Search Warrant Comments

Posted Posted by DetectiveEstes in Detective Estes' Corner     Comments No comments


Sooner or later, a detective or officer investigating crime is going to have to write and execute a search warrant.  Search warrants are rigid formatted probable cause documents.  Search warrants have to be written and sworn to prior to execution.  A good knowledge of the Fourth Amendment to the Bill of Rights is what search warrants are about.   A good historical look at the 4th Amendment is in the following link. ( 4th Amendment)

If the police have basic knowledge of how to obtain an arrest warrant, they can also write a search warrant.  A search warrant uses the same probable cause display by police to the same power (judge or magistrate) that issues arrest warrants.  Therefore, if the officer can speak probable cause and obtain an arrest warrant, then the officer can easily learn to write probable cause to obtain a search warrant.

An easy way to learn to write search warrants uses the same method many officers used the first few times to obtain an arrest warrant:  That is – write down all the probable cause reasons that the suspect did the crime.  Then arrange them in the order that the suspect used to commit the crime.  Take the written sheet into the magistrate’s office and read from it, advising the magistrate what crime the suspect committed that you want an arrest warrant for.

In using this for a search warrant:  write the probable cause for the search, what is known about the subject; what is known about the property or whatever that the detective is looking for, how it is that the officer knows these facts and who he/she got this information from.  The officer should call himself “Affiant” as he or she is the ‘affirmative’ source of the warrant, or the Affiant.

In the first paragraph of the search warrant, the officer/detective should identify himself as the Affiant, what his job is now, how long he has been in the job, and what training he has had that makes him unique to this particular incident.  Training such as search & seizure training, drug recognition, firearms training for safety and gun recognition, computer training or any other training the affiant might have that would indicate this affiant knows what he is writing.

In the next paragraph or two, the Affiant should relate this incident, or incidents he is writing about, and how he knows about these incidents.  For example: was the officer/detective assigned to these cases or knows the victims or suspects, whatever it might be.  The officer should then tell the story about the evidence that indicates whatever is being searched for is in the place the officer wants to search.  For Example: – ‘On 5/6/08, Affiant spoke to victim’s brother in law, Sam Jethro.  Mr. Jethro advised Affiant that his son, Tommy Jethro, came in to his own bedroom and discharged a shot from a pistol.  Mr. Jethro stated to Affiant he is worried that his son may have kept this pistol and he is only 15 years old.  Affiant knows from training in pawn laws and firearm laws, that a 15 year old child can neither personally own a handgun, nor pawn one.  Therefore Affiant believes the pistol and ammunition for the pistol may still be in Sam Jethro son’s bedroom.”

There are many nay-sayers to search warrants that comment that a search warrant is too difficult to write, and in the above case (made up, fictionalized characters), consent could have been obtained.  These kinds of people are not the real police in the department.  These folks are afraid to write a search warrant and frightened of the idea of going to execute one as well.  The author believes in search warrants.  The police own the location of the search until they return the ownership to the home owner.  Everywhere can be searched for this pistol, and the ammo, not just where consent might be given to search.  The police don’t have to stop the search until they are done searching everywhere.  Even if the gun is found, the ammunition still has to be located.

The author would rather do a search warrant which is far more ranging, than a consent.  A consent has to stop when police are told to stop.  Make that decision!  Go that extra step, get a search warrant!  Then search that house all the way through until you’re done.

In the above example Sam Jethro could put a stop to a consent search at any time and the police would be stumped unless a search warrant was then obtained.  The author’s point is to get the warrant first and search where you want.

Roger’s Rule:  Criminals are like everyone else in hiding things.  Most things are hidden in the bottom of drawers.  If the drawer is removed from the chest then turned over, now what’s hidden is on the top.

In searching; many police officers try to be neat.  And nice.  And arrange the items back the way they were.  Don’t do that.  Rearranging indicates to officers/detectives following you that you haven’t searched in this place yet, so a second search is done.  This is inefficient.  The proper search method is to assign each officer onscene a specific task:  Each officer searches one room.  Find a central location in the room that is bare.  This is where everything is dumped following the search of that item.  Each item of clothes in the closet should be individually searched thoroughly, then removed from its hangar or box and put in the floor location.  That way, the searcher, as well as any other officer knows this place and items have been searched.  Each drawer that is removed is turned upside down and searched through.  All those items recovered or seized are placed in the central location.  When the beds, and other furniture is turned over, and mattress flipped, leave it the way it’s turned for the next officer that enters the room knows he doesn’t have to search in those locations.

Search every piece of furniture, every chest, every drawer, every item of clothing like you are looking for your own property if this was the burglary of your own home.

When the officer is done with his room, all should meet in a central location, then reassign to the next room.  Keep doing that until every search officer has searched every room in the house that can be searched.

Detectives can use recruit officers and their Field training Officers in various circumstances.  A search warrant execution is an opportunity for training in chaotic circumstances that simply cannot be overlooked by trainers of police.  The entry into the house is usually chaotic, people screaming, people being handcuffed, people resisting and being led into a central location for searches, just a general all-around loud time.  For about 10 minutes.  The recruit and the FTO then stand with this herd of unhappy people just rounded up.  The recruit removes his Rights card from his pocket and reads their Rights to them.  The recruit then stands with his pocket notebook, and waits for the invariable reaction to the police taking over the home, and writes down statements of incrimination by the herd, and describes the speaker.  NO ID needed at that time, just a description.  When the search is complete, the recruit gives the detective in charge a briefing of who said what, in case the detective would like to interview those folks that needed to say things during that chaotic time.

During the search:  Take your time.  The house is yours until you release it back to the owner.  There is no hurry in a search warrant.  No one is going anywhere until you are done.

Detectives should remember that if they want to search the subjects inside the location this should be noted on the search warrant.  It is a violation of Fourth Amendment Right to do anything other than a pat down for weaponry of subject’s onscene, unless the search is noted in the warrant prior to execution.

Next; any person can leave the scene of the search warrant’s execution unless they are to be arrested.  However, most home owners would rather stay.  This gives a detective an opportunity to gain a good rapport with the owner and determine information about where stolen items might be, or how they got there.  Yes, a rapport can still be developed with a home owner even during, or after, the police have trashed his home.  If the suspect is not the home owner, now is the time to blame the suspect for the police having to come search this poor homeowner’s residence.  If the homeowner IS the suspect, then now is the time for the homeowner to keep their house looking good.  To let the police know where the items are so his home isn’t searched through.      Generally, a rapport can be developed with homeowners, or suspects, or most anyone in the house at the time.  The author has found that threats mostly do not work in rapport development.  Compassion is what the author uses in these situations, after the confrontation of the entry is over.  Compassion takes police farther along in rapport development than any other method.

During the interview of people at search warrant scenes, there is frequently much finger-pointing.  Nobody wants to go to jail alone.  If this finger-pointing is from suspects, or soon to be defendants, then they are ‘testifying against their own penal interests’.  Testifying against one’s own penal interests is done when a suspect of a crime makes statements that could be used against him in court.  In the case of search warrants, testifying against one’s own penal interests could be identifying another house or suspect in a crime.

When suspects identify another suspect’s home as hiding evidence, these statements can be used to obtain search warrants to that new suspect’s property.  Then when those warrants are executed, further statements can cause more search warrants, and on and on until the investigation is complete.

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About Detective Estes

Detective EstesMr. Estes has lived in the DC Metropolitan area for most of his life. His father’s influence and expertise in firearms resulted in Mr. Estes beginning to rifle shoot at a young age and eventually shooting on the Washington-Lee High School rifle team in Arlington, VA.

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