A valid warrant requires probable cause and a statement of particularity of the places and items to be searched.
General Search Warrants: Historical Context
A general search warrant was a common practice of the British before the revolutionary war and rising of the United States. These were warrants authorized by the king to conduct a search. There was no limiting language (anywhere and anything could be searched) and there was no expiration date. The same is true of Writs of Assistance, where custom officers were allowed to conduct searches on Colonial ships.
Entick v. Carrington
95 Eng. Rep. 807 (K.B. 1765).
Was the warrant illegal?
The warrant was illegal, judgment for the plaintiff.
Entick had published pamphlets that criticized the British government. One of the Lords considered these pamphlets as libel and executed a search warrant that authorized the delivers to search Entick’s home. The warrant had no details about what was to be searched or what was to be seized. Those who executed the warrant stayed for several hours going through Entick’s papers without his will or consent.
This type of search cannot be authorized by the Lord. People ought to be protected in their homes. Otherwise there would be disorder and the government would fall away.
This case has determined that general warrants were no longer valid in England.
The Writs of Assistance
Quincy’s Rep. (Mass.) App., 1:402-04, 453
This writ of assistance authorized a representative to search ships for concealed goods that may be owed to Great Britain. Additionally, it required deputies and servants to assist in the search. This search can be conducted at any place, day or night. It expires on the death of the King (the only limit).
As general warrants were becoming less popular in England, they were utilized more often in the United States.
General warrants and writs of assistance led to distaste amongst the founders for several reasons:
- There is severe potential for abuse: No probable cause or limits
- Remedies are non existent if the warrant is valid.
- There was no distinction between General Warrants and Writs of Assistance (both are bad).
Even before the Constitution was developed, several colonies stated that general warrants “ought not to be granted.” During the Constitutional Convention, many delegates refused to sign the document unless there was a promise of the development of the Bill of Rights. Shortly after ratification, the Bill of Rights was drafted, which included the Fourth Amendment protections that individuals are secure against unreasonable searches and seizures. Warrants were only allowed if there was probable cause and they stated the searched areas with particularity.
Particularity in Warrants
A valid warrant needs (1) probable cause; (2) under oath; (3) with particularity; (4) signed by a neutral magistrate.
The particularity requirement is what distinguishes a valid warrant from an invalid general warrant.
Wheeler v. State
135 A.3d 282 (Del. 2016).
Wheeler was charged with crimes of assaulting several minors.
Was the search illegal because the warrant was invalid?
Warrants, in order to satisfy the particularity requirement, must describe what investigating officers believe will be found on electronic devices with as much specificity as possible under the circumstances.
The warrant was invalid because it was not particular.
Wheeler was charged with crimes of assaulting several minors. During the time leading up to the trial, he reopened communication with several of these individuals. The state suspected that these conversations were attempts to tamper with the witnesses and a warrant was executed. In the warrant, the police were authorized to search any electronic device, any file on those devices, and any storage that may contain those files. There was no indication of the relevant time frame indicated on the warrant.
There is an extensive difficulty in balancing the interests of investigative work and the privacy of those being investigated when it comes to computer technology. So much can be stored on a computer that it becomes difficult to sort through what might be related to a crime, what is not, and what might be covering up a crime. Rather than outline a protocol for how to conduct searches of electronic devices, the court wants to make sure that those conducting the investigation have a targeted goal and focus on that goal.
So, some common principles to abide by include: establish a time frame for when the crime was committed (if the device hasn’t been used since before the crime, the device cannot store that criminal activity), state the crime associated with the search (so investigators can narrow the search to files related to that material), limit the warrant to include only those types of media files associated with the crime (written files rather than video files).
The original test, as described in Marron, is that the warrant cannot leave the officer with any discretion about what the warrant covers.
Here, the court asks “whether it was reasonable to provide a more specific description of the items at that juncture of the investigation.” This test can be compared with the Steele test where the warrant must be specific enough that the officer with reaonable effort can identify the described location.
For computers, the description of the items should be more specific. The officers were searching for evidence about witness tampering and the description allowed the officers to search material outside of that scope.
Buckner v. United States
615 A.2d 1154 (D.C. 1992).
An informant made illegal purchases and described the location of the apartment. The officer applied for a warrant using the description used by the informant. After obtaining the warrant, the officer went to the apartment building interior and discovered that the informant had provided reverse information (the number of apartments on the described side was incorrect).
This was a valid warrant. Using the Steele test, a reasonable officer was able to identify the described location (have the majority of the description line up. However, if probable cause is invalidated, the police need to get a new warrant. See Maddox.
The standard for probable cause can best be articulated with four elements, with parts of each element varying from jurisdiction to jurisdiction.
- The assessment must be made in mind of a reasonable [prudent or cautious person, or police officer]
- Inferences need to be strongly associated that a crime is or has occurred (no particular number defined)
- Comparison to standards: more than reasonable suspicion, but less than certainty.
- The information obtained is provided by a quality source.
Brinegar v. United States
338 U.S. 160 (1949).
Brinegar was arrested for transporting liquor across state lines. His motion to suppress evidence found in a search was denied at trial.
Whether there was probable cause for the defendant’s arrest.
Probable cause is not beyond a reasonable doubt but beyond mere suspicion. It is: “Where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.”
The facts here show that there was probable cause for the search. Affirmed.
Brinegar was previously arrested for transporting liquor across state lines and that case was currently pending. The officer who made the previous arrest, also made this arrest. In the current arrest, the officer recognized Brinegar, his car, it appeared to be heavily loaded, and the direction of travel from a “wet” state to a “dry” state. Using this information, Brinegar was pulled over, searched, and liquor was discovered.
The facts presented in this case is very similar to the facts presented in Carroll. There the court found that the officer’s knowledge of the criminal activity of the defendant and the nature of the location being a place where the type of crime was actively ongoing, gave rise to probable cause. Similar facts, no distinction besides statute at issue and minor discrepancies, all these things lead to a lack of error regarding the denial to suppress.
A couple of rules: (1) Police can use their training and experience to establish probable cause. (2) Fellow officer rule: Officers can use collective knowledge to create probable cause (i.e., there is no need for each officer to have probable cause).
State v. Stevenson
331 P.2d 754 (Kan. 2014).
Stevenson was stopped for failure to turn the blinker on in time (but was suspected of drug activity). There was a strong smell of alcohol. The defendant was asked to step out of the car and the car was searched based on the odor (suspecting that there was an open container in the vehicle). He passed the field sobriety test, but an open container was found in the car.
Under the Brinegar test, the odor of alcohol was not enough to establish probable cause. After he passed the sobriety test, the search should have concluded.
State v. Parent
867 P.2d 1143 (Nev. 1994).
The officers received an anonymous tip that Parent would be arriving in the airport with illegal drugs. This tip is corroborated by the defendant’s criminal record and description. A warrant was provided on the condition that the flight arrives and Parent was on the flight.
An anticipatory warrant (depending on the jurisdiction) is where the officer knows a crime is going to occur (but has no probable cause yet) and seeks a warrant to conduct a search once the probable cause actually arrives.
For an anticipatory warrant to be issued, the officer must show (1) there is probable cause of evidence if there is a triggering condition and (2) there needs to be probable cause of the triggering condition.
Constitutionally allowed under Grubbs.
Minority of states disagree. See Dodson.
However, the issue with this is that now the police are determining whether there is probable cause, not the judge.
Sources that Support Probable Cause
Information may come from a variety of sources. These include the police, witnesses, victims, confidential informant tips (name is known by police), and anonymous tips (name is unknown by police). However, the court has mistrusted information that comes from confidential informants and anonymous sources, requiring specialized rules as outlined below.
State v. Barton
594 A.2d 917 (Conn. 1991).
Barton was charged with possession and the intent to sell illegal drugs. At trial, he was successful in having the evidence excluded and the charges dropped.
Whether the court should adopt a totality of the circumstances approach to evaluating probable cause.
When either the reliability or the informants actual knowledge falls short, the court can use a totality of the circumstances to determine whether probable cause exists.
The warrant here was not in error, reversed.
After receiving information from an informant, the officers obtained a warrant to search Barton’s home for illegal dugs. Upon granting of the warrant and execution of the search, they discovered over 50 pounds of the drugs. The officers then waited for Barton to come home before arresting him.
Included in the application for a warrant was an affidavit from the informant. The affidavit said that the defendant kept the drugs in a plastic bag, in his house, in a closet, that the defendant had gone on a trip for a week, upon return the defendant had more plastic bags in the vehicle, those were brought into the home, then others visited the home and took bags after staying for only a short while. In addition to the affidavit, the informant brought a sample of the drugs to the police station to verify the story.
At trial, the court said that the informant did not have actual knowledge because there was nothing in the affidavit that said the informant had actually been in the home or seen the drugs.
Previously in this jurisdiction, there was a two-part test to determine whether probable cause was found. First, an informant had to be reliable. Second, the informant had to have a basis for their knowledge. Here, the court considers another test, the totality of the circumstances. When the informant fails either the actual knowledge or reliability prongs, the court can consider the totality of the circumstances to find probable cause.
In the present case, there is sufficient facts for probable cause to exist. The reliability is present because the informant brought a sample of the contraband into the police station (risking arrest himself) and the tip was not confidential. Although the affidavit could have used more information, inferences could be made that the informant knew the defendant well enough to know his schedule and be present during the illegal activities. Additionally, the statement that the drugs were kept in a closet could provide the inference that the informant had been inside the home to witness these activities.
In sum, the issuance of this warrant is a close call. The magistrate was not in error to provide the warrant. Nor would he have been in error to ask for additional information.
The two part test is the Aguilar-Spinelli test. Do they know what they know (basis of knowledge) and is there evidence to support the reliability (reliability)? The issues with this test is that the prongs were independent (no way of balancing the others), and the standard for review was de novo (when the usual test is abuse of discretion of the judge issuing the warrant).
Gates is the name of the test that applies the totality of the circumstances.
Here, the Aguilar-Spinelli test is not utilized but remains highly relevant. There was a basis of knowledge because the informant knew where the drugs were in the home and knew the defendant’s schedule. This evidence was also reliable because the informant’s identity was known to the police (being a confidential informant) where he yielded self-incriminating information.
The concurrence and dissent in part argues that this is essentially the same test but gives the police a lot of additional discretion.
State v. Utterback
485 N.W.2d 760 (Neb. 1992).
Utterback was charged with possession of illegal drugs.
Was the information in the affidavit reliable?
A search warrant requires probable cause based on facts set forth in an affidavit. If coming from an informant, probable cause can be established by testing the informant’s basis of knowledge and reliability. The totality of the circumstances may be used to meet these criteria. (Gates test)
Four methods may be used to establish the informant’s reliability:
- The informant has given reliable information to the police in the past
- Whether the informant is a citizen informant (a person who is motivated to assist law enforcement)
- Whether the informant has made self-incriminating statements in providing the information
- The officer corroborates the information provided.
The informant’s reliability is lacking, the warrant should not have been issued.
Utterback’s residence was searched (and evidence seized) after a warrant was issued based on information provided by a first-time confidential informant. In the application, the officer submitted an affidavit outlining the informants story. The informant stated he had purchased drugs from the defendant six months prior, and had been in the house within the past five days where he saw more drugs and handled firearms. Additionally, he stated that he had witnessed others going to the home to engage in drug distribution. To confirm the story, the officer drove past the home and confirmed that the named defendant matched the name and physical description provided by the informant.
The largest issue here is whether the informant was reliable. There is no evidence that the informant had provided reliable information in the past, nor that the informant was a citizen informant. Additionally, the informant did not provide self-incriminating statements because the crime is for possession, not for purchasing (dumb argument in my opinion). Finally, the officer only corroborated the innocent aspects of the defendant (where he lived and what he looked like), but not the criminal activities. Thus, the reliability was lacking and the warrant should not have been issued.
The Gates test is the adopted standard in the majority of states because it gives judges must more flexibility while applying the same factors.
There is also “Informer’s Privilege” where the name of a confidential informant is not disclosed to the defendant unless there are exception circumstances. However, the officers know the name and
State v. Raveydts
691 N.W.2d 290 (S.D. 2004).
Reveydts was arrested for dealing in illegal drugs. The motion to suppress the evidence was granted and the state appeals.
Were the anonymous tips corroborated by the police before the execution of the warrant?
When there is an anonymous tip, the police need to corroborate the information to test the reliability of the tipster.
Here, the corroboration was sufficient to show probable cause and thus justify the warrant.
The officers received two calls from anonymous sources. They described how they lived in the complex of the defendant and witnesses what appeared to be drug dealing occurring in the defendant’s apartment. The tipster wrote down the license plates of those visiting and conveyed this information to the officer.
Rather than visit the apartment, the officer ran the plates and noticed that a couple of the names associated had a suspicious record including drug activity. With this information a warrant was granted resulting in the search and arrest of the defendant.
This case is factually distinguishable from another case (Titus) where there was no probable cause because the names of the plates searched had no suspicious records. Here, there was a suspicious record from the visitors thus allowing probable cause.
However, the dissent argues that the officer did not do enough to corroborate the testimony. There was no additional investigation of the apartment or the visitors. The officer wouldn’t even know for sure if the two tips were coming from the same person or if their story was true. With the majority’s analysis, the dissent argues that anyone could make up a story, tell it to the police, and with little effort the police could obtain a warrant to search anyone.
The big difference between a confidential informant and an anonymous tip is that the it is much harder to confirm the reliability of an anonymous tip. The only way to confirm reliability is through corroboration. Hence this case really relied on whether corroboration existed.
Illinois v. Gates
462 U.S. 213 (1983).
The police receiving an anonymous tip saying that Gates and his wife were drug dealers. The wife would drive from Illinois to Florida where the vehicle would be loaded with drugs. The husband would then fly to Florida and drive the vehicle back to Illinois as the wife flies back. The officers followed the wife to Florida, saw that the husband had a flight scheduled and arrived in Florida and noticed him pick up the car. At that point a search warrant is issued, executed, and an arrest occurred. In other words, the tip illustrated future events, which were followed well.
Here, the court says that with the totality of the circumstances, the corroboration was enough to find probable cause.
Alabama v. White
496 U.S. 325 (199).
Takeaway: When the police are responding to anonymous tips, they have to corroborate significant details to show that the tipster is well informed.
Florida v. J.L.
496 U.S. 325 (1990).
Takeaway: When the police are responding to the anonymous tips, they need to corroborate significant details of the criminal activity, not merely the innocent facts about the defendant.
State ex rel. Brown v. Dietrick
444 S.E.2d 47 (W. Va. 1994).
Whether the magistrate being married to the chief of police rendered the warrant void.
A magistrate is not impartial if there is some familial relationship with the officer requesting the warrant. However, the magistrate is not disqualified if the magistrate issues a warrant to an officer other than the one they have a relationship with. When the police force is small, the magistrate should take additional care.
Here, the magistrate was impartial. The warrant is not void.
The magistrate was married to the chief of police of the city. While the magistrate was on call for emergency hours (being the only magistrate)—which extends from 4 pm to 8 am—one of the officers (not the chief of police) requested a warrant which was granted. The defendants then hoped that the relationship of the magistrate the chief of police would disqualify the magistrate because of partiality.
Here, the magistrate was impartial. The officer making the request was not the magistrate’s spouse nor the magistrate did not talk to her spouse about the matter. This is a small town so the magistrate should be careful when issuing warrants but that does not disqualify her.
Although the language of the Fourth Amendment does not include “neutral” it is a source of requiring a neutral magistrate. Other sources include the code of ethics.
Constitutionally, the magistrate cannot be involved in the law enforcement (investigatory process).
Clear violations include:
- Attorney general’s issuing warrants – Coolidge
- Judges leading a search party – Lo-Ji Sales
- Compensation for warrant approvals – Connally
Marriage between potentially conflicting parties alone is not a violation.
However, if a magistrate is disqualified by lack of neutrality, the judge may still issue the warrant in times of necessity (truly no other judge is available).
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.