Chapter 7. Search Warrants

AuthorKen Wallentine
Search warrant terminology
Burden of proof for warrantless searches versus warrant
Defendant’s burden to show material false statements or
reckless disregard for the truth by the officer
Challenges to the warrant
The Fourth Amendment exclusionary rule
The “good faith” exception to the exclusionary rule
Constitutional definition of probable cause
Sources of probable cause information and reliability
Staleness of information
Basis of knowledge for the information
Physical evidence
Anticipatory Search Warrants
Particularity Requirements in Drafting Warrants
“Particularly describing the place to be searched”
Harmony of affidavit and warrant
Use of diagrams and photographs
Obtaining a description without committing criminal
Special concerns of rural addresses, apartments, multi-
story buildings, businesses, automobiles
Search Warrant for “All Persons Present”
“Particularly describing the persons or things to be
Targets: Evidence, Contraband, Instrumentalities, and
Concerns with documentary evidence
The Affidavit
The affiant’s professional resumé
Describing the crime and connecting the crime to the
items sought
A short course in grammar and power writing
Execution Concerns
Scope of the search warrant defining the warrant search
The area of the search
The extent of the search
Nighttime warrants
Notice and no-knock warrants
Remotely communicated warrant procedure
Protective sweep of the premises
Searches of persons present, leaving and arriving
Plain view discoveries during execution
Strip-searches and body cavity searches
Computer searches
Surreptitious entry warrants
Who may assist in executing the warrant
Service of the warrant document
Receipt required for all seized goods
Return of service
Search warrant terminology
search warrant
is a document that judicially authorizes
police officers to search the places or persons described in
the warrant. A search warrant must be based on a written
that establishes probable cause to search. The affi-
davit is sworn to by an officer known as the
Generally, the warrant will be prepared by the officer or
prosecuting attorney, but it is a court
after it is signed
by a magistrate. The warrant and the affidavit are separate
and distinct documents, but each should conform to the other.
The warrant cannot be broader in scope than the affidavit.
A third document, the
, completes the court’s war-
rant. The return informs the magistrate who issued the war-
rant about the property that was seized during the search.
The return may be as simple as a photocopy of the property
report or a search inventory form submitted with a cover
Burden of proof for warrantless searches versus
warrant searches
All searches conducted without a warrant are presumptively
unreasonable, and hence illegal, unless the prosecution can
establish that one of the Warrant Clause exceptions fits the
Katz v. United States
, 389 U.S. 347 (1967).
There is a strong judicial preference for warrants, “which
underlies the rule that a search with a warrant has a stronger
claim to justification on later judicial review than a search
without one.”
Illinois v. McArthur
, 531 U.S. 326 (2001). How-
ever, when officers have obtained a search warrant and the
defendant challenges the lawfulness of the search, the bur-
den is on the defendant to show that the search violated the
Fourth Amendment.
Illinois v. Gates
, 462 U.S. 213 (1983).
Defendant’s burden to show material false statements or
reckless disregard for the truth by the officer
The defendant has a limited ability to challenge the affida-
vit “where the defendant makes a substantial preliminary
showing that a false statement knowingly or intentionally,
or with reckless disregard for the truth, was included in the
warrant affidavit.”
Franks v. Delaware
, 438 U.S. 154 (1978).
Omitted statements that cause a misrepresentation may also
be raised in the defendant’s challenge to the affidavit.
States v. Hoyt
, 47 Fed. Appx. 834 (9th Cir. 2002),
cert. de-
, 537 U.S. 1212 (2003). The defendant must show, by a

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