In Search of Concealed Evidence Using Warrants: The Detectives
The station parking lot was usually the operational staging point of executing search warrants at my department. Police convoys aligned the nearby streets circling the Hall of Justice and stuffed the empty spaces in the lot: multi-agencies in marked and unmarked units, officers clad in raid vests and uniforms, long guns prepared for tactical purposes. We might have resembled “The Mob” to onlookers, but we were the good guys on white horses. It was a great mixture of expertise-running a multi-agency operation to execute a search warrant-kind of like alphabet soup, only better. Entry operations were planned and discussed prior to arrival on the “target structure” during an operational meeting at the station involving all officers, agents, and supervisors.
One of the most protected rights provided by constitutional law, statutes, and case laws is the freedom against unlawful search and seizure and arbitrary searches by the police and any agents. A parameter of the Fourth Amendment is that it prohibits against unreasonable search and seizure. Additionally, history has defined further what the Constitution has left unaddressed or silent.
Search and seizure procedures and law enforcement conduct have developed over time and become further defined with statutes and case law. With the laws governing the methods of law enforcement, search and seizure is another element highly scrutinized by the public and the judicial system, as it should be. Police have a duty to uphold the rights of individuals and abide by the rules dictating their ability to gather evidence when consent and other exceptions do not apply. Warrants are not required in every scenario, but are a valuable instrument as well as a protection against capricious intrusions. Warrantless searches will not be discussed in this post.
Basic Police Administrative Procedures
I will offer oversimplified steps here to demonstrate the process of a search warrant, however, it is one of the most carefully considered procedures by an investigator involving exact courses of action. A search warrant is a judicially approved document which authorizes law enforcement and agents to search a particular place, person, or conveyance (vehicle). It is an order which defines where the police can search and in which place, for which items, and at a particular time. An affidavit accompanies the warrant request which is a statement made under oath and may be oral or written.
Police investigations can lead to probable cause that concealed evidence is contained within a place (stolen goods, drugs, for example) or on a person (biological evidence-i.e.: DNA). Progress toward obtaining a search warrant may eventually move the investigation to a direction to seek out that veiled evidence to support the prosecution of a crime. Police labor diligently to gather facts and information to be included into search warrant affidavits. Investigations are often dynamic and change rapidly within hours or a few days which may reveal probable cause a crime has been committed and provide a reason to conduct a search warrant in a particular place or on a person. An investigator compiles this knowledge into a document to seek authorization to administer a search of property, a person, or a vehicle. Furthermore, prior to composing search warrant documents, law enforcement must have probable cause to believe a crime has been committed and the items of evidence are contained within the target structure(s), person, or vehicle which are to be listed on the documents.
The warrant itself must be signed under oath (sworn to its truthfulness) by the affiant in front of a judge or magistrate who gives approval of the warrant particulars to be carried out by law enforcement and any agents. It becomes an order. The affiant is usually the lead investigator who compiles the affidavit for the court. Upon a judge’s approval, a time limit begins and then again following the execution when a return must be provided to the courts and a copy left on or in the property or given to the suspect. If time constraints are not met, the warrant becomes invalid or expired.
Law enforcement must honor constitutional rights as well as stay within the scope of a judge’s order. The scope of a warrant depends on the information detailed in the documents and the evidence sought for the crime. For example, if police are looking for only a stolen BMW with no provisions for other items, they cannot search under the bed. A car would not fit in that space nor would it be concealed in a clothing drawer. It does not apply and therefore, it would be going beyond the scope. However, if the provisions state officers may search for a stolen BMW and any paperwork associated with determining ownership of the stolen goods and residency of the target structure in order to identify a suspect, then the police can look in any place a person could conceal a piece of paper.
If evidence of another crime is found within the scope of the warrant or in plain view, police may seize that item(s) even if it is not contained or listed in the warrant, i.e.-drugs, known stolen items, etc. Most often, we would obtain a “piggy back warrant” for evidence to be seized which were discovered but not detailed in our first warrant. A piggy back warrant is another search warrant request for additional items uncovered within the target structure, but not contained on the initial search order, however, still found within the scope or in plain view. For instance, if the lead detective discovered drugs and drug trafficking evidence in the desk where he was searching for phone records, those items could be seized. Similarly, if stolen goods from a burglary were discoverable upon plain sight or within the scope, they could also be seized. In most instances, it is not necessary to request a piggy back warrant but it would be beneficial to do so to include searching for items of evidence related to another crime if they might lead outside the scope.
When a search warrant is obtained, operational meetings are held to liaise with all agencies, communicate case data, disclose suspect photographs/bios, describe target structure information, provide full disclosure of the warrant information/scope, distribute tactical stratagem, and delegate duty assignments. In short, plans are a detailed outline of how the search warrant will be executed, what will be seized, a reveal of dangerous subject/persons/environment details, and which resources will be deployed. All search warrant executions, often referred to as “raids” are high risk operations. Many executions warrant the need for special response teams (S.W.A.T. or SRT) to assist investigators in the breach of a structure because of tactical resource needs and risk.
A target structure is the building or dwelling in which (and usually includes structures on the property not attached if defined in the affidavit) a search warrant provides lawful permission from a judge for police to force entry. Additionally, the warrant provides instructions on which type of items can be seized as evidence. The law enforcement objective and outcomes include priorities for the operation to be conducted safely and efficiently.
The number one guy is the one with the ram or the boot to the door. The number two is most often a uniform. The officer who was the first one through the door in a dynamic entry was jokingly called “the sacrificial lamb” because it was the most dangerous position, exposing himself or herself first to the unknown inside. However, the police humor has gone by the wayside as the streets have become much more dangerous and those jokes have waned with time. Other law enforcement officials follow suit with police covering every entry and exit and watching at angulated points on the corners and sides- even going to distances of three dimensional operations- depending on the target structure.
If the breach to the door is mighty…it’s a good day. It was…
Investigations can run along many jurisdictional lines. This was a case involving local, state, and federal agencies. The warrant happened to be a “no knock” warrant: one where police are not required to knock or identify before entering. We were executing on known suspects who were familiar with the justice system and had dangerous associates.
Wood splinters exploded with one pound to the brittle front door and simultaneously, we turned our heads to protect our eyes from flying debris. As the door caved under the pressure, I turned my head forward and blew wood splinters out of my face. Firearms drawn, we entered the unknown.
With a swift kick to discard the broken door to the side while still being alert to our surroundings and not wavering from our forward approach, we charged into the dark house. As we rushed to take up our points of position, we aimed our firearms into the faces of the surprised drug dealers. After loud yelling of police commands followed by compliance and cuffing, it was over as fast as it started; concluding with “All Clear” confirmations from each team member.
This entry ceased with every person being safe. The suspects were charged accordingly after interviews and taped statements were gathered at the station. All but one waived their Miranda rights. The execution of the search revealed multiple scheduled drugs, paraphernalia, guns, drug trafficking records called “pay-owes”, and money (drug profits). The suspects ultimately were convicted.
You might be curious if persons must comply with a judge’s order for a search warrant? Yes. Physical confrontation at the time of execution could lead to interference charges as well as obstruction or tampering if a person tries to destroy evidence. If a person disagrees with the parameters of a search or seizure, the defendant must seek legal recourse through the courts. In some instances, suppression hearings are brought forward to challenge the police search and evidence obtained. Civil suits may be filed if a defendant has suffered a civil wrong or rights violation.
In Mapp v. Ohio, the exclusionary rule was forwarded to apply to state levels as well as federal levels. The police have a duty to uphold the legal restrictions barring arbitrary searches. Evidence gathered by police and agents in violation of a person’s constitutional rights is not admissible in a court of law. Prohibited evidence which led to other evidence which would not be discovered otherwise, is commonly referred to as “fruit of the poisonous tree” and also becomes excluded in criminal procedures. Evidence obtained outside the scope of a search warrant could be an example of items elminated from a criminal case. Furthermore, the exclusionary rule applies to only law enforcement and not private parties.
Additionally, if the evidence was determined to be discovered or searched for by police upon good faith (authentic) but in violation of privacy rights, then the evidence may still be considered in court as admissible under the “good faith exception.” These determinations when brought forward usually involve a court decision and often are the result of a suppression hearing filed on behalf of the defendant. The good faith exception has been criticized for its merit and comes under scrutiny in criminal cases. The burden is upon the police and often times a judge’s consideration is required to differentiate a conflict.
Warrant affidavits may be sealed with a judge’s approval for a certain period before made public record or indefinitely to protect an ongoing investigation and the integrity of a case or identity of persons. Most documents become unrestricted information. Journalists often check court records daily for these filings as they seem to be important to their news releases while following a specific crime. After all, the warrant contains details of a crime and criminal elements not made public and with exclusive access to the filed information, the media may likely feel it is essential to breaking the story.
With that in mind, a detective must also keep secure informants, juvenile information, and special victim bio data. An affiant may number an informant in the affidavit which is revealed in the documents as “known unnamed person CI123″, for example. A child victim may be referred to as ‘juvenile female victim, date of birth (xx-xx-xxxx), known as CV”, disclosing the gender, age, and initials only. These labels are accepted by the courts and identities may have to be revealed at a later date when a victim or informant is required to testify, but until then, it keeps their privacy intact and identity concealed. Child victims’ information were not made public in my jurisdiction nor were any juvenile records.
Necessary Instrument for Police and Protection against Arbitrary Intrusions
As a detective, it was not unusual for my investigation team to conduct multiple search warrants on a weekly basis. Police searches and search warrant executions are necessary exercises in the pursuit of criminals, but should be given careful consideration by law enforcement. They are valuable as well as time consuming and document intensive for investigators. In the hunt for justice and the search for evidence to support charges, search warrants are secure measures to protect against unlawful seizures and assure the police can search for and confiscate certain items of evidence to assist their investigations.