Search warrant Writing an Affidavit

Composition of a Search Warrant Composition of a Search Warrant:  A search warrant comes in three parts: The Warrant itself. The Affidavit to the Search Warrant. The Receipt and Inventory (or "Return").

The Warrant Itself First:  The warrant itself, signed by a magistrate, directing a peace officer to search a "particular" person, place or vehicle, for a "particular" person, thing, or list of property.

Contents Contents: The search warrant must include the following: The name of every person whose affidavit has been taken. The statutory grounds for issuance. (Note: The Crime) A description with reasonable particularity of the persons, places and vehicles to be searched. A description with reasonable particularity of the persons, things or property to be seized.

Contents A warrant that fails to include a list of the things to be seized, at least where the list is not in an affidavit or other attachment that is incorporated by reference and which then accompanies the warrant to the scene of the search, is "facially deficient," and in violation of the Fourth Amendment.  (Groh v. Ramirez (2004) 540 U.S. 551 [157 L.Ed.2nd1068].)

Contents Authorization for a nighttime search (if necessary; see P.C § 1533). The signature of the magistrate. The date issued.

Contents Failure to list the property to be seized, or at the least a reference to, and incorporation of, a list of the property, is a Fourth Amendment violation, and constitutes a defect the officers writing the warrant, and/or supervising the search, should have been aware of.   (Ramirez v. Butte-Silver Bow County (9th Cir. 2002) 298 F.3rd 1022; finding that the affiant and supervising ATF agent did not have qualified immunity from civil liability in a civil suit for failing to list the property to be seized on the face of the warrant.)

Contents And see United States v. Celestine (9th Cir. 2003) 324 F.3rd 1095, describing "the policies that underlie the warrant requirement; providing the property owner assurance of the lawful authority of the executing officer, his need to search, and the limits of his power to search."

Statutory Grounds for Issuance (1)    When the property to be seized was stolen or embezzled.  (Note:  Includes misdemeanors.) (2)    When the property or things to be seized were used as the means of committing a felony. (3)    When the property or things to be seized are in the possession of any person with the intent to use it as a means of committing a public offense (including misdemeanors), or in the possession of another to whom he may have delivered it for the purpose of concealing it or preventing them from being discovered. (4)    When the property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony. (5)    When the property or things to be seized consists of evidence which tends to show that sexual exploitation of a child), or possession of matter depicting sexual conduct of a person under the age of 18 years, has occurred or is occurring. 

Statutory Grounds for Issuance (6) When there is a warrant to arrest a person. (7) When a provider of an electronic communication service or remote computing service has records or evidence, as specified in, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery.

Statutory Grounds for Issuance It is irrelevant that a peace officer lists an incorrect charged offense, justifying the issuance of the warrant, so long as there is some legal grounds for the issuance of the warrant under some statute.  (United States v. Meek (2004) 366 F.3rd 705, 713-714; A "statutory variance in the affidavit is not fatal to the warrant's validity.") The failure of the warrant to include a copy of the court's official seal, if a violation at all (28 U.S.C. § 1691), is merely a technical violation and will not result in a finding that the warrant is legally insufficient.  (United States v. Smith(9th Cir. 2005) 424 F.3rd 992, 1008.)

Statutory Grounds for Issuance It is irrelevant that a peace officer lists an incorrect charged offense, justifying the issuance of the warrant, so long as there is some legal grounds for the issuance of the warrant under some statute.  (United States v. Meek (2004) 366 F.3rd 705, 713-714; A "statutory variance in the affidavit is not fatal to the warrant's validity.") The failure of the warrant to include a copy of the court's official seal, if a violation at all (28 U.S.C. § 1691), is merely a technical violation and will not result in a finding that the warrant is legally insufficient.  (United States v. Smith(9th Cir. 2005) 424 F.3rd 992, 1008.)

The Affidavit to the Search Warrant Defined:  A sworn statement, sworn to by the affiant, describing the "probable cause" to search a particular person, place, or vehicle for a particular person, thing, or list of property.  

Probable Cause "Probable Cause:"  In evaluating the sufficiency of a warrant affidavit; "The task of the issuing magistrate is simply to make a practical common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity' and ‘basis of knowledge' of the persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place."  (Emphasis added; Illinois v. Gates (1983) 462 U.S.

VERACITY Defined: 1. devotion to the truth : truthfulness 2. power of conveying or perceiving truth 3. conformity with truth or fact : accuracy

Gates "totality of the circumstances" test "‘In determining whether an affidavit is supported by probable cause, the magistrate must make a "practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." [Citation]  The sufficiency of the affidavit must be evaluated in light of the totality of the circumstances.  [Citation].'" 

Probable Cause Probable cause must be shown for each of the items listed in the warrant as property to be seized, justifying its seizure.  (People v. Frank (1985) 38 Cal.3rd 711, 726-728.) Probable cause showing a sufficient "nexus" between the evidence to be seized and the place to be searched must also be established.  (People v. Garcia (2003) 111 Cal.App.4th 715, 721.)

Probable Cause The fact that the person whose property (i.e., a computer in this case) is seized and searched is not at that time subject to arrest (i.e., no probable cause) does not mean that the seizure and search of that property is not lawful.  (United States v. Adjani (9th Cir. 2006) 452 F.3rd 1140, 1146-1147.) A warrant that establishes probable cause to search a vehicle for items missing from a possible homicide victim's residence will necessarily also allow for the seizure of that vehicle for later examination at a police lab, and to search the vehicle for trace evidence related to the missing items, even if the seizure of the car and the search for trace evidence is not specifically mentioned in the warrant.   (People v. Superior Court [Nasmeh] (2007) 151 Cal.App.4th85, 94-98.)

Probable Cause A physical description, with "reasonable particularity," of the persons, things or property to be seized. A detailed statement of the expertise (i.e., training and experience) of the affiant. A chronological narrative and factual (as opposed to conclusionary) description of the circumstances substantiating the officer's conclusion that probable cause for a search exists. This would include: Facts showing the commission of a crime (or crimes); Facts connecting the listed suspect(s) to the crime(s); Facts connecting the suspect(s) to the location(s), vehicle(s), and/or person(s) to be searched; Facts connecting the property to be seized to the location(s), vehicle(s), and/or person(s) to be searched; Facts describing how the descriptions were obtained. The facts as described in the search warrant affidavit making up the "probable cause" for issuance of a warrant must be attested to by the affiant as the truth.  Failing to do so may invalidate the warrant.  See