A search warrant is one of the most effective tools that an investigator can use to advance his or her case. It is also a very invasive action, as the law enforcement officer participating in the execution of the search warrant will be searching the private property of another citizen. The Fourth Amendment to the Constitution reads: “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.” Our Founders knew that in order to remain a free people, law enforcement officers must have checks in place to ensure that their actions are lawful and appropriate. Here we take a look at proper practices when submitting search warrants and also note what practices to avoid when doing so.
Once you’ve reached the point in your investigation where you are ready to submit your search warrant, you are probably at or close to the end of your investigation. After all, your suspect or suspects will know without a doubt that they are the target of a criminal investigation after a search warrant is served on their home and/or business. With this in mind, it is important that you complete all covert law enforcement activities before you follow through with a search warrant. Have you subpoenaed records for the suspect’s bank and/or Internet records? Have you identified other potential suspects in the case? Are you prepared to make an arrest in the case if evidence you find at the scene of the search warrant demand you do so? Is your evidence management system current and ready to receive evidence? Are you trained in and comfortable using any evidence software that you may be using to input the evidence into once the items named in the search warrant are seized? All of these questions must be answered prior to the submission of a search warrant.
Writing the Warrant
Search Warrants must be thorough, accurate, and written in a professional manner. Above all, the law enforcement officer writing the search warrant must be completely and totally honest and must not embellish or exaggerate any part of the search warrant affidavit. If you or your colleagues have a go-by for the violation you intend to serve the search warrant for, feel free to use it, but be sure and change any names/dates/locations that may have been used in previous versions. Always ensure that all items you intend on seizing are named in the “Items to Be Seized” portion of your warrant and be specific about what items you may encounter. For example, if you expect to seize electronic evidence, clearly state that you may be seizing computers, computer hard drives, external hard drives of all sizes, and CDs/DVDs, (etc.). It is always a good idea to have an officer senior to you or your supervisor review the warrant for mistakes before submitting it to the prosecuting attorney and/or the judge that will be authorizing the search.
On the Day of the Signing
It is recommended that you dress in professional attire (suit and tie for males and a formal business suit or formal skirt and business top for females) and arrive early for your appointment with the prosecuting attorney and/or judge. Be prepared to answer any questions that the prosecuting attorney and/or judge may have about the case, and don’t be afraid to bring your case file to the appointment so that any and all information that you may need regarding the case can be found easily and quickly. While it may be difficult not to do so, do not be intimidated if the prosecuting attorney and/or judge do have questions about your case. They have the huge responsibility of ensuring that your search warrant is built on probable cause so that the rights of citizens’ are not violated. When all else fails, consider having a co-affiant on the case who may be a subject matter expert in any topics covered in the warrant present at the signing with you. Having additional personnel available to handle any unforeseen questions can take a lot of pressure off of the investigator who is applying for the search warrant.
Search warrants are a valuable tool in any law enforcement officer’s tool box. Because the potential for a violation of the Fourth Amendment exists any time a search warrant is issued, law enforcement officers must be absolutely sure that they are not only thorough in their writing when drafting a search warrant, but also 100% honest about the potential crimes they are describing. A good law enforcement officer is never afraid to ask for help if it is needed. There is absolutely nothing wrong with asking a coworker and/or a supervisor for assistance. It may also be in the best interest of the affiant of the search warrant to have a colleague or supervisor serve as a co-affiant when signing the search warrant. If the law enforcement officer takes the extra time to pay attention to details and remains completely honest when writing, he or she should have no problem submitting a successful search warrant.