§ 2.01 “Oath or Affirmation”

 

The Fourth Amendment provides that warrants may not be issued unless they are “supported by Oath or affirmation.”  An affidavit supporting a search warrant is presumed valid.  However, in limited circumstances, a defendant may challenge a facially valid warrant, after the search is conducted, on the ground that the warrant would not have been issued but for the falsity in the affidavit.  Franks v. Delaware, 438 U.S. 154 (1978).

 

The granting of a hearing on the veracity of the affidavit requires the defendant to make a “substantial preliminary showing” that:

(1) a false statement was included in the affidavit;

(2) the affiant made the false statement “knowingly and intentionally” or with reckless disregard for the truth; and

(3) the false statement was essential to the magistrate's finding of probable cause.

 

If the allegations are proved at a hearing by a preponderance of the evidence, the warrant is void, and the fruits of the search must be excluded from the criminal trial. 

 

§ 2.02 “Particularity” Requirement

 

The Fourth Amendment provides that a warrant must describe with particularly “the place to be searched, and the persons or things to be seized.”

 

[A] “Place to be Searched”

 

The place to be searched must be described in the warrant in a manner sufficiently precise that the officer executing the warrant can identify it with reasonable effort.  For example, if the warrant specifies an address which is in fact a multiple dwelling building, the police must limit their search to the unit belonging to the person named in the warrant only, which may be ascertained by reasonable effort, such as by checking names on the mailbox or by asking neighbors.

 

A warrant to search an automobile is sufficient if it describes the vehicle in a manner that makes it easily identifiable, such as by providing the license or vehicle identification number, or by describing its location, if the location is a one-car garage, but not if it is a two-car garage or public parking lot.

 

[B] “Persons or Things to be Seized”

 

A degree of vagueness in the warrant description may be acceptable when the police have described the item with as much particularity as can reasonably be expected.  Less specificity is required regarding contraband than is required for “papers” and “effects,” which the First Amendment protects.

 

§ 2.03 Execution of Search Warrants

 

[A] Time of Execution

 

Some jurisdictions, by statute or rule of procedure, require that search warrants be executed within a specified period of time from the date that the warrant was issued, often within ten days.  Some jurisdictions bar night-time execution of warrants, unless expressly authorized by the magistrate.

 

[B] Knock-and-Announce Rule

 

Generally, the police may not forcibly enter a home to execute a warrant, unless they first knock at the door (or ring the bell), identify themselves, state their purpose for seeking entry, request admittance, and are refused admission.  Wilson v. Arkansas, 514 U.S. 927 (1995).

 

The knock-and-announce rule may be dispensed with when the police:

(1) have chased the person named in the warrant to his home in hot pursuit;

(2) have reasonable suspicion that evidence may be imminently destroyed; and

(3) have reasonable suspicion that there is a risk of harm to the officers or others. 

 

§ 2.04 Scope of the Search

 

The police are authorized to search only for items specified in the warrant.  They may open containers (e.g., drawers, closets, trunks) within the place specified in the warrant if the containers are large enough to contain the object of the search.  E.g., the police may open dresser drawers in a search for narcotics but not for a stolen television.

 

Nevertheless, the police are authorized to seize any item (whether or not it is described in the warrant) if:

(1) they discover the item while searching a place that they have the authority to search;

(2) the item is located in such area; and

(3) they have probable cause to believe the item is subject to seizure.

 

§ 2.05 Search of Persons While Executing a Warrant

 

[A] Public Places

 

When a warrant is executed in a public place, the police may not extend the search to persons not named in the warrant who happen to be present at the premises identified in the warrant, unless they have reasonable suspicion that such other persons are armed and dangerous.  In that case, such other persons may be frisked according to Terry v. Ohio. [See § 3.01, “Reasonableness Balancing” Standard.]  Ybarra v. Illinois, 444 U.S. 85 (1979) (police officers, with a warrant to search a tavern and a named bartender for heroin, frisked each tavern customer for weapons, without reason to believe any were armed, and discovered heroin on the person of one of the customers).

 

[B] Private Homes

 

The Supreme Court has not directly addressed the scope of a police officer's authority to search a person during execution of a search warrant to search a private residence.  A few lower courts permit the police, while executing a search warrant of a home for narcotics, automatically to frisk occupants for weapons. Other courts require particularized suspicion that the person frisked is armed and dangerous.

 

[C] Detention of Persons During Searches

 

During the execution of a search warrant for contraband, the police have limited authority to detain all occupants of the premises to be searched. Michigan v. Summers, 452 U.S. 692 (1981).  The Court has not addressed whether this authority extends to search warrants for evidence other than contraband.