9. Your Right to a Warrant before the Search or Seizure **
1. The Warrant Clause of the Fourth Amendment.
The second half of the Fourth Amendment to the Constitution of the United States is known as the "warrant" clause. It provides:
""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."
Warrants must be issued before the police can enter a place, arrest a person there, record a person's communications, or search for evidence, fruits, or instrumentalities of a crime unless one of the fifteen exceptions that were described in the prior essay apply.
But if a warrant must be issued for a search or seizure, there must be:
1) "probable cause" for the applying officers to believe there is such evidence or a suspect of the crime in that place;
2) the officers must "swear" to their reasons for belief in the probable cause in the affidavit;
3) the person reviewing the affidavit and application must be a "neutral and detached" judge or magistrate; and,
4) there must be "particularity" in the warrant in describing the places to be searched and the persons or things to be seized.
2. A Decade before the American Revolution, Abusive Warrants were Banned in England.
John Wilkes was a fiery Member of the House of Commons, who was sympathetic to the cause of American colonists and who published a seditious weekly pamphlet called The North Briton. In particular, edition Number 45 ridiculed the King;s speech to open parliament in1762, which outlined plans for expansive law enforcement in the colonies and other oppressive laws for Britain.
John Entick was a journalist who published a seditious weekly pamphlet called The Monitor.
First, the King's Secretary of State (Lord Halifax) signed a general warrant to Wood and other minions of the King to search the homes and arrest the unknown authors and publishers of The North Briton No. 45. Wood listened to Wilkes' critics who generally alleged that Wilkes was the unknown publisher. Wood's armed gang broke into Wilkes home and found no proof that Wilkes was the author. Finding no definitive proof, they arrested Wilkes and 49 of his friends, sending them all to the Tower of London. Wilkes sued Wood for trespass on the ground that the blank general warrant was an offense to British freemen. A jury found for Wilkes and Chief Judge Camden condemned and banned the blank general warrants.
Wilkes v. Wood, 1763.
Shortly after his first general warrant, Lord Halifax gave a slightly more specific general warrant to the King's Messenger (Nathan Carrington) and his minions to search the property of the unknown authors of The Monitor. Suspecting Entick, the armed gang broke into his home, smashing everything, causing damage equal to ten years of Entick's salary, and arrested Entick on suspicion. Entick sued Carrington for trespass. Chief Judge Camden again struck down unparticular warrants, holding that invalid warrants could not justify a criminal trespass for a search. In the absence of a valid search warrant, a searcher had to point to a specific law which justified a search, Judge Camden held. "If it is law, it will be found in our books. If it is not there, then it is not the law.
Entick v. Carrington, 1765.
3. Freedom From Abusive Warrants was Denied to the Colonists.
In the next ten years, George III and Parliament continued to pile taxes on the colonists and allowed corrupt royal judges to issue blank warrants and meaningless general warrants to tax collectors, dividing the proceeds between the Crown, the colony, the searchers, and the judges themselves,
Even more ominous were the blank "writs of assistance" which any jealous neighbor could get from a judge which allowed them to search any property, seize any goods, and arrest for charges or murder any neighbor.
James Otis represented the victims of these writs of assistance,= whose four ships and cargoes had been illegally seized. Otis argued that "A man's house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege." Otis lost because Chief Judge Hutchinson was also the Lieutenant Governor who may have had a double dip at the proceeds of the illegal seizures.
In describing Otis' four-hour closing argument in this case, John Adams wrote, "the child Independence was then and there born" and "every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance."
The Writs of Assistance Cases, 1761. Opinion issued in 1764,
Although general warrants were outlawed in England by the Wilkes and Entick cases in 1763 and 1765, Parliament continued to direct colonial judges to issue blank warrants directed to any person to search any place and seize any goods deemed to be taxable in the Townshend Revenue Act of 1767. Although few such writs were issued over the next 15 years, the possibility of their issuance sparked the revolutionary fever.
4. The "Probable Cause" Requirement.
In seeking a search or arrest warrant, officers must persuade the judge that the have "probable cause" to believe that the person has committed or is committing a specific crime or that the place contains specific evidence of that crime.
Such "probable cause" is also required to justify many forms of warrantless searches under exceptions that involve administrative inventories or searches.
No Naked Claim of "Probable Cause": An application for a warrant is mot adequate if it "merely states the affiant's belief that there is cause to search."
Jones v. United States, 1960.
No Rehabilitation of Faulty Warrant through Undisclosed Information: If a application for a warrant does not contain enough information to sustain a warrant, the faulty warrant cannot be rehabilitated by the fact that the officer possessed adequate information which he did not disclose to the judge in the affidavit.
Whitely v. Warden, 1971.
No Stale Allegations: In evaluating whether officers have demonstrated "probable cause" to justify the issuance of a warrant, a judge must decide if the application is based on "fresh evidence."
A warrant was deemed invalid when it was based on information received 107 days before the warrant was sought. Schoeneman was a Navy procurement specialist who sought a bribe from Markham to form a company with Markham that would help defense contractors apply for Navy contracts with illegal inside information. Markam invited contractor Heins to his home and showed him Navy documents that Markham could not have possessed legally. Markham did not know that contractor Heins was a former Justice Department and Treasury Department agent. Heins promptly reported seeing the documents to the FBI after the February 15, 1961 meeting. On June 2, 1961, an FBI agent sought a warrant to search Markham's home for the illegal documents reported in February. The federal Court of Appeals for the D.C. Circuit reversed the convictions for Schoeneman and Markham because the evidence in the warrant applications was stale.
Schoeneman v. United States, D.C. Circuit, 1963.
But the Supreme Court has upheld the admission of evidence from searches where the application for a warrant was justifiably delayed because of circumstances where the officers had reasonable explanations for the delay between the crime and the warrant application.
Andresen v. Maryland, 1976 (warrant sought six weeks after robbery, but day after ID).
United States v. Collins, 1977 (allegations were not stale.
Scrap the old test of "Reasonable Belief" and "Reliable Informant": The old test for "probable cause" required judges to assess whether the applying officer had a reasonable basis for relying on information and the "reliability" of informants.
Spinelli v. United States, 1969 (wiretap in St. Louis gambling investigation).
Aguilar v. Texas, 1964 (search warrant for heroin in Texas smuggling case).
Broader "Totality of the Circumstances" Test for Probable Case": More warrants have been upheld on "probable cause" grounds and fewer challenges by defendants have been accepted after the Supreme Court retired the "two-prong test" of Aguilar and Spinelli in 1983.
Instead, judges are now asked to apply a less technical and more common-sense analysis, asking whether a reasonable officer with reasonable caution has sufficient evidence to believe that a crime has been or is being committed by a specific person or that evidence of such a crime is in a specific place.
Police received an anonymous but highly detailed letter which alleged that a couple were transporting drugs from Florida to Illinois. Police confirmed most of the allegations in the letter and secured a warrant to search the dealers' home and vehicle. Under the "totality of the circumstances" of the warrant application, the Supreme Court found that "probable cause" existed to justify the warrant, the search, the admission of the seized evidence, and the convictions.
Illinois v. Gates, 1983.
5. The "Neutral and Detached Magistrate" Requirement.
The judge or magistrate responsible for determining probable cause and issuing a warrant must be "neutral and detached.
The Supreme Court struck down a Georgia statute and the fruits of searches authorized by warrants issued under that statute where a justice of the peace would be paid a fee for granting warrant applications and would be denied a fee for rejecting a warrant application. Such decisions would not be "neutral and detached."
Connally v. Georgia, 1977.
In the case where the Supreme Court approved the "good faith" exception to the warrant requirement, prosecutors were allowed to use evidence obtained under a search warrant which had been issued by a neutral and detached magistrate acting on apparently adequate proof of probable cause, even if the warrant is later found to be invalid for reasons which do not indicate police fraud or abuse.
United States v. Leon, 1984/
6. The "Oath or Affirmation" Requirement:
The Supreme Court has not decided a case where a warrant application inadvertently or intentionally fails to include an "Oath or affirmation" that the facts or allegations in the application are true.
The Wisconsin Supreme Court has excluded evidence seized pursuant to a warrant which failed to include such an oath or affirmation. It held that such an assurance of reliability was essential to the colonists, the Framers, and the authors of all federal and state constitutions.
State v, Tye, Wisconsin 2001.
But the Ninth Circuit has upheld a warrant that was not made subject to an oath or affirmation where the affiant's awareness of the seriousness of the demand for truth was reflected by the officer's declaration to the magistrate was reflected by his declaration that his allegations were made "under the penalty of perjury."
United States v. Bueno-Vargas, Ninth Circuit 2004.
7. The "Particularity" Requirement:
Places to be Searched: In cases involving dwellings, the place to be searched under a warrant consists of a single living warrant. One warrant may cover several apartments in a building, but probable cause must be shown for searching each unit.
United States v. Hinton, Seventh Circuit, 1955.
A warrant also may cover more than one apartment if there is reasonable reliance on police information before the search. The Supreme Court upheld a search of more than one apartment on the third floor of a house if the police had reason to believe that there was only one apartment on the third floor when they applied for the warrant.
Maryland v. Garrison, 1987.
Further, the Second Circuit has upheld the search warrant for an entire house where police and the judge relied on the reasonable but mistaken belief that the house was a single residence.
United States v. Santore, Second Circuit 1959.
The Things to be Seized: If the warrant is silent on the things to be seized, but the silence was inadvertent and there is no evidence of police misconduct or carelessness, the Supreme Court has admitted evidence seized pursuant to a blank warrant.
Warrants must be issued before the police can enter a place, arrest a person there, record a person's communications, or search for evidence, fruits, or instrumentalities of a crime unless one of the fifteen exceptions that were described in the prior essay apply.
But if a warrant must be issued for a search or seizure, there must be:
1) "probable cause" for the applying officers to believe there is such evidence or a suspect of the crime in that place;
2) the officers must "swear" to their reasons for belief in the probable cause in the affidavit;
3) the person reviewing the affidavit and application must be a "neutral and detached" judge or magistrate; and,
4) there must be "particularity" in the warrant in describing the places to be searched and the persons or things to be seized.
2. A Decade before the American Revolution, Abusive Warrants were Banned in England.
John Wilkes was a fiery Member of the House of Commons, who was sympathetic to the cause of American colonists and who published a seditious weekly pamphlet called The North Briton. In particular, edition Number 45 ridiculed the King;s speech to open parliament in1762, which outlined plans for expansive law enforcement in the colonies and other oppressive laws for Britain.
John Entick was a journalist who published a seditious weekly pamphlet called The Monitor.
First, the King's Secretary of State (Lord Halifax) signed a general warrant to Wood and other minions of the King to search the homes and arrest the unknown authors and publishers of The North Briton No. 45. Wood listened to Wilkes' critics who generally alleged that Wilkes was the unknown publisher. Wood's armed gang broke into Wilkes home and found no proof that Wilkes was the author. Finding no definitive proof, they arrested Wilkes and 49 of his friends, sending them all to the Tower of London. Wilkes sued Wood for trespass on the ground that the blank general warrant was an offense to British freemen. A jury found for Wilkes and Chief Judge Camden condemned and banned the blank general warrants.
Wilkes v. Wood, 1763.
Shortly after his first general warrant, Lord Halifax gave a slightly more specific general warrant to the King's Messenger (Nathan Carrington) and his minions to search the property of the unknown authors of The Monitor. Suspecting Entick, the armed gang broke into his home, smashing everything, causing damage equal to ten years of Entick's salary, and arrested Entick on suspicion. Entick sued Carrington for trespass. Chief Judge Camden again struck down unparticular warrants, holding that invalid warrants could not justify a criminal trespass for a search. In the absence of a valid search warrant, a searcher had to point to a specific law which justified a search, Judge Camden held. "If it is law, it will be found in our books. If it is not there, then it is not the law.
Entick v. Carrington, 1765.
3. Freedom From Abusive Warrants was Denied to the Colonists.
In the next ten years, George III and Parliament continued to pile taxes on the colonists and allowed corrupt royal judges to issue blank warrants and meaningless general warrants to tax collectors, dividing the proceeds between the Crown, the colony, the searchers, and the judges themselves,
Even more ominous were the blank "writs of assistance" which any jealous neighbor could get from a judge which allowed them to search any property, seize any goods, and arrest for charges or murder any neighbor.
James Otis represented the victims of these writs of assistance,= whose four ships and cargoes had been illegally seized. Otis argued that "A man's house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege." Otis lost because Chief Judge Hutchinson was also the Lieutenant Governor who may have had a double dip at the proceeds of the illegal seizures.
In describing Otis' four-hour closing argument in this case, John Adams wrote, "the child Independence was then and there born" and "every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance."
The Writs of Assistance Cases, 1761. Opinion issued in 1764,
Although general warrants were outlawed in England by the Wilkes and Entick cases in 1763 and 1765, Parliament continued to direct colonial judges to issue blank warrants directed to any person to search any place and seize any goods deemed to be taxable in the Townshend Revenue Act of 1767. Although few such writs were issued over the next 15 years, the possibility of their issuance sparked the revolutionary fever.
4. The "Probable Cause" Requirement.
In seeking a search or arrest warrant, officers must persuade the judge that the have "probable cause" to believe that the person has committed or is committing a specific crime or that the place contains specific evidence of that crime.
Such "probable cause" is also required to justify many forms of warrantless searches under exceptions that involve administrative inventories or searches.
No Naked Claim of "Probable Cause": An application for a warrant is mot adequate if it "merely states the affiant's belief that there is cause to search."
Jones v. United States, 1960.
No Rehabilitation of Faulty Warrant through Undisclosed Information: If a application for a warrant does not contain enough information to sustain a warrant, the faulty warrant cannot be rehabilitated by the fact that the officer possessed adequate information which he did not disclose to the judge in the affidavit.
Whitely v. Warden, 1971.
No Stale Allegations: In evaluating whether officers have demonstrated "probable cause" to justify the issuance of a warrant, a judge must decide if the application is based on "fresh evidence."
A warrant was deemed invalid when it was based on information received 107 days before the warrant was sought. Schoeneman was a Navy procurement specialist who sought a bribe from Markham to form a company with Markham that would help defense contractors apply for Navy contracts with illegal inside information. Markam invited contractor Heins to his home and showed him Navy documents that Markham could not have possessed legally. Markham did not know that contractor Heins was a former Justice Department and Treasury Department agent. Heins promptly reported seeing the documents to the FBI after the February 15, 1961 meeting. On June 2, 1961, an FBI agent sought a warrant to search Markham's home for the illegal documents reported in February. The federal Court of Appeals for the D.C. Circuit reversed the convictions for Schoeneman and Markham because the evidence in the warrant applications was stale.
Schoeneman v. United States, D.C. Circuit, 1963.
But the Supreme Court has upheld the admission of evidence from searches where the application for a warrant was justifiably delayed because of circumstances where the officers had reasonable explanations for the delay between the crime and the warrant application.
Andresen v. Maryland, 1976 (warrant sought six weeks after robbery, but day after ID).
United States v. Collins, 1977 (allegations were not stale.
Scrap the old test of "Reasonable Belief" and "Reliable Informant": The old test for "probable cause" required judges to assess whether the applying officer had a reasonable basis for relying on information and the "reliability" of informants.
Spinelli v. United States, 1969 (wiretap in St. Louis gambling investigation).
Aguilar v. Texas, 1964 (search warrant for heroin in Texas smuggling case).
Broader "Totality of the Circumstances" Test for Probable Case": More warrants have been upheld on "probable cause" grounds and fewer challenges by defendants have been accepted after the Supreme Court retired the "two-prong test" of Aguilar and Spinelli in 1983.
Instead, judges are now asked to apply a less technical and more common-sense analysis, asking whether a reasonable officer with reasonable caution has sufficient evidence to believe that a crime has been or is being committed by a specific person or that evidence of such a crime is in a specific place.
Police received an anonymous but highly detailed letter which alleged that a couple were transporting drugs from Florida to Illinois. Police confirmed most of the allegations in the letter and secured a warrant to search the dealers' home and vehicle. Under the "totality of the circumstances" of the warrant application, the Supreme Court found that "probable cause" existed to justify the warrant, the search, the admission of the seized evidence, and the convictions.
Illinois v. Gates, 1983.
5. The "Neutral and Detached Magistrate" Requirement.
The judge or magistrate responsible for determining probable cause and issuing a warrant must be "neutral and detached.
The Supreme Court struck down a Georgia statute and the fruits of searches authorized by warrants issued under that statute where a justice of the peace would be paid a fee for granting warrant applications and would be denied a fee for rejecting a warrant application. Such decisions would not be "neutral and detached."
Connally v. Georgia, 1977.
In the case where the Supreme Court approved the "good faith" exception to the warrant requirement, prosecutors were allowed to use evidence obtained under a search warrant which had been issued by a neutral and detached magistrate acting on apparently adequate proof of probable cause, even if the warrant is later found to be invalid for reasons which do not indicate police fraud or abuse.
United States v. Leon, 1984/
6. The "Oath or Affirmation" Requirement:
The Supreme Court has not decided a case where a warrant application inadvertently or intentionally fails to include an "Oath or affirmation" that the facts or allegations in the application are true.
The Wisconsin Supreme Court has excluded evidence seized pursuant to a warrant which failed to include such an oath or affirmation. It held that such an assurance of reliability was essential to the colonists, the Framers, and the authors of all federal and state constitutions.
State v, Tye, Wisconsin 2001.
But the Ninth Circuit has upheld a warrant that was not made subject to an oath or affirmation where the affiant's awareness of the seriousness of the demand for truth was reflected by the officer's declaration to the magistrate was reflected by his declaration that his allegations were made "under the penalty of perjury."
United States v. Bueno-Vargas, Ninth Circuit 2004.
7. The "Particularity" Requirement:
Places to be Searched: In cases involving dwellings, the place to be searched under a warrant consists of a single living warrant. One warrant may cover several apartments in a building, but probable cause must be shown for searching each unit.
United States v. Hinton, Seventh Circuit, 1955.
A warrant also may cover more than one apartment if there is reasonable reliance on police information before the search. The Supreme Court upheld a search of more than one apartment on the third floor of a house if the police had reason to believe that there was only one apartment on the third floor when they applied for the warrant.
Maryland v. Garrison, 1987.
Further, the Second Circuit has upheld the search warrant for an entire house where police and the judge relied on the reasonable but mistaken belief that the house was a single residence.
United States v. Santore, Second Circuit 1959.
The Things to be Seized: If the warrant is silent on the things to be seized, but the silence was inadvertent and there is no evidence of police misconduct or carelessness, the Supreme Court has admitted evidence seized pursuant to a blank warrant.
The Supreme Court has ordered the admission of evidence in a warranted search even if it is later determined that the warrant lacked particularity about the he things to be seized. Due to a clerical error, the warrant failed to include a separate sheet listing the suspected evidence to be seized. The Court upheld the admission of the discovery of the blood-stained clothes of a murder victim.
Massachusetts v. Sheppard, 1984.
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