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Search warrant basics
By Robert J. Schuit

A judge is the last barrier between law enforcement and an individual's privacy. When a judge signs a search warrant, the police are then allowed to enter and inspect a person's home and effects. The judge's responsibility and authority must be exercised with great care.

Whether deciding as a prosecutor to recommend seeking a search warrant, determining as a judge whether to authorize a warrant, or deciding as a defense attorney if the fruits of a warrant should be challenged, it is essential to be familiar with the basic rules regarding this area of law.

The objective of this article and self-study test is to familiarize judges and attorneys with the basic procedures that govern search warrants. Readers will learn about who can seek and who may issue a warrant; a judge's jurisdiction to issue warrants; common grounds for issuing the warrant; the specificity needed regarding what is to be searched and seized; the sufficiency of the showing necessary to obtain a warrant; and the return of the warrant.

In California, the requirements for a valid search warrant are guided by the Penal Code along with the U.S. Constitution. A good definition of a search warrant is contained in Penal Code Section 1523: "A search warrant is an order in writing, in the name of the people, signed by a magistrate, directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and, in the case of a thing or things or personal property, bring the same before the magistrate."

The search warrant process begins with a person seeking a warrant by swearing in an affidavit the existence of facts supporting the warrant. The affiant requesting the search warrant will almost always be a peace officer; however, there is no requirement that the affiant be an officer. Penal Code Section 1526(a) simply states that "The magistrate, before issuing the warrant, may examine on oath the person seeking the warrant and any witnesses the person may produce...." Searches have been upheld when the affiant was an unsworn investigator for the police or some other private citizen. People v. Bell, 45 Cal.App.4th 1030 (1996). A warrant may also be supported by affidavits from more than one person. See Skelton v. Superior Court, 1 Cal.3d 144 (1969).

The Penal Code specifically limits who may issue or sign a warrant. The only bench officers who are designated "magistrates" and authorized to issue warrants are judges of the superior courts, justices of the state appellate courts, and justices of the state Supreme Court. Penal Code Section 808. That means that court commissioners, judges pro tem, referees, or even federal judges and justices cannot issue California warrants.

The scope of a magistrate's jurisdiction to issue a warrant is very expansive. But there are limits.

A California judge can issue a warrant to be served anywhere in the county in which he or she is sitting. People v. Smead, 175 Cal.App.3d 1101 (1985). For example, a judge in Lancaster can issue a warrant to be served in Long Beach, even though these locations are almost 100 miles apart.

A judge in one county in California may issue a warrant to be served in another county, but only if the proposed search relates to a crime committed in the issuing judge's county. People v. Ruster, 16 Cal.3d 690 (1976). The key requirement is that the judge must have probable cause to believe that a prosecution for the crime may be commenced in the judge's county, which almost always will be the case when the crime was perpetrated within the judge's county. People v. Easley, 34 Cal.3d 858 (1983).

Finally, a California judge can issue a search warrant for a location within his or her county to search for evidence of crimes committed in another state. People v. Kraft, 23 Cal.4th 978 (2000). As discussed in Kraft, there is no requirement that law enforcement authorities in the foreign state have requested or even know of the search.

Penal Code Section 1524(a) specifies the statutory grounds for the issuance of a search warrant. One or more of the following main grounds for issuing a warrant must be alleged: (1) Property was stolen or embezzled; (2) property or things were used as the means of committing a felony; (3) property or things are in the possession of any person with the intent to use them as a means of committing a public offense, or in the possession of another to whom he or she may have delivered it for the purpose of concealing it or preventing its being discovered; (4) property or things to be seized consist of any item or constitute any evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony; (5) property or things to be seized consist of evidence that tends to show that sexual exploitation of a child or child pornography has occurred or is occurring; or the warrant is for the arrest of a person. Two other less common grounds deal with providers of electronic communication services and Labor Code violations. See Penal Code Sections 1524(a)(7), (8).

Based on the clear text of Penal Code Section 1524(a), grounds (1) and (3) apply to both felonies and misdemeanors. Grounds (2) and (4) apply only to felonies. Ground (5) applies to only a certain type of misdemeanor. Finally, ground (6) covers arrests in a third-party's home.

A specific description of the location that is to be searched, as well as what items can be seized, is required by both the text of the Fourth Amendment and California's search warrant statute.

Under the Fourth Amendment, the only type of warrant that is valid is one "particularly describing the place to be searched, and the person or things to be seized." The Penal Code states that a search warrant can be issued only when "supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched." Penal Code Section 1525.

In most California warrants, the warrant authorizing a search and the supporting affidavit are combined into a single document. One advantage of using a single form is that lack of specificity in the warrant portion of the document can often be cured by reference to descriptions in the affidavit portion, which was not allowed when they were separate documents. See People v. MacAvoy, 162 Cal.App.3d 746 (1984).

A good test to determine if there is sufficient specificity is to ask whether an officer who is unaware of the facts of the case would be able to determine what place to search and what items to seize. The descriptions in the warrant must place a "meaningful restriction" on the areas that can be searched and the objects to be seized. People v. Murray, 77 Cal.App.3d 305 (1978).

A valid warrant must be supported by probable cause. U.S. Constitution Amendment IV; Penal Code Section 1525. The U.S. Supreme Court has expressed this standard as follows: "The task of the issuing magistrate is simply to make a practical common-sense 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." Illinois v. Gates, 462 U.S. 213 (1983.

A judge determining whether this showing has been met should use the PRICE test: personal knowledge; reliability; is the information fresh or stale; connect; expertise or knowledge

Personal knowledge is mandated by the requirement that, "The affidavit or affidavits must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist." Penal Code Section 1527. "[T]he person who seeks the warrant or provides their [sic] affidavit should be the person with most direct knowledge of the facts supporting probable cause." People v. Bell, 45 Cal.App.4th 1030 (1996).

Reliability of the information must be determined by the judge to "satisfy himself that the facts are as the [affiant] states them to be." People v. Cook, 22 Cal.3d 67 (1978). When the affidavit is based wholly on the observations of the affiant, the judge must weigh the credibility of the affiant as the source of information. Skelton v. Superior Court, 1 Cal.3d 144 (1969). Under Illinois v. Gates, if the probable cause is supported by information from an informant, the court must look to factors such as reliability of his or predictions of certain types of criminal activities along with the extent of corroboration in the affidavit.

Information in the affidavit must be fresh, not stale. "No clear cut rule, of course, tells us when the time span must be deemed too attenuated. The length of the time lapse alone is not controlling since even a brief delay may preclude an inference of probable cause in some circumstances while in others a relatively long delay may not do so." Alexander v. Superior Court, 9 Cal.3d 387 (1973). The judge must determine whether "circumstances would justify a person of ordinary prudence to conclude that an activity had continued to the present time." People v. Hulland, 110 Cal.App.4th 1646 (2003).

Connection of the items to be seized to the suspected offense is required for a valid warrant. Further, the items to be seized must be connected or linked to the area to be searched. Items can be linked to a crime directly, like the narcotics in a possession for sale case, or indirectly, such as papers bearing the suspect's name indicating dominion and control in the premises at issue. See People v. Rushing, 209 Cal.App.3d 618 (1989). "The connection between the items to be seized and the place to be searched need not rest on direct observation. It may be inferred from the type of crime involved, the nature of the item, and the normal inferences as to where a criminal might likely hide incriminating evidence." People v. Miller, 85 Cal.App.3d 194 (1978).

Expertise or knowledge of the affiant must be conveyed to the judge. The opinion of the affiant, when accompanied by the basis of his or her knowledge and experience, can be considered as competent and relevant evidence by the judge in issuing a warrant. People v. Tuadles, 7 Cal.App.4th 1777 (1992). The affiant need not be a court-qualified expert in the field, but must set forth his or her training and experience in the affidavit. See People v. Johnson, 21 Cal.App.3d 235 (1971).

After the warrant is executed and the search is made, the officers must report back to the judge with a list of the items seized. The warrant must be executed and returned within the 10 days following its issuance. Penal Code Section 1534. The return may be signed by the original affiant to the warrant, or whomever executed the warrant, and it may be presented to the original issuing judge, or any judge in his or her county. See Penal Code Section 1534.

For purposes of calculating the 10 days, the day the warrant is issued is day zero. See Government Code Section 6800. If the 10th day falls on a holiday or weekend, the return of the warrant may be presented to the judge the next court day. People v. Stevenson, 62 Cal.App.3d 915 (1976).

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