Why Search Warrants are Preferred

Why Search Warrants are Preferred: There are a number of reasons why use of a search warrant to conduct any search is preferable even in those instances when one might not be legally required.  For instance:

Presumption of Lawfulness with a Warrant

Presumption of Lawfulness:  Use of a search warrant raises a presumption in a later motion to suppress evidence (per P.C. § 1538.5) that the search was lawful.  The defense has the burden of proof in attempting to rebut this presumption.  (Theodor v. Superior Court (1972) 8 Cal.3^rd 77, 101; People v. Kurland (1980) 28 Cal.3^rd 376.)  This must be done by filing:

Motion to Quash

Motion to Quash:  Motion attacking the sufficiency of the probable cause in the warrant affidavit as it is written.  (P.C. § 1538.5(a)(1)(B))

Normally, only the warrant and affidavit themselves may be considered by the trial court in ruling on a motion to quash.  An exception might be when a law enforcement officer's testimony is necessary to interpret some of the language in the affidavit.  (See People v. Christian (1972) 27 Cal.App.3^rd 554.)

Motion to Traverse

Motion to Traverse:  Motion attacking the truth of the information contained in the warrant affidavit.  However, the defendant is entitled to an evidentiary hearing (i.e., referred to as a "Franks hearing;" Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2^nd 667].) on this issue only after making a "substantial showing" that:

§         The affidavit contains statements (or makes material omissions) that are deliberately false or were made with a reckless disregard for the truth (or omitted information which the magistrate would have wanted to know); and

§         The affidavit's remaining contents are reevaluated after the false statements are excised (or omitted material information is considered) to see if, as corrected, there is still sufficient evidence to justify a finding of probable cause.  (Franks v. Delaware (1978) 438 U.S. 154, 155-156 [57 L.Ed.2^nd 667, 672]; precluding the cross-examination of the affiant until the necessary showing is made.  See also People v. Wilson (1986) 182 Cal.App.3^rd 742, 747; Theodor v. Superior Court (1972) 8 Cal.3^rd 77, 103; People v. Cook (1978) 22 Cal.3^rd 67, 78; and People v. Bradford (1997) 15 Cal.4^th 1229, 1297; People v. Lewis et al. (2006) 39 Cal.4^th 970, 989); or

§         The affidavit contains information that is the direct product of a Fourth Amendment violation.  (See People v. Weiss (1999) 20 Cal.4^th 1073.)

Note:  But remember, the defendant must have "standing" to challenge the collection of the illegal information in order to contest its inclusion in the warrant affidavit.  See "Standing," above.)

§         A defendant who challenges a search warrant based upon an affidavit containing omissions bears the burden of showing that the omissions would have been material to the magistrates' determination of probable cause.  (People v. Bradford (1997) 15 Cal.4^th 1229, 1297.)

Neglecting to include an informant's criminal history could invalidate a warrant, in that the magistrate's decision will usually require a determination of the informant's credibility.  (United States v. Reeves (9^th Cir. 2000) 210 F.3^rd 1041.)

Omitting facts which would have supported a finding of probable cause had it been included is not grounds to traverse a warrant.  (People v. Lim (2001) 85 Cal.App.4^th 1289.)

Benefit of the Doubt

Courts give the Prosecution the Benefit of the Doubt: 

With the burden of attacking a search warrant upon the defendant, and the necessity of making a "substantial showing" even before being allowed to hold an evidentiary hearing, it is extremely difficult for a defendant to successfully challenge a search conducted pursuant to a search warrant.  (See People v. Wilson (1986) 182 Cal.App.3^rd 742.) 

"(W)here (the) circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a common sense, manner. . . . (R)esolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants."  (United States v. Ventresca (1965) 380 U.S 102, 109 [13 L.Ed.2^nd 684, 689].)

This judicially mandated preference for warrants has specifically been adopted by the California Supreme Court. (People v. Superior Court [Johnson] (1972) 6 Cal.3^rd 704, 711; People v. Mesa (1975) 14 Cal.3^rd 466, 469.)

In a "Motion to traverse" a search warrant affidavit, only intentional or reckless inaccuracies are grounds for sanctions, and in those cases the sanction is limited to striking the inaccurate information, retesting the warrant affidavit for probable cause after striking that information.  Unintentional or negligent misstatements are left in the affidavit.  (Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2^nd 667]; People v. Wilson (1986) 182 Cal.App.3^rd 742.)

Presumption of Unlawfulness Without a Warrant

Presumption of Unlawfulness:  The absence of a search warrant raises a presumption that the search was unlawful, which the prosecution is required to rebut.  (Mincey v. Arizona (1978) 437 U.S. 385, 390 [57 L.Ed.2^nd 290, 298-299]; In re Tyrell J. (1994) 8 Cal.4^th 68, 76, overruled on other grounds.)

The prosecution bears the burden of providing proof of a recognized exception to the warrant requirement, justifying a warrantless search.  (Welsh v. Wisconsin (1984) 466 U.S. 740, 749-750 [80 L.Ed.2^nd 732, 742-743]; People v. James (1977) 19 Cal.3^rd 99, 106.)

Good Faith

Good Faith:  Evidence seized pursuant to a search warrant will not be suppressed even if the warrant was defective so long as the officers acted in reasonable and objective good faith in relying upon the warrant and serving it.  (United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2^nd 677]; Massachusetts v. Sheppard (1984) 468 U.S. 981 [82 L.Ed.2^nd 737]; People v. Rodrigues-Fernandez (1986) 182 Cal.App.3^rd 742; United States v. Crews (9^th Cir. 2007) 502 F.3^rd 1130.)

The Exclusionary Rule

The "Exclusionary Rule" is "restricted to those situations in which its remedial purpose is effectively advanced."  (Illinois v. Krull (1987) 480 U.S. 340, 347 [94 L.Ed.2^nd 364, 373].)

The good faith reliance upon a state statute allowing for a warrantless administrative search was justified where the statute was not obviously unconstitutional.  (Illinois v. Krull, supra; see also Michigan v. DeFillippo (1979) 443 U.S. 31, 37-38 [61 L.Ed.2^nd 343, 439-350]; good faith reliance on an ordinance that was later declared to be unconstitutional.)

Application of the Exclusionary Rule is unwarranted where it would not result in appreciable deterrence to unlawful police conduct.  (Arizona v. Evans (1995) 514 U.S. 1 [131 L.Ed.2^nd 34]; An arrest based upon erroneous court records.)

The Exclusionary Rule should not be applied to evidence obtained by a police officer whose reliance on a search warrant issued by a neutral magistrate was objectively reasonable, even though the warrant was ultimately found to be defective.  (United States v. Leon, supra; see also Massachusetts v. Sheppard, supra.)

Similarly, the alleged unconstitutionality of a statute, the violation for which serves as the basis for a search warrant, is irrelevant so long as officers reasonably relied upon the statute's validity at the time of the obtaining of the search warrant.  (United States v. Meek (9^th Cir. 2004) 366 F.3^rd 705, 714.)

An officer's reasonable reliance upon the advice of a prosecutor, although not conclusive, is some evidence of good faith.  (Dixon v. Wallowa County (9^th Cir, 2003) 336 F.3^rd 1013, 1019; see also Stevens v. Rose (9^th Cir. 2002) 298 F.3^rd 880, 884.)

See also Johnston v. Koppes (9^th Cir. 1988) 850 F.2^nd 594, 596, listing four relevant factors in evaluating the officer's good faith reliance on advice of a lawyer:

o       Whether the attorney was independent;

o       Whether the advice addressed the constitutionality of the proposed action;

o       Whether the attorney had all the relevant facts; and

o       Whether the advice was sought before or after the officer's actions.

Exceptions to Good Faith Rule

Exceptions:   However; "A police officer may not shift all of the responsibility for the protection of an accused's Fourth Amendment rights to the magistrate by executing a warrant no matter how deficient it may be in describing the places to be searched and the items to be seized.   An officer applying for a warrant is required to exercise reasonable professional judgment.  [Citations]"  (People v. Bradford (1997) 15 Cal.4^th 1229, 1292.)  Pursuant to United States v. Leon, supra, at pp. 922-923 [82 L.Ed.2^nd at pp. 698-699], and other cases (see below), the "Good Faith" exception does not apply when:

Magistrate Misled

The magistrate issuing the search warrant was misled by information in the affidavit that the affiant knew was false or would have known was false except for a reckless disregard for the truth. (See United States v. Crews (9^th Cir. 2007) 502 F.3^rd 1130, 1138-1139.)

This probably applies to material omissions in the warrant affidavit as well.  (United States v. Flores (9^th Cir. 1982) 679 F.2^nd 173; United States v. Lefkowitz (9^th Cir. 1980) 618 F.2^nd 1313.)

Magistrate Abandoned Judicial Role

The issuing magistrate has "wholly abandoned his judicial role . . . " to the extent that no reasonably well-trained officer would rely upon the warrant. For example:

Issuing a warrant based upon a "bare bones" affidavit; i.e., one written in "conclusionary," as opposed to "factual," language.  (See United States v. Harper (5^th Cir. 1986) 802 F.2^nd 115; and United States v. Maggitt (5^th Cir.1985) 778 F.2^nd 1029, 1036.) 

Where the judge becomes a part of the searching party, personally authorizing seizures during the search.  (Lo-Ji Sales, Inc. v. New York (1979) 442 U.S. 319 [602 L.Ed.2^nd 920].)

A judge who merely acts as a "rubber stamp" signer of warrants, approving anything submitted for issuance.  (See United States v. Brown (7^th Cir. 1987) 832 F.2^nd 991; and Rodriguiz v. Superior Court (1988) 199 Cal.App.3^rd 1453.)

Lack of Indicia of Probable Cause

A search warrant affidavit that is so lacking in the indicia of probable cause that official belief in the existence of probable cause is entirely unreasonable. (See United States v. Crews (9^th Cir. 2007) 502 F.3^rd 1130, 1135-1138.)

E.g.:  The "bare bones" warrant, written in "wholly conclusionary statements" as opposed to factual allegations.  (States v. Maggitt, supra; United States v. Barrington (5^th Cir. 1986) 806 F.2^nd 529, 542.)

Delay of 52 days between a controlled buy of almost a pound of marijuana and the execution of a search warrant, despite the officer's expert opinion and good faith belief that the seller would still have contraband in his residence (the sale taking place in a parking lot in another city), was held to be stale.  The officer's belief was not objectively reasonable, under the circumstances.  (People v. Hulland (2003) 110 Cal.App.4^th 1646.)

A warrant that failed to identify a particular suspect as an alleged "chemist" arriving from a foreign country, to provide any basis for the tip that a chemist was coming to the United States, or to describe any activity by the suspect that was indicative of setting up a meth lab, failed to make even a "colorable argument for probable cause."  (United States v. Luong (9^th Cir. 2006) 470 F.3^rd 898.)

Warrant Deficient

The warrant itself, as opposed to the affidavit, is so lacking in those specifics required of warrants that it cannot in good faith be presumed valid. (See Massachusetts v. Shepard, supra.)

E.g.:  The officer's reliance on the magistrate's probable cause determination is not objectively reasonable.  I.e.:  Should a reasonably well-trained officer have known that the search warrant was defective despite the magistrate's authorization?  (See People v. Lim (2001) 85 Cal.App.4^th 1289, 1296-1297.)

In this regard, it adds to the officer's good faith to have his warrants reviewed and approved by a deputy district attorney prior to taking it to a magistrate.  (See People v. Camarella (1991) 54 Cal.3^rd 592, 602-607.)

Affidavit Based on Illegally Collected Information

Also, "Good Faith" is not applicable when the information upon which the warrant is based was gathered in an earlier illegal search. (United States v. Vasey (9^th Cir. 1987) 834 F.2^nd 782; People v. Baker (1986) 187 Cal.App.3^rd 562; People v. Brown (1989) 210 Cal.App.3^rd 849.)

However, it must be the defendant's own Fourth Amendment rights that were violated.  (People v. Weiss (1999) 20 Cal.4^th 1073, 1081.)  Information gathered in violation of someone else's Fourth Amendment rights, for which this defendant has no standing to challenge, may be used in a search warrant affidavit.  (People v. Madrid (1992) 7 Cal.App.4^th 1888, 1896.)

Wiretap Statutes Violation

An officer's "good faith" is not grounds for denying a defendant's motion to suppress based on a violation of the wiretap statutes (see below). (People v. Jackson (2005) 129 Cal.App.4^th 129, 153-160.)

Exigent Circumstances

Exigent Circumstances:

The Ninth Circuit Court of Appeal has indicated that it might be appropriate to factor in exigent circumstances, such as necessary time restraints, in determining whether the "good faith" exception applies.  (United States v. Weber (9^th Cir. 1990) 923 F.2^nd 1338, 1346; United States v. Ramos (9^th Cir. 1991) 923 F.2^nd 1346, 1355, fn. 18, overruled on other grounds.)

But claiming an exigency as an excuse for applying a good faith exception will not be upheld where the officers don't treat the situation accordingly.  (United States v. Luong (9^th Cir. 2006) 470 F.3^rd 898, 904; claiming that the dangerousness of a possible meth lab in a residential area justified application of the good faith exception was rejected when the officers waited seven hours to obtain the warrant and then three more hours before executing it.

Examples

Examples:

"Good Faith" applied to a warrant where the description of the property to be seized was erroneously left out of the warrant affidavit.   (People v. Rodriguez-Fernandez (1991) 235 Cal.App.3^rd 543; People v. Alvarez (1989) 209 Cal.App.3^rd 660.)

Failure to restrict the description of the place to be searched to the defendant's room, making the warrant "over-broad," where that room was all that was in fact searched, was excused under the "good faith" rule.  (People v. MacAvoy (1985) 162 Cal.App.3^rd 746, 759-763.)

A warrant that failed to identify a particular suspect as an alleged "chemist" arriving from a foreign country, to provide any basis for the tip that a chemist was coming to the United States, or to describe any activity by the suspect that was indicative of setting up a meth lab, failed to make even a "colorable argument for probable cause."  (United States v. Luong (9^th Cir. 2006) 470 F.3^rd 898.)

Ramey Inapplicable

Ramey Inapplicable:  Arrests within a residence (See People v. Ramey (1976) 16 Cal.3^rd 263; above.) during the service of a search warrant may be made without an arrest warrant.   (People v. McCarter (1981) 117 Cal.App.3^rd 894, 908.)

Consensual Searches

Consensual searches may always be stopped by the subject withdrawing his or her consent; i.e., the suspect is in control of the extent and duration of the search.  (See People v. Martinez (1968) 259 Cal.App.2^nd Supp. 943.)  Execution of a warrant, obviously, does not require the cooperation of the occupant.

Informants

Informants who do no more than provide probable cause in an affidavit for a search warrant may normally be kept confidential.  (E.C. § 1042(b))

Acting in the Performance of His Duties

An officer serving a search warrant, even if later found to be lacking in probable cause, is "acting in the performance of his (or her) duties" should a criminal offense in which this is an element (e.g., P.C. §§ 148 (Resisting Arrest), 243(b) (Battery on a Peace Officer) occur during the service of the warrant.  (People v. Gonzales (1990) 51 Cal.3^rd 1179, 1222.)