Dealing With Search Warrants

Search warrants allow law enforcement agents to search a particular place (or vehicle or person) and seize items that might have evidentiary value. To obtain a search warrant, an officer must show a judge that there’s probable cause that a crime has been or is being committed. The officer’s “affidavit,” or statement of probable cause, is usually submitted to the court in writing, but sometimes an officer gives her affidavit orally, usually when calling from a crime scene to request a warrant. (For an example of probable cause, see Arrest)

The general rule is that the police are required to “knock and announce” when serving a search warrant, as in: [knock, knock] “Ma’am, this is the police. We have a search warrant for these premises.” If you then refuse to let the officers in, they have the right to force the door open.

The police are allowed to skip the knock and announce part when they reasonably believe that officers would be endangered or evidence destroyed, should the occupants have any warning.1 Even when they do knock and announce, they may only wait a few seconds before bursting in.

If police knock on your door and state that they have a search warrant, step outside and close the door behind you, then ask them to give you the warrant so you can read it. (If you stand inside with the door open, the police may just push past you before you can react.) Make sure you actually get your hands on the warrant so you can read it properly. Don’t let the officer just wave it in front of you.

You’re looking for three things, to be sure it’s a valid warrant:

            •  the address
            •  the date
            •  the judge’s signature

Address: checking that the warrant really does have your address on it is the most important thing. Police frequently search the wrong house or apartment, and claim it was just a mistake. Note that a warrant can’t be for a whole apartment building or floor—it has to be for a specific apartment.

Date: the date should not generally be older than two weeks. There isn’t a precise number of days that warrants are good for. They can be served as long as a reasonable officer would expect to find the items listed in the warrant. Some judges have held that a particular warrant was valid even after a month or two, but these were rare cases. For simplicity’s sake, most police departments just make a rule for themselves about how many days the officers can wait before serving a search warrant—usually it’s seven or ten days.

Signature: it’s pretty unusual for a warrant to lack a judge’s or magistrate’s signature2, but it could happen.

Warrants come in a wide variety of formats. Take a look at the sample search warrants, and see how quickly you can spot the address, date, and signature. (While you’re looking for these items, imagine that you’re standing in front of your door, with police officers breathing down your neck.) The address is hardest, because it’s often in the middle of a paragraph. The date and signature will be at the end.

If you do find a flaw in the warrant, show it to the police and tell them that you don’t consent to their coming in. For example, you might say:
 
    • This warrant is for a different address: it’s for 1965 
      Montgomery St., and my house is 1966 Montgomery. 
      I don’t consent to your coming in.

   • This house has apartments in it. Your warrant doesn’t say 
      whether it’s for Unit A or Unit B, so it’s no good. I don’t 
      consent to your coming in.

   • This warrant is four months old. It’s not valid anymore. I don’t 
      consent to your coming in.
   • This warrant doesn’t have a judge’s signature, so it’s not valid. 
       I don’t consent to your coming in.
   • This is a laundry receipt, not a search warrant. I don’t consent 
       to your coming in.

Now, just because you point out a mistake in the warrant and withhold consent, that doesn’t mean the officers won’t come in and search. The police may decide to ignore your statements; or the warrant may, in fact, be valid. Your job is simply to create ammunition for your lawyer to defend you with later on, by showing that the police didn’t “make an honest mistake” in relying on that warrant. Memorize what the police say in response to your showing them the error in the warrant—especially if it’s something like, “I don’t give a shit what your address is.”

There are other parts to a search warrant that may be relevant during the course of defending a criminal case, but they’re not as useful while the police are right at your door. For example, search warrants must specify what is being looked for and which parts of your home, vehicle, etc. can be searched. However, as you can see in the samples, search warrants usually have a whole long list of things to look for and places to look in. This gives the police plenty of room to maneuver. Nonetheless, you should make notes (written notes if possible, otherwise mental notes) about where the officers search and what they move.

Normally, search warrants must be executed during daylight hours, unless the warrant includes specific permission for the officers to serve it at night.

While executing the search warrant, the officers are allowed to detain anyone who happens to be present. The police can pat down the people they’re detaining,3 but cannot search any of them more intrusively, unless the warrant specifies that particular person by name. (The second of the sample search warrants includes a person to be searched, as well as a place.) However, it’s not unusual for police who are searching pursuant to a warrant, to discover things that give them probable cause to arrest some or all of the people present—and once a suspect’s been arrested, the officers can search her clothing, body, etc.

Some search warrants include permission for the officers to answer your telephone while they’re on the premises searching. The police pretend to be you, or someone who’s a part of your household, business, etc. They try to get the caller to say things that can be used against you (or against the caller) in court.

Most searches are very destructive. Your property is likely to be thrown about and damaged. So after the police have gone, take three or four dozen photographs of the place, before doing any clean-up. These may be useful in defending against criminal charges and/or in suing the police. Make sure you’ve got good enough lighting that the photos will come out well.

1.  If the police kick the door in and point guns at you, screaming, "Police! Down on the floor, nobody move," you can skip attempting to read the warrant, and instead just keep your hands in view and hold very still.

2.  A magistrate is a subspecies of judge.

3.  During a detention (as opposed to an arrest), the police are allowed to pat down the suspect, in order to protect themselves from hidden weapons.  This search is limited to feeling the surface of clothing, and does not include emptying the suspect's pockets or undressing the suspect.  See Detention. 


Story: Search and Destroy:

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