Search Warrants

1. Search Warrants Charles L. Feer, JD, MPA Bakersfield College Department of Criminal Justice

2. Search Warrants • Learning Outcomes • Reasons why searches under warrants are preferable to warrantless searches. • The affidavit of probable cause, including the standard of proof needed and the requirements that information be fresh, factual and reliable. • The “particularity” requirement as to the place to be searched and the things to be seized. • When police officers may lawfully secure the premises while seeking a warrant. • Execution of the warrant, including knock-notice rules and procedure, excused non-compliance and effects of unexcused non-compliance. Investigative Constitutional Law

3. Search Warrants • Learning Outcomes(Continued) • Scope of activities incident to execution of a search warrant. • Return of the warrant and administrative requirements. • Special warrants, including anticipatory warrants, “sneek-and-peek” warrants, “Steagald warrants,” and administrative warrants. • Civil liability for unlawful execution. Investigative Constitutional Law

4. Search Warrants • Preference For Warrants • Because the law has a preference for searches conducted by judicial warrant, such searches are presumptively reasonable, whereas the opposite is true of warrantless searches. • If officers search without a warrant, the burden is on the government to justify the search under one or more of the recognized exceptions (Katz v. US). • A prudent rule-of-thumb for officers in non-emergency cases, therefore, is to seek a search warrant, if at all possible. Investigative Constitutional Law

5. Search Warrants • Components • A search warrant is simply a court order to law enforcement officers, commanding them to search a particular place for particular property, to seize it if found, and return it to the court. • A warrant may contain an authorization for night service or for no-knock entry, a deadline for service and return,and the signature and title of the issuing magistrate. Investigative Constitutional Law

6. Search Warrants • Components(Continued) • The standard components of a search warrant package are: • the warrant, • the affidavit in support of the warrant, • ancillary court orders, • receipt for seized property, • and the search warrant return. Investigative Constitutional Law

7. Search Warrants • Affidavit of Probable Cause • Whereas a warrant form may be a combination check-box and “fill in the blank” form that is easily completed, the affidavit must essentially be composed “from scratch.” • The affidavit for most crimes will contain similar narrative portions that establish probable cause for the search: • a brief description of the crimes under investigation; • an account of the relevant steps in the investigation to date; • a synopsis of the affiant’s training and experience, if relevant to the PC; Investigative Constitutional Law

8. Search Warrants • Affidavit of Probable Cause (Continued) • statements of eyewitnesses; • statements of informants, the basis of their knowledge and the reasons why they are credible; • results of tests on trace evidence; • and any statements of the suspect or any accomplices. Investigative Constitutional Law

9. Search Warrants • Affidavit of Probable Cause (Continued) • The Supreme Court has expounded on the requirements of the affidavit in several areas. • The “Fair Probability” Standard • The probable cause standard for a search warrant affidavit is a “fair probability” of locating contraband or evidence, based on the totality of circumstances set forth in the affidavit, including “innocent” actions of the suspect. • Reliability • an officer preparing a search warrant affidavit must show the basis of every informant’s reported knowledge and the reasons to believe the informant is a credible, reliable witness. Investigative Constitutional Law

10. Search Warrants • Affidavit of Probable Cause (Continued) • Staleness • to avoid problems of staleness which can invalidate the warrant, affiant officers must show when events set forth in the affidavit occurred, and the warrant must be promptly served, before any material changes in the PC occur. • Misstatements and Omissions • Search warrant affidavits must not contain deliberate errors or omissions of fact that would make a difference in the magistrate’s finding of probable cause. Investigative Constitutional Law

11. Search Warrants • The Warrant • Although most of the complexity of the search warrant process lies in the proper composition of the affidavit, there are certain technical points to the proper completion of the warrant itself, as well. • Errors in the preparation of the warrant form may mean that the warrant fails to comply with the Fourth Amendment, tainting evidence seized under it and subjecting the serving officers to potential civil liability. Investigative Constitutional Law

12. Search Warrants • The Warrant • Particularity of the Place to be Searched • By its terms, the Fourth Amendment requires that a search warrant not be a broad license for general rummaging to see what turns up. The Amendment says that the warrant must “particularly describe” the places to be searched. • The test for whether the warrant is specific enough as to the description of the place to be searched is to ask whether any officer, not previously acquainted with the investigation or the place to be searched, could be handed the warrant and go to the correct place to serve it, just by reading the description of the location set forth on the warrant. Investigative Constitutional Law

13. Search Warrants • The Warrant (Continued) • Particularity of the Items to be Seized • Just as with the places to be searched, the items to be seized must also be listed or categorized with particularity; otherwise, the search is unreasonable. • Not only does the particularizing of the items to be seized prevent general searches, it also prohibits warrants that are “overbroad.” Problems of over-breadth occur when a warrant authorizes the seizure of evidence for which there is no PC. Investigative Constitutional Law

14. Search Warrants • The Warrant (Continued) • Incorporating the Affidavit • Sometimes, the premises description may take several pages (as when multiple locations are to be searched). • In order to satisfy particularity as to lengthy descriptions, attachments and affidavits can be incorporated into the warrant by reference there, but must be expressly referred to and must be attached to the warrant. Investigative Constitutional Law

15. Search Warrants • The Warrant (Continued) • Issuance by Neutral Magistrate • Occasionally, judges and magistrates become too helpful to law enforcement officers seeking search warrants and depart from the neutrality required of them. • The actual investigation establishing the PC must be completed by law enforcement officers, and the warrant must be served by them, as well. • Magistrates who issue search warrants must not become involved in their execution with the police. Investigative Constitutional Law

16. Search Warrants • Securing the Premises • If there is reason to believe that the occupants of target premises have become aware that police are seeking a search warrant and may destroy evidence or contraband before officers can obtain and serve the warrant, an entry to secure the premises to prevent the imminent destruction of evidence is not unreasonable. • The mere fact that a warrant is being sought does not permit a routine entry to be secure. Entry may be made if reasonably necessary to prevent imminent destruction of the evidence while a warrant is being obtained. Investigative Constitutional Law

17. Search Warrants • Execution of the Warrant • Assuming a valid search warrant is obtained from a neutral magistrate, it must still be executed in a reasonable manner in order to comply with the Fourth Amendment. A number of issues related to the proper service of search warrants have been considered by the Supreme Court. • Knowledge of Serving Officers: all officers involved in serving a search warrant should know the scope of search authorized by the warrant. • Time of Service: Search warrants must be served at a time that is reasonable, given the nature of the criminal activity under investigation, the nature of the suspected evidence, and the circumstances confronting serving officers when entry is made. Investigative Constitutional Law

18. Search Warrants • Execution of the Warrant (Continued) • Knock and Announce: Knock-notice serves to protect against violent reactions to the surprise of forcible entry, and against unnecessary property destruction and invasions of personal privacy and dignity. • Giving Notice, • Stating Identity, • Stating Purpose and Authority, • Waiting to be Admitted, (Reasonable Time) • Excused Non-Compliance, • and Effect of Non-Compliance. Investigative Constitutional Law

19. Search Warrants • Execution of the Warrant (Continued) • Showing the Warrant: although it is not constitutionally required that an occupant be shown the search warrant at the beginning of the search, there are practical reasons for doing so. • Detention of Occupants: Occupants of the premises where a search warrant is being served may be detained in a reasonable manner and for a reasonable time while the search is completed. • Search of Occupants: Unless authorized by the search warrant, persons present on the premises cannot be searched without independent justification. Investigative Constitutional Law

20. Search Warrants • Execution of the Warrant (Continued) • Occupant “Standing:” Overnight Guests are protected by the Fourth Amendment as to entry and search of their hosts’ homes; Casual Visitors are not. • Scope of Search: The scope of a search under a warrant is defined by the places authorized to be searched and the things authorized to be seized. • Plain View Seizures: Evidence or contraband not mentioned in the warrant may be seized under the plain view doctrine, if immediately recognizable. Investigative Constitutional Law

21. Search Warrants • Execution of the Warrant (Continued) • Arrest and Incidental Search: Officers serving search warrants may extend their search to the person of any individual lawfully arrested on the premises. (Search Incident to Arrest) • Receipt or Inventory of Seized Items: Property taken under a search warrant should be listed in an inventory or receipt furnished to occupants of the searched premises. Investigative Constitutional Law

22. Search Warrants • Return of the Warrant • Though not constitutionally provided, a return of the warrant is normally prescribed by statutes. • To comply, the affiant officer typically completes a local form for return of search warrants, informing the magistrate of the date and time of service and the results, and attaching both the original search warrant and a complete inventory of seized property. Investigative Constitutional Law

23. Search Warrants • Special Warrants • Although many of the warrants in cases will follow a similar pattern, there are also some special warrants with unusual features and considerations. • Anticipatory Warrants: anticipatory search warrants can be obtained based on PC that a specified triggering event will occur and will indicate the presence of evidence or contraband. • “Sneek-and-Peek” Warrants: “Sneak-and-peek” search warrants allow entry for investigation, but do not authorize the seizure of property. Investigative Constitutional Law

24. Search Warrants • Special Warrants (Continued) • Administrative Warrants: administrative inspectors must obtain an administrative search warrant for non-emergency, non-consensual, non-forcible entry into private premises for health and safety inspections. • “Steagald” Warrants: To search for a person named in an outstanding arrest warrant in another’s home, police must obtain a “Steagald search warrant” for the third party’s home, unless the third party consents to entry and search, or exigent circumstances justify immediate entry. • Computer and Video Warrants: When officers apply for warrants to search for and seize electronic storage devices, they should also request authorization to examine their contents for evidence or contraband. Investigative Constitutional Law

25. Search Warrants • Special Warrants (Continued) • First Amendment Materials: Affidavits in support of warrants to search for and seize and examine materials implicating the First Amendment will be subjected to heightened judicial scrutiny for probable cause and narrow scope of activity. Investigative Constitutional Law

26. Search Warrants • Civil Liability for Unlawful Execution • A search conducted under an invalid warrant (and absent a good-faith excuse), or a search with a valid warrant but conducted in an unreasonable manner, will violate the Fourth Amendment, potentially rendering evidence inadmissible and subjecting officers and their agencies to civil suit. • It is unconstitutional to allow third parties to accompany officers during the service of a search warrant when they are not there to assist with the search. (News Media). Investigative Constitutional Law