CRS Annotated Constitution
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Searches and Seizures Pursuant to Warrant
Emphasis upon the necessity of warrants places the judgment of an independent magistrate between law enforcement officers and the privacy of citizens, authorizes invasion of that privacy only upon a showing that constitutes probable cause, and limits that invasion by specification of the person to be seized, the place to be[p.1216]searched, and the evidence to be sought.87 While a warrant is issued ex parte, its validity may be contested in a subsequent suppression hearing if incriminating evidence is found and a prosecution is brought.88
Issuance by Neutral Magistrate.—In numerous cases, the Court has referred to the necessity that warrants be issued by a “judicial officer” or a “magistrate.”89 “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 usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached 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.”90 These cases do not mean that only a judge or an official who is a lawyer may issue warrants, but they do stand for two tests of the validity of the power of the issuing party to so act. “He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search.”91 The first test cannot be met when the issuing party is himself engaged in law enforcement activities,92 [p.1217]but the Court has not required that an issuing party have that independence of tenure and guarantee of salary which characterizes federal judges.93 And in passing on the second test, the Court has been essentially pragmatic in assessing whether the issuing party possesses the capacity to determine probable cause.94
Probable Cause.—The concept of “probable cause” is central to the meaning of the warrant clause. Neither the Fourth Amendment nor the federal statutory provisions relevant to the area define “probable cause;” the definition is entirely a judicial construct. An applicant for a warrant must present to the magistrate facts sufficient to enable the officer himself to make a determination of probable cause. “In determining what is probable cause . . . [w]e are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit . . . for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.”95 Probable cause is to be determined according to “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”96 Warrants are favored in the law and utilization of them will not be thwarted by a hypertechnical reading of the sup[p.1218]porting affidavit and supporting testimony.97 For the same reason, reviewing courts will accept evidence of a less “judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.”98 Courts will sustain the determination of probable cause so long as “there was substantial basis for [the magistrate] to conclude that” there was probable cause.99
Much litigation has concerned the sufficiency of the complaint to establish probable cause. Mere conclusory assertions are not enough.100 In United States v. Ventresca,101 however, an affidavit by a law enforcement officer asserting his belief that an illegal distillery was being operated in a certain place, explaining that the belief was based upon his own observations and upon those of fellow investigators, and detailing a substantial amount of these personal observations clearly supporting the stated belief, was held to be sufficient to constitute probable cause. “Recital of some of the underlying circumstances in the affidavit is essential,” the Court said, observing that “where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause,” the reliance on the warrant process should not be deterred by insistence on too stringent a showing.102
Requirements for establishing probable cause through reliance on information received from an informant has divided the Court in several cases. Although involving a warrantless arrest, Draper v. United States103 may be said to have begun the line of cases. A previously reliable, named informant reported to an officer that the defendant would arrive with narcotics on a particular train, and described the clothes he would be wearing and the bag he[p.1219]would be carrying; the informant, however, gave no basis for his information. FBI agents met the train, observed that the defendant fully answered the description, and arrested him. The Court held that the corroboration of part of the informer’s tip established probable cause to support the arrest. A case involving a search warrant, Jones v. United States,104 apparently utilized a test of considering the affidavit as a whole to see whether the tip plus the corroborating information provided a substantial basis for finding probable cause, but the affidavit also set forth the reliability of the informer and sufficient detail to indicate that the tip was based on the informant’s personal observation. Aguilar v. Texas105 held insufficient an affidavit which merely asserted that the police had “reliable information from a credible person” that narcotics were in a certain place, and held that when the affiant relies on an informant’s tip he must present two types of evidence to the magistrate. First, the affidavit must indicate the informant’s basis of knowledge—the circumstances from which the informant concluded that evidence was present or that crimes had been committed—and, second, the affiant must present information which would permit the magistrate to decide whether or not the informant was trustworthy. Then, in Spinelli v. United States,106 the Court applied Aguilar in a situation in which the affidavit contained both an informant’s tip and police information of a corroborating nature.
The Court rejected the “totality” test derived from Jones and held that the informant’s tip and the corroborating evidence must be separately considered. The tip was rejected because the affidavit contained neither any information which showed the basis of the tip nor any information which showed the informant’s credibility. The corroborating evidence was rejected as insufficient because it did not establish any element of criminality but merely related to details which were innocent in themselves. No additional corroborating weight was due as a result of the bald police assertion that defendant was a known gambler, although the tip related to gambling. Returning to the totality test, however, the Court in United States v. Harris107 approved a warrant issued largely on an informer’s tip that over a two–year period he had purchased illegal whiskey from the defendant at the defendant’s residence, most re[p.1220]cently within two weeks of the tip. The affidavit contained rather detailed information about the concealment of the whiskey, and asserted that the informer was a “prudent person,” that defendant had a reputation as a bootlegger, that other persons had supplied similar information about him, and that he had been found in control of illegal whiskey within the previous four years. The Court determined that the detailed nature of the tip, the personal observation thus revealed, and the fact that the informer had admitted to criminal behavior by his purchase of whiskey were sufficient to enable the magistrate to find him reliable, and that the supporting evidence, including defendant’s reputation, could supplement this determination.
The Court expressly abandoned the two–part Aguilar–Spinelli test and returned to the “totality of the circumstances” approach to evaluate probable cause based on an informant’s tip in Illinois v. Gates.108 The main defect of the two–part test, Justice Rehnquist concluded for the Court, was in treating an informant’s reliability and his basis for knowledge as independent requirements. Instead, “a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.”109 In evaluating probable cause, “[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”110
Particularity.—“The requirement that warrants shall particularily describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.”111 This requirement thus acts to limit the scope of the search, inasmuch as the executing officers should be limited to[p.1221]looking in places where the described object could be expected to be found.112
First Amendment Bearing on Probable Cause and Particularity.— Where the warrant process is used to authorize seizure of books and other items entitled either to First Amendment protection or to First Amendment consideration, the Court has required government to observe more exacting standards than in other cases.113 Seizure of materials arguably protected by the First Amendment is a form of prior restraint that requires strict observance of the Fourth Amendment. At a minimum, a warrant is required, and additional safeguards may be required for large–scale seizures. Thus, in Marcus v. Search Warrant,114 the seizure of 11,000 copies of 280 publications pursuant to warrant issued ex parte by a magistrate who had not examined any of the publications but who had relied on the conclusory affidavit of a policeman was voided. Failure to scrutinize the materials and to particularize the items to be seized was deemed inadequate, and it was further noted that police “were provided with no guide to the exercise of informed discretion, because there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity.”115 A state procedure which was designed to comply with Marcus by the presentation of copies of books to be seized to the magistrate for his scrutiny prior to issuance of a warrant was nonetheless found inadequate by a plurality of the Court, which concluded that “since the warrant here authorized the sheriff to seize all copies of the specified titles, and since [appellant] was not afforded a hearing on the question of the obscenity even of the seven novels [seven of 59 listed titles were reviewed by the magistrate] before the warrant issued, the procedure was . . . constitutionally[p.1222]deficient.”116 Confusion remains, however, about the necessity for and the character of prior adversary hearings on the issue of obscenity. In a later decision the Court held that, with adequate safeguards, no pre–seizure adversary hearing on the issue of obscenity is required if the film is seized not for the purpose of destruction as contraband (the purpose in Marcus and A Quantity of Books), but instead to preserve a copy for evidence.117 It is constitutionally permissible to seize a copy of a film pursuant to a warrant as long as there is a prompt post– seizure adversary hearing on the obscenity issue. Until there is a judicial determination of obscenity, the Court advised, the film may continue to be exhibited; if no other copy is available either a copy of it must be made from the seized film or the film itself must be returned.118
The seizure of a film without the authority of a constitutionally sufficient warrant is invalid; seizure cannot be justified as incidental to arrest, inasmuch as the determination of obscenity may not be made by the officer himself.119 Nor may a warrant issue based “solely on the conclusory assertions of the police officer without any inquiry by the [magistrate] into the factual basis for the officer’s conclusions.”120 Instead, a warrant must be “supported by affidavits setting forth specific facts in order that the issuing magistrate may ‘focus searchingly on the question of obscenity.”’121 This does not mean, however, that a higher standard of probable cause is required in order to obtain a warrant to seize materials protected by the First Amendment. “Our reference in Roaden to a ‘higher hurdle . . . of reasonableness’ was not intended to establish a ‘higher’ standard of probable cause for the issuance of a warrant to seize books or films, but instead related to the more basic requirement, imposed by that decision, that the police not rely on the ‘exigency’ exception to the Fourth Amendment warrant requirement, but instead obtain a warrant from a magistrate . . . .”’122
[p.1223]In Stanford v. Texas,123 a seizure of more than 2,000 books, pamphlets, and other documents pursuant to a warrant which merely authorized the seizure of books, pamphlets, and other written instruments “concerning the Communist Party of Texas” was voided. “[T]he constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain. . . . No less a standard could be faithful to First Amendment freedoms.”124
However, the First Amendment does not bar the issuance or execution of a warrant to search a newsroom to obtain photographs of demonstrators who had injured several policemen, although the Court appeared to suggest that a magistrate asked to issue such a warrant should guard against interference with press freedoms through limits on type, scope, and intrusiveness of the search.125
Property Subject to Seizure.—There has never been any doubt that search warrants could be issued for the seizure of contraband and the fruits and instrumentalities of crime.126 But in Gouled v. United States,127 a unanimous Court limited the classes of property subject to seizures to these three and refused to permit a seizure of “mere evidence,” in this instance defendant’s papers which were to be used as evidence against him at trial. The Court recognized that there was “no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure,”128 but their character as evidence rendered them immune. This immunity “was based upon the dual, related premises that historically the right to search for and seize property depended upon the assertion by the Government of a valid claim of superior interest, and that it was not enough that the purpose of the search and seizure was to obtain evidence to use in appre[p.1224]hending and convicting criminals.”129 More evaded than followed, the “mere evidence” rule was overturned in 1967.130 It is now settled that such evidentiary items as fingerprints,131 blood,132 urine samples,133 fingernail and skin scrapings,134 voice and handwriting exemplars,135 conversations,136 and other demonstrative evidence may be obtained through the warrant process or without a warrant where “special needs” of government are shown.137
However, some medically assisted bodily intrusions have been held impermissible, e.g., forcible administration of an emetic to induce vomiting,138 and surgery under general anesthetic to remove a bullet lodged in a suspect’s chest.139 Factors to be weighed in determining which medical tests and procedures are reasonable include the extent to which the procedure threatens the individual’s safety or health, “the extent of the intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity,” and the importance of the evidence to the prosecution’s case.140
[p.1225]In Warden v. Hayden,141 Justice Brennan for the Court cautioned that the items there seized were not “‘testimonial’ or ‘communicative’ in nature, and their introduction therefore did not compel respondent to become a witness against himself in violation of the Fifth Amendment. . . . This case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure.” This merging of Fourth and Fifth Amendment considerations derived from Boyd v. United States,142 the first case in which the Supreme Court considered at length the meaning of the Fourth Amendment. Boyd was a quasi–criminal proceeding for the forfeiture of goods alleged to have been imported in violation of law, and concerned a statute which authorized court orders to require defendants to produce any document which might “tend to prove any allegation made by the United States.”143 That there was a self–incrimination problem the entire Court was in agreement, but Justice Bradley for a majority of the Justices also utilized the Fourth Amendment.
While the statute did not authorize a search but instead compulsory production, the Justice concluded that the law was well within the restrictions of the search and seizure clause.144 With this point established, the Justice relied on Lord Camden’s opinion in Entick v. Carrington145 for the proposition that seizure of items to be used as evidence only was impermissible. Justice Bradley announced that the “essence of the offence” committed by the Government against Boyd “is not the breaking of his doors, and the rummaging of his drawers . . . but it is the invasion of his indefeasible right of personal security, personal liberty and private property. . . . Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other.”146
While it may be doubtful that the equation of search warrants with subpoenas and other compulsory process ever really amounted[p.1226]to much of a limitation,147 the present analysis of the Court dispenses with any theory of “convergence” of the two Amendments.148 Thus, in Andresen v. Maryland,149 police executed a warrant to search defendant’s offices for specified documents pertaining to a fraudulent sale of land, and the Court sustained the admission of the papers discovered as evidence at his trial. The Fifth Amendment was inapplicable, the Court held, because there had been no compulsion of defendant to produce or to authenticate the documents.150 As for the Fourth Amendment, inasmuch as the “business records” seized were evidence of criminal acts, they were properly seizable under the rule of Warden v. Hayden; the fact that they were “testimonial” in nature, records in the defendant’s handwriting, was irrelevant.151 Acknowledging that “there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person’s papers,” the Court’s response was to observe that while some “innocuous documents” would have to be examined to ascertain which papers were to be seized, authorities, just as with electronic “seizures” of conversations, “must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy.”152
Although Andresen was concerned with business records, its discussion seemed equally applicable to “personal” papers, such as diaries and letters, as to which a much greater interest in privacy most certainly exists. The question of the propriety of seizure of such papers continues to be the subject of reservation in opinions,153 but it is far from clear that the Court would accept any such exception should the issue be presented.154
Supplement: [P. 1226, delete first sentence of section and substitute the following:]
The Fourth Amendment’s “general touchstone of reasonableness . . . governs the method of execution of the warrant.” 2 Until recently, however, most such issues have been dealt with by statute and rule.3
Supplement: [P. 1227, add to text following sentence containing n.158:]
In Wilson v. Arkansas,4 the Court determined that the common law “knock and announce” rule is an element of the Fourth Amendment reasonableness inquiry. The “rule” is merely a presumption, however, that yields under various circumstances, including those posing a threat of physical violence to officers, those in which a prisoner has escaped and taken refuge in his dwelling, and those in which officers have reason to believe that destruction of evidence is likely. The test, articulated two years later in Richards v. Wisconsin,5 is whether police have “a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime.” In Richards, the Court held that there is no blanket exception to the rule whenever officers are executing a search warrant in a felony drug investigation; instead, a case–by–case analysis is required to determine whether no–knock entry is justified under the circumstances.6
Supplement: [P. 1227, delete sentence containing n.159:]
Supplement: [P. 1227, add to text following n.161:]
Because police actions in execution of a warrant must be related to the objectives of the authorized intrusion, and because privacy of the home lies at the core of the Fourth Amendment, police officers violate the Amendment by bringing members of the media or other third parties into a home during execution of a warrant if presence of those persons was not in aid of execution of the warrant.7
In executing a warrant for a search of premises and of named persons on the premises, police officers may not automatically search someone else found on the premises.162 If they can articulate some reasonable basis for fearing for their safety they may conduct a “patdown” of the person, but in order to search they must have probable cause particularized with respect to that person. However, in Michigan v. Summers,163 the Court held that officers arriving to execute a warrant for the search of a house could detain, without being required to articulate any reasonable basis and necessarily therefore without probable cause, the owner or occupant of the house, whom they encountered on the front porch[p.1228]leaving the premises. Applying its intrusiveness test,164 the Court determined that such a detention, which was “substantially less intrusive” than an arrest, was justified because of the law enforcement interests in minimizing the risk of harm to officers, facilitating entry and conduct of the search, and preventing flight in the event incriminating evidence is found.165 Also, under some circumstances officers may search premises on the mistaken but reasonable belief that the premises are described in an otherwise valid warrant.166
Although for purposes of execution, as for many other matters, there is little diffence between search warrants and arrest warrants, one notable difference is that the possession of a valid arrest warrant cannot authorize authorities to enter the home of a third party looking for the person named in the warrant; in order to do that, they need a search warrant signifying that a magistrate has determined that there is probable cause to believe the person named is on the premises.167
Supplement: [P. 1218, add to n.98:]
Similarly, the preference for proceeding by warrant leads to a stricter rule for appellate review of trial court decisions on warrantless stops and searches than is employed to review probable cause to issue a warrant. Ornelas v. United States, 517 U.S. 690 (1996) (determinations of reasonable suspicion to stop and probable cause to search without a warrant should be subjected to de novo appellate review).
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