INVESTIGATIVE TECHNIQUES LAW
Copyright 2001 - 2015 Edward S. Armstrong, Jr.

All law enforcement officers must confer with their training officers, legal advisors and prosecutors regarding the following legal issues. State law can be more restrictive (pro-defendant) than Federal law. Federal circuit courts of appeal often disagree with other Federal circuit courts on issues not yet decided by the United States Supreme Court. Also, lower courts (State and Federal) sometime disagree on what a Supreme Court decision means. The following statements are not to be taken as legal advice.

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25.   EXECUTION OF A WARRANT

a.   Search - A Search is an intrusion by Federal, State and local governments into a person’s privacy area (Reasonable Expectation of Privacy - REP), Katz v. U.S., 88 S.Ct. 507 (1967), or a trespass upon a person's private property, U.S. v. Jones, (2012)



b.   Search Warrant - Police must use a Search Warrant or an exception approved by the Supreme Court or lower courts to conduct a search, Katz v. U.S., above.



c.   Barring Suspect from Premises - Police, armed with probable cause, may prevent a suspect from entering his premises while a Search Warrant is being obtained to prevent potential destruction of evidence. If the suspect needs something inside (e.g., medicine, cigarettes, phone calls), Police may follow him inside. Illinois v. McArthur, 121 S.Ct. 946 (2001) (two hours wait for Warrant in this case).



d.   Probable Cause to Search– Probable cause means Police have collected sufficient facts to indicate that contraband and/or evidence of a crime is probably in a premises. Police may present the facts to a Magistrate by the following methods: a written affidavit, a telephone communication, a facsimile, e-mail or a live witness. Any method used must be under oath and subject to perjury, Rule 41, Federal Rules of Criminal Procedure (FRCrP).

 

Standard for qualified immunity for Police when presenting probable cause to a neutral magistrate, Messerschmidt v. Millender (2012)

 

 

e.   Anticipatory Search Warrant - Police must demonstrate two probabilities in an affidavit when obtaining an anticipatory Search Warrant: (1) probable cause exists that a triggering condition will occur, and (2) if the triggering condition occurs, probable cause exists that contraband or evidence will be found in a particular place. However, the triggering condition is not required to be described on the face of the Warrant; only the place to be searched and the evidence or person to be seized must be on the face of the Warrant, U.S. v. Grubbs, 126 S.Ct.1494 (2006).



f.   Issuance of Search and Arrest Warrants - A Magistrate must issue a Search Warrant if there is probable cause to search for and seize a person or property (evidence), or to install and use a tracking device, Rule 41(d)(1), FRCrP. A Magistrate must issue an Arrest Warrant if there is probable cause to believe a crime has been committed and that the suspect committed it, Rule 4(a), FRCrP.

 

 

g.   Face of the Search Warrant – Police must particularly describe on the Warrant: (1) the location to be searched and (2) the evidence or person to be seized. If a description is missing, unless the affidavit containing the description is attached and incorporated by reference, the Warrant is null and void, Groh v. Ramirez, 124 S.Ct. 1284 (2004). The triggering condition of an anticipatory Search Warrant is not required on the face of the Warrant, U.S. v. Grubbs, 126 S.Ct.1494 (2006).



h.   Time of Execution

 

Police must have Probable Cause / Reason to Believe a suspect is present in a premises before executing an Arrest Warrant, Payton v. New York,100 S.Ct. 1371 (1980).

 

Police must execute a Federal Search Warrant in the daytime, between 6:00 a.m. and 10:00 p.m. local time, unless the Magistrate expressly authorizes execution at another time, Rule 41(e)(2), FRCrP.  



i.   Knock and Announce– Police must knock, announce their authority and purpose, and wait for admittance before entry into a suspect’s premises to execute an Arrest Warrant or Search Warrant. If a suspect refuses to admit Police, Police may break into the premises and anything therein to execute the Warrant, Wilson v. Arkansas, 115 S.Ct. 1914 (1995), 18 U.S.C. § 3109, Federal Knock & Announce statute.



j.   No Knock Entry - A no knock entry / warrant is permissible if Police have reasonable suspicion that knocking and announcing would be dangerous, futile or allow destruction of evidence, Richards v. Wisconsin, 117 S.Ct. 1416 (1997), U.S. v. Banks, 124 S.Ct. 521 (2004).

 

 

Knock and Announce Violation - The exclusionary rule does not apply for a knock and announce violation. However, Police may be disciplined by their departments and agencies and/or sued by the homeowner if it is violated, Hudson v. Michigan, 126 S.Ct. 2159 (2006).



k.   Ruse - Police may use a ruse to trick a suspect to open his door, then follow remainder of knock and announce doctrine and § 3109, U.S. v. Michaud, 268 F.3d 728 (9th Cir. 2001).



l.   Execution of Warrant – Police must act reasonably when executing a Warrant. Excessive or unnecessary destruction of property may violate the 4th Amendment, U.S. v. Ramirez, 118 S.Ct. 992 (1998). Reasonableness issues include Police use of dynamic entry, pepper spray, tight handcuffing, pointing firearms, etc.



m.   Detention of Persons on Premises – Police may detain and control the occupants of a premises being searched for contraband, Michigan v. Summers, 101 S.Ct.2587 (1981), use reasonable force to effectuate the detention, Graham v. Connor, 109 S.Ct.1865 (1989), and handcuff the occupants in potentially dangerous situations, Muehler v. Mena, 125 S.Ct. 1465 (2005).

 

The Summers rule, which allows Police to detain the occupants of a premises during a contraband search, is limited to the immediate vicinity of the premises, Bailey v. U.S.(2013)

Los Angeles County v. Rettele, 127 S.Ct. 1989 (2007) Officers acted reasonably in executing a valid Warrant to search a residence when they ordered two naked residents out of bed and held them at gunpoint 1 to 2 minutes before allowing them to dress, while Police verified that no weapons were present and that other persons were not close by, even though the residents were white and the suspects were black. Information existed that one suspect owned a registered handgun.



n.   Arrest of Suspect – If Police enter a suspect’s premises with a Search Warrant, Police may arrest the suspect without an Arrest Warrant so long as Police have PC to make the arrest, U.S. v. Minchenbach, 197 F.3d 548 (1st Cir. 1999).



o.   Search Incident to Arrest, Protective Sweeps and Officer Safety Questions – see Officer Safety, Home Page.



p.   Media – Police may not take the media with them into a suspect’s premises during the execution of an Arrest Warrant or Search Warrant, Wilson v. Layne, 119 S.Ct. 1692, Hanlon v. Berger, 119 S.Ct.1706 (1999).



q.   Answering a Phone Call – Police may answer the telephone during the execution of a Search Warrant, U.S. v. Passarella, 788 F.2d 377 (6th Cir. 1986). The Officer who answers the phone is a party to the conversation. See # 1.a.

 


r.   Seizure of Evidence – A Police seizure of a person’s property is a meaningful interference by government with a person’s possessory interest. Police are commanded to seize evidence described on a Search Warrant which is discovered during a search. Police may seize evidence not listed on the Warrant if found in Plain View (immediately apparent to be evidence of crime) during the search, Horton v. California, 110 S.Ct. 2301 (1990). Police may be sued for an unreasonable seizure of property, Soldal v. Cook County, 113 S.Ct. 538 (1992).



s.   Warrant Return To Magistrate – Police must return the Search Warrant and a list of any property taken from the suspect’s premises to the Magistrate where a record will be maintained, Rule 41(d), FRCrP, Berger v. New York, 87 S.Ct. 1873 (1967).



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