A warrant is a judicial document issued by a judicial officer authorizing a law enforcement official to make a search or seizure.

Generally the judicial officer is a magistrate.

The magistrate must be neutral and detached.

The reason for the neutral and detached magistrate requirement is to provide a buffer between citizens and law enforcement.

Police officers have the potential to become overzealous and reach wrong conclusions about the existence of probable cause.

In Connelly v Georgia, 429 US 245 (1977), the Supreme Court held that a magistrate who received $5 for every warrant he issued, but nothing when the application for warrant is refused, was not a neutral magistrate.

Since his salary was based partially upon issuing warrants, such financial interests could impermissibly affect his "impartial" judgment.

A state attorney general cannot issue a warrant because he or she is the highest law enforcement official under state law and thus not detached nor neutral.

In Collidge v Hew Hampshire, 403 US 443 (1971), the court invalidated warrants issued by the attorney general, who was in fact participating in the investigation.

After a magistrate had issued a warrant, he accompanied law enforcement officers on the search and actively participated.

The magistrate examined the items in question to determine if they could be seized.

The court held that his actions destroyed his neutrality and thus resulted in an illegal search and seizure.

Held that the judicial officer who issued the warrant does not need to be an attorney nor have special legal training.

The U.S. court of appeals has held that a magistrate may not rubber stamp a warrant.

This court held a warrant invalid when the judge did not read the Affidavit.

There appears to be no requirement that the magistrate give reasons for his or her decision to issue or deny a warrant.

The determination of the presence of PC is the responsibility of the magistrate.

Accordingly, PC must be based only on the facts presented in the affidavit to the magistrate.

Facts known to the police, but not presented to the magistrate, may not be used to support the decision to issue a warrant.

In most cases, the officer requesting a warrant will submit an application for a warrant to the magistrate with supporting documents.

An affidavit containing the facts necessary to support a finding of probable cause bust be submitted under oath or affirmation.

In some states, an officer may give sworn oral testimony to support the warrant application; in others, all the facts must be contained in the affidavit.

A Warrant is issued at an exparte hearing.

The defendant does not have the right to be present at any hearing on a warrant application.

Some states and the federal government permit the use of telephonic warrants under certain circumstances.

Generally, in these cases the officer must prepare a formal application for a warrant and then read the information over the telephone to the magistrate.

A record must be made of the telephone conversation; any testimony received by telephone must be under oath.

A facially valid warrant may be attacked on the ground that the affiant knowingly and intentionally or with reckless disregarded for the truth made a false statement in the affidavit and that without the false statement the warrant would not have been issued.

The defense may request a "Franks Hearing" to have any such statement struck from the affidavit

The burden is on the defense to establish by preponderance of the evidence his or her allegations regarding the misstatements

If the court concludes that the statements should be struck, then the court will next consider if PC still exists after the statements are struck.

If not, the warrant will be invalidated.

If PC does still exists, the challenge to the warrant on this issue will be denied.

The defense must show not only that the statements are false but also that the police knew or should have known they were false.

Mere negligence on the part of the police will not entitle the defendant to relief.

The Franks case holds that only material statements that affect the determination of the existence of PC may be attacked.

The warrant is invalid if the place to be searched is not specifically described.

The degree of particularity required depends on the nature of the place or property to be searched.

Variances between the actual address and the specified address is not necessarily fatal to a warrant.

The warrant will be upheld if there is sufficient information contained din the warrant to guide the officers to the correct address.

Things to be seized also must be described with particularity.

The degree of precision will depend on the facts and circumstances of the case.

The use of catch-all clauses in the warrant may cause problems.

For example, a clause allowing the seizure of specified property and "any other evidence of the crime" may result in the exclusion of items not named in the warrant.

If, however, the catch-all clause is qualified by the previously described property, the seizure of other property is generally upheld.

For example, the statement contained in a warrant authorizing the seizure of certain cocaine substitutes that the officers were authorized to seize "other cocaine substitutes" was considered valid. (U.S. v. Storage Spaces)

There are no restrictions in the 4^th Amendment regarding the correct procedure for executing a warrant.

Most jurisdictions have statutes on executing warrants.

Generally, a search warrant must be executed within a specified time period.

Also, PC may become stale of too much time elapses.

Approximately half of the states restrict the ability of the officers to execute a warrant at night unless exigent circumstances exist.

Anticipatory warrants have been upheld.

The warrants are based on the magistrates determination that if certain things happen in the future, then probable cause will exist to texccute the warrant.

For example, in U.S. v. Becerra, a U.S. Court of Appeals upheld a warrant based on the future delivery of a package of contraband to a specific location.

The court said that the conditions under which PC will exist must be stated explicitly.

While the SC has never ruled on the issue, they have indicated in dictum that a search is permissible in the absence of the occupants.

An individual who is present in the premises where a search is being executed may not, by virtue of that fact alone, be searched.

If there is some basis for suspecting that the individual may be armed, he or she may be frisked, under Terry v. Ohio.

The warrant, however, could authorize the search of the residents if probable cause exists to support their search.

In addition, residents of premises where a search for contraband is being executed may be detained during the warrant execution.

The court indicated that detaining the residents during the execution of the warrant served three government interests:

preventing flight in the even incriminating evidence was discovered

Minimizing the risk of harm to police

Facilitating the orderly completion of the search

A warrant authorizing a covert and surreptitious (sneaky) entry without any provisions for a post-search notification to the residents was unconstitutional.

In most cases, notice is required before entering a private premise.

The SC has concluded that the common law rule of "knock and announce" forms a part of the reasonableness requirement of the 4^th Amendment.

The SC stated that entry of a home without satisfying the knock-and-announce rule constituted an unreasonable search even though the police had a valid warrant.

Where notice would present a threat of physical violence

In hot-pursuit cases

Where the officers have APC to believe that evidence would likely be destroyed if they gave notice before entering

Held that to justify a no-knock entry, the police must 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 by, for example, allowing the destruction of evidence.

In Richards, the court rejected Wisonsin SCs rule that police officers are never required to knock and announce when executing a search warrant in a felony drug investigation.

The SC indicated that the decision as to a no-knock entry must be made on a case by case basis.

Once the officers knock and announce their presence and intention, they are required to wait a reasonable time for voluntary admittance.

The courts have tended to defer to police as to what constitutes a reasonable time.

In some cases, a delay of only ten seconds was considered as adequate when officers were reasonably sure they heard the sound of the door locking.

The police heard sounds of running feet immediately after announcing their presence, so they went in.

If the announcement would be a useless gesture, the police may forgo it.

The scope and duration of the search must relate directly to the magistrate’s previous determination of probable cause.

A warrant authorizing the search of a house generally allows the search not only of the house but the surrounding curtilage, which includes backyards and associated buildings.