1. Criminal Procedure: Theory and Practice, 2d.by
Jefferson L. Ingram

2. CHAPTER 6
Obtaining and Using Search Warrants: Practice, Execution, and Return

3. 1. The Fourth Amendment: Probable Cause to Search
“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.”
The Fourth Amendment.

4. 1. The Fourth Amendment: Probable Cause to Search (cont.)
Probable cause exists:
when police possess facts and circumstances within their knowledge and of which they had reasonably trustworthy information [that those facts] were sufficient, in themselves, to warrant a man of reasonable caution in the belief that seizable material will be found in a particular place.

5. 1. The Fourth Amendment: Probable Cause to Search (cont.)
This legal standard:
Requires a belief above a hunch.
Necessitates proof greater than the stop and frisk standard.
Falls far below proof beyond a reasonable doubt.

6. Case 6. 1, Leading Case Brief: Carroll v. United States, 267 U. S
Facts: Defendants, connected to a specific car offered illegal liquor to undercover agents. The were spotted following a route used by smugglers in same car. Officers knew defendant and their reputation. Officers stopped and searched car without a warrant.
Issue: Does reputation, prior attempted crime evidence, openly carrying on illegal trade, all combine to give probable cause?
Held: Yes.
Rationale: The defendants followed a road route typically used by smugglers. Their reputation as bootleggers and prior attempted criminal acts were also known to police. When police saw them, the circumstances predicted that they were smuggling illegal liquor because they were in their car used previously and they were traveling the smuggler route. Those facts gave federal officers probable cause to stop and search the car without a warrant.

7. 1. The Fourth Amendment: Probable Cause to Search (cont.)
Where search warrant issued:
Search presumed to be reasonable.
Where probable cause exists but no warrant required:
Search of car permitted without warrant.
Search of an open field needs no warrant.

8. 2. Specificity of Search: Particularity of Description
Specificity requirement met:
When officer can determine and identify the place or object.
When street address used.
When object description properly detailed.
Serial number, size, caliber, and manufacturer.
Illegal drugs described by appearance.

9. 3. Requirement of a Warrant: Physical Searches
Neutral judicial officer determines probable cause.
Prepares affidavit for search warrant.
Recited facts that equal probable cause.
Prepares warrant for judge to sign.
If judge agrees: signs warrant to search.
Warrant: a court order.

10. 4. Requirement of a Warrant: Electronic Eavesdropping
Wiretap or electronic eavesdropping:
Warrant required under federal law.
State wiretaps require warrant.
Probable cause mandatory.
Violation of Federal Wiretap Act:
Evidence excluded.
Wiretap warrant procedure:
Mirrors process for physical warrants.

11. 4. Requirement of a Warrant: Electronic Eavesdropping (cont.)
After September 2001 terrorist attacks:
President allowed taps w/o warrants.
One party had to be outside United States.
Parties sued government: No success.
Either no jurisdiction or state secrets privilege halted civil suits.

12. 5. Sources of Probable Cause: The Informant
Old Aguilar v. Texas two-pronged test to evaluate informant:
1. Was informant believable?
2. Did informant’s facts equal probable cause?

13. 5. Sources of Probable Cause: The Informant (cont.)
Aguilar first prong.
Evaluated informant’s veracity and reliability.
Aguilar second prong.
Facts offered by informant:
Must allow judge to conclude probable cause existed.

14. 6. Informant Probable Cause: The Totality of the Circumstances
Illinois v. Gates absolutely abandoned the "two‑pronged" test.
New test for probable cause with informant:
The totality of the circumstances test.
“a deficiency in one may be compensated by a strong showing as to the other, or by some other indicia of reliability.”

15. Case 6.2, Leading Case Brief: Illinois v. Gates, 462 U.S. 213 (1983).
Facts: Police received anonymous letter accusing the Gates of dealing drugs. The letter contained facts unique to the situation that police verified. Court issued search warrants for home and cars. Drugs were found and the Gates couple were convicted.
Issue: Can corroborated, unknown informant’s data that fails two-pronged test equal probable cause?
Held: Yes.
Rationale: Court abandons the two-pronged test and holds that a deficiency in one prong can be cured by robust data from other prong. Issuing judge needs to make practical decision of whether probable cause exists given all the data presented, including the truthfulness and basis of knowledge of an informant.

16. 6. Informant Probable Cause: The Totality of the Circumstances (cont.)
Gates totality of circumstances test:
Binding on federal courts.
State courts not required to follow:
Based on principles of federalism.
Based on state constitutions.

17. 7. Sources of Probable Cause: Police Officers and Others
Police observations often provide probable cause.
Police presumed to be truthful.
Judicial official must evaluate police data:
To determine if evidence equals probable cause to search.

18. 8. Affidavit for a Warrant: Written or Electronic
Search warrant will issue
When judge believes probable cause exists.
Based on information written in the affidavit.
If judge finds no probable cause:
Judge will not sign warrant.
Will require more information.

19. 8. Affidavit for a Warrant: Written or Electronic (cont.)
Electronic affidavit permitted in:
Federal courts accept telephone, fax, or other appropriate means.
Many state courts will accept electronic affidavits and video conferences.
Information must be reduced to a permanent, accurate record, and filed with court clerk.

20. 9. The Search Warrant: A Court Order
A warrant is a court order that:
Is directed to a law enforcement officer.
Describes the place to be searched.
Describes objects of the search.
Requires an inventory:
Given to possessor.
Returns seized objects to court.

21. Figure 6.1, http://www.uscourts.gov/forms/AO093.pdf.

22. Figure 6.2, http://www.uscourts.gov/forms/AO093a.pdf.

23. 9. The Search Warrant: A Court Order (cont.)
A warrant is a court order that:
Must be served:
Within a reasonable time.
Or within limits set by law.
Either in daytime or nighttime.
Preference for daytime.
With permission: Night searches allowed.

24. 10. Knock and Announce
Wilson v. Arkansas: Fourth Amendment requires knock and announce.
Excused, if it enhances danger.
Violation of knock and announce:
Suppression of evidence not required.
Hudson v. Michigan.
Police may detain persons present.

25. Case 6.3, Leading Case Brief: Hudson v. Michigan, 587 U.S. 586 (2006).
Facts: Police violated knock and announce dictate and uncovered contraband. Hudson argued for suppression of evidence due to admitted knock and announce violation.
Issue: Does violation of knock and announce dictate require suppression of any evidence discovered?
Held: No.
Rationale: Suppression is last resort as a remedy due to high social costs. Police would have executed the warrant anyway, and would have found the contraband. No one has any interest in preventing police from seizing evidence described in a warrant.

26. 11. Scope of Search Scope dictated by: Example:
Size and type of object.
Location of the search.
Where object might reasonably be hidden.
Example:
Drugs could be anywhere.
Rifle has limited locations.

27. 12. The Return of the Warrant
Copy of warrant served on property holder.
Receipt or inventory given to holder.
Return occurs when:
Officer delivers warrant and the property to court custody.
Officer gives inventory to court.

28. Figure 6.3. Adapted from a Warrant Packet from the Supreme Court of New Mexico. See Chapter 6, Footnote 44.

29. 13. Stale Probable Cause
Warrants are valid for set time or reasonable time.
Search situations are dynamic:
Facts true one day may not exist later.
If facts change: No probable cause may remain.
Different examples:
Drug dealers turn over supply quickly.
Child porn recipients keep photos.

30. 14. Warrantless Searches: Exceptions to the General Rule
Warrantless searches permitted:
Abandoned property.
Real or personal property.
Open fields. United States v. Dunn, Case 1.5.
Forfeited vehicles.
Abandoned property:
Trash can at curb. California v. Greenwood.
Cigarette butt left in ashtray.
Cola can in trash.
Open field: can be fenced; no expectation of privacy.

31. 15. Summary Probable cause generally necessary for search.
Probable cause requires specific description of object and location.
Warrant only issued on probable cause by judge or judicial official.
Scope of search dependent on goal of search.