CRJ 422 Chapter 4: Criminal Investigatory Search Warrants

Search

1. An examination or inspection of a location, vehicle, or person by a law enforcement officer for the purpose of locating objects believed to relate to criminal activities or wanted persons. 2. Any official intrusion into matters and activities as to which a person has exhibited a reasonable expectation of privacy. The general rule is that any search conducted without a search warrant is unreasonable. Courts, however, have fashioned several well-defined exceptions to this rule. A warrant is not required, therefore, for a search incident to arrest, a consent search, an observation of evidence falling under the plain view doctrine, search of a motor vehicle under the Carroll doctrine, searches conducted in the open fields, observations and seizures of abandoned property, and frisks conducted as a part of brief, limited, investigative detention.

Seizure

1. Under the 4th Amendment prohibition against unreasonable searches and seizures, a seizure of the person can be defined as follows: [A] person has been 'seized' within the meaning of the 4th Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave, ranging from a minimally intrusive stop and frisk to formal custodial arrests." 2. Under the 4th Amendment's prohibition against unreasonable searches and seizures, a seizure of property "occurs when there is some meaningful interference with an individual's possessory interests in that property." Usually, a seizure involves the taking into custody by a law enforcement officer of an item of property believed to relate to criminal activity.

Triggering condition

A condition precedent (other than the passage of time) that will establish probable cause to conduct a search or seizure at some time in the future.

Magistrate

A judicial officer of a court of limited jurisdiction or with limited or delegated authority. A magistrate issues arrest warrants, search warrants, and summonses; sets bail; orders release on bail; and conducts arraignments and preliminary examinations of persons charged with serious crimes. A magistrate may also have limited authority to try minor cases or to dispose of cases on a guilty plea.

Covert entry warrant

A search warrant that specifically authorizes officers to enter unoccupied premises, search for specified evidence, and then leave - without seizing the evidence they find and without leaving a trace that an entry has been made. Officers usually photograph or videotape the evidence or otherwise document exactly what they saw and its exact location. However, under the USA Patriot Act, items discovered during the execution of a covert entry warrant may be seized if there is a "reasonable necessity for the seizure." The practice has come to be known as a "sneak-and-steal" search.

General warrant

A warrant that fails to meet the 14th Amendment's particularity requirement because it is too general.

No-knock warrant

A warrant that specifically authorizes law enforcement personnel to enter premises and execute the warrant without first knocking and announcing their authority and purpose. For such a warrant to issue, reasonable, articulable suspicion must exist for believing that compliance with the knock-and-announce rule would result in the destruction of evidence or in some harm to the executing officer or others.

Anticipatory Search Warrants

A warrant to search a particular place for a particular seizable item the has not yet arrived there. The affidavit submitted in application for the warrant must establish probable cause that evidence of a certain crime will be located at a specific place in the future. If some triggering condition (other than the mere passage of time) is necessary for probable cause to search and seize to exist, then probable cause must also presently to exist to believe the triggering condition will, in fact, occur.

Affidavit

A written statement sworn to or affirmed before an officer authorized to administer an oath or affirmation. Unlike a deposition, an affidavit requires no notice to the adverse party or opportunity for cross-examination. In the criminal law, law enforcement officers and others use affidavits to provide information to a magistrate in order to establish probable cause for the issuance of an arrest warrant or a search warrant.

Franks hearing

An adverbial judicial proceeding named after the U.S. Supreme Court's decision in Franks v. Delaware. It holds that a court must conduct an evidentiary hearing to determine the validity of a warrant after a criminal defendant has made a prima facie showing than an affidavit submitted in support of the warrant contained material statements that were deliberately false or demonstrated reckless disregard for the truth. If the judge concludes such misconduct occurred, the offending material must be severed or stricken from the warrant application. If the information remaining after severance still establishes probable cause, then the warrant will be upheld. If, however, the information remaining in the affidavit after the offending data is set aside fails to establish probable cause, then "the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit."

Search Warrant

An order in writing, issued by a proper judicial officer, directing a law enforcement officer to search a specified person or premises for specified property and to bring it before the judicial authority named in the warrant. A search warrant may be issued for weapons, contraband, fruits of crime, instrumentalities of crime, and other evidence of crime (see items subject to seizure). The 4th Amendment to the U.S. Constitution states that "no warrants shall issue, but upon probable cause, supported by an oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." The judicial officer, before issuing the warrant, must determine whether there is probable cause to search based on information supplied in an affidavit by a law enforcement officer or other person.

Redaction (severability)

In evaluating the constitutional sufficiency of a search warrant, the practice of invalidating clauses in the warrant that are constitutionally insufficient for lack of probable cause or particularity while preserving clauses that satisfy the 4th Amendment. Also referred to as the doctrine of severability.

Staleness

Information on which probable cause was initially based is no longer valid because too much time has passed since the search warrant was issued (e.g., there may no longer be good reason to believe that property is still at the same location), thus rendering the warrant void. Staleness is an important factor in determining the validity of probable cause to search.

Knock and announce

Law enforcement officers must knock and announce their presence, authority, and purpose before entering premises to execute a search or arrest warrant, unless permission was granted to execute a no-knock warrant. This rule flows from the 14th Amendment's requirement of reasonableness. As a result of Hudson v. Michigan, evidence obtained following a knock-and-announce violation is no longer excluded from trial.

Appurtenant

Property that is incident to, belonging to, or going with the principal property. This includes buildings on the land (e.g., sheds) and other things attached to or annexed to the land that may be searched during the execution of a warrant for the search of the principal property. For example, a detached garage, even if not named in a warrant, can be searched as an appurtenant building to a house.

Sneak-and-peak warrant

Same as covert entry warrants. Officer can enter premise, find evidence and leave without taking said evidence or leaving a trace they were there.

Sneak-and-steal search

Same as covert entry warrants. Officer can enter premise, find evidence, and leave without taking said evidence or leaving a trace that the police were there.

Particularity

The constitutional mandate of the 4th Amendment that warrants (and affidavits) or applications for warrants) must describe very specifically "the place to be searched and the persons or things to be seized." Failure to comply with the level of specificity required to satisfy the particularity requirement can result in judicial denial for an application for a warrant. A warrant that was erroneously granted in the absence of particularity can later be invalidated, thereby jeopardizing the search(es) or seizure(s) conducted pursuant to the warrant.

Probable Cause

The fair probability that someone is involved in criminal activity or that contraband or evidence of a crime will be found in a particular place. Probable cause is the level or proof required to justify the issuance of an arrest warrant or search warrant, all arrests made without a warrant, and most searches made without a warrant. Probable cause exists when the facts and circumstances within a person's knowledge and of which he or she has reasonably trustworthy information are sufficient in themselves to justify a person of reasonable caution and prudence in believing that something is true. It means something less than certainty but more than mere suspicion, speculation, or possibility. It has often been referred to as meaning "more likely than not."

Curtilage

The grounds and buildings immediately surrounding a dwelling that are used for domestic purposes in connection with the dwelling. Areas within the cartilage of a home are protected against unreasonable searches and seizures by the 14th Amendment to the U.S. Constitution.

Affiant

The person swearing out an affidavit.