STATE ARREST/SEARCH WARRANTS; FORMAT AND CONTENT
As several new officers have recently completed FTO phases, followed in two weeks by another 30 recruits, I thought it may be a good time to thoroughly cover the topic of state warrants and their format/content. In addition to some basic concepts for new officers; this is also an excellent forum for covering more advanced topics for specialists to hopefully clear up some areas subject to frequent confusion (expiration of warrants for contents of electronic devices, etc). Each topic has a subject heading below so hopefully this article will be useful as a quick reference for both new and experienced members looking for guidance on specific issues. Also below are some suggestions and concerns offered by Orleans Parish Criminal District Court Magistrate Jonathan Friedman. Note that I have not covered NOPD policy in this article; NOPD policy is substantially based on Louisiana law on the subject and many of our readers work outside of Orleans Parish. This article is intended to provide a relevant overview of Louisiana law on search and arrest warrants, suggestions on structuring a factual basis, and links to completed warrants (here) are included so that new officers can read actual search and arrest warrants covering a variety of scenarios to get a feel for the finished product.
For our newest officers, perhaps a good starting point would be to cover the GIST document and its content. A GIST document is essentially an unsigned arrest warrant – in a manner of speaking. A GIST document is required for state arrests of individuals where the arrest was made without a warrant. The United States Supreme Court in County of Riverside vs. McLaughlin, 500 U.S. 44 (1991) held that “an individual arrested without a warrant must know the probable cause for their arrest from law enforcement officials within 48 hours.” In 1992 the Louisiana Legislature responded by requiring that an officer arresting a person without a warrant “promptly complete an affidavit of probable cause” supporting the arrest and submit it to a magistrate (Schlosser, La. Crim. Trial Prac. [4th Ed.] § 2:1). This is where our “GIST” document comes from. The GIST simply contains a probable cause statement (just like an arrest warrant would) for arrests that were made “on the spot,” and within 48 hours of arrest a magistrate must decide based on the information in the GIST if probable cause existed for the arrest. Warrantless arrests accompanied by a GIST are certainly the most common arrests made by first-line officers and they will contain almost all of the same information as an arrest warrant; full name of the accused, offenses alleged, a probable cause statement (also referred to as a factual basis), and the signature of both the arresting officer and a supervisor.
ARREST AND SEARCH WARRANTS
The simplest and most authoritative guidance as to what is required in an arrest or search warrant comes, of course, from the 4th Amendment of the United States Constitution (and, nearly identical, §5 of the Constitution of the State of Louisiana); “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.” While recruits are expected to memorize the 4th Amendment, it has little context until they see it in practice. As we might expect, the Louisiana Code of Criminal Procedure has some additional requirements, and this is where we find the specific forms of our arrest and search warrants – statutory law that is actually quite helpful in deciding what should be in a warrant, how and when we can search for something, as well as where and when we can arrest someone, among many other things. Below is the relevant text of the Louisiana Code of Criminal Procedure; first Search Warrants, followed by Arrest Warrants (Note that I have omitted elements that are rarely if ever used, such as making oaths by telephone).
TITLE IV, SEARCH WARRANTS
Art. 161. Property subject to seizure
- Except as authorized by Article 163.1, a judge may issue a warrant authorizing the search for and seizure of anything within the territorial jurisdiction of the court which:
(1) Has been the subject of theft.
(2) Is intended for use or has been used as a means of committing an offense.
(3) May constitute evidence tending to prove the commission of an offense.
Art. 162. Issuance of warrant; affidavit; description
- A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.
- In any application for warrant, an affidavit containing the electronic signature of the applicant shall satisfy the constitutional requirement that the testimony of the applicant be made under oath, provided that such signature is made under penalty of perjury and in compliance with R.S. 9:2603.1(D).
- A search warrant shall particularly describe the person or place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search or seizure.
Art. 163. Officer to whom directed; time for execution
- A search warrant shall be directed to any peace officer, who shall execute it and bring any property seized into the court issuing the warrant.
- A search or seizure shall not be made during the nighttime or on Sunday, unless the warrant expressly so directs.
- Except as authorized by Article 163.1, a search warrant cannot be lawfully executed after the expiration of the tenth day after its issuance.
D.(1) Any examination or testing of any property seized pursuant to the provisions of this Article shall be at the direction of the attorney general, the district attorney, or the investigating agency.
(2) Notwithstanding any other provision of law to the contrary, any examination or testing of the seized property may be conducted at any time before or during the pendency of any criminal proceeding in which the property may be used as evidence.
Art. 164. Means of force in executing warrant
In order to execute a search warrant a peace officer may use such means and force as are authorized for arrest by Title V.
Art. 166. Receipt for seized property
When a peace officer seizes property under a warrant he shall give a receipt to the person from whom the property is taken, describing the property in detail. In the absence of such person, the peace officer shall leave the receipt in the place where the property was seized.
Article 163 et seq. answers some of the most important questions about search warrants; under Louisiana law, a search warrant cannot be executed at night or on a Sunday unless you specifically request authorization in the warrant. A search warrant by default expires on the 10th day after issuance – with one exception; DNA search warrants, which are valid in Louisiana for 180 days after issuance. Quite an important provision for specialists; Article 163 D(2) reads ”Notwithstanding any other provision of law to the contrary, any examination or testing of the seized property may be conducted at any time before or during the pendency of any criminal proceeding in which the property may be used as evidence.” This is an important article and it covers many scenarios; once a warrant for the contents of a cellular telephone is obtained and the telephone is seized – technicians may extract and analyze the data within that telephone up to and during the trial. It also means that a seized firearm may be test fired and the results analyzed at any time up to and during trial. The same goes for the processing of DNA, contents of computers, and so on once properly seized pursuant to a search warrant. If one of these clauses applies to a warrant you intend apply for – quote it in the order; you can often defeat anticipated defense attacks by stating the legal basis for what you have done in the warrant itself.
Also important to consider is Article 164, Means of force in executing warrant, which states that once a valid search warrant is obtained, all the same means and force may be used in executing the warrant as are authorized to arrest under Title V.
TITLE V, ARREST
Art. 202. Warrant of arrest; issuance
- A warrant of arrest may be issued by any magistrate pursuant to this Paragraph or as provided in Paragraph D of this Article and, except where a summons is issued under Article 209 of this Code, shall be issued when all of the following occur:
(1) The person making the complaint executes an affidavit specifying, to his best knowledge and belief, the nature, date, and place of the offense, and the name and surname of the offender if known, and of the person injured if there be any. An affidavit containing the electronic signature of the applicant shall satisfy the constitutional requirement that the testimony of the applicant be made under oath, provided that such signature is made under penalty of perjury and in compliance with R.S. 9:2603.1(D).
(2) The magistrate has probable cause to believe that an offense was committed and that the person against whom the complaint was made committed it.
(4) The warrant shall be in the form required by Article 203 of this Code.
Art. 203. Form and contents of warrant
The warrant of arrest shall:
(1) Be in writing and be in the name of the State of Louisiana;
(2) State the date when issued and the municipality or parish where issued;
(3) State the name of the person to be arrested, or, if his name is unknown, designate the person by any name or description by which he can be identified with reasonable certainty;
(4) State the offense charged against the person to be arrested;
(5) Command that the person against whom the complaint was made be arrested and booked; and
(6) Be signed by the magistrate with the title of his office.
Art. 205. Effective period
A warrant of arrest remains in effect until executed.
Articles covering arrest warrants clearly state what information is required to be included in an arrest warrant. Article 205 also specifies that an arrest warrant is valid until executed.
PROBABLE CAUSE STATEMENT
Now to a much more subjective issue; how should a probable cause statement be structured and how much information should it contain? Opinions range from dumping everything you have into the probable cause statement such that it looks like a complete police report (this is usually incorrect) to as little information as possible (a little closer to the correct opinion). It can be a tricky balance to include as little information as possible but ensure you meet the burden of probable cause. The correct approach depends heavily on the type of crime you are investigating. Domestic Violence warrants should include much more detail to aid the Magistrate in making decisions about bail and the issuance of peace bonds (“stay away orders”). For other types of crime, especially violent felonies with independent witnesses, narcotics investigations, and burglaries including as little information as possible while making sure to meet the burden of probable cause is strategic. By including unnecessary information and detail the author is simply giving defense counsel a head start in attacking their case. Too much information can also give defense counsel clues in how to locate and identify principals of your case. This isn’t to say that any probable cause statement longer than a single paragraph is a bad warrant, sometimes probable cause in a particular case is complex and requires some degree of narrative – but once you comfortably meet the burden of probable cause – stop typing.
With many offenses, especially violent felonies, including too much information can endanger the safety of independent witnesses. Witnesses, interviews, and others providing information leading to probable cause should NEVER be named in probable cause statements where their safety could even conceivably be considered at risk. A single witness should be referred to as “KNOWN WITNESS” in a probable cause statement. Several witnesses should be referred to as “WITNESS A,” “WITNESS B,” and so on, with great care taken to identify those witnesses accurately in the police report and how they were listed in the warrant.
Warrants are public documents, typically compiled weekly in Magistrate Court and sent to the Clerk of Court’s office – rest assured that reporters, defense attorneys, and others regularly stop by the clerk’s office to read through warrants. Including a name unnecessarily in a warrant can have many adverse effects; a best case scenario might be someone innocently knocking on their door to ask about the case (they will blame YOU for the unwelcome attention and potentially cease cooperating), the worst case scenario for a witness identified in a violent crime goes without saying.
In speaking with Magistrate Jonathan Freidman on this topic, he was careful to point out that omitting the names of victims/witnesses in every case is not an appropriate approach; in cases of Domestic Violence for example, it is clear who the victim is and typically the names of any witnesses are already known to the accused, failing to include relevant names in such cases simply makes the job of the District Attorney and Magistrate more difficult when Peace Bonds are needed immediately. The same rule applies in cases of crimes against known persons. Imagine three neighbors arguing when one suddenly commits a state criminal offense against the other – all parties are known to each other, there is no sense in omitting the names in such a case.
When building a probable cause statement deciding what to include and how to establish probable cause a good outline is as follows;
FACTS AND CIRCUMSTANCES – Any facts and circumstances which are logically relevant can be used to establish probable cause.
LOGICAL INFERENCES – The probable cause determination is based on everyday logic and common sense. The logical inferences which can be drawn from the facts and circumstances by a person of reasonable caution are included in the probable cause determination. The facts and circumstances must logically make it “probable” that the accused committed the offense or that property subject to seizure is located in a particular place. Absolute certainty is not required, nor is proof beyond a reasonable doubt. If a shooting occurs and officers are in the immediate area, turning a corner to observe the suspect throw a firearm of the same caliber used in the shooting represents a logical inference the suspect committed the offense.
PROFESSIONAL INFERENCES – Logical inferences drawn by an officer based upon his or her expertise, training, and experience can be used to establish probable cause. If the trash can of a residence suspected of being a “stash house” for narcotics is filled with dozens of empty sandwich bag boxes, this represents a professional inference that narcotics are being packaged within.
CONCLUSIVE AND DIRECT EVIDENCE – Any direct or incontrovertible evidence would clearly be used in a probable cause statement. Footage from closed circuit surveillance systems depicting the accused shooting his victim would be described in an arrest warrant.
TESTIMONY OF A WITNESS – Good faith reliance on the testimony of a credible witness or victim may be used in establishing probable cause. Included is the formal identification of the accused by the victim or a witness (line up/show up procedures). Note, in law witness statements are considered direct evidence, however I have separated this concept here because as officers, you must assess the credibility, sobriety, independence, and motive of witnesses and give appropriate weight to their statements.
* A note on probable cause to search; time affects probability. The passage of time since the information was obtained or the observations were made affects whether probable cause exists, therefore search warrants must be produced in a timely manner with current information.
GENERAL FORMAT OF THE WARRANT
Both Search and Arrest Warrants will consist of an application and order, and Search Warrants will include the Search Return following its execution. As made clear by the Articles above, the warrant shall be “In the name of the State,” and include the parish where issued. Extraneous information and the inclusion of every conceivable thing to be searched followed by line-through or “X” should be avoided and will likely be precluded by policy in the near future; extraneous information leads inevitably to errors and a busy warrant that is difficult to read.
I spoke to Magistrate Jonathan Friedman about this article and the most frequent problems he sees with arrest and search warrants. “Transposition of item numbers and dates are the most common issues with warrants, which leads to issues with NCIC, errors in Docket Master, and input errors at the jail which can affect the case. Little mistakes become big problems.” Magistrate Friedman also highlighted the importance of accurate charges; “Knowing your code, you should always consult your supervisor as required, but when in doubt and the station only has a 2009 law book, everyone can access www.legis.la.gov to find out the current law.” Certainly Domestic Violence cases are the best example of frequent legislative amendments and additions to criminal law; we can all relate to the frustration a Magistrate must feel when called out of bed at 2:00am for a warrant charging crimes that aren’t appropriate for the circumstances described only to be called an hour later with corrections. When asked about this, Friedman asserted “I can’t advise anyone how to do police work, but I am willing to hear the circumstances out and ensure the charges are appropriate.” This should be a last resort however, as all current laws are available on the legis.la.gov site. In closing Friedman quipped in the politest way “I’m going to start sending the Magistrate schedules to NOPD-ALL so everyone can find out who is on duty in the middle of the night through other sources,” ostensibly because Magistrates are getting late-night phone calls just to be asked who is on duty.
A note on the spirit of this article; there is no single-source compendium for all information, guidelines, and jurisprudence for search and arrest warrants, nor any other aspect of criminal justice for that matter. I am a big believer in knowing the law of your particular jurisdiction. Louisiana law is the most appropriate starting point for new officers learning how to do this job; new officers are inundated with policies and forms and frequently led to believe that when in question there is a default answer codified in some policy – this is often not the case. Given sufficient time and experience, officers should master the appropriate law of their jurisdiction, approach the job creatively and with the authority and confidence to solve problems through a combination of legal knowledge and experience in making decisions about the most appropriate response to the infinite scenarios they encounter on the street.