Clara Shortridge Foltz Criminal Justice Center
Serena R. Murillo
Judge
Loyola Law School
Under the Fourth Amendment to the United States Constitution, searches pursuant to warrants are preferred over searches conducted based on exceptions to the warrant requirement. (Illinois v. Gates, 462 U.S. 213 (1983).) This article and accompanying self-study quiz will educate readers regarding procedures for issuing and executing warrants in criminal cases, and challenges that can be raised to suppress evidence found pursuant to warrants.
Warrant Affidavit
An affidavit from a law enforcement agent, provided under penalty of perjury, is commonly submitted to support a warrant. (U.S. Const., 4th Amend.) The affidavit "must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist." (People v. Frank, 38 Cal.3d 711 (1985).)
When a judge is deciding whether to issue a warrant, law enforcement officers are presumed to be credible. (People v. Hill, 12 Cal.3d 731 (1974).) The same goes for people who are witnesses, victims or others who provide information openly, have acquired information fortuitously and who have good motives. (People v. Ramey, 16 Cal.3d 263 (1976).) Suspects/co-conspirators, if they make statements or confessions against their penal interest, are also reliable. (People v. Mardian, 47 Cal.App.3d 16 (1975), overruled on a different ground in People v. Anderson, 43 Cal.3d 1104 (1987).)
As to a police informant, a judge deciding whether to issue a warrant must ask: Are the statements factual vs. conclusory? Does the informant have personal knowledge? Is the informant credible? (used in the past?) Is the information reliable (i.e. corroborated?) (See People v. Johnson, 220 Cal.App.3d 742 (1990)). The officer can request to seal a portion of an affidavit to protect a confidential informant's identity. (People v. Hobbs, 7 Cal.4th 948 (1994).)
Probable Cause
Warrants must be supported by probable cause. This is true for both arrest warrants and search warrants.
Probable cause to arrest requires linkage between a suspect and a crime. (People v. Barnum, 113 Cal.App.3d 340 (1980).) Under this standard, there must be probable cause to believe a crime was committed, and that the arrestee committed the crime.
Probable cause to search requires double linkage, i.e., one that links the items to be seized to an offense and another that connects them to the place to be searched. (People v. Barnum.) For a warrant to issue, there must be probable cause to believe that items are subject to seizure, items will be found at the location to be searched, and items will be found there at the time of the search. (People v. Frank.)
As to the quantum of evidence, the question is, "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." (Illinois v. Gates.) A "fair probability" exists when "the facts available ... would warrant a [person] of reasonable caution in the belief" that the relevant probable cause exists. (Texas v. Brown, 460 U.S. 730 (1983).)
The element of time is crucial to the concept of probable cause, because the information provided can become stale. (People v. McDaniels, 21 Cal.App.4th 1560 (1994).) The freshness of the information is one of the factors that determine whether there is probable cause to believe the articles covered by the warrant will be found at the place that is to be searched. (People v. Hernandez, 43 Cal.App.3d 581 (1974).) On the other end of the spectrum, anticipatory warrants may issue only if they rest on a showing that probable cause will arise at a definite future time or upon occurrence of a specified event such as a controlled delivery. (People v. Sousa, 18 Cal.App.4th 549 (1993).) As determined by People v. Sousa, this is an exception to the principle that probable cause must exist when the judge issues the warrant, and the contingency should be clearly specified in the affidavit.
Execution of Warrant
Before entering a residence, police must knock, announce their presence as police, announce the authority upon which they seek entry, and give occupants sufficient time to permit entry voluntarily. This protects occupants from violence, avoids destruction of property, and protects privacy. The duty to knock and announce is required by state and federal law. (Pen. Code, §§ 844, 1531; Wilson v. Arkansas, 514 U.S. 927 (1995).) Exceptions to knock and announce include exigency, consent (even by ruse), and when there is a clearly unoccupied or abandoned place. (Hart v. Superior Court, 21 Cal.App.3d 496, 501-505 (1971).) Civil liability, but not suppression of evidence is the remedy for a violation. (Michigan v. Hudson, 547 U.S. 586 (2006).)
A warrant must be executed forthwith (Pen. Code, § 1528(a)), but no later than 10 days after issuance with the issuance date being day zero. (Pen. Code, § 1534(a).) However, items found need not be examined within 10 days from when the warrant was issued. (People v. Bowen.)
In addition to the police who applied for the warrant, officers from other jurisdictions may accompany the police when executing a warrant. (People v. Carrington, 47 Cal.4th 145 (2009).) Crime victims (People v. Superior Court (Meyers), 25 Cal.3d 67 (1979)), technical experts (People v. Superior Court (Monroe), 104 Cal.App.3d 1001 (1980)), and narcotics dogs (People v. Russell, 195 Cal.App.3d 186 (1987)) may also accompany officers when they execute a warrant. But, members of the media cannot join the police executing a warrant. (Wilson v. Layne, 526 U.S. 603 (1999).) With advance authorization from the judge on considerations of necessity, officers may use a battering ram when they execute a warrant. (Langford v. Superior Court, 43 Cal.3d 21 (1987).)
Persons found occupying the premises when a warrant is executed can be detained during the duration of the search without additional cause. (Michigan v. Summers, 452 U.S. 692, 705 (1981).) However, the authority to detain a person incident to the execution of a warrant is limited to persons who are in the "immediate vicinity of the premises" to be searched. (Bailey v. United States, 568 U.S. 186 (2013).) Persons who are non-occupants can be detained if the police have reasonable suspicion to believe they are connected with illegal activity, and the police can detain people of unknown connection in order to determine their connection. (People v. Glaser, 11 Cal.4th 354 (1995).) Persons that are detained can be handcuffed if there is a dangerous situation. (Muehler v. Mena, 544 U.S. 93 (2005).) Persons cannot be frisked for weapons simply because they are on site; there must be reasonable suspicion the persons are armed and dangerous to justify a pat-search. (Ybarra v. Illinois, 444 U.S. 85 (1979).)
Police may conduct a thorough search of entire premises, including any places and containers that could hold the items to be seized. (See People v. Balint, 138 Cal.App.4th 200 (2006).) Premises include outbuildings, detached or attached. (People v. McNabb, 228 Cal.App.3d 462 (1991).) A search must be continuous, and the police cannot leave and return. (People v. James, 219 Cal.App.3d 414 (1990).) "Indicia of Ownership" clauses in a warrant will authorize the police to search mail, paperwork, or things showing a person lives at a location. (People v. Nicolaus, 54 Cal.3d 551 (1991).) "Search all vehicles" clauses are invalid unless the warrant lists vehicles and the affidavit includes probable cause to search the vehicles. (People v. Sanchez, 116 Cal.App.3d 720 (1981).)
Challenges to Warrants
A search or seizure with a warrant can be challenged as unreasonable by a defendant moving to quash or traverse. If successful, the result will be suppression of evidence.
Penal Code section 1538.5(a)(1)(B) provides a defendant can move to suppress evidence when, "The search or seizure with a warrant was unreasonable because any of the following apply: [⁋] i. The warrant is insufficient on its face [⁋] ii. The property or evidence obtained is not that described in the warrant [⁋] iii. There was not probable clause for the issuance of the warrant [⁋] iv. The method of execution of the warrant violated federal or state constitutional standards [⁋] v. There was any other violation of federal or state constitutional standards."
When the warrant is insufficient on its face, a defendant may move to quash the warrant. (See People v. Rowland, 82 Cal.App.5th 1099 (2022).) The hearing on the motion should be heard by the judge who issued the warrant. (Pen. Code, § 1538.5(b).)
A search warrant is presumed to have been lawfully issued and executed, and the burden of establishing its invalidity or improper execution is on the defendant. (People v. Wilson, 256 Cal.App.2d 411 (1967); see also People v. Pipkin, 17 Cal.App.3d 190 (1971) [an arrest warrant is presumed lawful, and the defendant has the burden of overcoming the presumption].)
By way of a motion to traverse a warrant, "a defendant has a limited right, under the Fourth Amendment of the United States Constitution, to challenge the validity of a search warrant by controverting the factual allegations made in the affidavit in support of the warrant." (People v. Luttenberger, 50 Cal.3d 1 (1990), citing Franks v. Delaware, 438 U.S. 154 (1978).) A defendant must show that a misstatement or omission in the affidavit was deliberate or reckless on the affiant's part, and that the misstatement or omission was material to the finding of probable cause. (Franks v. Delaware.)
""[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request." [Citation.] If the defendant proves the allegation of perjury or reckless disregard at the . . . hearing, the false material must be set aside, and if the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded." (People v. Lee, 242 Cal.App.4th 161 (2015), citing Franks v. Delaware.)
Lastly, it must be kept in mind that evidence cannot be suppressed when the police acted in good faith in reasonably relying on a search warrant issued by a detached and neutral magistrate which is subsequently found to be invalid. (United States v. Leon, 468 U.S. 897 (1984).) As held by United States v. Leon, "In the absence of an allegation that the magistrate abandoned [the magistrate's] detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause." "[T]he government has the burden to prove facts warranting application of the good faith exception." (People v. Willis, 28 Cal.4th 22 (2002).)