Tag Archive for: Search and seizure

We all love those scenes in our favorite cop shows where the hero decides there’s a piece of much-needed evidence in the bad guy’s house, so he merely kicks in the door and goes in to get it. TV heroes do this at least once per episode.

Well, in the real world there’s a problem with that procedure. First of all, cops need one of two things before they can enter someone’s property—permission from the homeowner, or probable cause and a search warrant. The exceptions to this rule are when someone’s life is in immediate danger or if the evidence could be destroyed before a warrant could be obtained.

Before approaching a judge or magistrate to obtain a search warrant the officer should ask himself/herself a few basic questions. If the answers to those questions are satisfactory the officer should be able to obtain the warrant.

1. Where do they want to search?

Addresses/locations must be very specific on search warrants. The officer must also describe the property in detail (red clapboard-sided, single-story, single-family house with blue shutters. House number is painted on the front door in purple, etc.).

2. What is the officer searching for?

Blanket searches are not permitted. Officers must be very specific when listing the property they hope to find, and the details must be related to the case they’re working. For example, if the case involves a stolen refrigerator officers may not look in places where the fridge could not be hidden (nightstand, etc.). Therefore, illegal items found in the nightstand drawers, or other “drawers,” would not be admissible in court.

3. Details of the investigation that led to the search warrant request.

This is a basic narrative of what the officer has done and learned that led him to believe the evidence is inside the property listed on the paperwork.

4. Do I know what I’m doing?

Officers must convince a judge that they have enough training and experience to apply for and carry out a search warrant service. They should list that training and experience on the affidavit (application for search warrant).

5, Does this warrant need to be served under the cover of night or, is it safe to go in during the daytime?

Officers must justify their reasons for wanting to “go in” at night. And those reasons vary—wanting to catch the dangerous drug dealers while they’re asleep, the drug dealers are always at home during  certain hours, it’s safer to raid a home while everyone’s in the bed asleep.

If officers meet these very basic requirements they’ll probably come away from the judge’s office with warrant in hand. (Of course, there’s more to it than this, but you get the idea). The next step is to knock and announce their presence, serve the warrant, and then collect the evidence you were hoping to find. When finished the officer must leave a receipt for every single item seized.

We’ve discussed the issue of probable cause (PC) many times, and we all know it’s one of the very few things that remains consistent in law enforcement. PC is a “gotta have it” sort of thing when making certain arrests and obtaining search warrants.

One more time – Probable Cause is the existence of facts (not mere suspicion) that will satisfy an officer of ordinary caution that a crime has been, or is being committed … and the item to be searched for is reasonably connected to the crime in question. Oh, and that evidence of the crime can be found at/in a certain place (PC for a search warrant).

Okay, with that reminder in place, let’s take a look at a few more rules regarding search and seizure.

1) Information used to obtain a search warrant absolutely must be current information. “Stale” information is not a valid basis for a search—evidence could have been moved, suspects might have moved on, other people may now be inside the residence, etc.

2) An informant’s name need not be revealed in the body of the search warrant or affidavit. That’s sort of why they call them “confidential” informants.

3) Search warrants must be served (executed) promptly. Not a week or two after the judge signs it. Actually, delays of three or four days have rendered searches unreasonable in the eyes of the courts.

Search Warrant Execution – No Knock

4) Police officers must knock and announce their presence when serving a search warrant. However, there’s no written rule/law that states a required amount of wait time before using a battering ram to gain entry. But, a good rule of thumb is to wait a few seconds, long enough for a reasonable person to open the door. Any longer allows the suspect enough time to destroy evidence.

5) Officers may obtain “no knock” warrants if there’s a threat of danger to officers should they knock and announce their presence. Also, warrants must be served during daytime hours unless otherwise specified on the warrant.

6) The law says that officers may damage private property while entering, as long as the damage was necessary under the circumstances (breaking doors and windows, etc.). And guess who’s stuck with the bill? Yep, the suspect. However, some jurisdictions have policies in place that require the municipality to cover the cost of repairs.

7) Members of the media should not be allowed to accompany officers into a private home during the execution of a search warrant.

8) Officers do not need a search warrant when conducting a search of a suspect’s personal property during the booking process at the jail. This includes any closed container found in the suspect’s pockets.

9) Officers must limit their searches of electronic devices to only the files named on the search warrant.

Sergeant Search

10) Evidence seized during an improper search may not be used during criminal proceedings. However, if the officer relies on a warrant issued by the court that was later found to be accidentally inaccurate (at no fault of the officer), it is possible that a court would allow the evidence to be introduced.

11) Evidence seized in violation of the 4th Amendment (protection against illegal search and seizure) may not be used in criminal trials. However, that very same evidence may be, and is, used in other court proceedings, such as parole violations/revocations.

12) It’s Probable Cause, NOT Probably Cause. Yes, I see and hear this (probably cause) quite often.