Judge tosses evidence because search warrant had typo

Tuesday , January 08, 2013 - 1:20 PM

Jamie Satterfield

KNOXVILLE, Tenn. — An apparent typographical error on a search warrant led a judge to bar prosecutors from using any evidence seized in the raid.

Don Wiser, owner of a driving school, is accused of offering certificates for cash. He denies the allegation and says he is being unfairly targeted by the Knox County Sheriff’s Office, which also operates a driving school.

Defense attorney Bob Jolley pointed out a fatal mistake in a search warrant used by the sheriff’s office to raid Wiser’s business -- a wrong date.

The raid was carried out April 14, 2012, but the search warrant application lists the year as 2011.

Assistant District Attorney General Sarah Winningham Keith noted there are other notations on the search warrant that clearly indicate it was issued in 2012.

Knox County Criminal Court Judge Steve Sword agreed that “reading between the lines, I believe this was a typo.” But he said Monday, state law left him no choice but to toss the search warrant as legally flawed.

“That ... does not save this warrant,” Sword said.

Tennessee does not recognize a legal concept followed in the federal system and in other states known as the “good faith exception.” Under that proviso, if an officer has no cause to believe the warrant he or she is executing is flawed, thereby acting in “good faith,” the fruits of that search can still be used.

In Wiser’s case, the search warrant on its face shows -- typo or not -- the information used to justify the raid was obtained a year before it was served. That makes the information too “stale” under state law to justify the search.

The sheriff’s office raided Wiser’s business after the agency said it twice sent undercover agents to the school. Those agents walked out with documents attesting they had attended a 16-hour course when they had only spent two hours in class, the sheriff’s office alleged.

Wiser, who retired from the Knoxville Police Department in 1991 after 23 years, contends he is being railroaded because his school competes with one operated by the sheriff’s office and because he plans to run against Sheriff Jimmy Jones in 2014. Jones denies the assertion.

People convicted in state court of driving offenses are often ordered to attend driving schools as part of their punishment and must pay a hefty fee to do so.

(Contact Jamie Satterfield of The Knoxville News Sentinel in Tennessee at satterfieldjknoxnews.com)

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