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 &
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
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
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
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
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).