The Warrant Process

Chapter Three

All Images © Microsoft Corporation

Written by Karmel Tanner

May 2010

Arrest Warrants: Warrant Clause No Warrant shall be issued:

but upon probable causesupported by Oath or affirmation

and particularly describing: the place to be searched, and the person • or things to be seized

Arrest Warrant Starts with Affidavit - swearing of

facts Affidavit must provide:

– Facts to establish probable cause that a specific crime was committed

Arrest Warrant Arrest warrant must specify: Crime(s) charged Identity of person to be arrested

– Name and aliases

• “John Doe” warrant can be issued if true name is not known

Arrest Warrant– Description of person - give as much

detail as available so that officers making arrest can verify that they have the right person:

• Age, DOB

• Height, weight, etc. Name of court and judge that issue warrant Date warrant was issued

Arrest Warrant In Georgia, if theft, the warrant must

also give a name, description, and value of the item(s) stolen and the owner

See 17-4-40

Search WarrantsAffidavit must contain: Facts to establish probable cause that

there are items of evidence that legally can be seized with a warrant– "Totality of the circumstances" test used to

determine if probable cause has been established

– Information that is stale may not be used

Search WarrantsAffidavit must contain: Facts to establish the location of the

items to be seized

– Identify the building to be searched

• 123 North Main Street

– Describe the portion of the building where the evidence is believed to be located• in the garage

Search WarrantsWarrants must contain: Location that may be searched Items that officers may search for Date warrant was signed Name of signature of judge who

approved the warrant See 17-5-21&22 for Georgia

requirements

Electronic Surveillance Warrants Title III and most state laws restrict use

of electronic surveillance warrants to investigations of major felonies

Show normal investigative techniques have been unsuccessful or reason why these techniques will not work

Electronic Surveillance Warrants Must make efforts to minimize intrusion

into privacy of persons not involved in criminal activity whose conversations are intercepted

Transcripts of all seized conversations must be filed with the court

Considered MAJOR privacy invasion

Bench Warrant issued by judge after conviction used when person does not

appear in court

Drafting Affidavits Affidavit must contain facts Judge decides if PC exists Supreme Court currently uses the Illinois

v. Gates (1983) totality of the circumstances test when evaluating whether the affidavit establishes PC

No longer necessary to establish that each piece of information came from a person known to be reliable

Drafting Affidavits Police should corroborate as many facts

as possible when dealing with informant whose reliability has not been established

Types of information that may be included:– Officer's first-hand observations– Information from other officers– Facts learned from informants

Drafting Affidavits Facts learned from informants

– Crime victims and people who witnessed crime

• Assumed to be credible unless facts indicate a motive to distort facts

• Common problem is that they do not provide sufficient details to identify perpetrator

Drafting Affidavits Facts learned from informants

– Confidential informants

• Officer knows identity of informant but has promised that identity will not be revealed

– Anonymous informants

• Unknown person provides information without disclosing identity

Drafting Affidavits Stale information (facts that

are too old to be reliable) cannot be used in an affidavit for a search warrant

Obtaining Warrant from Judge Prepare all necessary affidavits Complete required forms Present affidavits and forms to judge

– Must be a neutral magistrate Local court rules may require that

application be presented to specific judge

Obtaining Warrant from Judge If a judge rejects application it may not

be given to another judge unless affidavits have been prepared with additional facts

Search warrant must be issued by judge in the geographical jurisdiction where search will occur

Executing Warrants Must take at least one copy of warrant to

location where it will be executed

– Person whose premises is searched is entitled to a copy of the warrant

– If no one is present at the time, a copy should be left at the premises

Knock Notice applies when entering residential units

Executing Warrants Knock Notice exceptions

– Emergencies

– Evidence destruction Officers may search area designated in

warrant

Executing Warrants May look only in locations that could

conceal items the warrant authorizes the officers to seize – “Elephant in a drawer”

May seize items not listed on warrant if they are found in plain view and there is PC to seize them

No authority to pick up an item and examine it to see if there is PC to seize it

Executing Warrants “Returning” Inventory of items seized during

execution of search warrant is written on the warrant's "Return"

Return is filed with the court A copy of the return must be given to the

person whose premises was search or, if no one is present, left at the location

Arrest Warrants Officers may make an arrest based on

information in abstract of warrant Good faith effort must be made to verify

that person arrested is same one named in the warrant

Actual warrant must be produced at first court appearance

The Warrant Process

Chapter Three