Search Warrant Drafting
It starts with our investigations, but ends in a lot of paperwork…
I am sure anyone who has worked any length of time within the law enforcement field understands how time-consuming, and tedious paperwork can be. In my nearly 14 years of experience in the field, I can say that it generally consumes most of the time during a scheduled shift. Not many of us get into law enforcement or career fields that involve investigations of a civil or criminal nature with the intent to focus mainly on our paperwork and reports. Those who choose these lines of work are committed to the process of the investigation, uncovering fact and evidence and following leads. There is a deep-rooted human element of investigations in the thrill of identifying witnesses and those involved or responsible for the actions of our investigations.
However, what good is the investigatory process if we can’t replicate the steps we took in order to reach the outcome of our investigation? This is done through documentation; detailed, intensely time-consuming, documentation. During the course of a criminal investigation, an officer or detective may need to obtain a warrant to further their investigation, in this instance I am going to discuss search warrants. Why? Well, search warrants are still a portion of our investigation, they help lead investigators to additional clues and evidence to identify suspects and build additional leads within an investigation.
Why and when would you need a search warrant?
In laymen terms, a search warrant is a permission slip granted by the courts within a jurisdiction to search for specific items within a specific area or on a specific person. Generally, search warrants are required to search areas in which a person might have a, “Reasonable expectation of privacy.” When a person has no reasonable expectation of privacy, there may be instances when an area can be searched by police without a search warrant.
The United States Constitution protects against “unreasonable” searches of a person, their residences and their personal property.
*The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. **1
A search warrant has to be based upon probable cause, and supported by the investigator’s oath or affirmation that the information contained within the search warrant is true and accurate to the best of the knowledge and belief of the investigator at the time of application for the warrant. If the warrant is issued, it allowed for the investigator to further their investigation by searching for additional evidence at the location listed in the warrant.
For the purposes of this blog post, we are not going to cover specifics related to subpoenas. They differ from state to state and generally, it is recommended to obtain any evidence by way of search warrant as it helps protect the validity of the evidence in a later court hearing.
There are some modern twists on the application of search warrants.
When we focus on obtaining a search warrant for digital evidence, we must evaluate the “Reasonable expectation of privacy” standard a bit differently. For example, let’s say we are writing a search warrant to search for a threatening email sent from a suspect’s Gmail account, here are the questions we should be asking:
- Does the user or suspect have a reasonable expectation of privacy in his email account?
- Do any exceptions to the search warrant requirement apply, such as consent?
The answer to the first question is clearly yes, the answer to the second question is no in our example. Also, we wouldn’t necessarily want to tip off our suspect by asking for consent and having him delete the communications prior to having access to the contents of the account. All these factors in mind; the safest answer is to apply for and obtain a search warrant.
This process of thinking about the Gmail account is much like considering searching a storage unit, the suspect chose to store their property in a unit exclusive to them and locked the unit, they have a reasonable expectation of privacy in the unit. Much like the storage unit, the suspect has exclusive use of their Gmail account and all the data retained within it.
Be particular.
Simply put, it is not justifiable to ask to have unfettered access to the suspect’s Google account, which may include Google Pay information, Chrome web history, Google Drive, Google Location Services, etc. if we are only wanting to explore the contents of a Gmail account. We need to specifically name the evidence we wish to “seize” or collect from Google when we serve a search warrant. We also need to explain within our statement or affidavit to the court that we understand what services Google offers and what information they store about their users.
I don’t work for Google, how should I know what information they have?
Two part answer to this question, the first is I don’t care who you work for, you should know what information they have about their users… It’s part of your job as an investigator to know this and be familiar with how popular online services work, and we do this by simply searching for and reading the privacy policy of a given application, which is often available on the application’s public website. Here are a few example privacy policies of certain social media platforms that you should make yourself aware of:
If you make yourself familiar with these documents and refer to them in real-time while working a case that involves one of these social media platforms or applications, you will be able to adequately explain and request specific items which may be evidentiary to request in your search warrant.
Realistic approach to conciseness.
So, realistically and practically, how do we deal with being concise while including all relevant information to form the basis of probable cause for the application of our search warrant? Honestly, I doubt Judges enjoy reading 75 page written affidavits for, what otherwise could be, a simple search warrant application. Not each and every fact or detail is needed within the affidavit in order for it to be legally sufficient to meet the standard of probable cause, but how do we relay this to the court so as not to appear to be intentionally leaving out details.
Here is a solution I adopted after researching the issue, it comes with a simple paragraph after introductory paragraph explaining who you are and what your qualifications might be:
The facts and circumstances set forth in this written statement are based on my personal knowledge, knowledge obtained during my participation in this investigation, knowledge obtained from other individuals including other law enforcement personnel and witnesses, and review of documents and records relative to this investigation, communications with others who have personal knowledge of the events and circumstances described herein, and information gained through my training and experience. Because this written statement is submitted for the limited purpose of establishing probable cause for the requested search warrant, this written statement does not set forth each and every fact learned by law enforcement during the course of this investigation.
Conclusion
It is important to keep the information contained within your statement or affidavit relevant and detailed to the point where your case facts can be easily described and relayed to the judicial official to determine if probable cause exists. However, not every fact and detail should or is required to be included in the affidavit. I would, however, make note that it is vitally important that we include evidence which would be otherwise exculpatory to the determination of probable cause within our affidavits or search warrants. It is always better to be safe and provide any potentially exculpatory evidence up front, and it certainly relays to a Judge or anyone reading the affidavit that your credibility as an investigator is paramount.
Just wish I could have made this post more concise, oh well!
- The United States Constitution Annotated https://constitution.congress.gov/constitution/amendment-4/ ↩︎