There are only three lawful ways to enter a home: with consent, exigent circumstances, or with a warrant. This installment of Police Law in a Nutshell offers a brief explanation of warrant searches. Previous installments covered consent and exigent circumstances searches.
Home Searches 3 – Warrant Searches
Your affidavit and any attached evidence, must demonstrate probable cause to believe that the home contains (1) property that constitutes evidence of the commission of a crime, (2) contraband, (3) the fruits of a crime, (4) property designed or intended for use or which is or has been used as a means of committing a criminal offense, or (5) a person for whose arrest there is probable cause or who is unlawfully restrained.
Here are some key points to remember when applying for and executing search warrants for a home:
- The warrant must be signed by a neutral and detached magistrate (Superior Court Justice, District Court Judge, Justice of the Peace);
- If the warrant is not specifically for a nighttime warrant (9 p.m. to 7 a.m.), then it must be executed during daytime hours (7 a.m. to 9 p.m.);
- The affidavit and warrant require “particular” descriptions of the items to be seized and the place to be searched. (Tip: ensure the exact descriptions in the affidavit are included in the warrant.)
- The search must be limited to areas where the items listed in the warrant could reasonably be found. (For example, if you are searching a home for a person, you should not be checking a small lockbox.); and
- Persons on the premises may be detained during the execution of the warrant. However, they cannot be searched unless the warrant explicitly permits it or there is an independent, lawful basis to do so.
There are additional considerations related to “no-knock” warrants and “no-knock” entry. Such considerations include the following:
- Police seeking to make a “no-knock” entry should have the request reviewed and approved by a magistrate in advance.
- Due to a statutory law change in 2021, officers can only execute pre-authorized unannounced entry warrants in said “no-knock” manner if they were pre-authorized as such by a magistrate based upon imminent risk of death or bodily harm;
- Entry within 20 seconds of announcement is considered to be “no-knock.” Officers may make entry into a home based on exigent circumstances during the execution of a warrant, but the legality of that entry will be evaluated based on those circumstances (and, except for an inevitable discovery argument, not based on the warrant).
The search can continue until the items listed in the warrant are found. The duration of the search will vary depending on the type of evidence being sought. For example, there might be multiple stash locations for illegal drugs or other contraband inside the house. However, if searching for a specific stolen item or piece of evidence, the search must end once the item is located, as the scope has been fulfilled.
Tips & Thoughts, Pitfalls & Just Plain Screw Ups
Why a Warrant?
- Makes your search and seizure almost bulletproof.
- Excellent protection from being sued.
- You likely will not have to testify at a suppression hearing.
- Burden of proof shifts to defendant.
- Four Corners Rule – generally, a reviewing court may only consider the written, sworn information in the affidavit. No information, written or verbal, may be considered if it’s not in the affidavit.
- Good Faith Exception to Exclusionary Rule.
Place to be Searched
- A good rule of thumb is to describe the place to be searched with enough detail so that an officer unfamiliar with the investigation could find the correct location based solely on the description in the warrant.
- The place to be searched must be affirmatively connected to the criminal activity described in your affidavit’s probable cause section. For example, just because you buy drugs from someone in the park does not establish probable cause that drugs are at the person’s house.)
Items to be Seized
- A warrant that does not describe items particularly enough could be deemed a “general warrant,” ergo unconstitutional.
- If you can’t come up with a better description than “all stolen property” or “all evidence of the sexual assault,” then don’t waste your time going for a warrant.
- Rule-of-thumb: Can someone who knows nothing about the case read the description of items to be seized and know precisely what should be taken?
- Exercise great caution with boilerplate descriptions.
- For each item to be seized, there must be probable cause that the item is on the premises at the time you seek the warrant. This is a common oversight in affidavits and almost certainly a result of using boilerplate descriptions without regard to the specific circumstances of your case.
- If you want to seize firearms, money, books, and records, along with the drugs, establish in your facts and circumstances the probable cause to do so. It is not automatic just because it’s a drug warrant.
Alleging Criminal Activity
- Remember that the affidavit must allege criminal activity, even if it’s in a general way:
I am conducting a criminal investigation into the possible unlawful trafficking, furnishing, and possession of scheduled drugs by Tweedle Dee and Tweedle Dum, which I have probable cause to believe and do believe is occurring at the premises to be searched, described above.
- Citing specific crimes is not necessary, but it’s not a bad idea.
Facts and Circumstances
- This is the probable cause statement.
- Probable cause cannot be established by an affidavit that is purely conclusory, i.e., merely stating unattributed facts.
- This is called basis of knowledge or attribution.
- The magistrate must assess the persuasiveness of the facts relied on by the affiant. Statements of facts without attribution (basis of knowledge) are not acceptable.
- Wrong – Conclusory statement with no attribution:
Jane Smith was asleep at her residence around 11:30 p.m. on September 27, 2024. She awoke to the sound of someone knocking loudly on the front door to her residence. She went downstairs to the door, turned on an outside light, and saw a man on the porch.
- Correct – Factual statement with basis of knowledge of affiant:
I spoke with Jane Smith on September 28, 2024, who informed me that she was asleep at her residence the night of September 27, 2024, when she was awakened at 11:30 p.m. by the sound of someone knocking loudly on the front door of her residence. She told me that she went downstairs to the door, turned on the outside light, and observed a man through a window in the door on the porch. She told me she knew it was 11:30 p.m. because she looked at a bedside clock when the knocking on the door awakened her.
Deference to Officer Assessment
A magistrate or reviewing court will afford great deference to a police officer’s assessment of the particular information; it is important in the affidavit to state your conclusion in what is often called the “nexus paragraph,” typically at the end of the affidavit. This is where you sum up the evidence you have described in the affidavit, and explain how it constitutes probable cause to believe that the items you want to seize are in the place you wish to search. This is your opportunity to draw conclusions and inferences and say what the evidence means to you, based on your particular training, education, and experience as a law enforcement officer.
How to Screw Up Your Warrant:
- Intentional or reckless false statements.
- Intentional or reckless material omissions.
- In other words, if you lie or leave out critical information (because you fear it will hurt your chances of getting a warrant). If you are aware of information that raises questions about the credibility of the source or accuracy of the source’s information, you must include that information in the affidavit.
- You may be held liable if you knowingly make false statements or misrepresentations of a material nature, or you make material statements in reckless disregard for the truth, or you knowingly omit exculpatory information that would negate the finding of probable cause.
More Common Screwups:
- Problem with the description of the place to be searched or the items to be seized, i.e., not “particular” or specific enough.
- Probable cause is based on conclusory statements.
- Time references are absent, leading to the conclusion of staleness.
- Failing to connect criminal activity to the premises to be searched.
- Failing to state the probable cause for each item to be seized.
- Differences in descriptions between the affidavit and the search warrant. (Affidavit descriptions should identically match warrant descriptions.)
Finally:
- Unless instructed otherwise, include in the affidavit that a prosecutor reviewed it:
I was assisted in preparing this affidavit and request for a search warrant by Assistant District Attorney Erin Reagan. Ms. Reagan is known to me to have over 12 years of experience as an attorney, nearly eight of which were as a prosecuting attorney in the State of Maine. Ms. Reagan is known to me to have assisted in the drafting and/or review of over 200 search warrants. Ms. Reagan reviewed this affidavit, approved it, and authorized me to present it to a judge or justice of the peace for approval.
(It not only bolsters the probable cause belief, but helps a lot when you need the Good Faith Exception to the Exclusionary Rule to save your evidence.)
If you have questions or situations you want to present to Brian MacMaster, email brian.macmaster@dirigosafety.com.