Non-Standard Types of Warrants:

Telephonic Search Warrants

Telephonic Search Warrants:

Telephonic search warrants, with an oral affidavit taken under oath and recorded and later transcribed, is statutorily provided for.  (P.C. § 1526)

Generally used during those hours when the courts are closed and a magistrate is otherwise not personally present, although there is no legal impediment to using this procedure during court hours.

Typically, involves a four-way telephone conference call set up between the affiant, the magistrate, a deputy district attorney, and a tape recorder.

Such a warrant may also be obtained through the use of a telephone and either a facsimile ("fax") machine or a computer e-mail system, using procedures described in P.C. § 1526(b)(2))

Anticipatory Search Warrants

Anticipatory Search Warrants:

Issuance of a warrant, conditioned upon the happening of a particular event (e.g., the delivery of illegal substances or articles to a particular address; i.e., a "triggering condition"), is legal.  (United States v. Grubbs (2006) 547 U.S. 90, 93-97 [164 L.Ed.2^nd 195]; United States v. Garcia (2^nd Cir. 1989) 882 F.2^nd 699; and see United States v. Loy (3^rd Cir. 1999) 191 F.3^rd 360, 364; listing cases upholding the concept.)

"(T)he fact that the contraband is not ‘presently located at the place described in the warrant' is immaterial, so long as ‘there is probable cause to believe that it will be there when the search warrant is executed.' United States v. Lowe, 575 F.2d 1193, 1194 (6th Cir. 1978), . . . see United States v. Dornhofer, 859 F.2d 1195, 1198 (4th Cir. 1988), . . . ."  (United States v. Garcia, supra, at p. 702.)

To be constitutional under the Fourth Amendment's requirement that there be probable cause, two prerequisites of probability must be satisfied:

• That there is a "fair probability" that contraband or evidence of a crime will be found in a particular place; and
• That there is probable cause to believe the triggering condition will in fact occur.

(United States v. Grubbs, supra, see also United States v. Ruddell (9^th Cir. 1995) 71 F.3^rd 331, 333; and United States v. Hendricks (9^th Cir. 1984) 743 F.2^nd 653, 654-657; United States v. Goff (9^th Cir. 1982) 681 F.2^nd 1238, and United States v. Wylie (5^th Cir 1990) 919 F.2^nd 969, 974-975; " . . . when it is known that contraband is on a sure course to its destination . . . .")

California authority, questionable since the United States Supreme Court's decision in United States v. Grubbs, supra,  has held that; "(A)n anticipatory warrant may issue on clear showing that the police's right to search at a certain location for particular evidence of a crime will exist within a reasonable time in the future.  (Citations)" People v. Sousa (1993) 18 Cal.App.4^th 549, 558.)

Preparation and approval by a magistrate of an anticipatory search warrant has the tactical advantage of making the warrant effective immediately upon the happening of an event, thus eliminating the delay between such an event and the eventual obtaining of a warrant.

Tip:  State the contingency on the face of the warrant itself:  E.g.; "THIS WARRANT IS LEGALLY EFFECTIVE AND CAN BE SERVED ONLY IF A SALE OF NARCOTICS TAKES PLACE AT THE PREMISES TO BE SEARCHED.  (Initials of the magistrate)"

Failure of the warrant itself to clearly specify on its face the anticipatory nature of the warrant (i.e., that it is not to be served until the happening of a specific event, such as above) may invalidate the warrant.  (United States v. Hotal (9^th Cir. 1998) 143 F.3^rd 1223; United States v. Vesikuru (9^th Cir. 2002) 314 F.3^rd 1116, 1123-1130; United States v. Grubbs (2006) 547 U.S. 90, 99-102 [164 L.Ed.2^nd 195]; concurring opinion.)

The Federal Ninth Circuit Court of Appeal has indicated that if the warrant specifically incorporates an attached affidavit which describes the anticipatory nature of the warrant, this might suffice.  However, the affidavit must then accompany the warrant to the scene of the search to be valid.  (United States v. Hotal, supra.; United States v. McGrew (9^th Cir. 1997) 122 F.3^rd 847, 849-850.)

Other federal circuits have upheld the validity of an anticipatory warrant without the conditions specified on the warrant itself if:  (1) Clear, explicit, and narrowly drawn conditions for the execution of the warrant are contained in the affidavit; and (2) Those conditions are actually satisfied before the warrant is executed.  (See United States v. Moetamedi (2^nd Cir. 1995) 46 F.3^rd 225, 229; United States v. Rey (6^th Cir. 1991) 923 F.2^nd 1217, 1221; United States v. Dennis (7^th Cir. 1997) 115 F.3^rd 524, 529; United States v. Tagbering (8^th Cir. 1993) 985 F.2^nd 946, 950; United States v. Hogoboom (10^th Cir. 1979) 112 F.3^rd 1081, 1086-1087.)

Under California law, while failure to describe the conditions precedent on the face of the warrant itself, or incorporate them by reference to the affidavit, is not necessarily fatal to the validity of the warrant, it is better practice to do so anyway.  (People v. Sousa, supra, at p. 561.)

Note:  If only to eliminate the issue, and because California cases may end up in the Ninth Circuit at some point, the better procedure is to describe the anticipatory nature of the warrant on the face of the warrant itself.

Federal Rules:  According to the Ninth Circuit Court of Appeal, a copy of the document that describes the triggering conditions (i.e., the warrant itself, the affidavit, or any other attachments) must be presented to the lawful occupants (along with a copy of the warrant) upon the execution of the warrant.  Failing to do so will invalidate the anticipatory search warrant as a Fourth Amendment violation.  (United States v. Grubbs (9^th Cir. 2004) 377 F.3^rd 1072, as amended at 389 F.3^rd 1306.)

See also United States v. Vesikuru (9^th Cir. 2002) 314 F.3^rd 1116, 1123-1124, holding that an "anticipatory warrant," the conditions precedent for which being contained in the affidavit and incorporated into the warrant by reference, requires the presence of both the warrant and affidavit at the scene.

In that California interprets the Fourth Amendment differently, the general rule being that it is not required that a copy of the warrant be shown to, or left with, the occupants of the place being searched (see People v. Calabrese (2002) 101 Cal.App.4^th 79.), it is likely that there also is no requirement that the conditions triggering an anticipatory search warrant be described in any documents given to the occupants.

Sneak and Peek Warrants

Sneak and Peek Warrants:

A "sneak and peek" warrant is one which authorizes surreptitious entry of a premises, without notice, often during the nighttime, and provides that objects of the search are not to be seized but may only be noted, photographed, copied or otherwise recorded.

No California case has ruled upon the legality of such a procedure.

Some courts, particularly the Federal Ninth Circuit Court of Appeal, are critical of such warrants for failure to require notice to the occupants, but have reluctantly upheld them.  (See United States v. Freitas (9^th Cir. 1986) 800 F.2^nd 1451; United States v. Johns (9^th Cir. 1998) 851 F.2^nd 1131, 1134-1135.)

The federal courts are concerned that a "sneak and peak" warrant violates Federal Rules of Criminal Procedure, Rule 41.  Rule 41 requires that the officer executing the warrant either give to the owner of the searched premises a copy of the warrant and a receipt for the property taken, or leave the copy and receipt on the premises.  It also requires that the inventory be made in the presence of the owner of the premises "or in the presence of at least one credible person other than the applicant for the warrant."

However, "a violation of Rule 41 . . . does not lead to suppression of evidence unless:  (1) it is a ‘fundamental' violation-that is, a violation that ‘in effect, renders the search unconstitutional under traditional fourth amendment standards' [Citation],  (2) ‘the search might not have occurred or would not have been so abrasive if the Rule had been followed [Citation]' or (3) ‘there is evidence of intentional and deliberate disregard of a provision of the Rule.'  [Citation]"  (United States v. Johns, supra, at p. 1134.)

Other courts have approved sneak and peak warrants so long as delayed notice is given, after approval by the magistrate that there is good cause for the delay.  (United States v. Villegas (2^nd Cir. 1990) 899 F.2^nd 1324, 1327.)

The Supreme Court, however, although never directly discussing the issue, has intimated that notice may be delayed if it might otherwise defeat the purpose of the warrant.  (Katz v. United States (1967) 389 U.S. 347, 355, fn. 16 [19 L.Ed.2^nd 576, 584]; discussing the lack of need for "prior notice" in a wiretap case.)

AIDS Testing

P.C. § 1524.1: AIDS Testing: A search warrant requiring a criminal suspect to submit to a blood test for the HIV virus may be issued by the court after a request by a victim and a hearing showing probable cause to believe that the accused committed a charged offense, and probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the accused to the victim.

This provision is for the benefit of the victim, and, per the requirements of the section, is not intended to serve as an aid in the prosecution of any criminal suspect.  (P.C. § 1524.1(a))

A judge may approve a search warrant upon finding probable cause to believe the defendant committed a crime and that the AIDS virus has been transferred from the accused to the victim (subd. (b)(1)), or the defendant is charged with one or more of a specified list of sex offenses and there exists a police report alleging an as of yet uncharged listed sex offense.  (subd. (b)(2))

A declaration by the victim's mother "on information and belief," even though not being based on her personal knowledge, was found to be legally sufficient to support a search warrant pursuant to this section.  Hearsay may be used to support the affidavit required by this section.  (Humphrey v. Appellate Division of the Superior Court (2002) 29 Cal.4^th 569.)

Because such a warrant is concerned with the public safety, such a warrant comes within the less stringent requirement of a "Special Needs" search.  (Id, a pp. 574-575.)  (See below)

Records of Foreign Corporations Providing Electronic Communications or Remote Computing Services, per P.C. § 1524.2

P.C. § 1524.2(b): Records of Foreign Corporations Providing Electronic Communications or Remote Computing Services: Foreign corporations doing business in California, providing electronic communications or remote computing services to the general public, must respond to a search warrant issued by a California court and properly served, when asked for records revealing the identity of customers using the services, data stored by, or on behalf of, the customer, the customer's usage of those services, the recipient or destination of communications sent to or from those customers, or the content of those communications.

"Electronic communications services" and "remote computing services" is to be construed in accordance with the federal Electronic Communications Privacy Act, 18 U.S.C. §§ 2701 et seq. 

18 U.S.C. § 2701 refers to 18 U.S.C. § 2501, subdivision (15) of which defines "electronic communication service" as a "service which provides to users thereof the ability to send or receive wire or electronic communications." 

18 U.S.C. § 2501(1), (18):  "Wire communication" includes "any aural transfer (i.e., one containing the human voice) made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) . . . ."

This includes telephone conversations.  (Briggs v. American Air Filter Co., Inc. (5^th Cir. 1980) 630 F.2^nd 414; United States v. Harpel (10^th Cir. 1974) 493 F.2^nd 346.)

A "foreign corporation" is one that is qualified to do business in California pursuant to Corp. Code § 2105, although based in another state.

Per Corp. Code § 2105, foreign corporations must consent to service of process as a condition of doing business in California.

"Properly served' means that a search warrant has been delivered by hand, or in a manner reasonably allowing for proof of delivery if delivered by United States mail, overnight delivery service, or facsimile to a person or entity listed in Section 2110 of the Corporations Code."  (P.C. § 1524.2(a)(6))

Corp. Code § 2110 requires that an agent, in California, identified by the corporation as the person responsible for accepting service of process, including search warrants, be served.

The foreign corporation is required to provide the information requested within five (5) business days, which may be shortened or extended upon a showing of good cause, and to authenticate such records, thus making them admissible in court per Evid. Code §§ 1561, 1562.  (P.C. § 1524.2(b))

The section further requires California corporations to honor out-of-state search warrants as if issued within this state.  (P.C. § 1524.2(c))

Records of Foreign Corporations Providing Electronic Communications or Remote Computing Services in Misdemeanor cases, per P.C. § 1524.3

P.C. § 1524.3(a): Records of Foreign Corporations Providing Electronic Communications or Remote Computing Services: Foreign corporations providing electronic communications or remote computing services must disclose to a governmental prosecuting or investigating agency, when served with a search warrant issued by a California court pursuant to P.C. § 1524(a)(7) (i.e., in misdemeanor cases), records revealing the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of that service, and the types of services the subscriber or customer utilized.

P.C. § 1524.3(b):  The governmental entity receiving subscriber records or information under this section is not required to provide notice to a subscriber or customer.

P.C. § 1524.3(d):  Upon a request of a peace officer, the provider shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a search warrant or a request in writing and an affidavit declaring an intent to serve the provider with a search warrant.  Records shall be retained for 90 days upon such request, and may be extended for an additional 90 days upon a renewed request by the peace officer.