Posted by abitskeptical on August 27, 2008 at 5:53 a.m. (Suggest removal)

Wow.

Kudos & cheers for Welmaker.

Ditto for the prosecutor who acknowledges the importance of the "rules".

Posted by abitskeptical on August 27, 2008 at 5:57 a.m. (Suggest removal)

However, I must add that the prosecutor should have "noticed" the flaw in the warrant before pushing this case to prosecution.

The judge is not the only person sworn to uphold the constitution.

Posted by cougars1970 on August 27, 2008 at 6:37 a.m. (Suggest removal)

The Fourth Amendment is not a technicality. If it was, it would have been left out of the Constitution.

Posted by Tulane75 on August 27, 2008 at 6:54 a.m. (Suggest removal)

The Constitution is not a "technicality", although some believe the Fourth Amendment is a museum artifact.

I am surprised whenever I see a search and seizure ruling in defense's favor.

Posted by Pols101 on August 27, 2008 at 7:10 a.m. (Suggest removal)

The prosecutor probably knew that there was a problem with the affidavit. He was just going "through the motions" to let the judge to rule to spare him any criticism. I would have done the same. I cannot understand how wrong the police got it and how incompetent they are. It is so important to have good officers and here is the reason why. They screw up and a possible killer goes free. We have a problem with this all over SC. I think it is time to require a 4 yr. degree for police in critical areas, such as murder investigations.

Posted by Riptide on August 27, 2008 at 7:24 a.m. (Suggest removal)

Pol..

With a 4 year degree, would the officer get a pay equivalent ? To up the ante, does the police need a law degree to complete his investigation? Lawyers you got to love them.

Posted by abitskeptical on August 27, 2008 at 7:51 a.m. (Suggest removal)

The warrant needed more specific wording & that certainly could have been done. Even the prosecutor had to acknowledge that.

Power is intoxicating, especially when one is convinced that it is being used to "do ultimate good". Then the abuse of it becomes easy to rationalize.

Over time, the original goal of truth & justice gets forgotten & the rationalization of an end justifying the means wins out.

This has played out over & over throughout many civilizations.

Our founding fathers in their infinite wisdom did everything in their power to protect this country from that evil.

Most people now pay only lip service to the concepts, & indeed the standards by law, of "innocent until proven guilty" & "the burden of proof is on the state". These 2 concepts are what has made this country the envy of others for lo, these many years.

Those standards are no longer respected & in many cases not adhered to.

When they die out completely, it will be interesting to see what the comments are then. Oh, wait, we probably wont be allowed to make them.

Posted by NewBreed on August 27, 2008 at 7:58 a.m. (Suggest removal)

ColdBeer...You're okay with the warrant as long as it's not you and you're the one who is innocent. Last I checked the man is innocent until properly proven guilty. A properly requested and executed search warrant is essential in upholding every citizens rights.

Posted by BigSargeofSC on August 27, 2008 at 8:15 a.m. (Suggest removal)

If the warrant had been worded properly, there would be a trail going on right now. As the article points out, you can't use a warrant to go "fishing" for evidence. Had they established cause for the warrant, the warrant stands and the trail moves on. Although it seems like there is something worth investigating here (she was in the back room, the fire was in the front of the house), the Constititution is the law of our land and must be followed. Shame on those law enforcement officers for screwing up a murder case. And, just a thought, I wonder who the judge is that signed the illegal warrant?

Posted by UberBlitzkrieg on August 27, 2008 at 8:39 a.m. (Suggest removal)

Where is Thomas1776 when you "don't" need him.

This is not the last you have heard of this.

Posted by abitskeptical on August 27, 2008 at 8:45 a.m. (Suggest removal)

There is justice in that the law & the standards of our legal system were followed.

Unfortunately,when some in the process do not do their jobs properly/professionally ultimate justice takes a hit & injustice occurs to the innocent & the guilty, depending on the situation.

Posted by SCHoser on August 27, 2008 at 8:58 a.m. (Suggest removal)

Okay-here is what I would like to know then: What wording are they supposed to use? How in the hell are they supposed to collect evidence of a HOUSE fire without going in the house? With the info in the article about divorce proceedings and her statements about her fear of him, what more did investigators need? I thought the whole point of our justice system was to get to the truth! Don't tell me about the fourth amendment on this either-how is this in any way an unreasonable search or seizure? This is a perfect example of the flaws in our system-it's not the constitution itself, it is the misguided implementation-that is the problem!

Posted by mkris on August 27, 2008 at 8:59 a.m. (Suggest removal)

"no Warrants shall issue, but upon probable cause, supported by Oath or affirmation" is a requirement for issuance of a search warrant. The law is so old in this country that it is second nature for most police and the decions of the US Supreme Court are second nature. The "probable cause" means specific reason supported by FACTS, not belief or "I think" or "we need this." It does not require any fact to be proved beyond a reasonable doubt, but just enough to think it may be true. This was a major screw-up by the investigating police officer that created the affidavit.

Posted by SCparalegal on August 27, 2008 at 9:05 a.m. (Suggest removal)

abitskeptical and Pols101 --

I work in the courthouse and watched the hearing. The prosecutor in no way "acknowledged the importance of the rules" during the arguments. Nor was he "going through the motions." He fought tooth and nail against the defense motion and took the position that the warrant was fine, at times belittling the defense's argument. The "fishing expedition" comment must have been made to the paper, only after the judge ruled for the defense. It also did not appear the prosecutor was at all aware of the problem until the defense brought it to the court's attention. "Kudos," yes. But only to the judge.
Also, from what I heard, I'm not sure the cops are completely to blame. Yes, they drafted the warrant, but the victim's family was pushing the investigation after they did not agree with the fire department and insurance company finding no evidence of arson. At the time they got the warrant, they did not have any evidence of arson to put in the warrant. So it was not just a "technicality."

Posted by NewBreed on August 27, 2008 at 9:10 a.m. (Suggest removal)

"In my opinion, in dealing with a house fire of this type, the warrant was worded OK." coldbeer

CB..My comprehension of the written word is pretty good.

According to this statement and considering the facts of the case, I can only surmise that you are advocating that search warrants should be written in broader terms and law enforcement agencies should have a greater power to enter private residences and collect any and all incriminating evidence whether associated with the present case or not.

CB, understand that I am not attacking you and I haven't logged on to argue with every statement. What I do have a problem with are blanket statements of judgement. "ya'll must be with the ACLU" I'm not a member.

I am an American who worries that my rights are being gradually eroded away with every unanswered or unquestioned new law that allows wiretapping, searching, or imprisonment without due cause.

Posted by abitskeptical on August 27, 2008 at 9:13 a.m. (Suggest removal)

SCparalegal-thank you for that clarification. I was truly excited that there might be a prosecutor who truly believed he was bound by & obligated to uphold the constitution. Oh well, we can still hope.

Posted by abitskeptical on August 27, 2008 at 9:29 a.m. (Suggest removal)

In order to maintain essential credibility, trust & respect, those who have sworn to, & are empowered to, uphold the law(& Constitution), make charges against a citizen for breaking the law & deliver punishment for violations of the law, MUST, at every step of the process, understand & believe that if that process is violated it taints everything.

If violations of this process, which are in fact almost always violations of the law themselves, are accepted as business as usual, we have no system of justice at all. It is all a farce.

Posted by SCHoser on August 27, 2008 at 9:39 a.m. (Suggest removal)

I still want to know how you get facts on arson without investigating the scene. In the original article in '06-look up Deborah McCarn in the archives-it says:

Based on video surveillance, authorities concluded that the fire started right after Bobby McCarn left the home, the warrant states. Hours before, his wife had expressed fears that her husband would harm her, the warrant states.

Video surveillance? What is the deal with that? There has got to be more info here-sounds like they had probable cause to me. Also, they found her in a rear bedroom, but state the fire was traced to the living room sofa. How can she be in the rear bedroom and start the fire in the living room? If this was an accident-falling asleep with a cig?- like they claimed, how can she have done this herself? There are several scenarios that may have happened. These are questions that needed to be answered, and the only wat to get these answers was to search the scene. duh.
I am all for peoples' rights, but we're not talking about some random individual who's house got invaded in a "fishing" expedition here. I think that everyone should want to know the truth about what happened.

Posted by SCparalegal on August 27, 2008 at 9:51 a.m. (Suggest removal)

Coldbeer and SCHoser -
From watching the arguments, here's what I think the legal answer to your question would be. A search warrant would not always be necessary. The Fire Department and other agencies can investigate the cause of the fire after it is put out and for some time after that. They don't need a warrant. If they see anything suspicious they should report that to the police who can then get a warrant. Here, the initial investigation found nothing suspicious. I think someone said in the time between the fire and when they got the warrant the defendant even invited police and fire department back to the house to take a second look. They would not have needed a warrant then either. The problem was they waited two weeks after the fire, only after the victim's family had suspicions, to try to go back in. At that point, they needed a warrant.

Posted by usna04 on August 27, 2008 at 10:08 a.m. (Suggest removal)

This all seems a little fishy if you ask me...

Posted by SCHoser on August 27, 2008 at 10:13 a.m. (Suggest removal)

They had a warrant-the judge looked at the statute very narrowly in my opinion. I would think the info the judge wanted on the warrant could only be had by the search itself. What else could they have put down? Doesn't another judge have to sign the warrant in the first place? Why is it good enough for one judge, and not for another? I would think a search for the truth would be the top priority here, especially given the info I have seen, and I don't see how this in any way violates his rights. I know this is a moot point now, but this is the very kind of judicial nonsense that drives me crazy!

Posted by Yeah_I_said_it on August 27, 2008 at 10:24 a.m. (Suggest removal)

He did it...just like O.J.!

Posted by SCHoser on August 27, 2008 at 10:38 a.m. (Suggest removal)

It's not all about you getting the point, is it wpc?

Posted by abitskeptical on August 27, 2008 at 11:32 a.m. (Suggest removal)

A search warrant is an order signed by a judge that allows police to look in a SPECIFIC place for a SPECIFIC item at a SPECIFIC time.

To get a search warrant, police must persuade a judge that they have "probable cause" to believe they will find evidence of criminal activity in the place to be searched. (It does not count as probable cause to say "Um, we need more evidence of something we are not sure happened")

Police officers do this via an affidavit, an oral or written statement made under oath. In the affidavit, they identify the place to be searched, the reason it is to be searched, & items to be seized.

The seekers of the warrant need to demonstrate probable cause that they will find those items, NOT JUST AN UNCERTAINTY THAT A CRIME DID NOT OCCUR.

Posted by ChrisPia on August 27, 2008 at 11:32 a.m. (Suggest removal)

Did The wife Give Permission to search? Was She a legal resident of the House? If so I don't think they would need a warrant...Common Areas..

Posted by STREETLAW on August 27, 2008 at 11:36 a.m. (Suggest removal)

Wow. If there was ever a potential for a miscarriage of justice. Sloppy police work here, it would seem.

Seems like probable cause might come into play.

I'm giving the coveted Top Comment award to SCHoser on this one.

How about JIMMYCOLDBEERANDIDONTCARE? And I am still thinking about using CLAUDETTCOLDBEER.

Posted by jeff61 on August 27, 2008 at 11:38 a.m. (Suggest removal)

Chris... the wife was dead

Posted by Perspective on August 27, 2008 at 11:46 a.m. (Suggest removal)

A North Charleston detective's affidavit said only that the cause was undetermined "and a search of the residence is required to gather further information as to the cause and origin."

I don't know how much more speific you could be on a warrant to determine the cause of an unknown fire.

Sounds like the defense threw something up hoping it would stick and got lucky.

I bet that is how most fire investigation warrants read.

Too bad the guy is going to get away with murder, but nased on his age he would only get probation anyway. We all know he would not have to abide by his probation ... so what is the point anyway.

So when Thomas gets to the paper today we can hear that the police and prosecutors suck....but maybe Thomas will grace us with how the warrant should have really read under the circumstances.

Posted by ChrisPia on August 27, 2008 at 11:49 a.m. (Suggest removal)

On the day of the fire, North Charleston firefighters arrived at the couple's home on Chantilly Lane to find flames coming from the living room area. They discovered Deborah McCarn alive but unconscious in a rear bedroom.

She was pronounced dead from smoke inhalation at Roper Hospital the next morning. The death came as the couple was involved in divorce proceedings, and she reportedly had expressed a fear of her husband.

My Bad I Thought she was alive longer and Gave a Dying Declaration ?

Posted by Reader on August 27, 2008 at 12:22 p.m. (Suggest removal)

Let me turn the question around: How much LESS could you possibly offer in a search a warrant issued as part of a criminal investigation? Basically, the affidavit said: "We think a warrant is justified."

A search warrant application should give enough information to make the judge think that there is likely going to be incriminating evidence in the house. It should not just announce the detetive's own belief that probable cause exists. Rather, it should give the underlying information that led to that conclusion (and which would hopefully convince a neutral judge of the same thing).

What more could there have been in an arson case? Things like this:
1. The wife had expressed fear that her husband wanted to hurt her
2. The defendant was seen buying chemical accelerants
3. The defendant had just taken out extra insurance on the house
4. The original inspector's report showed a suspicious pattern on the floor

I'm not saying that there was evidence of those things; I'm just offering those as examples of the sorts of things one would expect as evidence of probable cause. Maybe there was evidence of some or all of those things in this case. The point is, though, none of that information was given to the judge.

There are LOTS of things which the judge could have been told. Again, in a criminal investigation, what LESS could it have said?

Posted by GreenvilleGirl on August 27, 2008 at 12:34 p.m. (Suggest removal)

I thought fire/police investigators had to investigate a fire as a possible crime scene in order to determine the cause of the fire/cause of death. What about the rights of the woman who died? It should be within the scope of the law for a judge to sign a warrant, especially if there is information that the woman may have feared for her safety.

Four months until an arrest was made? Not unusual, especially with the toxicology reports that must be processed. We need to refresh our memories as to the length of time that passed after the Sofa Super Store and Ocean Isle, NC beach house fires. It was 6 months/1 year before final reports were issued.

You and I are on the same page, ColdBeer. However, the news article doesn't give us enough information regarding the wording of the warrant to know "who shot who, and who stepped in what".....in other words, unless we can see the warrant, we'll never know.

My issue with this case is that somewhere along the way, a judge signed the warrant. If he(the judge) thought its wording was vague or prejudicial, he wouldn't have signed it. Apparently, he felt the warrant was warranted(no pun intended), especially considering the circumstances surrounding the woman's death. If any incident results in death, doesn't the death itself preclude having to obtain multiple warrants?

Attorneys who defend criminal cases are not always concerned about the guilt or innocence of their clients. They are looking for any errors in the process leading to the arrest. The discovery of errors(aside from an abundance of evidence) can ultimately dictate whether a case goes to trial or is thrown out.

If I was the prosecutor, I'd go back to the judge who signed the warrant, then look for a precedent and file an appeal.

Something is rotten in Denmark, my friends.

Posted by fullmoon on August 27, 2008 at 12:46 p.m. (Suggest removal)

There is a precedent for an appeal by the prosecutor. It is called the "good faith exception" which provides for an exemption to the exclusionary rule. This allows for evidence to be allowed even if the warrant is found invalid.

Posted by mkris on August 27, 2008 at 12:53 p.m. (Suggest removal)

SCPARALEGAL AND PERSPECTIVE:
RE: A North Charleston detective's affidavit said only that the cause was undetermined "and a search of the residence is required to gather further information as to the cause and origin." and
Also, from what I heard, I'm not sure the cops are completely to blame. Yes, they drafted the warrant, but the victim's family was pushing the investigation after they did not agree with the fire department and insurance company finding no evidence of arson. At the time they got the warrant, they did not have any evidence of arson to put in the warrant.

SO... SCPARALEGAL .... was the Magistrate or the Judge that signed the illegal and insufficent Warrant was an idiot or a political hack? The Prosecutors are "number of wins, numbers of losses." Careers rise and fall on wins and losses.
AND PERSPECTIVE ... what part of the affidavit do you find to support "probable cause" that THIS defendant caused THIS fire and that THIS fire was ARSON? All of the quoted affidavit is conclusion or speculation.... not one FACTUAL allegation.

The only two that have come off as good, honest and with any integrety are the Judge who had the GUTS to buck pandering to public sentiment and dismiss and the Defense attorney who advocated zealosly for and acted in the best interest of his client.

Posted by mkris on August 27, 2008 at 12:59 p.m. (Suggest removal)

Full moon, have you taken criminal pro yet? "the good faith exception" is not applicable in this. There were no FACTS IN the affidavit to show ANY probable cause! There was no good faith mistaken belief.

Posted by SCparalegal on August 27, 2008 at 1:01 p.m. (Suggest removal)

Fullmoon --

The judge considered the good faith exception and said it did not apply because the warrant was so insufficient.

As to the wording of the warrant, it IS in the story. "A North Charleston detective's affidavit said only that the cause was undetermined 'and a search of the residence is required to gather further information as to the cause and origin.'"

From what was said in court, that's all the warrant said. The defense attorney argued the need to look for the EXISTENCE of a crime is not probable cause. The judge agreed.

Posted by SCparalegal on August 27, 2008 at 1:22 p.m. (Suggest removal)

mkris --

Trust me. I was not defending the prosecutor or the judge who signed the warrant. My only point was that it may be unfair to say the cop who got the warrant was merely sloppy and left crucial facts out of the warrant. At the time, there was little else he could have put it in, other than the victim's family had suspicions. (I think the paper is wrong in reporting a divorce action had begun. What I heard was she wanted a divorce, but she had not told him that.) From the testimony, SLED (the woman's family had connections to SLED) rushed in at the family's urging, took over the investigation, and encouraged the NCPD to get the warrant. I think its unfair to make the NCPD detective the scapegoat. Thats all.

And yes, the trial judge and defense attorneys should be praised.

Posted by UberBlitzkrieg on August 27, 2008 at 1:43 p.m. (Suggest removal)

The woman was alive and breathing on her own when she was pulled out of the fire by FF's. She never regained consciousness and died later that night (morning) of smoke inhalation complications. She never woke up.

Posted by SCHoser on August 27, 2008 at 1:49 p.m. (Suggest removal)

A shame that we'll never know just exactly what did happen. I just wonder what the search warrant turned up? The story mentioned evidence such as pour patterns and arson dog alert points...

Posted by Perspective on August 27, 2008 at 1:54 p.m. (Suggest removal)

They were not seeking evidence as to the determination if the guy murdered his wife (theoretically). They were seeking to determine the unknown cause/origin of a fire. Don't the courts give fire inspectors the right to do that (via warrants) when no initial evidence of foul play exists. The fire itself should be sufficient for a judge to warrant entry back onto the property to determine its origin.

Maybe they should have attached a little chart to the warrant that showed a fire needs, Fuel, Oxygen, and an Ignition Source. You can't have a fire without all three and not knowing what the three components were should be probable cause to search for them. Probable cause - Rarely do things burst into flames by themselves.

The defense attorney got lucky and I hope that it is appealed. I think they stand a chance in a higher court.

Posted by fullmoon on August 27, 2008 at 2:05 p.m. (Suggest removal)

Thank you SCparalegal. There are exceptions to the good faith exception and one of them is a lack of probable cause being stated.

I would like to to know what did the entire warrant affidavit state and was there additional information about the case provided to the issuing judge?

Posted by SCparalegal on August 27, 2008 at 2:13 p.m. (Suggest removal)

(No)Perspective --

Read the last paragraph of the story and my posts above. The fire department HAD investigated the scene and found nothing. If the existence of a fire itself justified a warrant there would be no need for the warrant (hard to imagine a disagreement about whether a fire occurred, resolved by a warrant) and authorities could break down doors, enter homes, any time of day or night, no matter how far removed from the fire. (the search here was two weeks later, and not by the fire dept. but by cops) One of the last things the judge said is that there is no exception to the warrant requirement for fires.

Thus,if you think "the fire itself should be sufficient for a judge to warrant entry back onto the property to determine its origin" you need to find your way to the Supreme Court or move to China.

The only thing the defense was lucky about, as are we all, is that your "papers please perspective" is not the law.

Posted by mkris on August 27, 2008 at 4 p.m. (Suggest removal)

There is no exception to the "good faith exception." The "good faith exception" IS the exception to the Constituional 4th amendment rule that cops need a search warrant based upon probable cause made out by affirmation, testimony under oath or affidavit.
Two weeks later and a warrant is necessary. The Cops had no exigent circumstance that required immediate attention nor did the Cops not reasonably know they did not know a warrant was necessary. Simply this was shoddy police work by an investigative detective or cop that needs to be re-trained.

SCparalegal, who was the issuing judge?

Posted by abitskeptical on August 27, 2008 at 4:15 p.m. (Suggest removal)

GreenvilleGirl said: "If he(the judge) thought its wording was vague or prejudicial, he wouldn't have signed it."

I believe you presume too much.

Unfortunately those things which should serve as checks & balances in this system are given lip service only, all too often.

The trial judge in this case called it out this time.

Posted by SCparalegal on August 27, 2008 at 4:21 p.m. (Suggest removal)

"SCparalegal, who was the issuing judge?"

I don't know. If that came up i didn't hear. Sorry.

Posted by Perspective on August 27, 2008 at 5:03 p.m. (Suggest removal)

SCParalegal

What I love is you saying "What I heard..."

I am glad that you make such good arguments and condemn those who are only trying to do good in their respective jobs. You must work for one of the local "conspiracy theory" lawyers. The police, prosecutors, and victims are always in it together. Thanks for all you do ...

Posted by NewBreed on August 27, 2008 at 7:19 p.m. (Suggest removal)

....Maybe the wife did it as a setup and got caught up in the aftermath..

Posted by SCparalegal on August 27, 2008 at 7:23 p.m. (Suggest removal)

(No)Perspective --

When I write "what I heard" I mean that literally, meaning what was said in my presence during the hearing, not what you might mean, repeating what you "heard" listening to Nancy Grace, Rush Limbaugh, Big and Rich, daytime soaps, etc. I was there. Were you? Dumb ass.

Posted by Perspective on August 27, 2008 at 8:02 p.m. (Suggest removal)

SCbablelegal

Whatever. Don't try and cover the "hearsay" babble now.

Didn't they cover Hearsay in the Sally Struthers paralegal mail-in course or was that in the advanced module?

ps: I like your answer to mkris earlier that you didn't hear who the issuing judge was "if it came up". Yep, "if it came up". Wow, what would be the chances of that? - it not coming up. That is almost comical. An arson case gets tossed because a judge signed a warrant that lacked probable cause, yet according to you there is a chance that the judge wasn't even named ("if it came up"). Yep, you were there alright - we all believe you.

Now that we have exchanged insults lets move on. I am sure you are good at what you do and are certainly entitled to your opinions.

Posted by SCparalegal on August 27, 2008 at 8:19 p.m. (Suggest removal)

(No)Perspective --

What I heard firsthand isn't hearsay, which is the point of my last post. (learn what terms mean before you throw them around) And, no, the name of the judge who signed the warrant is nowhere in the documents filed with the court. I checked. And if it was repeated in court, I didn't hear it. Because, you see, who signed it was not at all relevant, only what it said. (Don't you think the P&C would've reported who signed the faulty warrant if that were made an issue?) Now, get back to your Laverne and Shirley reruns and leave the dialog to the rest of us.

Posted by abitskeptical on August 27, 2008 at 8:52 p.m. (Suggest removal)

It is indeed very likely that naming out loud in open court the name of the judge signing the warrant that the trial judge just deemed as insufficient would not happen.

Of course it is part of the record, but one judge is not going to make a big open flap about the "failings" of another judge in that type of forum if it can be avoided.

Posted by abitskeptical on August 27, 2008 at 9:04 p.m. (Suggest removal)

Perspective...

The point is this:
Search warrants are for gathering specific evidence when there is probable cause that a crime occurred--not just a method for general evidence gathering to see what happened. The law & Constitution are very specific as to why limits are put on search warrants.

Posted by mkris on August 27, 2008 at 11:55 p.m. (Suggest removal)

Hey zeuscristos... That was funny.