Nowlin

Criminal Procedure
Warrant Handout
(Read before p. 148, note 4)

A. Warrants: Preference and Issuance

(1) The Warrant Preference

The Supreme Court has often stated that searches and seizures based on a warrant are preferable to
warrantless searches and seizures. The warrant preference, as it is sometimes called,
reflects the view that the probable cause determination typically required for a search or
seizure will be made with greater accuracy by a detached and neutral magistrate than by a
police officer engaged in the often competitive enterprise of ferreting out crime and thus
the interests the Fourth Amendment is intended to protect are better served by requiring
warrants whenever possible. Johnson v. United States, 333 U.S. 10 (1948).

(2) Warrants Must Be Supported by Probable Cause

The text of the second clause of the Fourth Amendment states that no Warrants shall issue, but upon
probable cause. Thus probable cause is a constitutional requirement for the issuance of a
warrant.

(3) Detached and Neutral Magistrates

The Fourth Amendment has long been read to require that warrants be issued by detached and
neutral magistrates. Detachment and neutrality refers to the magistrates disengagement
from the enterprise of crime control and his or her independence from prosecutors and police.
Thus the requirement that the magistrate be detached and neutral is generally seen as
prohibiting the issuance of valid warrants by members of the executive branch involved in
criminal investigationssuch as a state official in the office of the attorney general who may
be the chief investigator and is later prosecutor in the case involving the search warrant. See
Coolidge v. New Hampshire, 403 U.S. 443 (1971). The magistrate authorized to issue
warrants is not required to be a judge or lawyer, but he or she must be capable of making the
probable cause determination to qualify as a magistrate or judicial officer. See Shadwick v.
City of Tampa, 407 U.S. 345 (1972)(holding that municipal clerks, though laymen [i.e, not
judges or lawyers], worked within the judicial branch under supervision of municipal court
judges and were qualified to make the determination whether there is probable cause to
believe that a municipal code violation has occurred.).

(4) Oath or Affirmation

The text of the second clause of the Fourth Amendment requires that no Warrants shall issue, but
upon probable cause, supported by oath or affirmation. Thus the Fourth Amendment
requires an oath or affirmation in support of the facts which are put before the magistrate by
law enforcement in order to demonstrate probable cause. If an officer violates his or her oath
or affirmationintentionally or knowingly making a false statement to the magistrate or acting
with reckless disregard to the truth or falsity of a statementand the statement was necessary
to the finding of probable cause, then the warrant issued is invalid. See Franks v. Delaware,
438 U.S. 154 (1978).

(5) Particularity
The text of the second clause of the Fourth Amendment requires that warrants particularly
describe the place to be searched, and the persons or things to be seized. The
particularly requirement is best understood as a requirement of reasonablenessof
 reasonable particularity in light of the facts and circumstances. See, e.g., Steele v. United
States, 267 U.S. 498 (1925)(holding in the context of the search of a place that it is
enough if the description is such that the officer with a search warrant can, with
reasonable effort ascertain and identify the place intended.). The standard may be
stricter in its application to the question of things to be seized, given the historic danger
of general searches which the Fourth Amendment was intended to prohibit. See
Marron v. United States, 275 U.S. 192 (1927)(stating that [t]he requirement that
warrants shall particularly describe the things to be seized makes general searches
impossible.).

B. Warrants: Execution

(1) Execution within Specified Time

Some jurisdictions, either by statute or rule of procedure, require that a search warrant be
executed within a designated period of timesuch as ten days from the time of the
magistrates signing of the warranton the assumption that the evidence supporting the
search warrant is subject to staleness with the passage of time. See, e.g., Fed. R. Crim.
P. 41. It is unclear whether the expiration of a warrant invalidates it under the Fourth
Amendment.

(2) Nighttime Execution of Warrants

Some jurisdictions, either by statute or rule of procedure, prohibit nighttime execution of warrants
in the absence of special circumstances. Daylight is most commonly defined by
specific hours in state statutes. The Federal rules define daylight as 6:00 a.m. to 10:00
p.m., local time. See FRED. R. CRIM 41(a)(2)(b). It is unclear whether this is also a
constitutional requirement. See Gooding v. United States, 416 U.S. 430 (1974)(holding,
as a matter of statutory interpretation, that 21 U.S.C. 879, a controlled substance statute,
requires no special showing for a nighttime execution of warrant).

(3) Means of Entry to Execute Warrants

(a) Wilson v. Arkansas, 514 U.S. 927 (1995)(holding that the common law knock and
announce principle forms part of the reasonableness inquiry under the Fourth
Amendment and is, in general, required by the Fourth Amendment).
(b) Richards v. Wisconsin, 520 U.S. 385 (1997)(holding that in order to justify a no-knock
entry, the police must have a reasonable suspicion that knocking and announcing their
presence, under the circumstances, would be dangerous, futile, or inhibit the effective
investigation of crime).

(4) Damage to Property during Execution of Warrant

United States v. Ramirez, 523 U.S. 65 (1998)(holding that excessive or unnecessary, i.e.,
unreasonable, property destruction during a search violates the Fourth Amendment,
even in instances where the entry itself is lawful and fruits of the search are not subject to
suppression).

(5) No Occupants on Premises during Execution of Warrants

Courts are in general agreement that an execution of a search warrant is permissible even in the
absence of the occupant of the premises searched. See United States v. Gervato, 474 F2d
40 (3rd Cir. 1973); U.S. v. Chubbuck, 32 F.3d 1458 (10th Cir. 1994).
(6) Procedures in the Absence of the Occupant
Statutes, rules of procedure, or departmental policies typically require officers, when searching
Premises in the absence of the occupant, to leave on the premises a copy of the search
warrant and an inventory of seized items. See, e.g., Fed. R. Crim. P. 41. It is unclear
whether this is also a constitutional requirement. See, e.g., United States v. Simmons, 206
F3d 392 (4th circ. 2000)(holding that the Fourth Amendment does not require officers to
leave a copy of the search warrant or an inventory of items seized).