Time Limitations On Search Warrant Execution

• Jurisdiction: Maryland

VIII. Time limitations on search warrant execution

A. Time limits imposed on warrant execution by law or by the warrant

Even if probable cause stills exists, and is not stale, search warrants expire automatically by law or by the terms of the warrant. If a search warrant has expired, but probable cause still exists, a new search warrant may be obtained. In most jurisdictions, arrest warrants expire only when the statute of limitations for prosecution expires.

1. Federal law

Fed. R. Crim. P. 41(e)(2)(a) imposes a 14-day time limit on the execution of search warrants, unless the warrant imposes a shorter deadline. Federal warrants require daytime execution, from 6:00 a.m. to 10:00 p.m., unless the warrant expressly authorizes nighttime execution based on good cause. Id.

When executing a warrant for electronically stored information, the 14 days for execution "refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or reviewing." Fed. R. Crim. P. 41(e)(2)(B). A warrant to install a tracking device must "specify a reasonable length of time that the device may be used." Fed. R. Crim. P. 41(e)(2)(c) It cannot exceed 45 days unless the issuing court issues an extension "for good cause." The tracking device must be installed within 10 days of the warrant being issued. Fed. R. Crim. P. 41(e)(2)(C)(i).

2. Maryland law

Md. Code Ann., Crim. Proc. § 1-203(a)(5) imposes a 10-day time limit on the execution of search warrants, unless the warrant imposes a shorter deadline. Unexecuted search warrants must be returned 10 days after issuance. Md. Rule 4-601(h). The day that the warrant is issued is Day Zero for calculating time. 86 Op. Md. Att'y Gen. 148 (2001).

Court orders authorizing the use of a cell-site simulator or the collection of location information are valid for 30 days, but the period may be extended upon a showing of probable cause. Md. Code Ann., Crim. Proc. § 1-203.1(c).

In Donaldson v. State, 46 Md. App. 521, 531 (1980), the Court of Special Appeals concluded "that the timeliness of the execution of the warrant is not measured by whether the delay was reasonable or unreasonable, but by whether the probable cause upon which the warrant was issued still existed at the time the warrant was executed." See Yeagy v. State, 63 Md. App. 1, 17 (1985). Thus, a warrant cannot be executed after 10 days or when the probable cause becomes stale, whichever is first.

B. Staleness

When executing a search warrant, police must have reasonable belief that the probable cause that supported the issuance of the warrant still exists and has not become stale. Greenstreet, 392 Md. at 681-82; Peterson v. State, 281 Md. 309, 321-22 (1977); Ellis v. State, 185 Md. App. 522, 541 n.4 (2009); Behrel, 151 Md. App. at 102; West v. State, 137 Md. App. 314, 355-56, cert. denied, 364 Md. 536 (2001).

In Connelly v. State, 322 Md. 719 (1991), the Court of Appeals stated: "There is no 'bright-line' rule for determining the 'staleness' of probable cause; rather, it depends upon the circumstances of each case, as related in the affidavit for the warrant." Id. at 733. In determining whether probable cause has become stale, courts look to (1) the passage of time; (2) the type of criminal activity involved; (3) the length of criminal activity; and (4) the nature of the property to be seized.

In Yeagy, 63 Md. App. 1 (1985), the Court of Special Appeals stated:

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