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Search Warrants (podcast transcript)

Miller:    We’re back.  This is Tim Miller and Jennifer Solari.  We’re making some progress don’t you think, Jenna?

Solari:    I think so.

Miller:     Ah, we’ve explained that a government intrusion into a place where one has a reasonable expectation of privacy triggers the 4th Amendment, and that once triggered, the search has to be reasonable and to be reasonable the courts are typically going to require probable cause supporting a warrant.  Now Jenna you did an excellent job explaining probable cause.

Solari:    Thanks.

Miller:    Now I’m going to ask what’s a search warrant?

Solari:    In a nut shell, it’s judicial permission to search a particular place for specific evidence of a crime.

Miller:    Who can issue one?

Solari:    Federal judges or state court judges of record, as long as they’re neutral and detached.  And, when I say neutral and detached, I mean they’re just not partial to either side. 

Federal judges obviously can issue warrants and there are magistrate judges, district court judges, appellate court judges and of course we have justices of the Supreme Court.  I really don’t envision too many agents knocking on the doors of the Supreme Court to get a warrant.  For the most part, they’re going to be dealing with federal magistrate judges and as I stated state court judges of record can also issue warrants. 

I’m doubt a whole lot of federal agents use state court judges of record, but I would imagine that it probably comes into play when we have people, say working for Bureau of Land Management, where they may be a single agent by him or herself, way out in the wilderness, and they just don’t have easy access to a federal court.  Whether a court is a  court of record, a state court of record, is determined by state law, but an essential feature of that is a permanent record - a record of proceedings be kept and be made in that state court.  That’s what makes it a court of record.

Miller:      Sounds to me like most federal agents are going to be going before federal judges.  Do you agree?

Solari:    That’s right and for the most part; it’s going to be a magistrate court judge.

Miller:    Federal magistrate?

Solari:    Yes.

Miller:    Do the judges have any kind of jurisdictional limits?

Solari:    Yes; since federal search warrants can be issued by federal judges, or again from a judge in the state court of record.  They’re issued to search for and seize a person or property located within that judge’s district.  So, with a few limited exceptions, the person to be searched, or the place to be searched has to be found within that judge’s district.

Miller:    What district does Georgia fall into?

Solari:    First, federal districts don’t cross state lines.  Each state consists of one or more districts.  Kansas is only a single district.  Georgia has three districts - the Southern, Middle and Northern Districts of Georgia.

Miller:    Suppose an agent wanted to search a house here in Brunswick, Georgia; where would the agent go for a search warrant?

Solari:    Well, since Brunswick is in the Southern District of Georgia, the agent would go to a federal magistrate within the Southern District.

Miller:    Makes sense.

Solari:    Mmmhmm

Miller:    What if the person or thing to be searched moved outside of the district before the search?

Solari:    Well as long as the place to be searched is within the judge’s district when the warrant’s issued, the warrant can still be executed outside the district if that item or place happens to move.

Miller:    Are there any exceptions to these jurisdiction requirements?

Solari:    A couple.  Nation wide warrants are authorized in certain cases.  Say for instance terrorist activities occur within a certain district; the judge in that district can issue a warrant that’s good in any other district, as long as some of those terrorist activities took place in that judge’s district.  Also, in cases of stored electronic communications, nation wide search warrants are possible by a judge with jurisdiction over the offense that’s involved.

Miller:    Now we talked about this before when we were talking about probable cause; but, how does an agent get a search warrant?

Solari:    With a search warrant application; and, again that application consists of three primary pieces of information.  The agent has to set forth where he or she wants to search.  We have to particularly describe the place to be searched to a reasonable certainty. 

The agent has to set forth what he wants to search for.  Again, with particularity so we know what the agent’s authorized to search for and seize. 

And, of course, probable cause.  This is the meat of the application describing the facts that support probable cause.  It shows that the things to be searched for are located in the place to be searched.

Miller:    Now let’s, let’s talk a little bit about each of these three parts.  How does the agent describe the place to be searched?

Solari:    Well, first let’s talk about where the requirement comes from.  The 4th Amendment actually states that no warrant shall issue without a particular description describing the place to be searched and the persons or things to be seized. So agents have to describe the place with reasonable certainty.  I’d like to explain that.  Let’s say, someone’s not involved in your operation at all.  You’re running a case and you’ve obtained a warrant from the court, but for some reason you and your team can’t execute it that day.  You need someone else to come in and do it for you.  That person should be able to pick up your warrant and based on your description of that place, they should be able to get to that place and identify it to a reasonable certainty - so they know they’re at the right place when they execute that warrant.

Miller:    So somebody’s given directions to a party before, he ought to accomplish this task.  Don’t you think?

Solari:    I think so.

Miller:    What can agents search for?

Solari:    Well you can find that list in Federal Rules of Criminal Procedures 41C.  There’s a laundry list of things like evidence of a crime, and that seems like it includes just about anything, but let me give you a for instance. 

Bloody clothes would be evidence of a crime if you suspect someone of an assault, rape, or murder.  We can also search for contraband and by that, I mean stuff that’s illegal to possess, like drugs, explosives, or child pornography; just unlawful to possess in of themselves.  We can search for fruits of a crime, so the fruits of a larceny maybe a stolen t.v. set or something else that was stole from a premises.  We can search for instruments of crime, things that were used in the offense, like the gun used in the bank robbery, or we can search for a person to be arrested or a person who is being illegally held. 

Miller:    I guess that agents also have to be pretty careful about how they describe those things, don’t they?

Solari:    Yes.  Again, the 4th Amendment requires that the things to be seized be described with particularity, which makes sense.  The particularity requirement makes sure that a search is confined in its scope to the particular described evidence that relates to the crime for which the agent demonstrated probable cause.  So if the agent’s looking for contraband, then he has to tell the magistrate what kind of contraband  You can’t just say contraband or items illegally possessed.  You have to be specific and say for instance marijuana.  If the agent is looking for a stolen TV set, or the gun that was used in the robbery, he has to describe those items and if possible give the make, model or even a serial number if one is available.

Miller:    Now the third piece of this puzzle is that probable cause affidavit.  Now we discussed this a little bit earlier when we talked about probable cause.  Ah, can you reiterate a little bit?

Solari:    Sure.  The affidavit establishes, or should establish a nexus between those items you’re looking for - the evidence you’re seeking - and the place that you want to search. The standard proof again is probable cause - facts that would lead a person of reasonable caution to believe that that search is going to reveal specific evidence of the crime that you suspect. So, factors to consider in determining whether you satisfied that nexus requirement would be direct observations. 

Suppose an informant with a reliable track record tells you that he saw narcotics in the suspect’s home.  So there we have a nexus between possession of illegal narcotics and the suspect’s home.  The nature of the crime and the items sought. 

We talked before about the sale of counterfeit currency.  It’s only natural to think that if a person has something of high value, they are probably going to secure it in their home.  Sometimes agents have to rely on inferences rather than a direct observation.  Umm and we have to be mindful also so that the information can’t be stale, and this probably comes into play most often with drug offenses. 

If your informant came to you and said he saw narcotic in the suspects home, the very next question you probably need to ask is “when?.”  If this was six months ago, narcotics  might not be there any longer.  The information is stale.  The age of the information is going to be a critical factor in determining probable cause, depending on the item that you’re looking for.

Miller:    Okay, thanks.  I tell ya, let’s take a break and when we come back, we’ll talk about how these warrants must be executed.  You know like who can execute them, the method of entry, locations that can be searched, durations of search, and the need to inventory what’s taken.

Solari:    All right.