Execution of a Search Warrant (I) (podcast transcript)
Tim: Hi, this is Jenna and Tim, we’re back we’ve talked about, Probable Cause and Warrants, Probable Cause of course is a reasonable belief that evidence of a crime will be located in a place to be searched and Jenna you’ve also told me what a warrant is essentially judicial permission, I guess, to search a particular place. And of course it is supported by probable cause. Let’s assume this, the agent has a warrant; how should the warrant be executed?
Jenna: Well in short the 4th Amendment tells us it has to be executed reasonably.
Tim: And, I wish I had a dollar for every time you said reasonable. Can you be more specific?
Jenna: Title 18 of the United States Code section 3105 says that Federal Agents can execute warrants. State and Local officers can help the feds, even if the state and local are working outside their jurisdiction to do that, as long as the Federal Agent remains in charge of the execution of the search. Private citizens can also help the Federal agent as long as the private citizens are serving a legitimate investigative function. For example, agents might want to bring a car jacking victim to the scene of a search to help the agents identify that person’s particular stolen property. Of course agents can’t use private citizens to do anything that the agents couldn’t legally do themselves. Now importantly what the 4th Amendment does not allow in terms of bringing someone else along for the search is for the agents to bring private party to the site of the search just so they can tag along for some private purpose or to satisfy their own curiosity.
Tim: That raises a question. How about these media ride along programs?
Jenna: You know the Supreme Court has considered that issues expressly and held that media ride along programs don’t serve any legitimate investigate purpose. The court held that the media could not accompany police into a home in order to execute a warrant.
Tim: When is it reasonable to execute a search?
Jenna: First I need to make a distinction between arrests warrants and search warrants. Arrest warrants can be served anytime - night or day. If the agents have an arrest warrant for suspect, they can enter that suspects residence to serve the warrant any time - night or day - as long as they have a reasonable belief that the suspect is home. Search warrants are different. They are generally executed in the daytime; the daytime is defined between 6am and 10pm.
Tim: How long do the agents have to search?
Jenna: Well, there is not set time for the search, and again I’m going to throw that word reasonable at you again. It has to be a reasonable period of time; as long as the agents get in there and begin executing the search between 6am and 10pm then the agents can search until they find what they are looking for or until they have looked in every place the evidence might reasonably be found. The search should be ongoing and continuous.
Tim: I can imagine agents beginning a search at about 9:45pm; but continuing until the wee hours of the next morning.
Jenna: That’s Ok. The agents must serve the warrant between 6am and 10pm. That means they must get into the place they intend to search before 10pm. Then the rule is satisfied. Once inside, they must be engaged in an ongoing and continuous search. That makes staying there till the wee hours of the morning reasonable.
Tim: Any exceptions to this rule that search warrants must be served in the daytime
Jenna: Yes, there is an important exception according to Title 21 to US Code section 879. Search warrants involving controlled substance can be served at anytime. In addition to controlled substance warrants, agents can get special night time permission to execute other kinds of warrants. They must show the court reasonable cause for being allowed to do so. So for example agents might have facts showing that a night time entry will ether prevent destruction of the evidence they are looking for or reduce the chance that the suspect will injure officers. Also, in some investigations like, illegal gambling, human trafficking, or prostitution, night time might be the only time the officers are likely to find the evidence they are looking for at that location.
Tim: After the judge issues the warrant, when should the officers actually go and execute?
Jenna: There will be a date on the face of the search warrant. The officers should execute the warrant within ten days from the day it is issued unless there’s some other date specified on the face of that warrant.
Tim: How should agents enter the premises?
Jenna: Reasonably. Conducting a reasonable search includes making a reasonably entry and Title 18 of the US code section 3109 is what we refer to as the federal “Knock and Announce” statue. So the general rule for knock and announce is that before agents force enter into a resident to execute a warrant - either an arrest warrant or a search warrant - they have to “knock and announce” their identity, authority and purpose and demand entry from the people inside.
Tim: Now, what do you mean by force entry?
Jenna: It can be as simple as just moving something to come inside without permission of the premises owner. It can be as forceful as breaking down a door, but force also includes just opening an unlocked door without the owner’s permission.
Tim: You said residence. Does knock and announce only apply to a residence, meaning where people live?
Jenna: Most, but not all circuits say that knock and announce only applies to homes and not to commercial buildings or businesses. Since I said “most, but not all,” agents should check with their US Attorney’s Office to make sure of the law in their circuit.
Tim: Alright, now come again and tell me exactly how an agent complies with “knock and announce.”
Jenna: OK, it’s not terribly difficult. First, there’s the knock part, which can be as simple as just knocking on the door. All the agent really has to do is to announce their presence somehow. It could be by yelling out through a bullhorn or even making a telephone call to the people inside. Agent must simply make their presence known. So they knock, and say “POLICE! SEARCH WARRANT! OPEN THE DOOR!” They have identified themselves, announced their authority and purposed, and demanded entry. Then the agents have to wait until they are denied entry before they can use force to get inside.
Tim: Why have all these rules?
Jenna: Well, first that rule promotes officer safety. I mean officers might get shot if they just breaking into someone’s house without announcing themselves. A lot of people especially over here in southern Georgia - a lot of home owners are also gun owners. So they might take action against someone they think in engaged in housebreaking. Second it can prevent needless destruction of property. There really is no need for us to smash down someone’s door or take it off the hinges if the person inside is willing to just come to the door and open it. And, finally it helps preserve the dignity of the people in the residence. If someone is in there taking a nap in his boxer shorts, knocking and announcing and waiting a few moments gives that person inside a chance to put some clothes on before he comes to the door.
Tim: Ya, I guess it really makes a lot of sense to Knock and Announce. How long do agents have to wait after they knock?
Jenna: Well if all they hear from inside is silence after they “Knock and Announce,” then they are required to wait a reasonable period of time before they force entry. And that reasonable period of silence will be construed as a denial of entry.
Facts to consider and decide how long to wait - how long is reasonable - would involve how long it would take the occupants to come answer the door or how long it would take for them to destroy evidence. So agents will have to take in account of what time of day it is. Is it noon or is it 3 o’clock in the morning? What’s the size of the residence? Are we talking about a single story, 3 bedroom, small house or a 16 bedroom mansion with three floors. And of course the type of evidence to be seized - are you looking for computers that are going to be pretty difficult to destroy or conceal or are you looking for drugs which can be flushed down the toilet or other wise destroyed pretty quickly. All of those things are going to come in to play in deciding a reasonable period of time to wait before forcing entry.
Tim: What if agents knock, but then hear running footsteps
Jenna: Sounds of flight from inside can immediately be construed as a denial of entry. Agents are going to just go right on in when they hear someone running away. And it’s the same for other things too. In executing a warrant for narcotics, let’ say agents knock and announce, hear some scuffling around, and then hear the toilet flush. I think we all know what’s going on. If there’s reasonable suspicion the occupants are destroying evidence, the agents may construe that as denial of entry and just go right on in. Same thing for a verbal refusal. Agents knock and announce and hear “Go away” or “I’m not coming out” something like that. The agents are going right in because that’s also a denial of entry.
Tim: Is it ever reasonable just to dispense with Knock and Announce all together
Jenna: It can be, yes, agents can dispense with “knock and announce” when they have reasonable suspicion that exigent circumstances exist. So agents have to have some facts that allow them to reasonably conclude that to knock and announce will be dangerous, futile, pointless, or inhibit their investigation by facilitating the destruction evident.
Judges can issue no knock warrants from the “get go” when agents can articulate reasonable suspicious that to knock and announce will be dangerous, futile or inhibit that investigation. So for example, agents might decide they might either go to the judge with this information or they may find this information at the scene and make the decision themselves.
They might make it a no knock entry in a case like this. Say the agents are going to execute a drug warrant. Since it’s a drug warrant, we know that agents can execute it either in the day or night. The agents know that the suspect who’s house they are going to has previously told friends he’ll go down shooting if the cops every come to his house. And, the agents were told by a reliable informant of theirs that the suspect always answers the door with a gun in his hand. And their surveillance has revealed that the suspect has posted lookouts on the corners in the neighborhood, so someone can signal him or call him on his cell phone or something like that when they think the police are approaching. Articulation of those facts would probably support a no-knock entry, since the suspect appears from those facts he’s already made plans to destroy evidence and assault police officers if he finds out they are coming to his house.
Tim: Ok good, I tell you what, let’s take a break and we’ll talk a little bit more about how officers execute that warrant after they get inside.
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Execution of a Search Warrant 2
Tim: Hi, This is Jenna and Tim, we’re back, we’re talking about executing a warrant. Now we’re talked about knocking and announcing, agents of course, Jenna, have to knock and announce, their, identity, authority and purpose and demand entry. “Right”
Jenna: That right
Tim: OK, let’s assume they’ve done that, they’ve knocked, and they’ve announce their identity, their authority, and their purpose and they demanded entry, once inside, once their inside, what should the agents do?
Jenna: They’re I think it’s a tactic matter and certainly their legal entitled to this agents going inside to execute a search warrant should sweep through the house in all the people sized places inside the residence to look for any people who are in there who might interfere with the execution of the search warrant or pose a danger to the agents while they are in there. Once the agents have controlled all those people inside they may have found. Then ideally they would show the occupants the copy of the search warrant if possible, they are not always going to have the warrant at the very beginning of the search but at lease by the time they are done they should have shown someone in the premises a copy of that warrant.
Tim: Ok, I can image going inside a house, to serve a search warrant and seeing several people hanging around, do agents have any control over the occupants?
Jenna: Yes, absolutely, its call the Summers doctrine, which is based on Supreme Court case called Michigan vs. Summers, it says that a search for contraband carries with it the limited authority to detain occupant while the search is conducted. The occupant interesting they don’t necessarily have to be inside the house as long as they are closely connected to the premises. In the actual Summers case, the homeowner was out on the sidewalk trying to leave the house when the police arrived and the court allowed the officers to bring that person back inside while they conducted the search of his house. Same thing there has been other cases sighting summers when the homeowner has been getting in the car to drive away and police are allowed to do a vehicle stop a little bit down the street and bring that person back to the premises while they conduct the search. No of course the agents have to use reasonable force to conduct any detention of any person they find in there.
Tim: Ok, now who exactly are the occupants?
Jenna: The occupants are the people connected with the premises in a significant way, for instance the owner, or people who are residing there.
Tim: Why should agents be able to detain occupants? Why should they be able to keep them there?
Jenna: Quite simply, because the courts determined that it’s reasonable. If the agents have a warrant to search for contraband, then judicial officer by definition has already found probable cause to believe that a crime is being committed at the place to be searched. So the agents executing the warrant then already have reasonable suspicion, at least that the occupants of the premises are involved in that crime. That gives them the authority to detain the occupants during their search of the home. There are other reasons behind the rule also that the court sighted: detaining the occupant in a contraband search prevents them from taking off in the event that contraband is found. Of course if you find drugs in the place to be searched you’ve got issues of joint and construction possession, the officers may decide to arrest everyone on the premises. So when they are looking for those drugs people might try to take off. Also it reduces the threat to agents; you can image a situation when occupants are allowed to just wonder off the premises they may just go get some of their friends and neighbors who intend to come back and give the search officers a hard time or present a treat to the agents. And finally, it allows for a orderly completion of the search, so again if a container is locked, the trunk of a vehicle or the door to a closet, if the occupants are keep there they might be willing to unlock it rather than the agents having to smash it or break it to get in there.
Tim: Here’s a good question for ya, what about people who are not occupants? I can also imagine walking into a drug distributor’s house to search, you to serve a warrant for drugs and finding maybe a suspected buyer there. Can I detain him?
Jenna: Yes, with the facts you gave me, if the warrant provides agents with PC to believe a crime is being committed at the place search, they agents will probably be able to articulate a justification for conducting a Terry Stop on the non-occupants they find hinging around inside. Now remember: a Terry Stop requires reasonable suspicion that a subject is engaged in criminal activity. So if agents had RS that a non-occupant they find inside is involved in criminal activity, here we are talking about drug possession, drug distribution, the agents can use reasonable force to detain that person while they do things like, ask questions, try to get ID, and try to determine how that person is connected with the residence or involve with that crime. And agents will throughout the course of that Terry Stop either develop PC for an arrest, or they will have to release that person after a reasonable period of time. And what’s reasonable of course is going to depend on the facts and circumstances of each individual case.
Tim: You said the Summers doctrine applies to contraband searches of a residence?
Jenna: Yes, contraband, by that I mean stuff that is illegal to posses like drugs or like certain kinds of guns or other weapons. Some circuits restrict the Summers doctrine to searches for contraband in a home; and that why we have been primarily taking about drugs warrants, others circuits say that agents can detain occupants no matter what they’re searching for. So this is one of those other incidents where agents and officers are going to want to check with their AUSA.
Tim: Janna, assume I got a warrant, I’ve knocked and announced and I’m ready to execute where can agents search?
Jenna: Well they need to think about where – in general the warrant authorizes them to search and where is particular, there is PC to believe the evidence described in the warrant is going to be found.
Tim: Lets assume the warrant authorizes a search of like maybe 123 Main Street, in Brunswick.
Tim: Obviously, I can search at the house; correct?
Tim: What about outbuildings?
Jenna: Yes, a search warrant for a residence is going to include all the other buildings or objects within the cartilage, and we talked about cartilage that area directly surrounding a resident where interment living activities occur. It’s going to occur, sorry to include all the building or objects with the cartilage even if not specifically mentioned in that warrant.
Tim: Where in particular can I search?
Jenna: It depends entirely on what you’re looking for. You can look in places where your evidence which will be listed in the warrant under things particular description of things to be sized, you can look anywhere that might reasonable be located. So in simpler terms agents can’t look for an elephant in the icebox. It’s doesn’t make sense, it is not reasonable to believe you’d find one in there. If agents are searching for things like drugs or documents, they can properly look pretty much anywhere on the premises. But if they’re looking for a stolen grand piano and or a big screen TV, they’re going to be a lot more limited in where they can look. You wouldn’t open up a dresser drawer to look for a TV set
Tim: So we can looking in containers where the evidence might reasonably be located; correct?
Tim: Does it matter who the container belongs to? Suppose the container belongs to like maybe a visitor.
Jenna: Well the general rule is think about your PC, in most jurisdictions; the stronger the relationship between the visitor and the premises, the more PC agents are going to have to believe the evidence they are looking for might be located in that person’s container. If the container belongs to a person who spends a lot of time at the premises, the agents are probably going to be justified in searching it. But if it belongs to someone who’s just stopping by, the Avon Lady, the Pizza delivery guy, someone who has just stopped by there, for 10 to 20 minutes, it’s probably unreasonable to think the items listed in the warrant would even be in there. But be careful some because some jurisdictions hold if the container is on a person, like a purse on a woman shoulder or a jacket a person is wearing, it is part of the person not the premises. The means the agents can’t search it unless they have a warrant to search the person who is holding it. Yet another instance when agents are going to want to check with their AUSA about the practice in their jurisdictions.
Tim: I want to talk to you a little bit more specifically about persons, but before I go there let me just ask you one more question about cars, cars of course are containers, right?
Jenna: Yes, just think of cars as another container on the premises. First you have got to find out if the car is on the place that authorized to be search. Is it on the cartilage; second is there PC to believe the evidence might be located in the car? Again if you are looking for a stolen grand piano it is not going to be in a Volkswagen bug. So if it is on the cartilage and there’s PC to believe the evidence could be located in there, it’s going to get the agents in there in most jurisdictions. Again, though, a word of caution. There are some conservative circuits that say the agents have to connect the vehicle to a premises owner somehow, before they can search it pursuant to the warrant. So depending on where the agent is operating, it may be important to figure out whose vehicle it is or who has control of it.
Tim: Now, here’s that question about people, can I automatically search a people based on a premises search warrant?
Jenna: No, absolutely not, a search warrant for a place does not automatically mean agents can search a person in that place. People remember have a very high reasonable expectation of privacy in their person, so if an agent want to search a person on the premises, that person should be named in the warrant. But however, there are other ways agents might end up searching a person that they find on the premises. For instance they might find contraband during the executing of that warrant, they decide to arrest some or all of the people there; then of course anyone who’s placed under arrest is subject to a search incident to an arrest.
Tim: That makes sense. OK let’s finish up, what should agents do when they are finish searching?
Janna: Well they need to secure that premises, by that I mean if they had to force entry the door or window, they should try to security that entry the best they could even if that mean they had to boarding it up so other people can not clime in there and same goes for anything else that had to be forced open like a car door or a trunk of a car, they need to take wire or something and the best they can they need to secure that. Important too agents and officers need to leave a copy of that warrant and inventory of everything they took from that premises, they need to give it to the premises owner or if that person is not there or placed under arrest or taken away they need to leave a copy of the warrant and inventory in a conspicuous place on that premises so the owner can find it when he gets back.
Tim: Jenna again thank you very much.
Jenna: Than you, Sir.
Tim: When we come back we are going to talk about exceptions to the probable cause and warrant requirements of the 4th Amendment – Sound good.
Jenna: Yes Sir, Looking forward to it.