Criminal Procedure for the Criminal Justice Professional 11 th Edition John N. Ferdico Henry F. Fradella Christopher Totten Prepared by Tony Wolusky Criminal Investigatory Search Warrants Chapter 4

Search Warrants The law governing search warrants is based on guarantees in the Fourth Amendment to the U.S. Constitution The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. --U.S. Const., Amend. 4.

What is a Search Warrant? A search warrant is 1. An order in writing 2. Issued by a proper judicial authority 3. In the name of the people 4. Directed to a law enforcement officer 5. Commanding the officer to search for certain personal property 6. Commanding the officer to bring that property before the judicial authority named in the warrant

Applying for Search Warrants

Who May Issue Search Warrants An issuing magistrate for a search warrant must be neutral, detached, and capable of determining whether probable cause exists for the requested search.

Grounds for Issuing Search Warrants Magistrates must have probable cause to believe that items subject to seizure are in a particular place or on a particular person at the time of the issuance of the warrant. The affiant tries to establish probable cause in an affidavit. Warrants must describe with particularity "the place to be searched and the persons or things to be seized."

Items Subject to Seizure The types of property allowed to be seized under a search warrant are: Evidence of a crime Contraband Fruits of crime Other items illegally possessed Instrumentalities of crime A person to be arrested A person who is unlawfully restrained

Anticipatory Search Warrants An anticipatory search warrant is a search warrant based on probable cause that evidence relating to a certain crime will be at a specific place in the future. They are valid only if:  There is probable cause to believe that contraband will be found if a specific triggering event occurs, and  There is probable cause to believe that the triggering condition will, in fact, occur.

Content of Search Warrants Most search warrants contain the following: Caption/division of the issuing court Particular description of the place or person to be searched Particular description of the property to be seized Names of persons who gave supporting affidavits Statement of grounds for issuance of the warrant Name/class of officer(s) to whom the warrant is directed A command to search the person/place named for the property specified When the search may be conducted (day/night) Name of the judicial officer to whom the warrant is to be returned Date of issuance Signature of the issuing magistrate

Constitutionally Defective Warrants

Material Misrepresentations and Omissions If a law enforcement officer knowingly and intentionally, or with reckless disregard for the truth, makes false statements or material omissions in an affidavit supporting a request for a search warrant, the warrant may not be lawfully issued. If the warrant does issue, evidence seized under the warrant may be suppressed by application of the Exclusionary Rule in a procedure known as a Franks hearing.

Franks Hearing Evidence seized under the warrant may be suppressed through the exclusionary rule in a procedure known as a Franks hearing (named after Franks v. Delaware [1978]) Allegation of falsity is insignificant to trigger a Franks hearing. Rather, the defendant must make a prima facie showing that the affiant's statement was deliberately false or demonstrated reckless disregard for the truth. Burden of proof is initially on the defendant. Offending material will be severed (stricken) from the warrant.

Severability of Search Warrants Severance of search warrants invalidates portions of a warrant that are constitutionally insufficient for lack of probable cause or particularity and preserves the portions that satisfy the Fourth Amendment. The remaining parts may still satisfy the probable cause requirement and allow the search to continue.

Executing Search Warrants

Who May Execute a Search Warrant A search warrant is directed to a particular officer or class of officers. Usually, only the named officer or a member of the named class of officers may execute or serve the warrant. Normally, the named officer must be personally present at the search. If a warrant is directed to a sheriff, a deputy may execute the warrant and the sheriff need not be present. There are a narrow set of circumstances in which a search warrant may be executed by a civilian even outside the presence of a police officer.

Time Considerations Officers must conduct the search within a reasonable time after the warrant’s issuance and within any time period specified by law or court rule. Avoid going stale. Generally, warrants must be executed during the day; nighttime searches should be authorized by the court. The length of time for the search must be reasonable. The search is over once the specified items are found.

Securing and Searching People and Places While a Search Warrant Is Being Sought Having a search warrant for a particular location does not give officers the right to search all people and property located there. Persons on the premises may not be searched, unless the search warrant particularly authorizes it. Property of non-resident persons who are not the target of the warrant may not be seized. Police may detain persons on the property while executing a warrant to search for contraband. Officers may frisk any person on the premises whom they reasonably believe to be armed and dangerous.

Notice Requirements Before entering premises by force to execute the warrant, officers must knock and announce their authority and purpose and wait about 30 seconds before entering. This is done to: Prevent violence; Protect the privacy of the occupants of the premises; Prevent property damage; and Give the occupant an opportunity to examine the warrant and point out a possible mistakes. Violations may result in police civil liability.

Exceptions to the Knock-and- Announce Rule Officers may enter without notice in certain cases Exigent circumstances Entry by ruse or deception If police presence and purpose is already known If a no-knock warrant is secured

Sneak-and-Peek Warrants A covert entry warrant (a "sneak-and-peek warrant”) authorizes officers to enter unoccupied premises, search for specified evidence, and then leave, without seizing the evidence they find and without leaving a trace that an entry has been made. Items may be seized if it is “reasonably necessary.” This is called sneak and steal.

Justifications for Covert Searches A "sneak-and-peek warrant” is justified when:  Officers need to determine whether certain evidence is on the target premises  Officers reasonably believe that suspects would disrupt the investigation by destroying evidence, threatening or killing witnesses, or fleeing, if they knew that a search had occurred.

Scope of the Search A search under authority of a search warrant may extend to the entire premises described in the warrant, but only to those parts of the premises where the items to be seized might be concealed. The search must be conducted in a manner to avoid unnecessary damage to the premises or objects. Items not named in the warrant may be seized if all elements of the plain view doctrine are satisfied.

After a Search Warrant is Executed After the search is completed The officer must leave at the searched premises a copy of the warrant and an inventory of and receipt for property taken. The officer must return the warrant, along with a written inventory of property seized, to the judicial officer designated in the warrant.