criminal investigation question
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WEEK14.docxWEEK # 14 LESSON - SEARCH WARRANTS
In this, our final lesson of the course, we will discuss the role of search warrants in an investigation. Search warrants usually constitute the final phase of a criminal investigation the. Following interrogation of a suspect, surveillance, undercover operations and use of informants, obtaining a warrant to search a suspect, their home or vehicle, in order to obtain incriminating evidence linking them to a crime, is usually the final step in building the case and leading to establishing probable cause to arrest the perpetrator..
The Fourth Amendment
The Fourth Amendment to the U.S. Constitution provides “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment prohibits unreasonable searches and seizures.
Probable Cause: The level of information needed for a court to issue a warrant, for an officer to conduct certain searches or arrests, and the standard for a grand jury indictment.
Investigators seeking evidence and information must be aware the main intention of this amendment is about privacy and therefore protecting people from unreasonable searches and seizures. It is notable that the Fourth Amendment does not protect citizens from all seizures and searches, but just those which are deemed by the court to be unreasonable. It has generally been the case that searching the home or private property of a citizen is on more solid ground through the use of a search warrant approved by the court as opposed to consent or other mechanisms that provide exceptions to the search warrant requirement. An officer may search locations, vehicles, and people when the search is conducted in a reasonable manner and is based upon probable cause.
Search Warrant: A court order authorizing law enforcement to search a particular person, place, or vehicle for evidence of a specific crime.
The concept of probable cause is the foundation for official authority to search places, seize evidence or things that may be unlawful, and physically arrest a person, which is also considered a seizure within the meaning of the Fourth Amendment. To satisfy the requirement of probable cause an officer must possess sufficient information that would warrant a reasonable person to believe that a crime has been or is being committed by someone. The Fourth Amendment also gives rise to the idea of reasonable suspicion. This refers to information or conditions leading an officer to suspect that a crime is being committed or is about to be committed, or that has already been committed. The contrast between probable cause and reasonable suspicion turns on the ideas of believe or suspect. Both of these concepts are based on an approach known as the totality of the circumstances. Officers may rely on all the information and evidence they have legally obtained to establish their suspicion or belief about the commission of a crime
The Exclusionary Rule
If during the course of a search and seizure, a stop and frisk, an arrest, or an interrogation of a suspect, evidence is obtained unreasonably and in violation of the Fourth Amendment, then the courts will exclude it from consideration. It will not be admissible as evidence. This Exclusionary Rule was established at the federal level more than 100 years ago in the case of Weeks v. United States (1914) and was later applied to the states in the case of Mapp v. Ohio (1961). It now applies to all investigations conducted by local, county, state and federal law enforcement agencies. These and subsequent Court decisions reinforce the protections of people and their homes provided by the Fourth Amendment. An extension of the exclusionary rule is what is known as the fruit of the poisonous tree. This concept means that any evidence gained illegally without a warrant is “poison” and cannot be used against a defendant. Furthermore, in addition to the initial illegally obtained evidence or information being excluded, any additional evidence flowing from the original evidence will also be excluded. Both the exclusionary rule and the fruit of the poisonous tree doctrines are considered to be limits on police power. Knowledge of the consequences of an unlawful search is absolutely necessary for all investigators, and must be kept in mind at all stages of the case.
The Exclusionary Rule prohibits the use at trial of evidence that was not obtained legally.
The Application for a Search Warrant
To seek a search warrant, an investigator submits an Application for A Search Warrant containing a statement of probable cause, known as the affidavit, to a judge where he articulates all of the facts known to him at the time that form his belief about a crime and why the place or person to be searched may have evidence of the crime. The application is composed of ten elements:
1. The Court to which the application is being made, such as “The Superior Court of New Jersey”.
2. Jurisdiction applying for the warrant - such as “State of New Jersey, County of Hudson”.
3. Applicant - Name, agency, rank and experience of the officer, usually the case detective, applying for the warrant.
4. Premises - the location (house, business, office) to be searched.
5. Person(s) - the named individuals at the scene to be searched; also includes any “unknown persons in, upon or entering the premises”.
6. Vehicle(s) to be searched .
7. Items - a list of the specific items the investigator is searching for; drugs, weapons, cash, stolen goods, etc.
8. Statutes being violated - the specific laws that are being violated by the crime in question, for example “New Jersey Criminal Statute 2C:11-2 Criminal Homicide”
9. The Affidavit - a detailed statement outlining the essential facts of the investigation and stating the grounds for probable cause.
10. Request for the Warrant - a formal motion asking the judge to issue the warrant.
If the judge determines that sufficient grounds exist to establish probable cause, and the officer swears under oath that the contents of his statement are accurate, the court issues a signed search warrant.
The Search Warrant
The search warrant itself must follow requirements and guidelines that have been established over time. The document must be authorized by a competent court with jurisdiction. The warrant must particularly describe the items sought and authorize only the search for those objects. The court ensures that the warrant is issued based on sufficient probable cause presented by the investigating officer. The warrant must list the name of the officer who has made the request along with the reasons for the request. It will include the place to be searched and the items to be seized. And, of course, the issuing judge must sign the warrant.
The warrant must, in keeping with the Fourth Amendment, specifically describe the location, person, or vehicle to be searched, and the search must be narrow in its scope. In other words, search warrants are not provided by the court that allow officers to search large areas or places to find and then use anything that may indicate someone has committed some unspecified criminal act. The warrant will COMMAND the police to enter the premises, by BREAKING IF NECESSARY, between specified hours. The majority of search warrants require officers to knock and announce their presence and intention to conduct a search. If investigators present compelling information to the court of a significant physical danger to the officers or the belief that a suspect may destroy evidence, the judge may specify the warrant as “no knock,” thus allowing officers to conduct a surprise entry of the location. Once the search warrant has been served the investigator will inventory and list all items seized on what is called a search warrant return and file this document with the court. A seizure is when the officer or official removes an item pursuant to the search that is believed to be relevant to the investigation or unlawful.
See the following link for a sample of a Federal Search Warrant:
See the following link for a sample of a New Jersey Search Warrant
Execution of a Search Warrant
Once the investigator has obtained the warrant, there is usually a specified time period in which to execute it. The operation of executing a warrant is called a RAID, and should be planned in advance, before the warrant is applied for. The suspect, house or vehicle should be kept under surveillance in order to make sure the situation is still active for a search and arrest. The suspect’s movements and activities should be monitored right up the hours immediately preceding the raid. The logistics of the execution should be planned, with the following issues considered:
· Maintaining the element of surprise
· Approaching and gaining entry - obstacles, barriers, use of battering rams, explosives
· Encountering resistance, including armed resistance
· Time of day to ensure maximum return - such as late night for narcotics.
· Number of personnel needed for execution and search
· Equipment/Weapons needed- flashbang explosives, assault rifles, battering rams, cameras, evidence collection material
· Medical Stand-by
Pre-Raid Meeting
On the appointed day of the raid, a Pre-Raid Meeting should be conducted. All participating personnel should be brought together. This briefing should include the following:
A. The objectives for the operation should be clearly announced and the chain of command established.
B. The plan for the operation should be reviewed and when appropriate, copies of pertinent details such as photographs, sketches and physical descriptions distributed.
C. Any information concerning potential danger such as armed suspects, hazardous chemicals, vicious animals or other dangerous situations should be clearly announced.
D. Participants should be advised of any history of violence by any of the suspects and of any information gained indicating a likelihood for violence.
E. All personnel should be briefed thoroughly on communications to be used prior to and during the operation.
F. Contingency plans, if any, should be reviewed.
G. Notes of the information given in the briefing should be retained by the case detective.
H. CRITIQUE - A critique should be conducted following the conclusion of the operation. All phases of the operation should be reviewed to ensure mission completion and to prepare for future operations.
An account of the a pre-raid meeting and the execution of a drug warrant is described by a detective for the Phoenix Police Department:
After you have written your warrant, and have it signed be a judge, a briefing is held. I mostly did hundreds of drug warrants, so that's what I will address.
At the briefing you will advise your squad the details of the suspect and the description of the house and its location. Normally you will show pics of the house and suspect if you know who he is.
On a chalk board you will draw a pic of the property showing doors and windows. And a floor plan if you have it. Nice to know how many bathrooms and their location. This info can be your own knowledge or the informants.
Also any knowledge of where the suspect keeps his drugs, any known weapons, how many people to expect or any children. Also any other hazards, i.e. dogs, pools, clotheslines or booby traps.
The sargeant will then give out assignments. Entry teams, who covers the back, who forces entry at the door, etc.
I won't go in to the technical aspects of the entry. But while driving to the warrant, the sargeant will talk into a tape recorder and say that this is so and so from whatever department and we are about to serve a warrant at such and such address. The tape continues to run as you approach the house and the front door. In Phoenix we are required to "knock and announce" on most warrants. A detective will knock on the door and yell, "this is detective Clark of the Phoenix Police Department. We have a warrant for this house!" This will be yelled several times if no one answers. If someone answers they will be pulled, outside and a detective will cuff them and stay with them. Detectives will then enter looking for other people. We would normally wear latex gloves in case someone needs to, rescue evidence from a toilet.
After the house is secured, all subjects are read their rights while the tape recorder still rolls. After everyone is advised the tape is turned off and impounded as evidence.
If no one answers the door in what the courts say is a reasonable amount of time, the door can be breached.
Now a search of the house is done systematically. Each detective will normally take a room. If something is found, it is noted and photographed as to where it was. A detective know as the "finder" will be in charge of this. If I find something, I would call the finder and he would seize it. That way the finder can testify in court to all the evidence and you do not need to have each searcher testify.
When drugs are found in a room, you need to show who has control of that room. You would seize items like mail, photos, etc. to show who stays in that room. If you find drugs, everyone in the house does NOT go to jail. You need to show possession. We also look for evidence that shows the drugs are not for personal use, but are for sale. Items that would show this are ledgers, packaging material and the amount of drugs found. Also weapons and cash will be seized.
Contrary to other answers we do not trash the house. In fact we will take photos to show its condition when we leave.
There have been occasions where we were inside a house executing the warrant when someone would knock on the door looking to buy drugs. We would make up fake packages to look like drugs and a detective would then sell it to them. After the cash was exchanged, they were taken into custody and charged with attempting to purchase a narcotic drug. We once had five or six buyers cuffed and sitting in the living room. We had to quit as we had run out of hand cuffs.
Serving a drug warrant is one of the most dangerous things an officer can do. Phoenix now has the SWAT team serve all warrants. They train daily on making entries. Once the house is secured they call you in and you begin your search.
The search conducted at the scene of a warrant execution resembles the search of a crime scene discussed earlier in the course. It is conducted in a systematic manner and will involve searchers (or “finders”) and as few collectors as possible, again to limit the chain of custody. There is one major difference however. At the original crime scene investigators do not know what they are looking for or what evidence they are going to find. That is why they need to follow definite search methods. Here, in the execution of a warrant, the evidence has been specified in the warrant, and the detectives know what they are searching for. Evidence is carefully collected, packaged and labeled. A list of all items seized is given to the suspect along with a copy of the warrant. At this point, assuming incriminating evidence has been found, the suspect is formally placed under arrest based on the Probable Cause emerging from their possession of the evidence linking them to the crime..
Upon returning to police headquarters, the collected evidence is inventoried and processed in the evidence room. A Return of the Search Warrant is filed with the judge who granted it, along with a copy of the inventory of items seized.
With the successful execution of a search warrant and the arrest of the offender, the investigation, for all intents and purposes, has now come to an end. The final case reports will be prepared by the lead detective and sent to the prosecutor for processing for the grand jury and trial.
