Search and Arrest Warrant Requirements

Empirical Data on Warrants:

4. Empirical Data on Warrants: Empirical Data suggests warrants are not frequently used, that they are a last resort for officers. a) Problems/Findings (1) Police Complain that warrants make them "lose cases." (a) BUT: Empirical data suggests this is not true (2) Magistrates often see them as being on law enforcement's "team," not detached and neutral (3) Motions to Suppress are Seldom Granted (4) Police see the warrant process as tiresome, burdensome, troubling b) BOTTOM LINE: Benefits of Warrant (1) They at least make officers stop and contemplate the PC requirement before acting (2) Multi-layered Review Decreases Likelihood of Search without cause (3) Creates a clear record of the search process in the case of an objective later evaluation of the search

The Showing of Probable Cause: Requirement that Showing Support Each Provision of Warrant

a) If any part of warrant (that is, any authorization to search or to seize) is unsupported by showing of probable cause, that part of warrant cannot be relied upon to support officers' actions. b) If part of warrant is invalid for this reason, remainder may nevertheless be effective under "severability."

Entering on the Premises and Other Limits on the Execution of Warrants: Damage to Property:

a) Not a higher standard for no-knock entry just because property damage is involved. b) Damage to property must have been "reasonable." (Ramirez) (1) ISSUE: Will unreasonable property damage taint the search under the warrant?

Informant Tips: Old Test

(1) Old Test: Aguilar-Spinelli (a) Aguilar Tip constitutes PC if information in affidavit also provides basis for magistrate to find both: (i) Veracity—reliable source for specific information ("basis of knowledge") (ii) Credibility—general reliability of informer (b) Spinelli Inadequate Tip May be Saved if: (i) Sufficient detail of appropriate type (this is weird because doesn't how credibility, not even clear it shows veracity) (ii) Affidavit lays out facts that corroborate info/assertion in the tip (tip + corroboration) (a) Examples: (i) Fact that Spinelli had access to telephones with those specific numbers seems to be insufficient to search for gambling stuff Why? Not predictive info this could be entirely innocent in no way suggestive of illegal use, just mere accessibility? (ii) Aguilar warrant based on anon informant that drugs were there. Mere conclusion Ct. said. Need to know tip is from someone credible and reliable. (iii) Draper what he'd be wearing and how walking and when arriving from train w drugs; POs verified this. This is enough corroboration because shows knowledge of itinerary and if some facts are true others are likely also to be true. (iv) Gates travel future itinerary info, Florida drug location, all verified, This is enough. (c) Note: State law ]can still use this test if they want.

Informant Tips Gates

(2) Gates Test (Abandons Aguilar-Spinelli). In favor of "totality of circumstances": (a) "The circumstances" in "tip" situation: includes any facts suggesting general reliability, reliable source of specific info, detail, corroboration, etc. (i.e. we still look at Spinelli Aguilar facts but they are just factors to consider). Gates is an easier test than Aguilar-Spinelli. The rationale is that under an easier test, POs will get more warrants, which we want to reward. d) Three distinguishable stages for determining Probable Cause under Gates: (1) Issue for Magistrate: Affidavit must show by the "totality of the circumstances" that there is a "fair probability" that that the search will result in discovery and seizure of the items (fruits & instrumentalities of crime, evidence of crime, or contraband) for which the officers wish to search. (a) "Fair probability": Ct. didn't say this means more likely than not, so it must be less than that. A pretty minimal standard. (2) Issue for Trial Judge on Motion to Suppress: On the "totality of the circumstances" did the magistrate have a "substantial basis" for concluding that probable cause existed? If yes, then warrant to be upheld even if judge wouldn't have issued it himself. This is most frequently litigated. (a) Very deferential standard of review. It's almost impossible to show that judge did not have substantial basis. (3) Issue for Appellate Court on Appeal from Conviction: Did trial court err in finding that affidavit provided a substantial basis for magistrate's decision that probable cause existed? (4) ISSUE: under Gates Analysis: Should state probable-cause requirements be read as embodying the old Aguilar-Spinelli requirements?

Particularity Demanded of Warrants and Related Limits on Execution of Warrants: General

1. "No warrant shall issue, but...particularly describing the place to be searched, and the persons or things to be seized." This is much less frequently litigated than the probable cause requirement. a) Rationale: Without a preciseness requirement, POs would be free to determine for themselves the extent of their search and the objects they will seize. b) Effect of Warrants on Officers' Authority (1) Authority Under Warrant (a) Officers may search premises reasonably believed to be those described in warrant. (b) The search of the premises may extent to those places where the officers might reasonably expect the items sought to be located. (c) Officers may seize items reasonably believed to be those the warrant authorizes them to seize. (2) During the search, grounds may develop for a further search, i.e., a search beyond the authority of the warrant.

Entering on the Premises and Other Limits on the Execution of Warrants: General Approach:

1. General Approach: Local non-constitutional law often imposes requirements on execution of warrants that are not embodied in 4A demands.

General Warrant Requirements

1. General Warrant Requirements: If an when a warrant is issued, it must: a) Be based on probable cause b) Be supported by "oath or affirmation" (this may be incorporated by reference affidavit) c) Particularly describe what is to be searched and seized d) Be issued by a neutral and detached (from LE), i.e. constitutionally sufficient official capable of making probable cause determination.

To Win a Franks Hearing challenging facts IN the affidavit

2) To Win a Franks Attack (and hence to get evidence suppressed): Basically, it's next to impossible. D must show that: (i) Affidavit contains specifically identified error of fact (ii) Error was material, e.g. was essential to establishing PC (iii) Error made intentionally or with reckless (awareness of substantial risk of falsity?) disregard for the truth: Rationale for so high a standard: these kinds of challenges willy-nilly would burden the CJS, huge administrative costs, difficult proceedings, etc. NOTE: Court did not define "recklessness" Note: Franks challenge does not have to be in writing. ISSUES: 1. If D shows error, is P entitled to "reform" affidavit? (e.g. read as if PO had accurately stated info available? Probably we will allow restructuring of affidavit (often assumed) (but not much incentive to comply with reqs in first place then) 2. Should D be able to attack a warrant affidavit by showing informant lied to PO/affiant? Reliance on second-hand information from "informants"—a "suspect" group. Lower cts. Have been unlikely to expand. Could use lie to say PO misrepresented own knowledge that informat was credible but hard argument to prove. Also, we have Probably not because Aguillar (1964) and Spinelli (1969) assumed the risks required a specialized and structured analysis for testing sufficiency of affidavit in these situations (c) Note: D cannot use good-faith under Franks for a warrant that is ineffective (3) Consequences if D wins Franks challenge: (a) Removing/restructuring relevant parts of the affidavit (b) Officer subject to perjury charges (4) Franks facts: D argued false facts about knife. On remand, ct. found that remainder of affidavit sufficient for probable cause. Conviction upheld.

Entering on the Premises and Other Limits on the Execution of Warrants: Knock and Announce Requirement

2. Knock and Announce Requirement: 4A: Searches conducted without a "Knock and Announce" presumed constitutionally unreasonable, though LE interests may establish the reasonableness of a no-knock entry, and, after no answer then may b&e. (Wilson v. AK) (1995) a) When does the announcement requirement apply? Any entry that requires some effort. Sabbath. (1) Breaking not required (knock and announce is required even when door is unlocked, POs have key, etc) (a) ISSUE: Entry through an open door. Court hasn't addressed this. Lower cts split. Depends on if it is just about b&e, or also privacy (ct. has emphasized privacy see Wilson v. AK time to put on clothes) (b) ISSUE: entry by ruse/permission obtained by deception: Sabbath doesn't deal with this question. b) Exceptions to the presumption of unreasonableness: (Richards v. Wis.). (1) No "prior announcement" is required if officers have reasonable suspicion that the announcement would: (a) Increase the risk of physical harm (b) Lead to destruction of evidence (c) Be "Futile": occupants are already aware of the PO's authority and purpose (e.g. hot pursuit) (too loud to hear? Maybe.) NOTE: This need only be shown by reasonable suspicion, not even probable cause. Richards (d) US Patriot Act (see below) (2) Reasonable Suspicion: "The showing is not high, but police should be required to make it." (a) ISSUE: How specific does information indicating risk have to be? (b) Standard is not higher when destruction of property is involved. There doesn't have to be a greater exigency. (3) Case-by-Case Specific Determination: Richards court rejected a blanket exception for drug cases. What do POs have to show? (a) Courts will look at: (i) Level of invasiveness (ii) Likelihood that the encounter will trigger violence (iii) Embarrassment factor (likelihood that POs would bust in and D would be in his PJs) (4) Determination of Magistrate: Even if magistrate won't allow no-knock entry, reasonableness of POs is determined by their decision at the scene. Though magistrate can issue a no-knock warrant ahead of time if there is reasonable suspicion to believe that an exception will be at play. Some states require if POs know ahead of time circumstances of exception to knock and announce must get magistrate's authorization. (5) How Long Do POs have to Wait? long enough that POs could reasonably infer from their silence that there are no occupants present or any there are refusing admission. (a) 15-20 seconds is not long enough for this inference (Banks), but delay was enough to give rise to reasonable suspicion that destruction of evidence (here cocaine) was occurring so exigent circumstances exception PERMITTED entry. Must be easily disposable drugs; if the POs were searching for 5 bales of marijuana, this might not be long enough. (b) Hudson: 3-5 seconds is too short. (were there exigent circumstances here too?) c) Remedy for Violation of the Knock-and-announce requirement: WilsonRichardsBanks caseline never focused on remedies. Court finally addresses this in Hudson. 4A: Exclusionary Sanction Not Available. (a) Hudson: On application of balancing test, costs of exclusion in these cases is too high, when balanced against the small deterrence achieved. This suggests that this body of law on no-knock entries may have little significance. (b) Also attenuation of taint says majority defines causation as but for, (i.e. would've found evidence anyways if POs acted correctly), dissent says no it is about when and how it was found. Dix thinks Scalia's/majority's analysis is BS here no basis in prior law. Just say interests protected aren't about shielding of potential evidence. (2) Significance: Court may decline exclusionary sanction if interests protected by 4A "have nothing to do with seizure of the evidence." (3) Dissent: Clear privacy interests. Few seconds may be putting on clothes or naked. (4) How else might D challenge no knock entry? Ex: Flash-bang device. Rochin v. Calif. shock the conscience test, 4a violation was so offensive it shocks the conscience, due process requires exclusion for 4aa violation even though under the 4a there is no remedy. Rochin v. California (1952): due process bars use in state prosecutions of evidence obtained by methods that shock the conscience (OH Supreme Court held this required some sort of physical force used against ) exception to Wolf (about states and 4th amd rules) (5) Exclusion as fed. statutory law: Ct. has req'd exclusion as matter of statutory law Miller (must knock) and Sabbath (includes unlocked door before applying any force to open you must knock; fed statutory rights don't turn on matter of luck)

Particularity Demanded of Warrants and Related Limits on Execution of Warrants: Particularity Effecting Facial Validity of Warrants

2. Particularity Effecting Facial Validity of Warrants ("Good Faith" won't save admissibility of evidence seized under facially invalid warrant...facially invalid=reasonable POs could not regard warrant as valid [a warrant that listed no items]) a) Place to be searched: Must be described with reasonable precision so POs know what they can/can't search. (1) Warrant is sufficient if it accurately describes what the officers reasonably believed to be the premises, does not have to accurately describe what turns out to be the place involved. [Garrison] (2) Not a 4A violation if POs engage in search before realizing that the warrant is too broad when warrant is invalid as applied. (Garrison) (a) In Garrison warrant for search of 3d floor apartment, but there are actually TWO 3d floor apts, searched the wrong apt found drugs before realized there were two. (3) Fairly flexible so as to accommodate warrants for LE other than traditional searches of premises easily described Karo (beeping device in can of then transferred to Karo used to track car) Ct. said need warrant can describe where place, circumstances that led to it, and length of time for which surveillance is requested. b) Things to be seized: POs have little discretion over things to be seized (except plain view exception) because prevents general searches and lets D know lawful authority. Marron (1) Must have description that must allow reasonable POs to determine what can/can't be seized. And depends on how specific the situation permits POs to be in their descriptions. (a) Leading Cases: (i) Stanford (Invalid: "books, records, pamphlets, cards, receipts, lists, memoranda...concerning the communist party" taking into account that this case involved first amendment considerations which require extra precision) (ii) Anderson (Valid: "[Specific documents] relating to fraudulent transfer of a specific piece of realty and "'other fruits, instrumentalities, and evidence of crime at this time unknown" was as precise as could be because complicated land fraud deals could not be more specific.) (iii) Groh (Invalid: no description; good-faith doesn't work because no reasonable PO could think valid) (iv) Stanley v. Georgia—warrant for bookmaking items, 8 mm film, officers watched, decided obscene and seized them, SCOTUS said search and seizure was improper. (v) Both Marron and Groh suggest that the description of things to be seized may limit the officers' authority to search within the described premises. (b) Hypo: Say McWebb told informant he had drugs but informant didn't know which of 2 apts on 3d floor was McWebb's apt. Because from Gates fair probability is less than more likely than not that drugs sought will be found in either apt, warrant like this would be reasonable if challenged in trial court. Substantial basis for magistrate's position that fair probability existed. (c) Factors: Some crimes/investigations will require more specificity than others. (i) Complexity of Crime under investigation: Complex fraud can be more vague than drug cases. Drugs can be more vague than theft of specific property. Anderson. (ii) Likelihood that items to be seized are protected by the 1A. Stanford. (2) ISSUES: (a) If warrant is facially overbroad, can oral description to magistrate suffice? Court does not reach this question in Groh. (i) Remember severability can still apply. c) Persons to be seized: Unclear how particular one must be described—is a name sufficient? Name and DOB? Physical Description without a name? In Visor v. State, "'unknown black female'" was unconstitutionally vague. (1) This requirement presumably only applies to arrest warrants.

Rationales for Warrant Requirement

2. Rationales for Warrant Requirement a) 4A suggests warrant is preferred method b) Determination of Magistrate Preferable to Future Litigation over Probable Cause c) Prevents 4A violations d) Gives officers Specific Instructions e) Return Requirement Subjects further law enforcement action to judicial supervision Potential Exam Question: Does the study suggest we should re-think the warrant process entirely, or does it need reform

The Showing of Probable Cause: Challenging Warrant Affidavits:

3. Challenging Warrant Affidavits: D can attack on the basis that the warrant is facially invalid to support magistrate's PC finding (this is distinct from contention that some facts in the affidavit are incorrect). (1) Good-faith Exception still applies: If affidavit's facts are found facially insufficient, evidence may still be admissible under Leon's good faith rule. In what context would a party raise this challenge?

Significance of Warrants in Fourth Amendment Requirements

3. Significance of Warrants in Fourth Amendment Requirements a. Reasonableness of Searches: A search is "reasonable" only if it was made pursuant to authority of a valid search warrant or if it is shown to come within one of the "narrow" exceptions to the warrant requirement. b. Reasonableness of Seizures of Items: if made under warrant, or in plain view then no warrant req'd (but might require showing of reasonableness on facts if not during execution of warrant) McArthur/Horton c. Reasonableness of Seizures of Persons: An arrest, like a seizure of items, need not be pursuant to a warrant, either an arrest or search warrant. But if, in order to locate the person to arrest that person, officers must conduct a "search," that search is -- to some extent -- subject to a warrant requirement. [Watson; Payton; Steagald]

Particularity Demanded of Warrants and Related Limits on Execution of Warrants: Warrants invalid "as applied"

3. Warrants invalid "as applied" a) No violation if POs search before they realize (or should realize) that the warrant does not adequately identify the places to be searched (Garrison) b) ISSUE: If it turns out that a warrant is based on erroneous assumption, can POs continue to search the premises they meant to get warrant for? This may turn on whether warrant makes clear on its face what magistrate intended to authorize.

The Showing of Probable Cause: Anticipatory Search Warrants:

4. Anticipatory Search Warrants: based on an affiant showing probable cause that at some future time but not presently seizable items will be "findable" in premises is permissible. Grubbs. Must show that: a) Now there is probable that (2) contraband, evidence of a crime, or a fugitive will be on described premises (3) when the warrant is executed. b) It must be true that if trigger condition occurs there will be probable cause, and that probable cause to believe triggering condition will occur. (i.e. if trigger condition occurs there must be fair probability that seizable items will be found, and the triggering condition itself must have fair probability of occurring.) c) AND Triggering condition need not be set out in the warrant itself only place to be searched and persons or things to be seized must be particularly described in the warrant. If the triggering condition need not be set out, how is it ever recorded/incorporated into an anticipatory search warrant?

Particularity Demanded of Warrants and Related Limits on Execution of Warrants: Authority to Search Persons on/about Premises

4. Authority to Search Persons on/about Premises a) Warrant can't generally be construed to authorize search of all persons on premises when warrant is executed. (Ybarra) (warrant for tavern, searched customer w/ cigarette pack, which had drugs in it) b) Mere fact that person is on premises during search does not justify independent weapons search or frisk (Ybarra) c) ISSUE: When can warrant authorize search of persons on premises? All persons on premises? How specifically must they be described? (1) Need adequate likelihood that anybody on premises because they are needs to be in possession of drug sought. Ybarra is commercial, but this is residential. In Ybarra some people would be there for legitimate operation of premises maybe that is not the case with residential. Sufficiently low likelihood that others who are innocent will be there. (2) Dix thinks lower courts have read Ybarra as specific authorization to search named persons.

The Showing of Probable Cause: Challenging Factual Statements IN the Affidavit:

5. Challenging Factual Statements in the Affidavit: a) Franks Approach: Franks changes old rule (that D could never challenge facts in warrant), and it raises two questions: when D is entitled to (1) get a hearing to attack facts in an affidavit, and (2) win a hearing attacking facts in the affidavit. To get a Franks Hearing: D has to make a "substantial preliminary showing" that the affiant knowingly made a false statement. (a) Make a sufficient motion that 1) Specifically allege MATERIAL Errors of Fact AND 2) alleges the error was made with requisite intent (i.e. reckless disregard for truth or intentionally). (b) Provides "supporting reasons" for why information was believed false, i.e. a theory of why affiant lied; (c) the request is accompanied by an offer of proof consisting of affidavits from potential witnesses, unless absence of such affidavits is satisfactorily explained. Big limit: Falsities must be on the part of the affiant, not of any nongovernmental informant. NOTE: Allegations must be more than conclusory and based on more than a desire to cross-examine NOTE Allegations must point out the specific portion of the warrant alleged to be false NOTE: Might argue necessary intent can be inferred from immensity of the error (for example, where there was no informant say from immenseness of error of he knew representation was made w reckless disregard if he was going on his own hunch) Huge burden for D to get a hearing: This allows court to pre-screen cases before holding a hearing, which is costly and involved. If D doesn't have a viable theory and considerable evidence, we won't have a hearing. D can show error was omission but hard to show this was material. (

Entering on the Premises and Other Limits on the Execution of Warrants: Delay of Execution of Warrant

5. Delay of Execution of Warrant: Some statutes prohibit delay. Constitutionally, a delay between issuance and execution can render a search unreasonable if the delay expiates probable cause under 4a. a) Williams—New facts since warrant, 8-day delay search anyways without telling magistrate the change; okay continuing operation. b) Sgro—Warrant expires, magistrate reissues, Ct says no. Unclear if this is issue of language of statute or 4a law. Must reissue on new showing of probable cause, pro forma is not okay. May suggest that warrant executed beyond statutory time frame requires exclusion of evidence because of leg intent (otherwise what does void mean). c) ISSUE: When is exclusion required? (1) As a matter of 4A law: when delay extinguishes PC. Look at: (a) Nature of criminal activity (b) Kind of Property Sought (c) Whether the passage of time so increased the likelihood that the property is no longer on the premises. (e.g. passage of time more likely to expiate PC for small marijuana possession, rather than large-scale drug ops) (2) As a means of enforcing non-constitutional statutory requirements? Perhaps. See Sgro. Legis Intent.

Particularity Demanded of Warrants and Related Limits on Execution of Warrants: Detention of Persons

5. Detention of Persons: a) POs can detain occupants for duration of execution of warrant (policy: protect integrity of search and safety) (Summers, Mena) (1) Can use reasonable force in detention (Mena). Rationale: Safety of POs, especially in search for weapons, gang members (2) Detention does not become unconstitutionally intrusive simply because officers require occupants to get out of bed unclothed or aggressively question occupants. [Mena; Rettle] (a) Can question suspects without independent suspicion (Mena, citing Bostick). E.g. can ask name, date of birth, can ask consent to search bag, ask to see i.d. (b) Personal Safety of POs permitted making white occupants get up naked for several minutes before permitted to dress when looking for black occupants who were in identifity theft ring and house and been sold in California v. Rettle (3) Officers cannot detain persons observed leaving premises if detention is delayed until persons leave "immediate vicinity" of premises. [Bailey] (4) Cannot have news media, not related to objectives of warrant execution, unacceptably intrusive under 4a law. While not addressed, unlikely to trigger exclusion because civil liability enough, violation is news media presence not PO presence, etc. Wilson v. Layne b) ISSUE: May detained person be searched, at least by a weapons frisk? (See Mena) (1) CON: Need independent reasonable suspicion (2) PRO: Mena suggests yes, especially given the rationale of the safety of POs in a search involving weapons and gang members

Foundation Requirement: A Neutral and Detached Magistrate

5. Foundation Requirement: A Neutral and Detached Magistrate a) Test for Magistrate: (Shadwick) (1) Must be neutral and detatched: this is the meatier of the two requirements. (a) Magistrate Bias (Not Neutral) can be a problem. Examples: (i) Paid for warrants issued but not denied *financial incentive to issue —not okay Connally (b) Magistrate Involvement (Not Detached): Lo-Ji Sales, No active participation by magistrate in the investigation (e.g. going down to video shop to determine which items are obscene). (i) BUT, ok to leave his office: If he's just trying to make himself available to law enforcement officers (ii) Coolidge Prosecutor actively involved in investigation cannot issue a warrant (probably not netural OR detached) (2) Must be capable of determining whether probable cause exists. But doesn't need to be a judge or lawyer. (a) Generally a judicial officer or magistrate. However, the validity of a warrant does not turn on the identity of the issuing party (Shadwick) (i) Misdemeanor Arrests for Violating City Ordinances: Can be issued by the municipal court clerk, not just the judge. 4a requirements may be stricter for arrest for more serious offense. (Shadwick) (ii) ISSUE: Whether someone completely outside the sphere of the judicial branch can issue warrants? (b) ISSUE: How fact specific can attack on warrant get? May D undertake to show magistrate bias? That magistrate did not actually read application? (3) Local Requirement: Traditionally, especially under FRCP, judge can usually only issue warrant within his jurisdiction unless 1. D or property might move outside district before warrant executed or 2. terrorism.

Particularity Demanded of Warrants and Related Limits on Execution of Warrants: Prolonging Search:

6. Prolonging Search: a) Does warrant require officers to finish the warrant with some dispatch, do they have to finish, is the evidence after that inadmissible b) Ex: stolen property warrant arranged to be dropped off in front of warrant, searched found nothing, called for ride to pick them up, walked on to balcony, they then spotted MJ plants. Was the search improperly extended when they remained on the premises rather than outside when waiting for their ride on the street, this is about reducing invasion? Can officers reasonably extend the search beyond what is necessary to find the described items?

The Showing of Probable Cause: Right to Informant's Identity

6. Right to Informant's Identity: McCray. State law generally gives police a right to withhold identity of their informants. However, federal constitutional concerns create some exceptions that would require disclosure. State law also makes some exceptions. Ct. in McCray left open whether 4a right to know identity. a) Exception: Disclosure Sought for Inquiry into Innocence. (1) Federal Due Process requires disclosure when there is a sufficient likelihood that knowing the identity of the informant would lead to evidence indicating D's innocence. {Roviario} (2) This probably requires a showing that informant personally observed the events of the crime, but not perfectly clear. b) Possible Exception: Disclosure of Informant's Identity Sought for Inquiry into 4a Evidence AdmissibilityMcCray left this open (not clear if Ct saying never or D's case not persuasive) RULE: Obligation to disclose doesn't apply merely so D can challenge admissibility of evidence. BUT Disclosure may be required as a matter of 4a law where: (a) Reasonableness of police activity depends on informant; and (b) Trial judge determines that a "fair" decision cannot be made on the basis of the information available without the D having access to the informant's identity. (3) ISSUE: Franks seems to suggest that sometimes D would be entitled to informant's identity. The argument is that otherwise the right to challenge the veracity of an affidavit would be unenforceable. Compromise between disclosure/nondisclosure: trial judge may be authorized to require in camera identification of informant, testimony about informant, or production of informant for questioning by judge. Result: "Local" statute or court rule may provide for broader disclosure (Appellate especially but also TC have been reluctant to grant disclosure on grounds other than guilt or innocence, i.e., on 4th amd grounds)

Entering on the Premises and Other Limits on the Execution of Warrants: Time of Day of Execution of Warrant

6. Time of Day of Execution of Warrant—Gooding—suggests that time of day is not constitutionally relevant, despite state statutory protections. a) Arguments for Constitutional Limitations: (1) Ppl are more vulnerable at night (2) Nighttime search is more intrusive/anxiety causing it's SCARY! (3) No good reason in many cases (e.g. to obtain tax records) b) Some state courts require exclusion based on non-constitutional limitations.

Particularity Demanded of Warrants and Related Limits on Execution of Warrants: Destruction of Property in Execution of Warrant:

7. Destruction of Property in Execution of Warrant: a) Ramirez expanding on Wilson and Richards: unannounced entry looking for violent prison inmate. Broke window. Safety first trying to avoid gun access. Grounds for no knock entry (exception applies because danger) Valid.

Entering on the Premises and Other Limits on the Execution of Warrants: Requirement of Return and Inventory:

7. Requirement of Return and Inventory: No 4A Significance (Cady v. Dombroski: if seizure was permissible, the return process is not constitutionally significant). Exclusion is not required.

Entering on the Premises and Other Limits on the Execution of Warrants: Presence of Media: Permitting News Media Coverage

8. Presence of Media: Permitting News Media CoverageWilson v. Layne Cannot have news media, not related to objectives of warrant execution, unacceptably intrusive under 4a law. While not addressed, unlikely to trigger exclusion because civil liability enough, violation is news media presence not PO presence, etc.

Challenging a Warrant On Its face

Defendant may attack a warrant on the basis that the affidavit did not on its face contain adequate information supporting magistrate's determination of probable cause. NOTE: this is distinct from challenge to facts contained in the affidavit. BUT NOTE: magistrate's initial determination that facts show probable cause is entitled to substantial deference when validity of warrant is later litigated, i.e. when the trial judge rules on a challenge to evidence obtained by means of warrant.

Effect of Invalidity of a Portion of the Warrant:

Effect of Invalidity of a Portion of the Warrant: Generally won't invalidate the entire thing, and evidence obtained won't be excluded if POs actions in obtaining warrant is supported by other valid warrant provisions. a) Argument: Some invalid portions can invalidate the entire warrant by making the warrant as a whole a "general" one inviting nearly unlimited searches or seizures.

The Showing of Probable Cause: Initial Showing Before the Magistrate

a) Probable Cause: Sufficient underlying facts and circumstances that a reasonable person would conclude that evidence would be found on the premises or person to be searched. b) General Requirements: Under Leon's good faith exception, if a reasonable PO could/would believe the warrant was valid, evidence will be admissible. (1) Information Presented must enable the officer to make an independent evaluation that probable cause exists (e.g. that there is a "fair probability" that search will result in search and seizure of seizable items that POs want to search for) (Gates) (2) Affidavits must allege facts, not mere conclusions. So "I have it on good authority that Mr. X is a drug dealer" would not be enough. (a) However, PO can testify to a suspect's reputation (Harris reputation over 4 years): Because this is "a practical consideration of everyday life which an officer may properly rely." (b) Probable Cause must support every provision of the warrant. If not, that part of the warrant cannot be relied upon. (i) If part of the warrant is invalid, most jurisdictions allow the court to sever or strike out any constitutionally deficient items in the particularity portion of a warrant to determine the propriety of the search on the basis of the valid remainder. (ii) Issue becomes: can the warrant and the valid remaining provisions support what the officers did? (a) For example, Hudson warrant for drugs ok, but firearms probably no probable cause. But, because drugs are so small they probably didn't search in places that a reasonable officer would not expect controlled substances to be found in. Thus, the invalid and severable provisions are generally of no significance. (b) Sometimes that won't help. Cassady v. Goering (10th Cir.) where invalid parts predominate the valid warrant is invalid. Test: (i) At least one part must pass constitutional muster (ii) Valid sections must be distinguishable from invalid sections (iii) Invalid sections cannot predominate the valid sections where warrant in essence authorizes a general exploratory rummaging c) Informant Tips:

Entering on the Premises and Other Limits on the Execution of Warrants: Presentation of Warrant:

a) Statutes May Require (some require exhibit, others require give copy) b) ISSUE: Can failure to present ever violate 4A? What if suspect asks for it and POs refuse? (1) Caselaw thus far suggests no though FRCP requires it. Groh v. Ramirez (whether it would be unreasonable in 4a terms when occupant is present and poses no threat to not service warrant is a question that this case does not present. Left open that some aspect might be a 4a, but Dix thinks its not.) (2) BUT: (a) There's an argument that presentation decreases the intrusiveness (shows that there is a formal legal mechanism at work) (b) Allows suspect to see what POs are doing and challenge noncompliance. c) USA PATRIOT Act Issues: re: contemporaneous notice/no knock (1) "Sneak and Peek" Warrants: Cases haven't gotten into the federal constitutional implications, but must strictly comply with statute. US v. Espinoza (2) Delayed Notice of Search: PATRIOT Act 18 USCA § 2705 allows that any notice required can be delayed by court order if it would prevent a number of adverse results (danger, flight from prosecution, destruction of/tampering evidence, intimidation of witnesses, anything else jeopardizing an investigation or unduly delaying trial). Cannot seize. Is this more intrusive, if you don't find out until later? Exception to Wilson that announcement is req'd before entry.