Chapter 7. Search Warrants

• Author: Ken Wallentine
• Pages: 179-229

179

CHAPTER 7

SEARCH WARRANTS

Search warrant terminology

Burden of proof for warrantless searches versus warrant

searches

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

trespass

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

seized”

Targets: Evidence, Contraband, Instrumentalities, and

Fruits

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

CHAPTER SEVEN180

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 WARRANTS 181

Search warrant terminology

A

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

affidavit

that establishes probable cause to search. The affi-

davit is sworn to by an officer known as the

affiant

.

Generally, the warrant will be prepared by the officer or

prosecuting attorney, but it is a court

order

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

return

, 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

letter.

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

circumstances.

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.

United

States v. Hoyt

, 47 Fed. Appx. 834 (9th Cir. 2002),

cert. de-

nied

, 537 U.S. 1212 (2003). The defendant must show, by a