Search Warrants
4th Amendment
“The right of the people to be secured in their persons, houses, papers, and effects, and against unreasonable searches and seizures, shall not be violated…”
Note: this doesn’t prevent the government from conducting searches, just that the government must NOT conduct an unreasonable search
“…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”
Johnson v. United States (1948) 333 US 10
“When the right to privacy must reasonably yield to the tight to search [by the government] is, as a rule, to be decided by a [neutral] judicial officer, not by a policeman or Government enforcement agency”
Why Require a Warrant?
It protects the officer and the suspect if a neutral judge or magistrate makes the decision of probable cause rather than an officer in the heat of an investigation
It is understandable that someone in the heat of an investigation will not be neutral and detached
The 4th Amendment would be worthless if just left it up to police officer in the heat of the moment
“Search”
The term “search” has a technical legal definition and this technical legal definition does not mean “to look for”
There are three components to the legal usage of the term “Search”
Three Components of “Search”
Examinations by a governmental agent
Any governmental agent, not limited to law enforcement
Does not apply to private individuals (unless doing so at the direction of a government agent)
The area being searched, or item being searched for, must relate to criminal activity
A “search” only occurs when a person has a reasonable and justifiable expectation of privacy either
In the area being searched, OR
In the thing being searched for
Search Warrant
A search warrant is:
An order in writing
Issued by a proper judicial authority
In the name of the people
Directed to a law enforcement officer
Commanding the officer to look for personal property or a person
And to bring that property or person before the court
Personal Liability
2/24/04 U.S. Supreme Court Decision:
Officer who sought a warrant, and executed it, and did not specify the property to be seized in that warrant, can be held personally liable (for a violation of the person’s civil rights), even though a judge signed the warrant
What We Need to Get a Warrant
A law enforcement officer must be able to put into words (articulate) in an affidavit to the judge/magistrate:
Facts that show
A crime has been, or is being committed and
It is more probable than not that specific property (one of the four types of seizable evidence)…
Will be found in a specific place at the present time (now)
Affidavit
An affidavit is a sworn, written statement which includes:
All the facts within the officer’s own knowledge
All facts from reliable sources
And the facts which demonstrate the source’s reliability
Example: The officer may put in the affidavit “This information comes from Paul Mastriacovo. Mastriacovo has provided information in the past that proved to be accurate”
Information from observing or talking with the subject
Any facts from the officer’s investigation which can corroborate information from sources or informants
E.g., physical evidence, documents, etc
False information given by officer may result in:
No warrant being issued
Evidence excluded from use at trial
Criminal and civil liability, or departmental discipline for officer
See 2/24/04 case mentioned above
Affidavit should include all of the facts upon which the judge bases their opinion on probable cause or not
Information Not In Affidavit
In Ohio (and many states) the Criminal Rules allow additional information not in the affidavit to be considered by the judge, but only under certain circumstances
In Ohio, to be valid, the additional information to the judge/magistrate must be given under oath and recorded by stenographer or tape recorder
(Ohio Crim R 41)
Fresh Facts
Cannot use “stale” information
Determining how long before evidence is stale depends on what you are looking for and where
Look at the totality of the circumstances
Longer time allowed between observation and search for fixed item or less mobile item; shorter time if item is being looked for is mobile or easily disposed of
Specificity
Officer should be as specific as possible in describing the location to be searched
More detail is better, but it must be accurate
The goal should be that an officer unfamiliar with the case will know from the warrant where to conduct the search and what to look for
Steele v. United States (1978) 267 US 498
Be as specific as possible in describing the items to be searched for
The warrant must state what is being searched for
The test is:
Whether someone unfamiliar with the case could execute the warrant and conduct the search without wondering what to look for and what to seize
Specificity—Mail
United States v. Ramsey (1977) 431 US 606:
International mail can be searched without a warrant under the border exception to the warrant requirement
Domestic mail is considered a “place” for search and seizure purposes, requires a warrant, and 1st class mail must be described specifically just like other places
Specificity—E-mail
E-mail is protected by 4th Amendment
Senders of electronic communications have a reasonable and justifiable expectation of privacy that their messages will remain private until the transmissions are received
The affidavit must describe with particularity the specific e-mails that are the target of the criminal investigation
Under the USA PARIOT Act, a warrant may be issued for e-mail by
Any court of competent jurisdiction so long as:
The officer’s affidavit offers specific and articulable facts showing:
There are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information being sought, are relevant and material to an ongoing criminal [not just terrorism] investigation
Specificity—Contraband
Generally, the courts give more leeway in describing “contraband” than other items to be searched for and seized because of the general nature of contraband
Warrants have been upheld which authorized the search and seizure of “any controlled substances and other drug related paraphernalia”
Specificity—Continued
Remember, a warrant can never be justified with information obtained after the warrant is issued
Even if that information shows criminal activity
Securing a Dwelling While Warrant Being Sought
Illinois v. McArthur (2001) 531 US 326:
U.S. Supreme Court case held that police officers who had probable cause to believe that defendant had marijuana hidden in his home:
Could prevent defendant from entering his own home for two hours while they obtained a search warrant
Because the evidence could be destroyed easily
This does not mean they can “detain” him from leaving or going about his business outside the home
To do so would be a “seizure” (an arrest or “tantamount to arrest”) and:
Would only be possible based on probable cause he committed a felony or the police had a warrant
Can only keep someone from entering their house if there is:
Probable cause a seizable item was in the house, and
Reasonable fear evidence could be destroyed
Only keep defendant from entering, not arrest/detain him before the search
The restraint from entering was for a limited time
The court balanced the privacy concerns and the law enforcement concerns
Anticipatory Search Warrant—Example
Example: Let’s say an undercover police officer hears from the drug dealer he’s befriended that a shipment of cocaine is going to be delivered to his house at 9:00pm tonight. The undercover officer has seen other deliveries of drugs there at around the same time in the past. The officer advises his department of that information and the detective goes to the court seeking a search warrant with an affidavit setting forth all of these facts. Can the court legally issue a search warrant for the item that will be there at 9pm tonight?
Anticipatory Search Warrant—contiued
Defined as a warrant to search a particular place for a particular seizable item that has not yet arrived at that place
The event must be very likely to occur
They are carefully scrutinized by the courts and have been upheld when the proper procedures are followed
The U.S. Supreme Court upheld them in United States v. Grubbs (2005) 547 US 90
Reasons must be set forth to Court AND
Court must believe from the facts set forth:
That the crime will occur within a specified time AND
The process of completing the crime is in operation AND
The target of the search knows the crime is in progress
You can get a search warrant before a crime has been committed ONLY under limited and very specific circumstances
Example of a “controlled delivery” and anticipatory search warrant
Example: Let’s say a package is given to a UPS or FedEx store in Florida by somebody. The UPS or FedEx store will scan the item for drugs, and let’s say they get a hit. The store opens the package, inspects the contents and sees what looks to be cocaine. Remember, this is not a government agent searching the package, it is a private company. And, in the agreement you signed when you send something with most delivery services—such as USPS or FedEx—there is permission for them to inspect any package for contraband, illegal items, firearms/explosives, etc.
Let’s say then that the delivery service advises the Drug Enforcement Agency of these facts, including who will be receiving the package. The DEA advises the delivery company then to go ahead and deliver the package. In the meantime, typically the DEA or the local police will obtain an anticipatory search warrant for that package, at that address, based on all of the facts given. The law enforcement agency where the package is to be delivered will then sometimes borrow a delivery truck and a uniform from the company, and deliver the item
OR, they will monitor the company employee as he delivers the package
One the package is delivered, the police will wait a few minutes to see if the person opens the package. Then they’'ll knock and announce that they have a search warrant and they will enter the house and conduct the search and seizure pursuant to the warrant
With a Valid Warrant
Can search:
The described premises
All buildings on described land
Anything attached to or annexed to the land
Any vehicles on the premises owned by the owner of the premises
Limitation
Limited to looking for an item only where it can be found
You cannot look for an elephant in a cigar box
Authority During Search
With a search warrant, police may:
Secure premises
Order people not to leave or move about
Order people to leave
Unrelated People/Places
Search warrants can be issued to search places not directly involved in criminal activity ONLY:
If there is probable cause to believe the search will result in finding something related to the criminal case
E.g., searching a suspect’s desk owned by their employer on employer’s property
Frisking Others During Search
Michigan v. Summers (1981) 452 US 6692:
The police do not have the authority to conduct a limited pat down or frisk for weapons of any person on the search scene who the officer “reasonably suspects” is armed and dangerous
Officer must be able to justify that frisk with specific facts, not just a hunch or unsupported assertion of “officer safety”
No Full Search, However
Ybarra v. Illinois (1979) 444 US 85:
Cannot make full search of those present unless named in the warrant
Supported by facts demonstrating probable cause that each individual named will have seizable evidence on their person, or
OR unless independent probable case to search them and a valid exception to the warrant requirement
Plain View
Contraband, instrumentalities, fruits of the crime, or evidence of a crime which were not specified in the warrant, but which are in “plain view”, may be lawfully seized
Knock and Announce
Wilson v. Arkansas (1995) 514 US 927
Police generally must knock and announce their presence, authority and purpose before entering with a search warrant
Exception: reasonable grounds to believe evidence will be destroyed or danger to officers
Exigent (emergency) circumstances
U.S. Supreme Court has stated that to justify a no-knock entry:
The police must have a reasonable suspicion that announcing their presence would be futile or dangerous under the circumstances, OR
That it would allow for the destruction of evidence or otherwise hamper an effective search
Entry
Can use any means of entry which is reasonable and necessary under the circumstances
Officers should always use the minimum force necessary under the circumstances
But, officers can damage property to conduct search if it is reasonably necessary to do so
Courts generally allow officers wide discretion in conducting a search pursuant to the warrant
The U.S. Supreme Court has held:
Excessive or unnecessary destruction of property in the course of a search may violate the 4th Amendment, even though the entry itself is lawful and the fruits of the search are not subject to suppression
Attorney fees and civil liability if a civil right violation is proven
Execution of Warrant, OHIO
Must execute a warrant (conduct the search) within three days of its issuance
Do not have to conduct search as soon as you obtain warrant, though you may if you want to
Must make complete and exact inventory (written list) of each item seized
Must leave copy of inventory with owner, or a responsible adult, or in a conspicuous place
When Executed (continued)
Must be in daytime (generally 8am to 8pm)
Jones v. United States (1958) 357 US 493
“It is difficult to imagine a more severe invasion of privacy than a nighttime intrusion into a private home”
Can apply for nighttime search
Must provide specific reasons for justifying it
Daytime search may continue into night until completed
Officers must leave premises when search completed
Officers cannot unreasonably delay completing the search (once it has begun) as a pretext to stay
For example: until the suspect gets home so they can question him while he is vulnerable
Return of Warrant
After execution, officers must file a “return” with the court within a reasonable time of the execution
A “return” is a document which tells where, when and by whom the search was completed
Includes a copy of the warrant, and
Includes an inventory of the items seized
Other Types of Searches
Special Needs Searches
Usually involves serious issues of public safety as found by U.S. Supreme Court
Probable Cause not necessary; reasonable suspicion only
Public school students and property
U.S. border searches
Searches of probationers and parolees
Searches of government employees
Drug testing by government employer
Railroad engineers, etc.
Electronic Surveillance
Warrants for wiretaps, bugs, and other electronic surveillance are allowed, but only under very limited and controlled circumstances
Generally very difficult to get
Exception may be under certain limited provisions of the USA Patriot Act
Covert Entry Warrants
Federal law, and some state laws, specifically authorize covert entry warrants, called “Sneak and Peek” warrants
In rare circumstances officers may need to execute a search warrant in complete secrecy
This means the officers enter the premises when the occupants are known to be absent, search and leave, seizing nothing and leaving no indication that search was conducted
Requirements in addition to the normal requirements to get a search warrant:
Officers need to determine whether certain evidence is on or in the target premises, AND
Officers reasonably believe that the suspect(s) would disrupt the investigation by destroying evidence, threatening witnesses, or fleeing if they knew of search
Officers usually videotape or photograph the evidence during a sneak and peek search (do not seize the evidence)
The mist recent version of the law requires notice to those covertly searched within six months of the search
But can get this extended for good cause shown to the issuing judge
the U.S. Supreme Court has implied that these warrants are Constitutional under limited circumstances
Must show the delay in notifying the suspect is a “necessity”
Not just that a covert warrant would help or “facilitate” an investigation