be searched and specifically described “D.N.A. in any or all forms that can be collected” as the things to be seized.

Magee argues the resulting warrant only authorized a search of the area of the jail controlled by Magee—not Magee himself. He relies on U.S. Supreme Court case Ybarra v. Illinois, 444 U.S. 85 (1979) which held that a search warrant for a place cannot be imputed to a person who happens to be located in the same place at the time of the search.

Ybarra is inapplicable because Heath was not bootstrapping probable cause to search the jail as authority to search Magee, who happened to be in the jail. Rather, the affidavit contains independent, specific probable cause to obtain Magee’s DNA to determine whether his DNA matched the sample from the Picayune crime. From his affidavit, we find it clear that Heath sought a warrant to collect Magee’s DNA, not to search a jail cell.

B. Good faith exception

Even if the warrant was insufficient on its face, whether to exclude the DNA evidence from Magee’s trial is an entirely separate issue. The purpose of the exclusionary rule is to deter police misconduct.

In Leon v U.S., 468 U.S. 897 (1984), the U.S. Supreme Court held the Fourth Amendment exclusionary rule should not be applied to bar the prosecution from using in its case in chief evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid.

In White, the MSC explained that the exclusionary rule should not be applied to suppress evidence if the evidence was obtained by officers acting in objectively reasonable reliance on a subsequently invalidated search warrant.

The sole issue is whether the officer reasonably believed that the search he conducted was authorized by a valid warrant. Typically, the mere existence of a warrant suffices to prove that an officer conducted a search in good faith and justifies application of the good faith exception.

We find it clear from his affidavit that Heath sought a warrant to collect Magee’s DNA. And he believed the warrant authorized him to do so. Thus, we find Heath acted reasonably.

Further, none of the four reasons for rejecting the good faith exception are applicable. There are no allegations that Heath misled or provided false information to the judge issuing the warrant. And the judge certainly did not abandon his judicial role.

The affidavit is not lacking in indicia of probable cause. Nor is it so facially deficient in failing to particularize the place to be searched and the things to be seized that Heath could not reasonably rely on it to swab Magee’s mouth.