Composition of a Search Warrant

Composition of a Search Warrant:  A search warrant comes in three parts:

• The Warrant itself.
• The Affidavit to the Search Warrant.
• The Receipt and Inventory (or "Return").

The Warrant Itself

First:  The warrant itself, signed by a magistrate, directing a peace officer to search a "particular" person, place or vehicle, for a "particular" person, thing, or list of property.

Contents

P.C. §§ 1523, 1529:  Contents:  The search warrant must include the following:

• The name of every person whose affidavit has been taken.
• The statutory grounds for issuance. (See P.C. §§ 1524, 1524.2 and/or 1524.3.)
• A description with reasonable particularity of the persons, places and vehicles to be searched.
• A description with reasonable particularity of the persons, things or property to be seized.

A warrant that fails to include a list of the things to be seized, at least where the list is not in an affidavit or other attachment that is incorporated by reference and which then accompanies the warrant to the scene of the search, is "facially deficient," and in violation of the Fourth Amendment.  (Groh v. Ramirez (2004) 540 U.S. 551 [157 L.Ed.2^nd 1068].)

• Authorization for a nighttime search (if necessary; see P.C § 1533).
• The signature of the magistrate.
• The date issued.

Failure to list the property to be seized, or at the least a reference to, and incorporation of, a list of the property, is a Fourth Amendment violation, and constitutes a defect the officers writing the warrant, and/or supervising the search, should have been aware of.   (Ramirez v. Butte-Silver Bow County (9^th Cir. 2002) 298 F.3^rd 1022; finding that the affiant and supervising ATF agent did not have qualified immunity from civil liability in a civil suit for failing to list the property to be seized on the face of the warrant.)

And see United States v. Celestine (9^th Cir. 2003) 324 F.3^rd 1095, describing "the policies that underlie the warrant requirement; providing the property owner assurance of the lawful authority of the executing officer, his need to search, and the limits of his power to search."

Statutory Grounds for Issuance

Statutory Grounds for Issuance (P.C. § 1524(a)(1) through (8)):

(1)    When the property to be seized was stolen or embezzled.  (Note:  Includes misdemeanors.)

(2)    When the property or things to be seized were used as the means of committing a felony.

(3)    When the property or things to be seized are in the possession of any person with the intent to use it as a means of committing a public offense (including misdemeanors), or in the possession of another to whom he may have delivered it for the purpose of concealing it or preventing them from being discovered.

(4)    When the 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)    When the property or things to be seized consists of evidence which tends to show that sexual exploitation of a child (per P.C. § 311.3), or possession of matter depicting sexual conduct of a person under the age of 18 years (per P.C. § 311.11), has occurred or is occurring.  (See In re Duncan (1987) 189 Cal.App.3^rd 1348.)

(6)    When there is a warrant to arrest a person.

(7)    When a provider of an electronic communication service or remote computing service has records or evidence, as specified in P.C. § 1524.3, showing that property was stolen or embezzled constituting a misdemeanor, or that property or things are in the possession of any person with the intent to use them as a means of committing a misdemeanor public offense, or in the possession of another to whom he or she may have delivered them for the purpose of concealing them or preventing their discovery.

(8)    When the property or things to be seized include an item or any evidence that tends to show a violation of Labor Code § 3700.5, or tends to show that a particular person has violated L.C. § 3700.5.

L.C. § 3700.5 deals with the failure to secure the payment of compensation, which is defined as "every benefit or payment conferred by this division upon an injured employee, or in the event of his or her death, upon his or her dependents, without regard to negligence."  (L.C. § 3207)

See also P.C. §§ 1524.2(b) and 1524.3(a), re: Records of Foreign Corporations Providing Electronic Communications or Remote Computing Services.

It is irrelevant that a peace officer lists an incorrect charged offense, justifying the issuance of the warrant, so long as there is some legal grounds for the issuance of the warrant under some statute.  (United States v. Meek (2004) 366 F.3^rd 705, 713-714; A "statutory variance in the affidavit is not fatal to the warrant's validity.")

The failure of the warrant to include a copy of the court's official seal, if a violation at all (28 U.S.C. § 1691), is merely a technical violation and will not result in a finding that the warrant is legally insufficient.  (United States v. Smith (9^th Cir. 2005) 424 F.3^rd 992, 1008.)

The Affidavit to the Search Warrant

Second:  The affidavit to the search warrant:

Defined

Defined:  A sworn statement, sworn to by the affiant, describing the "probable cause" to search a particular person, place, or vehicle for a particular person, thing, or list of property.  (P.C. §§ 1525, 1527)

Referred to as the "Statement of Probable Cause" in jurisdictions where a combined search warrant and affidavit form is used.  (See (People v. Hale (Oct. 20, 2005) 133 Cal.App.4^th 942.)

Probable Cause

"Probable Cause:"  In evaluating the sufficiency of a warrant affidavit; "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 the persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place."  (Emphasis added; Illinois v. Gates (1983) 462 U.S. 213 [76 L.Ed.2^nd 527] see also United States v. Ventresca (1965) 380 U.S. 102, 108 [13 L.Ed.2^nd 684, 689]; United States v. Adjani (9^th Cir. 2006) 452 F.3^rd 1140, 1145.)

California follows the Gates "totality of the circumstances" test.  (People v. Spears (1991) 228 Cal.App.3^rd 1, 17.)

"‘In determining whether an affidavit is supported by probable cause, the magistrate must make a "practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." [Citation]  The sufficiency of the affidavit must be evaluated in light of the totality of the circumstances.  [Citation].'"  (People v. Garcia (2003) 111 Cal.App.4^th 715, 721, quoting Fenwick & West v. Superior Court (1996) 43 Cal.App.4^th 1272, 1278.)

"The purpose of the exclusionary rule is . . . to deter illegal police conduct, not deficient police draftsmanship."  (People v. Superior Court [Nasmeh] (2007) 151 Cal.App.4^th 85, 97.)

Note that Gates also describes the standard for probable cause in a search warrant affidavit as a "fair probability" that contraband or evidence of a crime will be found in a particular place, which is arguably a lesser standard than as described in older California cases requiring a "substantial probability."  (E.g.; see People v. Cook (1978) 22 Cal.3^rd 67, 84, fn. 6.)

Probable cause must be shown for each of the items listed in the warrant as property to be seized, justifying its seizure.  (People v. Frank (1985) 38 Cal.3^rd 711, 726-728.)

Probable cause showing a sufficient "nexus" between the evidence to be seized and the place to be searched must also be established.  (People v. Garcia (2003) 111 Cal.App.4^th 715, 721.)

However, the Ninth Circuit Court of Appeal has shown a reluctance to find probable cause when it is based upon "a lengthy chain of inferences."  (United States v. Gourde (9^th Cir. 2004) 382 F.3^rd 1003; no probable cause to support the issuance of a search warrant when based upon the defendant's known subscription to a child pornography website, unlimited access to the child pornography on the website, defendant's failure to unsubscribe after two months, and an expert's opinion that the above necessarily means that defendant would likely be in personal possession of child pornography.)

The fact that the person whose property (i.e., a computer in this case) is seized and searched is not at that time subject to arrest (i.e., no probable cause) does not mean that the seizure and search of that property is not lawful.  (United States v. Adjani (9^th Cir. 2006) 452 F.3^rd 1140, 1146-1147.)

A warrant that establishes probable cause to search a vehicle for items missing from a possible homicide victim's residence will necessarily also allow for the seizure of that vehicle for later examination at a police lab, and to search the vehicle for trace evidence related to the missing items, even if the seizure of the car and the search for trace evidence is not specifically mentioned in the warrant.   (People v. Superior Court [Nasmeh] (2007) 151 Cal.App.4^th 85, 94-98.)

Minimum Contents

Minimum Contents:  At a minimum, a warrant affidavit should include the following:

• The name or names of the affiant(s).

It is not necessary that the affiant be a sworn peace officer.  "(T)here seems no reason why seeking one (i.e., a search warrant) should be confined to peace officers instead of unsworn members of law enforcement."  (People v. Bell (1996) 45 Cal.App.4^th 1030, 1054-1055.)

• The statutory grounds for issuance. (See P.C. §§ 1524, 1524.2 and 1524.3.)

It is irrelevant that a peace officer lists an incorrect charged offense justifying the issuance of a warrant, so long as there is some legal grounds for the issuance of the warrant under some statute.  (United States v. Meek (2004) 366 F.3^rd 705, 713-714; a "statutory variance in the affidavit is not fatal to the warrant's validity.")

• A physical description, with "reasonable particularity," of the persons, places, things and vehicles to be searched.

A warrant's description of the property to be searched will be reviewed by the appellate courts in a common sense and realistic fashion.  (People v. Minder (1996) 46 Cal.App.4^th 1784; United States v. Ventresca (1965) 380 U.S 102, 109 [13 L.Ed.2^nd 684, 689].)

See "The ‘Reasonable Particularity' Requirement," below.

• A physical description, with "reasonable particularity," of the persons, things or property to be seized.

See "The ‘Reasonable Particularity' Requirement," below.

• A detailed statement of the expertise (i.e., training and experience) of the affiant.
• A chronological narrative and factual (as opposed to conclusionary) description of the circumstances substantiating the officer's conclusion that probable cause for a search exists. This would include:

o       Facts showing the commission of a crime (or crimes);

o       Facts connecting the listed suspect(s) to the crime(s);

o       Facts connecting the suspect(s) to the location(s), vehicle(s), and/or person(s) to be searched;

o       Facts connecting the property to be seized to the location(s), vehicle(s), and/or person(s) to be searched;

o       Facts describing how the descriptions were obtained.

The facts as described in the search warrant affidavit making up the "probable cause" for issuance of a warrant must be attested to by the affiant as the truth.  Failing to do so may invalidate the warrant.  See 

People v. Hale (2005) 133 Cal.App.4^th 942; not a fatal error, being one of "form" over "substance."  

People v. Leonard (1996) 50 Cal.App.4^th 878; finding it to be one of "substance" over "form," and fatal to the validity of the warrant.

• Police reports, charts, maps, etc., may be used as exhibits, attached and incorporated by reference, but should not be used as a substitute for a statement of probable cause.
• The affiant's conclusion (i.e., his/her opinion) based upon his or her training and experience, that:

Probable cause exists for the search; and

The item(s) sought will be found at the location(s) to be searched.

A qualified officer/affiant can attach special significance to his observations and set forth expert opinion in an affidavit.  (People v. Carvajal (1988) 202 Cal.App.3^rd 487, 496-498.)

• Justification for a nighttime search, if necessary.

The “Reasonable Particularity” Requirement

The "Reasonable Particularity" Requirement (P.C. §§ 1525, 1529):

The Persons, Places, Things and Vehicles to be Searched

The persons, places, things and vehicles to be searched must be described with sufficient detail so that an officer executing the warrant may, with reasonable effort, ascertain and identify the person, place, thing or vehicle, intended.  (People v. Grossman (1971) 19 Cal.App.3^rd 8, 11.)

A warrant's description of the property to be searched will be reviewed by the appellate courts in a common sense and realistic fashion.  (People v. Minder (1996) 46 Cal.App.4^th 1784; United States v. Ventresca (1965) 380 U.S 102, 109 [13 L.Ed.2^nd 684, 689].)

The following factors will be considered by the court:

• Whether probable cause exists to seize all items of a particular type described in the warrant;
• Whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not; and
• Whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued.

(United States v. Adjani (9^th Cir. 2006) 452 F.3^rd 1140, 1148.)

The affiant should personally view the place, etc., to be searched in order to guarantee the accurateness of the description in the warrant.           

Too much detail, so long as it is accurate, is better than not enough.

Use of photographs and/or diagrams, attached as exhibits, may be advisable.

More than one person, place or vehicle may be listed in a single warrant so long as there is probable cause described in the affidavit for each.

A later judicial finding that the search of one of the listed locations is not supported by probable cause will not necessarily affect the search of any of the other locations where the probable cause supporting the search of the other locations is in itself sufficient.  (People v. Joubert (1983) 140 Cal.App.3^rd 946.)

"Good faith" may save a warrant with a defective description.   (See People v. MacAvoy (1984) 162 Cal.App.3^rd 746, 763-765.)

The fact that the affiant himself is personally familiar with the place to be searched, and therefore could reasonably be expected to find it, has been held, at least in one case, to be a factor which will help to overcome errors in the description.  (People v. Amador (2000) 24 Cal.4^th 387; wrong street number and faulty physical description not fatal when no other houses in the area could likely be mistaken for the place to be searched, and the affiant, who executed the warrant, was familiar with the place.

The "curtilage" of the home is included as a part of the home, whether or not specifically mentioned in the warrant.  (United States v. Gorman (9^th Cir. 1996) 104 F.3^rd 272.)

But, what constitutes a part of the curtilage may be an issue.  (See United States v. Cannon (9^th Cir. 2001) 264 F.3^rd 875; the defendant's storage areas attached to a second residence, rented to a third party, to the rear of the main residence, properly searched as within the curtilage of the main residence.) 

Note:  The better practice is to specifically include in the description of the place to be searched all places around the residence one might expect to find the items being searched for, thus eliminating the issue.

And, because "(a) magistrate is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense (United States v. Angulo-Lopez (9^th Cir. 1986) 791 F.2^nd 1394, 1399.)," a search of a narcotics suspect's vehicle, based upon no more than the affiant's knowledge, gained through training and experience, that persons who traffic in drugs often secret more narcotics and other evidence in their vehicles, may be authorized.  (United States v. Spearman (9^th Cir. 1976) 532 F.2^nd 132, 133.)

The same argument can be made for authorizing the search of a narcotics suspect's person, even though away from his home.  (United States v. Elliott (9^th Cir. 2003) 322 F.3^rd 710.)

The computer of a roommate, the roommate himself not being targeted, where there is probable cause to believe that the suspect has access to the roommate's computer, was properly listed in the warrant affidavit as an item to be searched.  The critical element in a search is not whether the owner of property to be searched is a suspect, but rather whether there is reasonable cause to believe that it contains seizable evidence.  (United States v. Adjani (9^th Cir. 2006) 452 F.3^rd 1140.)

Getting a search warrant for a residence where it is believed that the suspect is at least staying part time, recognizing the a person may have one domicile but several residences, is proper.  (United States v. Crews (2007) 502 F.3^rd 1130, 1139; citing Martinez v. Bynum (1983) 461 U.S. 321, 339 [75 L.Ed.2^nd 879].)

The Property to be Seized

The property to be seized must be described with sufficient particularity so that an officer with no knowledge of the facts underlying the warrant and looking only at the description of the property on the face of the warrant would be able to recognize and select the items described while conducting the search.  (See People v. Superior Court [Williams] (1978) 77 Cal.App.3^rd 69, 77; providing a complete discussion of cases approving and disapproving certain descriptions.

The description must "place a meaningful restriction on the objects to be seized . . ."  (People v. Murray (1978) 89 Cal.App.3^rd 809, 832.)

Factors to consider in determining whether there is sufficient specificity include:

• Whether there was probable cause to seize particular items in the warrant;
• Whether the warrant sets out objective standards by which executing officers can determine which items are subject to seizure; and
• Whether the government could have described the items more particularly when the warrant was issued. (United States v. Spilotro (9^th Cir. 1986) 800 F.2^nd 959, 963; United States v. Wong (9^th Cir. 2003) 334 F.3^rd 831.)

Documents or other evidence showing "dominion and control" (i.e., "D and C papers") over the place being searched should be listed among the items for which the affiant wishes to search.  (People v. Williams (1992) 3 Cal.App.4^th 1535; People v. Rushing (1989) 209 Cal.App.3^rd 618; People v. Nicolaus (1991) 54 Cal.3^rd 551, 575.)

In an Internet, sexual solicitation of a child case, the following items were held to be appropriate in a search warrant for the suspect's house and vehicle:  "(S)exually explicit material or paraphernalia used to lower the inhibition of children, sex toys, photography equipment, child pornography, as well as material related to past molestation such as photographs, address ledgers including names of other pedophiles, and journals recording sexual encounters with children," as well as the defendant's computer system, including "computer equipment, information on digital and magnetic storage devices, computer printouts, computer software and manuals, and documentation regarding computer use."  (United States v. Meek (9^th Cir. 2004) 366 F.3^rd 705, 714-716.)

So long as sufficiently described, it is not necessary that a warrant affidavit contain the actual photographs of what is alleged to be child pornography.  (United States v. Battershell (9^th Cir. 2006) 457 F.3^rd 1048.)

But what is, and what is not, "child pornography" might be an issue.  As a "starting point" for determining the existence of "lasciviousness" in a photo or photos, a court may use the following non-exclusive six factor test:

• Whether the focal point of the visual depiction is on the child's genitalia or pubic area;
• Whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
• Whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
• Whether the child is fully or partially clothed, or nude;
• Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
• Whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

(United States v. Hill (9^th Cir. 2006) 459 F.3^rd 966, 970-973, citing United States v. Dost (S.D. Cal. 1986) 636 F.Supp. 828, 832.)

Things the affiant "hopes to find," but for which there is no articulable reason to believe will be found, should not be listed.  However, property that there is a "fair probability" would be found, given the nature of the offense, may be listed despite the lack of any specific evidence that such an item is in fact in the place to be searched.  (See People v. Ulloa (2002) 101 Cal.App.4^th 1000; computer containing Internet correspondence in a child molest case.)

"Telephone calls" (i.e., authorization to intercept them while executing the warrant) should be listed where there is probable cause to believe the telephone is being used for illegal purposes.  (People v. Warner (1969) 270 Cal.App.2^nd 900, 907, bookmaking case; People v. Nealy (1991) 228 Cal.App.3^rd 447, 452, narcotics case.)

The contents of a telephone call to a narcotics dealer's home asking to buy narcotics, answered by the police executing a search warrant, are admissible as a judicially created exception to the Hearsay Rule.  (People v. Morgan et al. (2005) 125 Cal.App.4^th 935.)

Other courts have held that the contents of a telephone call are admissible as non-hearsay circumstantial evidence of the defendants' dope dealing.  (People v. Nealy (1991) 228 Cal.App.3^rd 447; and People v. Ventura (1991) 1 Cal.App.4^th 1515.)

The Morgan Court further determined that the telephone call was "non-testimonial," as described in Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2^nd 177], and thus admissible over a Sixth Amendment, "right to confrontation" objection.  (People v. Morgan, supra, at pp. 946-947.)

Tip:  Asking for authorization to answer the telephone for the purpose of establishing "dominion and control" over the place being searched (E.g.; "Hello, is John home?") is also a good practice.

Computers, including disks, etc., based upon the affiant's knowledge that criminals will often chronicle their criminal activities on their computers, may often be included.  With sufficient probable cause connecting a computer to criminal activity, the computer and all its attachments, disks, etc., are subject to seizure and removal to a lab where it may be properly and carefully inspected by experts.  (United States v. Hay (9^th Cir. 2000) 231 F.3^rd 630; see also People v. Ulloa, supra.)

See also Guest v. Leis (6^th Cir. 2001) 255 F.3^rd 325, 334-337; seizure of the whole computer system was not unreasonable so long as there was probable cause to conclude that evidence of a crime would be found on the computer.

And Mahlberg v. Mentzer (8^th Cir. 1992) 968 F.2^nd 772; seizure of computer equipment, programs and disks not listed in the warrant upheld.

Seizure of computers in a homicide investigation justified by probable cause to believe that specific documentary evidence would reasonably be found in the defendant's computer.  (United States v. Wong (9^th Cir. 2003) 334 F.3^rd 831.)

A laptop computer, open and running, properly seized as potential evidence of dominion and control over the searched premises, even though not specifically listed in the warrant.  (People v. Balint (2006) 138 Cal.App.4^th 200.)

The computer of a roommate, the roommate himself not being targeted, where there is probable cause to believe that the suspect has access to the roommate's computer, was properly listed in the warrant affidavit as an item to be searched.  The critical element in a search is not whether the owner of property to be searched is a suspect, but rather whether there is reasonable cause to believe that it contains seizable evidence.  (United States v. Adjani (9^th Cir. 2006) 452 F.3^rd 1140.)

Inadvertent Changes to the Language of a Warrant and Affidavit

Inadvertent changes to the language of a warrant and affidavit after it is signed by the judge create issues that could result in suppression of all, or maybe a part of, the evidence seized, depending upon the flagrancy of the violation.  (United States v. Sears (9^th Cir. 2005) 411 F.3^rd 1124; severance and partial suppression held to be sufficient sanction where the officer used the wrong attachment describing the places to be searched and property to be seized which was different in only a few, minor ways.)

General Warrants

"General Warrants:" Warrants without sufficient particularity (i.e., a "general warrant") are legally insufficient and invalid.  (Burrows v. Superior Court (1974) 13 Cal.3^rd 238, 249-250.)

"The purpose of the ‘particularity' requirement of the Fourth Amendment is to avoid general and exploratory searches by requiring a particular description of the items to be seized.  [Citation]"  (People v. Bradford (1997) 15 Cal.4^th 1229, 1296; citing Collidge v. New Hampshire (1971) 403 U.S 443, 467 [29 L.Ed.2^nd 564, 583]; and Stanford v. Texas (1965) 379 U.S. 476, 485 [13 L.Ed.2^nd 432, 437].)

This "particularity" requirement serves two important purposes.  It:

§         Limits the discretion of the officers executing the warrant; and

§         Informs the property owner or resident of the proper scope of the search.

(United States v. Vesikuru (9^th Cir. 2002) 314 F.3^rd 1116, 1123-1124.)

A search warrant and affidavit that fails to "particularly describe" and place "meaningful restrictions" on the property to be seized, violates the Fourth Amendment.  (United States v. Bridges (9^th Cir. 2003) 344 F.3^rd 1010.)

Describing in the warrant itself (as opposed to the affidavit) the suspected criminal offense(s) might be enough to overcome an otherwise "overly broad" description of the property to be seized, in that it at least puts the searching officers on some notice as to the limits of their discretion.  (Id., at p. 1018.)

An exception to this rule (i.e., "overly broad") might be when the place being searched is a business, and it is alleged and substantiated in the affidavit that the business's "entire operation was permeated with fraud."  (Id., at pp. 1018-1019; United States v. Smith (9^th Cir. 2005) 424 F.3^rd 992, 1004-1006.)

In Smith, an "extraordinarily broad" search warrant was held to be justified where it was determined that "the entirety of the businesses operated by (defendants) are criminal in nature."  (Id., at p. 1006.)

"(T)he more specificity the warrant describes the items sought, the more limited the scope of the search.  Conversely, the more generic the description, the greater the risk of a prohibited general search.  (Citation)"  (People v. Balint (2006) 138 Cal.App.4^th 200, 206.)

Seizure of "all computer media" is not too broad, given the difficulty in determining what might be on such media prior to a forensic examination by experts, at least so long as there is an explanation in the affidavit explaining why a wholesale seizure is necessary under the circumstances.  (United States v. Hill (9^th Cir. 2006) 459 F.3^rd 966, 973-977.)

Use of language such as; " . . . including, but not limited to . . ." should not be used, in that such a description is too general, and legally insufficient to justify seizure of any property intended to be included under the "not limited to" phrase.  (See United States v. Reeves (9^th Cir. 2000) 210 F.3^rd 1041, 1046-1047; United States v. Bridges, supra, at pp. 1017-1018.)

Supplementation to the Affidavit

Supplementing the Affidavit:  To be legally effective, the affidavit may be supplemented by an examination, under oath, of the affiant by the magistrate.  (P.C. § 1526)

The oral examination, however, will not be considered part of the probable cause unless reduced to writing and signed by the affiant.  (Charney v. Superior Court (1972) 27 Cal.App.3^rd 888, 891.)

Information not contained "within the four corners of a written affidavit given under oath" will not be considered and cannot be used to help establish probable cause.  (United States v. Luong (9^th Cir. 2006) 470 F.3^rd 898, 904, 905.)

Note that there is some federal case authority to the contrary, from other circuits, allowing information known to the affiant and told to the magistrate to be considered.  (See United States v. Frazier (6^th Cir. 2005) 423 F.3^rd 526, 535-536; United States v. Legg (4^th Cir. 1994) 18 F.3^rd 240, 243.244; and see dissenting opinion in United States v. Luong, supra., at pp. 905-907.)

Combined Affidavit with Warrant

Combined Affidavit with Warrant:  Some authorities advocate the use of a combined search warrant and affidavit form with an attached declaration of probable cause.  (See People v. MacAvoy (1984) 162 Cal.App.3^rd 746; and the Los Angeles County Search Warrant Manual, 12^th Edition, Chapter I and Appendix A.)

However, care must be taken to insure that the attached declaration of probable cause is "incorporated by reference," signed, and sworn to by the officer, for the warrant to be legally sufficient.  (People v. Leonard (1996) 50 Cal.App.4^th 878; defective warrant saved under "Good Faith" exception.

Also, such a format potentially raises issues concerning the need to provide a copy of the affidavit to the suspect, along with the warrant. (See United States v. Gantt (9^th Cir. 1999) 194 F.3^rd 987, 1001, and fn. 7; affidavit needed to cure a deficiency in the description of the property to be seized; and United States v. Smith (9^th Cir. 2005) 424 F.3^rd 992, 1006-1008.)

Multiple Affidavits

Multiple Affiants/Affidavits:  There may be more than one affiant and/or more than one affidavit in support of a search warrant.  (Skelton v. Superior Court (1969) 1 Cal.3^rd 144; P.C. § 1527.)

Staleness

Staleness:  The information contained in the warrant affidavit must not be "stale."  (People v. Mesa (1975) 14 Cal.3^rd 466, 470.)  Information that is remote in time may be deemed to be too stale and therefore unreliable. (Alexander v. Superior Court (1973) 9 Cal. 3^rd 387, 393.)

Delays of more than four weeks, at least in a narcotics sales case and absent some new evidence tending to show the continued presence of the controlled substances in question, are generally considered insufficient to demonstrate present probable cause:

See Hemler v. Superior Court  (1975) 44 Cal.App.3^rd 430, 433-434; delay of 34 days between controlled sale of heroin and the officer's affidavit for the search warrant is stale.)

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 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.  (People v. Hulland (2003) 110 Cal.App.4^th 1646.)

While "stale information" by itself will not generally support a finding of probable cause, when combined with some evidence of a present criminal violation, an ongoing pattern of criminal activity may add up to sufficient probable cause.  (People v. Mikesell (1996) 46 Cal.App.4^th 1711; sometimes called an "historical warrant;" see also People v. Medina (1985) 165 Cal.App.3^rd 11, 20-21.)

A continuing criminal enterprise, with no reason to believe the defendant has moved from her home where she was known to have lived some six months earlier, negated any staleness issue.  (People v. Gibson (2001) 90 Cal.App.4^th 371, 380-381.)

Expert opinion that, under the circumstances, the sought-for property is likely still to be found on the premises to be searched will normally overcome an issue of staleness.  (See United States v. Lacy (9^th Cir. 1997) 119 F.3^rd 742; 10-month old information concerning the receiving of child pornography.)

But see People v. Hulland, supra, where the officer's expert opinion was held to be insufficient to overcome a staleness (52 days) issue in a narcotics sales case.

Fingerprints

Fingerprints:   Note Hayes v. Florida (1985) 470 U.S. 811 [84 L.Ed.2^nd 705], for the proposition that a warrant may authorize the temporary detention, without probable cause, of a person for the purpose of taking fingerprints if:

• There is at least a "reasonable suspicion" that the suspect committed a criminal act;
• There is a reasonable basis for believing that fingerprints will establish or negate the suspect's connection with that crime; and
• The procedure used is carried out with dispatch.

Note:  The Court in Hayes specifically declined to decide whether this would include transporting the subject to the station for fingerprinting.  Because a non-consensual transportation is generally considered to be an arrest, requiring full-blown "probable cause" (See "Detentions," above), it is strongly suggested that the procedure be conducted in the field. 

See also Davis v. Mississippi (1969) 394 U.S. 721, 727-728 [22 L.Ed.2^nd 676, 681-682]; noting that the taking of fingerprints of a person who is merely subject to a temporary detention is lawful.)

And Note Virgle v. Superior Court (2002) 100 Cal.App.4^th 572, 574; where the Court referred to Hayes with approval.

Description of the Facts

Description of the facts and circumstances that comprise the probable cause:  "Conclusionary," as opposed to "factual," allegations by the affiant are legally insufficient.  (Barnes v. Texas (1965) 380 U.S. 253 [13 L.Ed.2^nd 818].)

I.e.:  The affiant must describe the facts and circumstances which comprise the probable cause, so that a magistrate may independently evaluate the existence or nonexistence of sufficient facts to justify issuance of the warrant.  Merely listing the affiant's conclusions, without describing the facts and circumstances that lead to the affiant's conclusions, is legally insufficient.

Using terms such as "pornography" and "harmful matter" without describing what it is the affiant believes is pornographic, is a conclusionary statement that may invalidate a warrant. (People v. Hale (2005) 133 Cal.App.4^th 942; warrant saved by other language in the affidavit from which the magistrate could infer the pornographic nature of the pictures.)

Good Faith

"Good Faith:" Officers obtaining a search warrant in "good faith" and acting in reasonable reliance on an otherwise facially valid warrant, issued by a neutral and detached magistrate, will not require suppression of evidence even when the warrant is later found to be lacking in probable cause.  (United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2^nd 677].)

See "Good Faith," above.

Use of Hearsay

Use of Hearsay:  Use of hearsay in an affidavit, or even "double (i.e., multiple level) hearsay," is okay "so long as there [is] a substantial basis for crediting the hearsay."  (United States v. Ventresca (1965) 380 U.S 102, 108 [12 L.Ed.2^nd 684, 688-689], quoting Jones v. United States (1960) 362 U.S. 257, 272 [4 L.Ed.2^nd 697, 708]; People v. Superior Court [Bingham] (1979) 91 Cal.App.3^rd 463, 469.) and, in fact, is usually unavoidable.  (People v. Magana (1979) 95 Cal.App.3^rd 453, 460, 462.)

See also City of Santa Cruz v. Municipal Court (1989) 49 Cal.3^rd 74, 87-88; People v. Smith (1976) 17 Cal.3^rd 845, 850.)

Each level of hearsay, however, must be shown in the affidavit to be reliable.  (See People v. Superior Court [Bingham], supra; Caligari v. Superior Court (1979) 98 Cal.App.3^rd 725; People v. Love (1985) 168 Cal.App.3^rd 104.)

Miranda

Miranda:  Statements taken in violation of the defendant's Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2^nd 694].), so long as not coerced or involuntary, may be used in an affidavit adding to the probable cause.  (United States v. Patterson (9^th Cir. 1987) 812 F.2^nd 1188, 1193; People v. Brewer (2000) 81 Cal.App.4^th 442.)

Fourth Amendment Violations

Fourth Amendment Violations:  Evidence obtained in violation of someone else's (i.e., someone other than the present defendant's) Fourth Amendment (search and seizure) rights may be used as part of the probable cause in a search warrant affidavit, unless the defendant can show that he has "standing" (i.e., it was his reasonable expectation of privacy that was violated) to challenge the use of the evidence.   (People v. Madrid (1992) 7 Cal.App.4^th 1888, 1896.)

"Standing" depends upon a showing that it was the defendant's own constitutional rights which were violated.  (People v. Shepherd (1994) 23 Cal.App.4^th 825, 828.) 

See "Standing," above.

Information in a search warrant affidavit that is the product of a violation of the defendant's own Fourth Amendment rights will be excised from the affidavit.  The redacted affidavit will then be retested to determine whether probable cause still exists.  (People v. Weiss (1999) 20 Cal.4^th 1073, 1081.)

Privileged Information

Privileged Information:  Information that comes into the hands of law enforcement that may be "privileged information," obtained without any "complicity" on the part of law enforcement, may be used as a part of the probable cause justifying the issuance of the search warrant.  (People v. Navarro (2006) 138 Cal.App.4^th 146; Attorney-Client information supplied by the attorney in violation of E.C. §§ 950 et seq.; see also United States v. White (7^th Cir. 1992) 970 F.2^nd 328.)

The issue is one of a Fifth (and Fourteenth) Amendment "due process" violation.  (People v. Navarro, supra.)

Being a "passive recipient of privileged information" shows a lack of "complicity."  (People v. Navarro, supra, at pp. 158-162.)

To show that law enforcement was not just a passive recipient of privileged information, the defendant must prove that:

• The government (i.e., law enforcement) knew a lawyer-client relationship existed between the defendant and its informant;
• The government deliberately intruded into that relationship; and
• The defendant was prejudiced as a result.

(Ibid, citing United States v. Kennedy (10^th Cir. 2000) 225 F.3^rd 1197, 1194-1195.)

Nighttime Searches

Nighttime Searches:  Justification for a nighttime search must be established in the warrant affidavit by establishing "good cause," risking the possible suppression of evidence if it is not.  (P.C. § 1533; Tuttle v. Superior Court (1981) 120 Cal.App.3^rd 320, 328.)

But see Rodriguez v Superior Court (1988) 199 Cal.App.3^rd 1453, 1470; suggesting that because a night search does not violate any constitutional principles, evidence discovered during a nighttime search without judicial authorization should not result in suppression of any evidence.

"Nighttime" for purposes of executing a search warrant is between 10:00 p.m. and 7:00 a.m.  (P.C. § 1533)  The search need only be commenced before 10:00 p.m.  It is irrelevant how long after 10:00 p.m. it takes to finish the search.  (People v. Zepeda (1980) 102 Cal.App.3^rd 1, 7-8.)

The test for determining "good cause" is as follows:  "(T)he affidavit furnished the magistrate must set forth specific facts which show a necessity for service of the warrant at night rather than between the hours of 7 a.m. and 10 p.m. This means that the magistrate must be informed of facts from which it reasonably may be concluded that the contraband to be seized will not be in the place to be searched during the hours of 7 a.m. to 10 p.m."  (People v. Watson (1977) 75 Cal.App.3^rd 592, 598.)

The need for a nighttime search may be shown by a description of "some factual basis for a prudent conclusion that the greater intrusiveness of a nighttime search is justified by the exigencies of the situation."  (People v. Kimble (1988) 44 Cal.3^rd 480, 494.)

Note:  While typically this is an issue in the searches of residences, the statute (P.C. § 1533) is not so restricted.  Therefore, a search warrant authorizing the search of a person, vehicle, or other container may also require a "nighttime endorsement" if executed at night.

Leaving a Copy at the Scene

Leaving a Copy at the Scene:  It is not legally required that a copy of the affidavit be left at the scene (United States v. Celestine (9^th Cir. 2003) 324 F.3^rd 1095, 1107.), at least when the place to be searched and the property to be seized is sufficiently described in the search warrant itself.   (United States v. McGrew (9^th Cir. 1997) 122 F.3^rd 847.)

See "Leaving a Copy of the Warrant, Affidavit and/or Receipt and Inventory," below.

Victim and Witness Confidential Information

Victim and Witness Confidential Information:  Penal Code section 964 requires the establishment of procedures to protect the confidentiality of "confidential personal information" of victims and witnesses.  The section is directed primarily at prosecutors and the courts, but also contains a provision for documents filed by law enforcement with a court in support of search and arrest warrants; i.e., an affidavit. 

"Confidential personal information" includes, but is not limited to,  addresses, telephone numbers, driver's license and California identification card numbers, social security numbers, date of birth, place of employment, employee identification numbers, mother's maiden name, demand deposit account numbers, savings or checking account numbers, and credit card numbers.  (Subd. (b))

The Receipt and Inventory

Third:  The "Receipt and Inventory" (or "Return"):  This document is self-descriptive.  It is used to list the property seized as a result of the service of the search warrant.  (P.C. § 1535)

The original is returned to the Court with the original warrant and affidavit.

A copy is left with the person from whom property is taken, or left at the place searched, as a receipt of for those items taken by the searching officers.

P.C. § 1535 is not to be interpreted as a requirement to show to the suspect, or to leave a copy of at the scene, the search warrant itself.  (People v. Calabrese (2002) 101 Cal.App.4^th 79.)