Rule 41
Detention 3 reasons to detain individuals during execution of a search warrant
1) Prevent flight when there is a likelihood the person will flee in the event the search uncovers evidence of a crime or contraband 2)Reduce risk of injuries to officers executing the search 3)To minimize the destruction of property during the search Residents of a dwelling You can detain if the residence is that persons. enough time to confirm or deny suspicion (need separate search warrant for search of person) or (Get consent to search) Non-residents of a dwelling Can be detained (Need separate search warrant to search person) or (Get Consent) Visitors to Residence Arrived after search, cannot detain them, barring specific information linking the visitor has no opportunity to flee with evidence and a terry stop cannot be justified. Be Courteous!
How is a search viewed?
A search is viewed as a government action that infringes on a reasonable expectation of privacy.
Who can get search warrants?
"A search warrant may be issued only by a judicial officer upon request of a law enforcement officer, an attorney for the state, or any other person authorized by law."
The Return of Service: Warrant for Monitoring a Conversation (e.g. "Wire Warrants):
Warrant for Monitoring a Conversation (e.g. "Wire Warrants): According to Rule 41 V.R.C.P.: (4) Execution and Return of a Warrant for Monitoring A Conversation. (A) Noting the Time. A law enforcement officer executing a warrant for monitoring a conversation shall enter on the warrant the exact date and time that the warrant was executed and the period of time that any monitoring occurred. (B) Return. If the warrant is executed a return shall be made within 90 days. Upon certification by a law enforcement officer, an attorney for the state, or any other person authorized by law that an investigation related to the warrant is ongoing, a judicial officer may authorize an extension of the time for making the return for such period as the judicial officer deems reasonable. The return shall identify:
Items to be seized:
What + where = Scope Be clear on description of items to be seized
Article 11 General Rule
With minor and severely confined exceptions every search and seizure is unreasonable when made without a magistrate's authority expressed through a validly issued warrant. Harris v. U.S. 3331 U.S. 162 (1947)
What two questions should officers ask when deciding whether or not to include information favorable to the accused are:
Would the judge think this information is important? AND Can the defense attorney attack this omission later claiming it was material?
Electronic Monitoring
search Warrant is necessary unless public place Safety wire (used to protect confidential informant) information is suppressed.
Search warrants:
when you have warrant always for 6 - 10 days to carry out between the hours of 6am to 10pm
Days in which this information; application, affidavit, search warrant and inventory should be filed at the court house
General warrants 5 days Electronic monitoring 90 days Tracking warrant 10 days
"No Knock Warrants":
"No Knock Warrants": There is no specific provision in the Rule 41 regarding no-knock warrants. Officers may apply for a search warrant that permits entry into the place to be searched without knocking and announcing. The officer must articulate in the affidavit of probable cause why the no- knock warrant is deemed necessary (i.e. safety, destruction of evidence, escape). This issue was addressed by the United States Supreme Court in Wilson v. Arkansas (cited above): "In order to justify a no knock entry the police must have a reasonable suspicion that knocking and announcing their presence under the particular circumstances would be dangerous or futile or that it would inhibit the effective investigation of the crime by, for example, allowing for the destruction of evidence." In the State of Vermont, officers may receive permission from the judge issuing the warrant to enter the premises without knocking and announcing and this permission will be written into the search warrant. This permission may be granted, "When there is reasonable grounds to believe that compliance with the rule would endanger the safety of the officers, that occupants inside will attempt to escape or destroy evidence." State v. Ogden, 161 Vt. 336 (1993). Introduction to Vermont Criminal Law - Page 71 These concerns must be established from the specific facts of each case. Courts have not granted no knock warrants based upon a general statement that drugs may easily be disposed of, or that drug dealers are often known to carry weapons. There is no "per se" exception to the knock and announce rule for any category of crime, including drug searches as stated by the Supreme Court in Richards v. Wisconsin, (520 US 385 (1997)). If while in the process of beginning to execute the warrant, facts come to your knowledge which justify a no knock entry (i.e., destruction of evidence or threat to your safety) you may then knock and announce in a very abbreviated manner or, if circumstances justify, not at all. "The knock and announce requirement could give way under circumstances presenting a threat of physical violence, or where police officers have reason to believe that evidence would likely be destroyed if advance notice were given." Wilson v. Arkansas.
Need Probable Cause
"Probable cause exists when the facts and circumstances of the case would lead a person of reasonable caution to conclude that a crime has been committed and that evidence of the crime will be found in the place to be searched." State v. Towne, 158 Vt. 607 (1992).
Inferences Creating Probable Cause: The connection between items and places
1. The nature of the crime (theft- stored at robbers home most likely) 2. The type of material sought. (witness give you probable cause Tim has lb of weed. lb of weed may not be still located at Tim's house three days later) 3. Opportunity for concealment. (example burglary right near residence.) (Think staleness- satisfied you have a crime, but three days passed, item/evidence may not be there. 4. Use of police experience and training. 5. Suspect's prior convictions/ history. (past history of stealing and bringing back to residence) 6. Reasonable inferences of criminal behavior.
Who makes the final evaluation of probable cause?
A Judge
Container
A container is any area, location, or object that does not disclose its contents (i.e.: Human body, house, suitcase, shoe box,. etc.) (Think doorway Threshold, must need warrant)
Application and Search Warrant:
Application (resembles the warrant) Affidavit (signed and sworn by officer in presence of judge) Warrant (signed by judge in presence of officer) Inventory (signed by person subject to search) Return of Service
Inventory
Complete list of items taken from residence/vehicle/bag, etc. 1) Should mirror search warrant 2) Documents items seized, location seized, seizing officer and time of seizure. 3) If something is encountered that is not on the warrant, make sure it is documented why item was taken. (Re-evaluate if additional warrant required to search for additional items (i.e. while looking for television, drugs observed...?) Have to have reason to believe you are looking for the item in the right places (ex. broken down m4 rifle- dresser drawers. Earrings- everywhere) 4) Inventory should be signed by owner of the property
Daughter is driving dads car. Who has an expectation of privacy?
Daughter. The operator has an expectation of privacy. Dad is the owner, but not driving. Daughter, as the owner can potentially consent to a search/ hide own drugs in car.
Exigent Entry after Knock and Announce:
Exigent Entry after Knock and Announce: There may be circumstances in which an officer feels that it is necessary to enter the place to be searched immediately after knocking and announcing without waiting for a reply from within. If this is the case, the officer must be able to articulate reasons for the exigent entry. The factors considered by the officer may be similar to those listed above (i.e.: destruction of evidence, fear of harm to officer, etc.). If the officers make such an entry without delay after the knock and announce, they must articulate the factors relied upon when making this decision in their report. At times, these factors and situations occur following the issuance of the search warrant. If an officer can articulate these factors prior to the search warrant application, they should be included in the affidavit of probable cause and the officer should apply for a "no knock" warrant (as addressed in the following section). The Vermont Supreme Court dealt with the issue of no delay following knock and announce in State v. Ogden, 161 Vt. 336 (1993). In that case, the Vermont Supreme Court decided if an officer has an objectively reasonable belief that awaiting a reply would jeopardize the safety of officers and they have knocked and announced their presence and purpose (in a manner reasonably likely to provide actual notice) they may enter immediately. Test: After announcing your presence and purpose and before entering have you waited a reasonable amount of time and it appears you have been "refused entry"? There may also be circumstances that may warrant execution of a search warrant without knock and announce such as when there is a "reasonable suspicion" that evidence is being destroyed. State v. Crannell, 750 A.2d 1002 (Vt. 2000).
The Return of Service: General Warrants:
General Warrants: According to Rule 41 V.R.C.P.: The return shall be made as promptly as possible, and in no event later than five calendar days after execution of the warrant and completion of the search, and shall be accompanied by the inventory and a copy of the warrant as served. Upon certification by a law enforcement officer, an attorney for the state or any other person authorized by law that good cause exists for extension of time for filing the return and inventory, the judicial officer may extend the time for making the return for such period of time as the judicial officer deems reasonable. If no property was seized in consequence of the authorized search, the return shall so indicate. The clerk of the court to which the warrant was returned shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.
Search Warrant:
Identical to application in people/places to be searched and items to be seized. Signed and dated by a judge copy of warrant remains on file copy of search warrant is given to property searched.
Exculpatory Evidence/Information:
In accordance with the theory that all potentially relevant evidence should be presented to the judge, courts have ruled that material evidence which would tend to show a lack of probable cause or which would establish that evidence may not be located in the area to be searched must also be included in the affidavit of probable cause. The officer must, "bring to the attention of the judge material facts and circumstances that if included in the affidavit would tend to show a lack of probable cause to either charge the defendant or to issue a search warrant to search a particular area." Franks v. Delaware, 438 U.S. 154 (1978); U.S. v. Lace, 669 F.2d 46 (2d Cir. 1980). Courts have ruled that because decisions of probable cause are made without the input of defense counsel, and in many cases without review by the State's Attorney, it is particularly important that officers present a fair assessment of material facts and circumstances to the judge who is determining probable cause.
General rule for search warrant:
In order for an officer to obtain a Search Warrant, they must develop PROBABLE CAUSE in TWO areas: 1) A CRIME HAS BEEN COMMITTED AND 2) THAT EVIDENCE OF THAT CRIME WILL BE FOUND IN THE PLACED TO BE SEARCHED
Stale Information:
It is a fundamental principle of search and seizure law that the information furnished in an affidavit in support of a search warrant must be timely, and that probable cause must exist at the time that the warrant is issued. A warrant application based upon stale information is insufficient because it fails to establish probable cause that the evidence sought is actually at the premises when the warrant is issued.
Place(s) to be Searched
Needs to direct you to correct address and correct premises on location
Expectation of Privacy
Objective: Expectaion of privacy is one that society is willing to recognize; it is a societal standard. Subjective; Personal expectation of privacy is objectively reasonable, society as a whole would consider it reasonable.
Who conducts a search?
Officers/ Agents of the government
Entry upon Execution:
Prior to entering the location to be searched as indicated on the search warrant, officers must knock and announce their presence, authority and purpose and demand that they be allowed to enter (i.e. "Burlington police we have a search warrant, open the door"). It is important to remember that the knock and announce rule applies even when entering an unlocked structure, Sabbath v. United States, (391 U.S. 585, 88 S.Ct. 1755 (1968)) or when using a key to make entry. In any case, an officer should always take into consideration the "least intrusive option" for gaining entry. Courts have upheld the validity of searches where the delay was one minute, thirty seconds, fifteen to twenty seconds or ten seconds. The officers must weigh the reasonableness of their actions against the purpose for the execution of a search warrant. Regardless of the length of time Introduction to Vermont Criminal Law - Page 69 that has elapsed following the knock and announce, officers must articulate in their report the reasons for forcing entry into any structure.
With Rule 41 you must need
Probable Cause
Affidavit Should Articulate
Probable cause that a crime has been committed Probable cause that evidence of the crime will be found in a specific location Must be sworn to and signed by officer in front of judge. Original affidavit of probable cause remains on file at the court clerks office.
4th Amendment:
Protects people, not places. The standard is one that society is willing to accept as reasonably private and that the person in question has a reasonable expectation of privacy
Search:
Search - A search is defined, as an intrusion (however slight) by an agent of the Government into an area where a person has a legitimate and reasonable expectation of privacy that society is willing to recognize. Generally speaking, there is no "search" unless a government agent has intruded into an area where the citizen had a "reasonable expectation of privacy."
Rule 41
Search Warrants Guidance and legal authority for obtaining and carrying out search warrants.
Types of search warrants
Search Warrants (General) Wire Warrants Tracking Warrants Electronic Stored information Warrants
How long is a warrant valid?
Search warrants are valid for as long as indicated by the judge on the actual warrant, but no longer than 10 days (No Exceptions) Judge has the ability to decrease length of time. Can copy computer drive within timeframe and have time later if specified to look at hard drive.
Search Warrants: Grounds for Issuance
Search warrants in Vermont will only be issued for the following: 1)Evidence for the commission of a criminal offense 2)Contraband, fruits of a crime or things otherwise criminally possessed. 3) Weapons or other things by which a crime has been committed or is about to be committed 4) Persons who have been kidnapped, unlawfully imprisoned or restrained or any human fetus or human corpse. 5) Persons for whose arrest is authorized by law. 6) Monitoring conversations for which one party has consented in order to obtain evidence of the commission of a crime. (wire tap) (if the call you-no search warrant needed/ you call them- search warrant needed or let individual know conversation is being recorded. 7) Attach, use, or enter any premises to install a tracking device to track the movement of a person or property to obtain evidence of the commission of a crime.
"Search" Definition:
Search: Looking for something/evidence A search implies prying into hidden places for that which is otherwise concealed and that the object searched for had been hidden or intentionally put out of the way, merely looking at that which is open to view is not a search.
Return of service:
The "Return of Service" consists of the original inventory and the original search warrant.
The "Return of Service"
The "Return of Service" consists of the original inventory and the original search warrant. These items are returned to the District Court Clerk's office in the county where the warrant was issued. The original warrant replaces the copy of the warrant on file as noted above. The District Court Clerk maintains ALL of the original copies of the search warrant process (application, affidavit, search warrant and inventory). Once a return of service has been made to the court, the search warrant/affidavit, etc. becomes public information and can be accessed by the general public, the offender, defense attorneys, etc. A prosecutor can file a motion to seal with the return or before the return is made. Any requests to seal should be discussed with the State's Attorney at the earliest opportunity. Pursuant to Rule 41, all warrant applications shall contain any incident number assigned by the law enforcement agency or other applicant requesting the warrant. The return and inventory shall also contain reference to this incident number.
What is a seizure?
The Supreme Court asserts that a search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A SEIZURE of property occurs when there is some "meaningful interference with an individual's possessory interest in that property." United States v. Knoll, 16 F.3d 1313 (2d Cir. 1994). Example: An officer or an agent of the state takes something from a person (i.e. take custody of a backpack) or an officer or an agent of the state takes away the person's control of an item (i.e. seize control of a house).
Use of Civilian Personnel During Execution of Search Warrant:
The United States Supreme Court held in Wilson v. Layne (119 S.Ct. 1692) (1999) that officers may not allow non-law enforcement personnel to assist in the execution of a search warrant without articulating the necessity for this assistance in the affidavit of probable cause to be reviewed by a judge. (i.e. technical expertise needed to assist officers). The Supreme Court held that non-police personnel involved in the execution of search warrants are exposed to an area of privacy that ONLY law enforcement personnel have the authority to be exposed to pursuant to a valid search warrant.
Search Of Individuals During Execution of Search Warrant:
The courts have established that officers may not search persons present in the residence (or place searched) unless they are specifically listed on the search warrant (recall particularity requirement of search warrants) or the officers can articulate a warrantless search exception (as detailed in the following chapter). "A persons mere presence at the target premises (place to be searched) standing in close proximity to others independently suspected of criminal activity does not without more give rise to probable cause to search that person." Ybarra v. Illinois, 444 U.S. 85,100 S.Ct.338 (1979). Officers may conduct a pat-down of persons present during the search, however, officers MUST articulate the two-prong test as illustrated in Chapter 1 - Reasonable Suspicion. The pat-down should not be used to circumvent the warrant requirement and should not be used to search for contraband. Officers may also ask for consent to search the person. This exception to the search warrant requirement and others will be addressed in the following chapter.
Seizure of electronic storage media or the seizure and copying of electronically stored information.
The inventory may be limited to describing the physical storage media that were seized or copied A supplemental inventory shall be filed within five calendar days of the completion of the search of the contents of the media.
EXECUTION OF THE SEARCH WARRANT
Time of Execution: Officers in the State of Vermont may execute a search warrant "between the hours of six a.m. and ten p.m." This time period is standard for any and all search warrants, however, the following exception applies: "Any time" Warrant - An officer may apply to execute a search warrant at "any time." An "any time" warrant, however, is allowed only upon the specific showing of need. (such as immediate destruction of evidence - evidence present only after 10 p.m., etc.). This information must be provided in the affidavit of probable cause presented to the Judge. Introduction to Vermont Criminal Law - Page 68 Example: The Vermont Supreme Court upheld an execution of a search warrant after ten p.m. where the officers applied for a search warrant after this time and established that the defendant's spouse, upon learning of her husband's recent arrest, might seek to destroy incriminating evidence at their home. State v. Weiss, 155 Vt. 558 (1991).
