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Search Warrants:

Our law demands that searches and seizures of property and people must be reasonable and based on probable cause, not mere suspicion. Actually, the 4th Amendment is pretty specific, stating that no warrant shall issue without probable cause. Therefore, when the police need to cross the line to invade a person’s reasonable expectation of privacy they must have a properly signed search warrant in hand.

A search warrant is actually the combination of three documents—an affidavit, the warrant itself, and a return of service.

The affidavit for a search warrant is the portion of the warrant stating the facts (probable cause) as to why permission to search a particular place, or person, should be allowed.

Affidavit for search warrant

In other words, the affidavit sets the grounds for issuing the warrant portion of the document. An officer must state (under oath) that the facts provided in an affidavit are the truth.

The four corners of a warrant refer to the actual paper itself and to everything written within the physical “4 corners” of the document. If a statement, fact, etc. is not included within the affidavit, the information may not be considered as part of the probable cause for issuing the warrant.

The search warrant is basically a court order to search a specific place for a specific item(s).

Search warrant

The “return” is simply the portion of the document (copies of the affidavit, the search warrant, the inventory list of items seized, and the official portion of the document stating the time and place of service and the signature of the serving officer.

Inventory and return

Probable cause is present “where the facts and circumstances presented would warrant a man of reasonable caution to believe that the items sought to be seized were in the stated place.”

To determine whether or not to issue a search warrant, a magistrate/judge only needs to ask himself/herself one question. Would a reasonably cautious person conclude that there was a “substantial basis” for the finding of probable cause? If the answer to the question is “yes,” then he/she may issue the warrant.

Information presented as probable cause must be current information that exists at the time the request is made for the warrant. For example, an officer may not request a search warrant based on activity she observed 30 days in the past.

Say NO to Those Anonymous Tips!!

Hearsay evidence may not be used to obtain a search warrant. I see this used all the time in books—the officer receives an anonymous tip regarding evidence hidden in a car or home, so the cop drives over and starts searching based on the tip. Doing so would definitely be an illegal search.

In addition, a search warrant would not, nor could it be issued based on “anonymous tip” we so often read about in some novels. Even when using information provided by an informant, officers must first establish the informant’s credibility. Has he supplied reliable information in the past? If so, how many times? Have the details of his information been verified by reliable sources, such as another police officer or person in good standing?

What information is needed within the 4 corners of the documents?

1. Place to be searched. The description of a location must be so precise that it would rule out any other place.

2. Person to be searched. Again, the warrant must be specific as to which persons are to be searched. Having a search warrant in hand does not allow a “search everyone” free-for-all for officers. However, officers may, for their safety, “pat down” everyone in the area. This is a search for weapons only.

3. Property to be seized. Once again, the warrant must be specific, and an officer’s search must be limited to searching for the items listed within the 4 corners of the warrant.

For example, if the warrant directs officers to search for a stolen refrigerator, then he may not search dresser drawers in the bedroom. Obviously, something as large as a refrigerator could not be concealed in a small drawer. However, if the officers are looking for a stolen diamond ring, then they may search anywhere within the house where a tiny ring could be hidden. Officers may seize any other illegal items found during the search, such as illegal narcotics.

In most instances, officers are required to “knock and announce” their presence when serving a search warrant. This means they don’t kick in the doors like you see on TV. Not at first, anyway. If the suspect does not answer the door within a reasonable amount of time (there is no set timeline, merely what the officer feels is reasonable at the time), then the door may be breached by whatever means is necessary to ensure the safety of the officers and to protect and preserve the evidence. Also, warrants are normally required to be served during daytime hours unless otherwise stated on the warrant (day or night).

When safety is at risk, officers may ask the judge/magistrate to issue a “No Knock” warrant, which allows them to break and enter the residence, hoping to catch the suspect(s) off guard. This is normally done when it’s suspected that the crooks are armed, or that they may destroy evidence before the officers could gain entry by first knocking and announcing their presence.

 

We’ve discussed the issue of probable cause (PC) many times, and we all know it’s one of the very few things that remains consistent in law enforcement. PC is a “gotta have it” sort of thing when making certain arrests and obtaining search warrants.

One more time – Probable Cause is the existence of facts (not mere suspicion) that will satisfy an officer of ordinary caution that a crime has been, or is being committed … and the item to be searched for is reasonably connected to the crime in question. Oh, and that evidence of the crime can be found at/in a certain place (PC for a search warrant).

Okay, with that reminder in place, let’s take a look at a few more rules regarding search and seizure.

1) Information used to obtain a search warrant absolutely must be current information. “Stale” information is not a valid basis for a search—evidence could have been moved, suspects might have moved on, other people may now be inside the residence, etc.

2) An informant’s name need not be revealed in the body of the search warrant or affidavit. That’s sort of why they call them “confidential” informants.

3) Search warrants must be served (executed) promptly. Not a week or two after the judge signs it. Actually, delays of three or four days have rendered searches unreasonable in the eyes of the courts.

Search Warrant Execution – No Knock

4) Police officers must knock and announce their presence when serving a search warrant. However, there’s no written rule/law that states a required amount of wait time before using a battering ram to gain entry. But, a good rule of thumb is to wait a few seconds, long enough for a reasonable person to open the door. Any longer allows the suspect enough time to destroy evidence.

5) Officers may obtain “no knock” warrants if there’s a threat of danger to officers should they knock and announce their presence. Also, warrants must be served during daytime hours unless otherwise specified on the warrant.

6) The law says that officers may damage private property while entering, as long as the damage was necessary under the circumstances (breaking doors and windows, etc.). And guess who’s stuck with the bill? Yep, the suspect. However, some jurisdictions have policies in place that require the municipality to cover the cost of repairs.

7) Members of the media should not be allowed to accompany officers into a private home during the execution of a search warrant.

8) Officers do not need a search warrant when conducting a search of a suspect’s personal property during the booking process at the jail. This includes any closed container found in the suspect’s pockets.

9) Officers must limit their searches of electronic devices to only the files named on the search warrant.

Sergeant Search

10) Evidence seized during an improper search may not be used during criminal proceedings. However, if the officer relies on a warrant issued by the court that was later found to be accidentally inaccurate (at no fault of the officer), it is possible that a court would allow the evidence to be introduced.

11) Evidence seized in violation of the 4th Amendment (protection against illegal search and seizure) may not be used in criminal trials. However, that very same evidence may be, and is, used in other court proceedings, such as parole violations/revocations.

12) It’s Probable Cause, NOT Probably Cause. Yes, I see and hear this (probably cause) quite often.