Search Warrant Special Procedures - Natural …

1 1 POINT OF VIEWS ummer 2011 Adapt yourself to changing circumstances. Chinese proverbBefore we discuss these requirements, it should benoted that we have incorporated these and otherspecial Procedures into new Search Warrant formsthat officers and prosecutors can download fromour website. The address is: (click on Publications). To receive copies via emailin Microsoft Word format, send a request from adepartmental email address to ServiceOfficers are ordinarily prohibited from executingwarrants between the hours of 10 and 7 is because late night entries are particularlyintrusive, 1 especially since officers may need tomake a forcible entry if, as is often the case, theoccupants are asleep and are thus unable to promptlyrespond to the officers announcement. Still, thecourts understand there are situations in which theadded intrusiveness of night service is offset by othercircumstances, usually the need to prevent the de-struction of evidence or to protect the Search teamfrom violence by catching the occupants by this reason, California law permits judges toauthorize an entry at any hour of the day or night ifthere is good cause.

2 2 WHAT IS GOOD CAUSE ? Good cause exists if thereis reason to believe that (1) some or all of theevidence on the premises would be destroyed orremoved before 7 , (2) night service is necessaryfor the safety of the Search team or others,3 or (3)there is some other factual basis for a prudentconclusion that the greater intrusiveness of a night-time Search is justified. 4 Like probable cause, goodSearch WarrantSpecial ProceduresThere is perhaps no profession that is moresusceptible to changing circumstances thanlaw enforcement. Which means that lawenforcement officers must know how to adapt. Onetask in which adaptability is especially important(although frequently overlooked) is the writing ofsearch warrants and affidavits. That is becauseevery Search Warrant must be customized to fit theunique circumstances of the crime under investiga-tion, the place being searched, the people who live orwork in the location, the nature of the evidencebeing sought, and any difficulties that the searchteam might instance, officers may have well-foundedconcerns about their safety or evidence destructionthat make it necessary to execute the Warrant late atnight, or to make a no-knock entry.

3 Officers mightalso need to keep the contents of the affidavit secretto protect the identity of an informant or to preventthe disclosure of confidential information. Althoughless common, it is sometimes necessary to obtain acovert Warrant or an anticipatory Warrant , or awarrant to Search something in another county orstate, or a Warrant to Search the confidential files ofa lawyer or of these things are doable. But because theyadd to the intrusiveness of the Search , they must beauthorized by the judge who issues the Warrant . Andto obtain authorization, officers must know exactlywhat information judges require and how it must Rogers v. Superior Court (1973) 35 716, See Pen. Code 1533; People v. Kimble (1988) 44 480, 494 [ a magistrate may authorize nighttime service of a Warrant ina particular case for good cause ].

4 3 See Pen. Code 1533; Tuttle v. Superior Court (1981) 120 320, 329-30 [ Safety of police officers is of extreme importanceand is a factor which may be considered in determining cause for night service. ]; People v. Kimble (1988) 44 480, 495 [ inview of the nature of the homicides that were under investigation, the magistrate could reasonably conclude that there was anexceptionally compelling interest in permitting the police to expedite their investigation ].4 People v. Kimble (1988) 44 480, COUNTY DISTRICT ATTORNEY S OFFICE2cause must be based on facts contained in theaffidavit, or at least reasonable inferences from [T]he test to be applied, said the Court ofAppeal, is whether the affidavit read as a whole ina common sense manner reasonably supports afinding that such service will best serve the interestsof justice.

5 6 Because specific facts are required, good cause tobelieve that evidence would be destroyed or removedcannot be based on generalizations or unsupportedallegations. For example, the courts have rejectedarguments that good cause existed merely becausethe affiant said the property sought will be disposedof or become nonexistent through sale or transfer toother persons, 7 or because drug distributors oftenutilize the cover of darkness to conceal their trans-portation and handling of contraband, 8 or becausethe Warrant authorized a Search for evidence (suchas drugs) that can be quickly sold or , the court in People v. Mardian ruledthat an affiant s averment that in his experience(generally) particular types of contraband are easilydisposed of does not, in itself, constitute a sufficientshowing for the necessity of a nighttime Search .

6 10 The question, then, is what types of circumstanceswill suffice? In the case of evidence destruction, thefollowing have been deemed sufficient: The suspects were selling drugs or stolen prop-erty from the residence at The suspect had become aware that he wasabout to be arrested or that a Search of his homewas imminent, and it was therefore reasonablylikely that he would immediately try to move ordestroy the The suspect was planning to vacate the pre-mises early the next Stolen food, liquor, and cigarettes were con-sumed at a party in the residence the nightbefore the Warrant was The suspect had been released on bail in theearly evening, the evidence in his house was small in size and easily disposed of, and theonly way to keep him from destroying it wouldhave been to assign police resources in an allnight vigil.

7 15 The Warrant authorized a Search for valuablestolen property which the suspects had the abil-ity and motive to quickly sell or for officer safety, good cause must also bebased on facts, not unsupported assertions. As theCourt of Appeal explained, [A]llegations in anaffidavit with respect to safety of officers mustinform the magistrate of specific facts showing why5 See People v. Watson (1977) 75 592, 598 [ the affidavit furnished the magistrate must set forth specific facts which showa necessity for [night] service ].6 People v. Flores (1979) 100 221, 234. ALSO SEE People v. McCarter (1981) 117 894, People v. Lopez (1985) 173 125, 136. ALSO SEE In re Donald R. (1978) 85 23, 25-26 [generalized statementthat the stolen property being sought was primarily perishable items and easily disposed of ].

8 8 Tuttle v. Superior Court (1981) 120 320, See People v. Watson (1977) 75 592, 597 [night service cannot be based solely on the nature of the contraband to beseized or the type of crime involved ]; People v. Flores (1979) 100 221, 234 [ mere assertion of suspected unlawful drugactivities in the place to be searched is insufficient to justify night service ].10 (1975) 47 16, See People v. Watson (1977) 75 592, 598; Nunes v. Superior Court (1980) 100 915, 938; People v. Grant(1969) 1 563, 567-68; People v. Govea (1965) 235 285, See People v. Siripongs (1988) 45 548, 569-70 [following his arrest, the arrestee made a phone call from jail (speaking inThai) to the residence in which stolen property was stored]; People v. Cletcher (1982) 132 878, 883 [there was reasonto believe the suspect was aware that artwork he had stolen had just been observed in his home by the victim]; People v.

9 Flores (1979)100 221, 234 [ Warrant to Search suspect s motel room was issued after the suspect was arrested in the lobby at 8:30 ];Galena v. Municipal Court (1965) 237 581, 592 [ It is common knowledge that those in the possession of contraband orstolen goods make every effort to effectuate its immediate disposition when they learn that persons connected with it have beenapprehended by the authorities. ].13 See People v. Mardian (1975) 47 16, 35 [the occupants were planning to leave the residence at 6 ].14 See In re Donald R. (1978) 85 23, See People v. Lowery (1983) 145 902, 909-10 [ This is not a question of convenience to the police, but acknowledgesthe interest of the entire community in efficient use of police personnel. ]; People v. Flores (1979) 100 221, See People v. Kimble (1988) 44 480, 494-95; People v. Lopez (1985) 173 125, 138 [ The affidavit disclosed thatfour persons committed the robbery, all of whom, it appeared, had continuing access to the property.]

10 ].3 POINT OF VIEW nighttime service would lessen a possibility of vio-lent confrontation, , that the particular defen-dant is prepared to use deadly force against officersexecuting the Warrant . 17 Thus, in Rodriguez Court the court ruled that good cause wasnot shown based merely on a statement that anytime you got people dealing in drugs there s alwaysa danger of being shot or hurt. 18 One other thing about night service: If officersenter before 10 they do not need authorizationto continue the Search after 10 TO OBTAIN AUTHORIZATION: There are essen-tially four things the affiant must do to obtainauthorization for night service:(1) STATE THE FACTS: The affiant must set forth thefacts upon which good cause is based. Al-though the affidavit need not contain a sepa-rate section for this purpose, it is usually helpfulto the judge; , For the following reasons, Ihereby request authorization to execute this war-rant at any hour of the day or night.