j9K TheII Search Warrant Process : GI 3 Preconceptions, Perceptions, Practices, W'd I-2I-8'6 Richard Van Duizend/ c L. Paul Sutton Charlotte A. Carter National Center for State Courts This is an edition of a report issued under the same title by the National Center for State Courts in 1984. Library of Congress Cataloging in Publication Data Van Duizend, Richard. The search warrant process. 1. Warrants (Law)-United States. 2. Searches and seizures-United States. I. Sutton, L. Paul. 11. Carter, Charlotte A., 1953- . 111. Title. KF9630.V36 1985 345.73’0522 85-21482 ISBN 0-89656-080-5 347.305522 @ 1985 National Center for State Courts Printed in the United States of America The research on which this report is based was conducted under Grant No. 80-1J-CX-0086 from the National Institute of Justice, United States Department of Justice. Points of view or opinions in this document are those of the authors and do not necessarily represent the official position or policies of the National Institute of Justice, the U.S. Department of Justice, or the National Center for State Courts. 11 Acknowledgments t is traditional at the beginning of a report of this type to name I the many people without whom the research could not have been conducted nor the volume written. Many traditions have fallen by the wayside in recent years, but this is one that should be maintained, for we and others interested in the findings have many people to thank. Judges, law enforcement officers, prosecutors, and defense attorneys generously shared their time, knowledge, insight, and concerns with us. Court and police administrative personnel graciously provided us with places to work, guided us through the recordkeeping systems, and answered our many questions. For their extraordinary cooperation and candor they all deserve individual recognition. But to provide even that meager recompense would violate our pledge to leave both sites and individuals anonymous. So although all of you across the country who assisted us will remain unnamed, please know that you are not unappreciated. We are very grateful. There are others deserving thanks around whom the cloak of anonymity need not fall. Foremost among these is Dr. Charles A. Murray, who helped us to analyze and organize our quantitative data. For your skill, knowledge, clarity of thought, humor and common sense, we are very grateful. Thanks also to Thomas Y. Davies of the American Bar Foundation, Dean Sheldon Krantz of the University of San Diego Law School, Professor Fredric I. Lederer of the Marshall-Wythe iii The Search Warrant Process Law School, College of William and Mary, and the other individuals who reviewed drafts of this report, for taking the time to look at the details without losing sight of the whole. Your criticisms and comments provided perspective and assistance that greatly enhanced the precision and clarity of the final product. To W. Lawrence Fitch, who performed much of the initial site selection work, and the state court administrators, who responded so quickly to our requests for information-thank you. Thanks are in order as well to the law students who compiled and helped to analyze the statutes and rules presented in the appendix, to the administrative and clerical staff who suffered through the redrafts great and small, to editor Carolyn McMurran, production artists Tina Beaven and Cathy Minga, and the rest of the National Center publications staff who skillfully transformed our manuscript into a finished product. Finally, we thank our grant monitors, Jonathan Katz, Betty Chemers, Sidney Epstein, Maureen O’Connor, and Cheryl Mar- torana, director of the Adjudication Division of the National Institute of Justice, for their patience, enthusiasm, and encouragement through- out the project. June 1984 RICHARDVAN DUIZEND L. PAUL SUlTON CHARLO~TEA, CARTER iv CONTENTS Acknowledgments ni... List of Tables vii List of Figures wiii Introduction ix Prior Studies of Search Warrant Practice x Purpose of the Current Study xii I. Research Design 1 Research Issues I Research Methodology 2 11. The Search Warrant Process 15 Step I: Police Investigation or Awareness of a Potential Search-and- Seizure Incident 17 Step 11: Preparation of an Application 19 Step 111: Pre-judicial Screening 20 Step IV: Presentation to the Magistrate 22 Step V: Approval of the Application 26 Steps VI-IX: Service of Warrant, Seizure of Items, Preparation of Inventory, Filing of Return 36 Filing a Criminal Case after Execution of a Warrant 41 111. Protection of Fourth Amendment Rights: The IntendedEffects 46 ~ Interposition of a Neutral and Detached Magistrate 47 Orderly Review Process 49 V The Search Warrant Process Probable Cause 51 Significance of the Oath 55 Specifying the Place and Items 56 Limits on Execution 59 Submission of an Inventory and Return 61 Availability of the Record 61 Do Practices Meet Constitutional and Statutory Requirements? 62 IV. Protection of Fourth Amendment Rights: Unintended Effects 66 Losing Cases Because of Delay 66 Use of Alternative Methods for Conducting a Search 68 An Easy Target for Constitutional Challenge 71 V. The Search Warrant Process From the Police Perspective 75 Attitudes in General 75 Preparing the Search Warrant Affidavit 82 Telephone Review of Warrant Applications 85 Police Training in Fourth Amendment Law 87 The Exclusionary Rule and the “Good Faith” Exception 89 Officers’ Suggested Improvements 92 VI. The Search Warrant Process From the Perspective of the Judgeand the Prosecutor 94 Purpose of Magisterial Review 94 Common Deficiencies in Warrant Applications 98 The Use of Confidential Informants 99 Effect of the Search Warrant Requirement IOI vi Contents VII. Conclusions and Recommendations 104 Increasing the Frequency With Which Search Warrants Are Sought 108 Establishing Departmental Incentives to Obtain Warrants 111 Improving the Review Process 112 Maintenance and Use of Records 115 Conclusion 119 Appendix: Statutory Analysis 122 Search Warrant Application Procedures: Chart I 122 Form of Applications and Warrants: Chart I1 126 Search Warrant Execution Requirements: Chart I11 128 Search Warrant Return Procedures and Records: Chart IV 132 Conclusion 136 char 142 chart rIr 166 chair 160 chartrv 190 TABLES &FIGURES Table 1. Population and Index Crime Rates 5 2. Data Collection Strategies r2 3. Comparison of Number of Search Warrants in Largest City, County or Judicial District With the Number of Major Offenses in Largest City in 1980 18 4. Application Preparation Procedure 21 5. Employers of Applicants for Search Warrants 22 6. Frequency of Review by Magistrates 24 7. Duration of Review Proceedings in River City 26 8. Central Offense Leading to the Warrant 27 vii The Search Warrant Process 9. Primary Area to Be Searched 29 10. Areas to Be Searched 30 11. Materials Sought 31 12. Sources of Evidence for the Application 32 13. Primary Source of Information Contained in Affidavit 33 14. Types of Crime Involved in Applications Which Relied on Confidential Informants 33 15. Search Warrant Seeking Drugs: Confidential Informant as Sole or Primary Source of Information 34 16. Corroboration of Confidential Informant’s Information 34 17. Basis for Establishing Credibility of Confidential Informant 35 18. Returns Filed 35 19. Approved and Executed Warrants 37 20. Elapsed Days Between Approval and Execution of Warrant 38 2 1. Basic Characteristics of Seizures 38 22. Proportion of Listed Items Seized 39 23. Materials Seized 39 24. Cases Filed 4= 25. Motions to Suppress 43 26. Disposition of Cases 43 27. Evidence Used to Support Reliability of Confidential Informants 54 28. Time of Execution 60 29. Seizures Made in Executed and Returned Warrants 98 30. Approved Warrants Resulting in at Least One Case Filed 99 Figwe 1. Conceptual Model of the Search Warrant Process 16 2. Percentage of Search Warrant Applications Reviewed in Each Jurisdiction by the Percentage of Misdemeanor Court Judges 25 ... Vlll Introduction search warrant is an order issued by a judge authorizing a law A enforcement officer, public health officer, beverage control officer or other official to enter private property to search for and seize specified items or a specified individual. In some instances, it may authorize the officer or official to break into a residence, other building, ship or vehicle, or to search a person. The Fourth Amendment to the U.S. Constitution prescribes that a search warrant may be issued only rr.. .upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.” The search and seizure may be carried out over the objection of the person who owns or controls the property to be searched and the item to be seized. However, the United States Supreme Court has ruled that if the information supporting a warrant is insufficient, if the warrant itself is defective, or if it is executed improperly, the items seized may not be used by the government at a criminal trial as evidence of the guilt of the person whose Fourth Amendment rights have been violated.1 A search and seizure may be performed without a warrant: but such searches are, by definition, unreasonable unless they fall within certain specified exceptions? The reasoning behind this preference was summarized by Justice Robert Jackson in an oft-quoted passage inJohnsun v. United States. The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the ix The Search Wanant Process usual inferences which reasonable men draw from evidence. Its protation consists in requiring that those inferences be drawn by a neutral and hhed magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.