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Identifying Illegal Search Warrants
and Arrest Warrants

The Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Arrest Warrant Affidavits

  • Must include:
    • The name or description of the defendant
    • The "on or about" date of the offense
    • Venue (the County)
    • The elements of the offense
    • Probable cause that the defendant committed the offense

Search Warrant Affidavits

  • Minimum requirements:
    • A description of the place to be searched
    • A description of the thing and/or person to be seized
    • Facts and circumstances that establish a probability that a search of the place described will yield the thing and/or person described , and
    • For combination search and arrest warrants, language from a penal statute that charges the commission of an offense
    • Affidavits must be specifically tailored to directly address the type of search warrant being created
  • A judge can make reasonable inferences
  • DNA search warrant example:
    • Need training, experience
    • Information from the lab
    • Possible to Extract DNA, compare to known sample to prove identity, etc.

Warrants for Possessory Offenses

  • CCP Article 18.02, 1-9 , "The Laundry List"
  • An offense has not happened, yet
  • Attempting to prove an offense when the warrant is executed to find stolen property, prohibited weapons, gambling devices, drugs, etc.

"Mere Evidence" Warrants

  • CCP 18.02 (10)
  • It is not contraband. It is Property or items related to a crime that has already occurred
  • Requires probable cause
    • That an offense has been committed
    • That the evidence sought is evidence of the offense or evidence that the suspect committed the offense, and
    • That the evidence is where the police say it is

Warrants to Seize Persons

  • CCP 18.02 (11)
  • Rare when an arrest warrant is not sufficient
  • Needed to make non-consensual entry
    • To arrest for a misdemeanor
    • To arrest someone for a felony when they are taking refuge in someone else's home

Warrants to Seize Contraband for Forfeiture

  • CCP Article 18.02 (12)
  • Most often vehicles used in the commission of an offense

Description of Place to Be Searched - for all search warrants

  • An address is not sufficient as the only description
  • Description must exclude every other place in the world or warrant may be challenged for Constitutional sufficiency
  • Physical description - what it looks like
  • Geographical description
    • Obvious, like state, county, city
    • Best sound like directions
  • Official description - address, plat number, etc.
  • Attaching a diagram, photograph, or both can be helpful
  • What if police discover a small storage building and a disabled car behind the house that were not visible from the street so neither is described in the search warrant?
    • Search of storage building and car may be attacked unless warrant includes language that says "all other buildings, structures, places, and vehicles on said premises"

Description of Persons/Things to be Seized

  • Specifics can be tough when information is not very detailed
    • A suspect buys lots of stolen property
    • Police will not know all that they will find
    • Seized items may not have been described or known of
    • It can still legally seized if the affidavit includes what property is likely to be there
    • However, the affidavit should explain why police cannot know everything that is inside
    • A good affidavit should also include the general statutory language for stolen property

Other Attacks on on Descriptions

  • Describing televisions, X Boxes, etc. without saying that they were taken "in a burglary on a certain date"
    • It's not illegal to possess these things
  • Using street names or commercial names for drugs - It is diazepam not "Valium"
  • Not Citing the specific code section for "Weapons prohibited by the Penal Code"

What is a statement of probable cause?

  • Defined as "facts and circumstances sufficient to lead a reasonable and prudent person to conclude that, more likely than not,
    • A Specific person has committed or is committing an offense, or
    • Specific property or items will be found at a particular place"
  • Right, but what does that mean in practice?
  • List the Elements
  • For Example: Capital Murder
    • Defendant
    • On or about a certain date
    • Kaufman County, Texas
    • In the course of committing theft
    • With intent to obtain or maintain control of property of complainant
    • Intentionally or knowingly caused the death of complainant
  • What is the Evidence?
  • How is each element proved?
  • "Conclusory" Statements DO NOT SUPPORT PROBABLE CAUSE - here are some examples from REAL cases:
    • Suspect is in jail for Burglary. He asked for a lawyer."
    • "There was a burglary at the CVS. We chased him and threw him in jail for Burglary."
    • "I responded to a call for Aggravated Assault deadly weapon. The suspect was drunk. I arrested him for Aggravated Assault deadly weapon.
    • "I am the lead detective on offense #1776337, incorporated by reference. I am familiar with the report and based on it, I believe he committed murder." (and the report is not attached as an exhibit)
    • "My investigation revealed that personal property was taken by the suspect from the victim."

Sources for Probable Cause

  • Officer's Own Observations
  • Officer's Opinion
  • Disinterested Persons
  • Anonymous Tips
  • Confidential Informants
  • A Person Making a Statement Against Penal Interest

Affidavit based on Opinion of Officer: Bad Example

  • "I am Shane Vendrell, Los Angeles Police Department, Farmington Division, Strike Team.
  • I was undercover at 911 Maple, Los Angeles, California.
  • I saw materials used to make speed." No basis for officer's expertise Need experience and training specific to identifying the contraband

Affidavit Based on Opinion of Officer: Good Example

  • "I am Lennie Briscoe, a peace officer employed by the New York City Police Department for 25 years"
  • "participated in numerous undercover investigations and the execution of search warrants for violations of the New York Health and Safety Code"
  • "attended training sessions conducted by the New York Department of Public Safety and the United States Drug Enforcement Administration specializing in the investigation of illegal narcotics activity and the recognition of various controlled substances"
  • "while working in an undercover capacity, I have seen methamphetamine both during the manufacturing process as well as in the final usable product phase.
  • On September 6, 2004, working undercove:.I saw materials that I know based on my experience and training to be used for the manufacturing including specifically"

The Confidential Informant -  "the snitch" & "the spy"

  • Usual basis of reliability is past performance
  • "met with a confidential informant, who, for reasons of personal safety shall remain unnamed"
  • "given me information on unlawful narcotics activity in the past"
  • "proven to be true and correct"
  • "resulted in numerous arrests"
  • Self incriminating information does not require past performance -  Co-Defendant's confession

The Disinterested Person

  • A named witness's credibility is presumed as long as their information is direct (eyewitness)
  • Can be based on information told to the source if police explain why the original source should be believed
    • What is the relationship between the citizen and the source
    • Why should this other person be believed
    • How did this person get the information and when

Unnamed Disinterested Person

  • A disinterested person can be unnamed if police explain why they are trustworthy
    • Gainfully employed
    • Lived in community for a long time
    • No criminal history
    • Involved in activities and organizations that are good for the community
    • Reputation for being honest

Anonymous Tips

  • Cannot vouch for truthfulness
  • Additional facts are required before the tips can be used as probable cause
  • Drug House Example:
    • Anonymous citizen reports a possible drug house
    • A narcotics detective stakes out house and sees known drug users going in and out of the house
    • Drug paraphernalia in the trash
    • Another informant, etc.

Police only get one shot to support Probable Cause in an Affidavit

  • The Four Corners Rule: All information needed to prove probable cause must be written in the affidavit
  • Cannot testify about what else was known to police at a Motion to Suppress the arrest or search
  • If the police do not have enough information in the affidavit, the government's evidence is gone!
By Brian Corrigan
Board Certified Dallas Criminal Defense Attorney
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