James Miley has been indicted for murder, rape, aggravated battery, and kidnapping with bodily injury, and the State has given notice of its intent to seek the death penalty. This Court granted Miley’s application for interim appellate review and directed the parties to address the following question: Did the trial court err by denying Miley’s motion to suppress regarding the warrant to search Miley’s house For the reasons set forth below, this Court concludes that the trial court erred regarding the search warrant and remands the case to that court for further proceedings consistent with this opinion. Upon learning of the disappearance of Ashley Neves, police began searching for her and requested that anyone who had seen her prior to her disappearance contact them. Shortly after Ms. Neves’s body was found on May 21, 2000, Detective Herb Scott received information that Miley was at the police station. Detective Scott, believing Miley to be of interest, went to the station to interview him. During this interview, Detective Scott asked Miley if he could accompany Miley to Miley’s bedroom to retrieve a book bag that a witness had seen Miley wearing near the crime scene. Miley agreed to the request, but refused to sign a consent form. Detective Scott was unwilling to retrieve the book bag without Miley’s written consent. Once Miley left the station, Detective Scott prepared an affidavit, presented it to a magistrate without providing any oral testimony, and obtained a warrant to search a residence located at a specified address.
The affidavit presented to the magistrate stated the following: James Christopher Miley ws sic identified as the person who wa sic last seen with the victim on 5-20-00, at the place of her death. The person who killed the victim, Ashley Nicole Neeves sic, removed some of her clothing from the scene. When I asked the subject, Mr. Miley, to sign a consent form so I could enter his house and retrieve his book bag, he refused. It is known that the subject had a book bag with him in the area of the murder. Mr. Miley was willing to bring a book bag out of the house, but not to let me accompany him inside to look at the bag. The affidavit also stated that the date of Ms. Neves’s murder was “5-20-00.” Miley argued to the trial court that the affidavit did not show probable cause to search his house.
