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The Warrant Process Chapter Three All Images © Microsoft Corporation Written by Karmel Tanner May...
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Transcript of The Warrant Process Chapter Three All Images © Microsoft Corporation Written by Karmel Tanner May...
The Warrant Process
Chapter Three
All Images © Microsoft Corporation
Written by Karmel Tanner
May 2010
Arrest Warrants: Warrant Clause No Warrant shall be issued:
but upon probable causesupported by Oath or affirmation
and particularly describing: the place to be searched, and the person • or things to be seized
Arrest Warrant Starts with Affidavit - swearing of
facts Affidavit must provide:
– Facts to establish probable cause that a specific crime was committed
Arrest Warrant Arrest warrant must specify: Crime(s) charged Identity of person to be arrested
– Name and aliases
• “John Doe” warrant can be issued if true name is not known
Arrest Warrant– Description of person - give as much
detail as available so that officers making arrest can verify that they have the right person:
• Age, DOB
• Height, weight, etc. Name of court and judge that issue warrant Date warrant was issued
Arrest Warrant In Georgia, if theft, the warrant must
also give a name, description, and value of the item(s) stolen and the owner
See 17-4-40
Search WarrantsAffidavit must contain: Facts to establish probable cause that
there are items of evidence that legally can be seized with a warrant– "Totality of the circumstances" test used to
determine if probable cause has been established
– Information that is stale may not be used
Search WarrantsAffidavit must contain: Facts to establish the location of the
items to be seized
– Identify the building to be searched
• 123 North Main Street
– Describe the portion of the building where the evidence is believed to be located• in the garage
Search WarrantsWarrants must contain: Location that may be searched Items that officers may search for Date warrant was signed Name of signature of judge who
approved the warrant See 17-5-21&22 for Georgia
requirements
Electronic Surveillance Warrants Title III and most state laws restrict use
of electronic surveillance warrants to investigations of major felonies
Show normal investigative techniques have been unsuccessful or reason why these techniques will not work
Electronic Surveillance Warrants Must make efforts to minimize intrusion
into privacy of persons not involved in criminal activity whose conversations are intercepted
Transcripts of all seized conversations must be filed with the court
Considered MAJOR privacy invasion
Drafting Affidavits Affidavit must contain facts Judge decides if PC exists Supreme Court currently uses the Illinois
v. Gates (1983) totality of the circumstances test when evaluating whether the affidavit establishes PC
No longer necessary to establish that each piece of information came from a person known to be reliable
Drafting Affidavits Police should corroborate as many facts
as possible when dealing with informant whose reliability has not been established
Types of information that may be included:– Officer's first-hand observations– Information from other officers– Facts learned from informants
Drafting Affidavits Facts learned from informants
– Crime victims and people who witnessed crime
• Assumed to be credible unless facts indicate a motive to distort facts
• Common problem is that they do not provide sufficient details to identify perpetrator
Drafting Affidavits Facts learned from informants
– Confidential informants
• Officer knows identity of informant but has promised that identity will not be revealed
– Anonymous informants
• Unknown person provides information without disclosing identity
Drafting Affidavits Stale information (facts that
are too old to be reliable) cannot be used in an affidavit for a search warrant
Obtaining Warrant from Judge Prepare all necessary affidavits Complete required forms Present affidavits and forms to judge
– Must be a neutral magistrate Local court rules may require that
application be presented to specific judge
Obtaining Warrant from Judge If a judge rejects application it may not
be given to another judge unless affidavits have been prepared with additional facts
Search warrant must be issued by judge in the geographical jurisdiction where search will occur
Executing Warrants Must take at least one copy of warrant to
location where it will be executed
– Person whose premises is searched is entitled to a copy of the warrant
– If no one is present at the time, a copy should be left at the premises
Knock Notice applies when entering residential units
Executing Warrants Knock Notice exceptions
– Emergencies
– Evidence destruction Officers may search area designated in
warrant
Executing Warrants May look only in locations that could
conceal items the warrant authorizes the officers to seize – “Elephant in a drawer”
May seize items not listed on warrant if they are found in plain view and there is PC to seize them
No authority to pick up an item and examine it to see if there is PC to seize it
Executing Warrants “Returning” Inventory of items seized during
execution of search warrant is written on the warrant's "Return"
Return is filed with the court A copy of the return must be given to the
person whose premises was search or, if no one is present, left at the location
Arrest Warrants Officers may make an arrest based on
information in abstract of warrant Good faith effort must be made to verify
that person arrested is same one named in the warrant
Actual warrant must be produced at first court appearance