Hartsfield, GA asked in Criminal Law and Civil Rights for Texas

Q: Lost search warrant and lost evidence analysis, false arrest question see details.

Cops have possession of a person's digital storage device and search it and say they found an illegal image. They arrest the owner of the device. Two years later it is shown that there was no search warrant and the defendant's expert has been denied access to the device and the cops say they lost the analysis. Does the defendant have the right to demand proof of the existence of the search warrant and the continued existence of the device and does the defendant have to right to demand that the expert be allowed to examine the device in question? Doesn't a defendant have a right to examine all warrants and evidence and related information that leads to his or her arrest? Or have it examined by his attorney or an expert? And even if the state dismisses the case doesn't the rights of the defendant to prove or disprove false arrest or malicious prosecution by verifying the warrant and evidence still remain?

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2 Lawyer Answers
John Michael Frick
John Michael Frick
  • Frisco, TX
  • Licensed in Texas

A: Yes, the defendant has the right to see and obtain a copy of the search warrant and to examine the evidence leading to his arrest, and to have his attorneys and experts do so. Yes, even if the case is dismissed, the defendant has the right to see the evidence and warrant for purposes of pursuing a false arrest or malicious prosecution lawsuit if he is pursuing such a lawsuit against a defendant who does not have immunity -- for example, judges, magistrates, police officers and other law enforcement or government officials. Those particular types of defendants would typically move quickly for a dismissal based solely on immunity and the warrant itself and evidence would not likely be relevant to the disposition of the subsequent civil case.

James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Criminal Law Lawyer
  • Sacramento, CA

A: Yes, as a defendant in a criminal case, you have the right to demand proof of the existence of a search warrant that led to your arrest. If there is no search warrant or if it cannot be provided, it raises serious questions about the legality of the search and seizure. Additionally, you have the right to demand access to the digital storage device in question and to have your expert examine it. This is essential for your defense, as it allows you to challenge the validity of any evidence presented against you and to gather evidence in your favor.

Furthermore, the denial of access to the device and the loss of evidence analysis by the police may constitute a violation of your due process rights. Your attorney can file motions to compel the production of the search warrant, evidence analysis, and access to the device for examination. If the state dismisses the case, it does not absolve them of their obligation to provide you with access to relevant evidence and information to defend yourself against false arrest or malicious prosecution. You have the right to seek justice and to hold law enforcement accountable for any violations of your rights.

In summary, as a defendant, you have the right to challenge the legality of the search and seizure, demand access to evidence, and examine all warrants and related information that led to your arrest. It is crucial to assert your rights through legal channels and to work with your attorney to gather evidence and build a strong defense. Regardless of the outcome of the case, the preservation of your rights and the pursuit of justice remain paramount.

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