SIGNING THE OCCASIONAL SEARCH WARRANT

1. SIGNING THE OCCASIONAL SEARCH WARRANT Tennessee Judicial Academy August 18, 2014 TAB 8 in your Notebook

2. WHY VOLUNTEER TO REVIEW SEARCH WARRANTS? • It’s part of your job. • You are doing your part to help fight crime and protect citizens’ rights. • There is no downside, other than inconvenience. • You like your new job and want to get reelected.

3. UNITED STATES CONSTITUTION, 4TH AMENDMENT Unreasonable searches and seizures. - 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. (SEE THE LIST ON PAGE TWO)

4. TENNESSEE CONSTITUTION, ARTICLE 1, §7 Unreasonable searches and seizures - General warrants. - That the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or persons not named, whose offences are not particularly described and supported by evidence, are dangerous to liberty and ought not to be granted.

5. Tenn. R. Crim. P. 41 The United States and Tennessee Constitutions set out the reasons search warrants must be issued, but Rule 41 sets out the procedure for issuing them, executing them and signing them. Rule 41 is on page 3 and 4 of the handout, but you only have to follow the steps on page 2, even though we will be citing to the rule.

6. THINGS TO SEARCH FOR OR SEIZE – TRCP 41(b) • evidence of a crime • contraband, the fruits of crime, or items otherwise criminally possessed • property designed or intended for use, or that has been used in a crime • a person whose arrest is supported by probable cause • a person who is unlawfully restrained

7. Who may request a search warrant? Tenn. R. Crim. P. 41(a): The district attorney general, assistant district attorney general, criminal investigator, or any other law-enforcement officer may request a search warrant.

8. Who may sign a search warrant? Tenn. R.Crim. P. 41(a): Authority to Issue Warrant.  A magistrate with jurisdiction in the county where the property sought is located may issue a search warrant authorized by this rule.

9. Who is a magistrate? T.C.A. § 40-1-106. Officials defined as magistrates. The judges of the supreme, appellate, chancery, circuit, general sessions and juvenile courts throughout the state, judicial commissioners and county executives in those officers' respective counties, and the presiding officer of any municipal or city court within the limit of their respective corporations, are magistrates within the meaning of this title.

10. WHO MAY SERVE THE WARRANT? – TRCP(e)(1) The search warrant may only be executed by the law enforcement officer, or one of them, to whom it is directed. Other persons may aid such officer at the officer's request, but the officer must be present and participate in the execution.

11. “NO KNOCK” WARRANTS? • Authority for Forcible Entry. — If, after notice of his or her authority and purpose, a law enforcement officer is not granted admittance, or in the absence of anyone with authority to grant admittance, the peace officer with a search warrant may break open any door or window of a building or vehicle …described to be searched in the warrant to the extent that it is reasonably necessary to execute the warrant and does not unnecessarily damage the property. TRCP 41(e)(2)

12. In Richards v. Wisconsin, 520 U.S. 385, 394 (1997), the U. S. Supreme Court held that “In order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” (cited in State v. Perry, 178 S.W.3d 739, 744-46 (Tenn. Crim. App. 2005)

13. Therefore, if the officer requests a “no knock” warrant, make sure there is a description of the circumstances justifying it in the affidavit (not just talk from the officer). Then add “no knock” language to the warrant language you sign.

14. #1 DO NOT DISCUSS THE FACTS WITH THE OFFICER BEFORE REVIEWING THE AFFIDAVIT (you can discuss why it was rejected, but shouldn’t help the officer re-draw it). (Page 7)

15. #2 IF YOU REJECT THE WARRANT, DON’T GIVE IT BACK UNLESS YOU WRITE “REJECTED” ON IT (this will keep it from being taken to another judge).

16. #3 MAKE SURE THE OFFICER DOES NOT SIGN THE AFFIDAVIT UNTIL SWORN. (Suggested oath: “Do you solemnly swear or affirm that the information in this affidavit is true to the best of your knowledge, information and belief?”)

17. #4 • MAKE SURE THE AFFIDAVIT PARTICULARLY DESCRIBES THE CONTRABAND OR EVIDENCE TO BE SEIZED

18. “crack cocaine, illegal narcotics, pictures, records, ledgers, tapes or items that tend to memorialize drug sales and proceeds therefrom.” “the warrant describes the character of the property subject to seizure with sufficient particularity to enable the searcher to reasonably ascertain and identify the things which are authorized to be seized.”

19. #5 MAKE SURE THE PERSON, PROPERTY OR PLACE TO BE SEARCHED IS SUFFICIENTLY DESCRIBED IN THE WARRANT (or in the affidavit, if it is incorporated in the warrant by reference or is mentioned by the warrant).

20. #6 MAKE SURE THE INFORMATION IN THE AFFIDAVIT IS NOT TOO “STALE” (lapse of time may negate probable cause). You should consider: Is the criminal activity an isolated event or of a protracted and continuous nature? The nature of the property sought. The opportunity those involved would have had to dispose of incriminating evidence.

21. #7 MAKE SURE THE AFFIDAVIT, IF BASED ON HEARSAY, SETS OUT THE INFORMANT’S : 1) BASIS OF KNOWLEDGE AND 2) CREDIBILITY.

22. WHO IS CREDIBLE? • Law enforcement is presumed credible. • Ordinary citizens or bystanders are presumed credible. • Estranged spouses, others with a grudge against the defendant “may have personal reasons for giving shaded or otherwise inaccurate information to law enforcement officials …” so must consider the totality of the circumstances.

23. #8 IF BASED ON THE STATEMENT OF A CRIMINAL INFORMANT, MAKE SURE THE AFFIDAVIT SETS OUT (1) THE BASIS FOR THE INFORMANT'S KNOWLEDGE, AND (2)(a) A BASIS ESTABLISHING HIS/HER CREDIBILITY OR (2)(b) A BASIS ESTABLISHING HIS/HER INFORMATION IS RELIABLE. (the Aguilar-Spinelli test)

24. U.S. Supreme Court abandoned the Aguilar-Spinelli test, but our Supreme Court did not, as our Constitution is more restrictive. • Affidavit must state facts demonstrating reliability, not merely that past information given by the informant has been proven accurate.

25. “a reliable informant who has given true and accurate information in the past” is no good. If you add “which has resulted in four separate arrests and seizures of narcotics,” that makes it OK.

26. #9 WHEN SIGNING THE WARRANT, WRITE ON IT THE DATE AND TIME, AND THE NAME OF THE OFFICER TO WHOM DELIVERING THE WARRANT. Note: TCA § 40-6-106 – Form of Warrant – (see p. 5 and 6 of the handout) is faulty as it contains no blank for the time of day.

27. Be careful with the AM and PM ! • “By erroneously circling p.m., the magistrate endorsed the warrant with a time later than it was executed in violation of the rule's express language …. Accordingly, we are compelled to reverse the trial court's order … . State v. Hayes, 337 S.W.3d at 235 (2009)

28. Also, direct the warrant to an officer who will be present when the warrant is served. The one to whom the warrant is directed must be present when it is served. He or she does not have to be from that county, but if not, an officer from that county must also be present when the warrant is served.

29. TCA 40-6-108, eff. 7/1/11, attempts to create a “good faith” exception to Rule 41, but it is a narrow exception and may be declared unconstitutional. There are as yet no court opinions on any seizure any judge has ruled admissible due to this exception.

30. #10 GIVE THE ORIGINAL AND ONE EXACT COPY TO THE OFFICER, AND KEEP ONE EXACT COPY UNTIL RETURN IS MADE. It does not have to be an exact copy. It’s OK if it is extremely dim or separately signed. This Rule is designed to protect against any post-issuance alteration.

31. #11 REMIND THE OFFICER TO EXECUTE THE WARRANT WITHIN 5 DAYS, AND LEAVE YOUR COPY OUT UNTIL THE RETURN IS MADE, AS A REMINDER TO CALL THE OFFICER IF NO RETURN MADE PROMPTLY.

32. Tenn. Code Ann. § 40-6-107. Return date. (a) A search warrant shall be executed and returned to the magistrate by whom it was issued within five (5) days after its date, after which time, unless executed, it is void. Although execution in 5 days is mandatory, the return in 5 days is not. Why insist on return?

33. 4 Reasons to Require Return 1) You don’t want the officer to make a great case but forget to return it, losing it. 2) The officer may cut a deal with the criminal, keeping the $$ and not seizing the contraband. 3) Prompt returns protect the officer from civil liability. 4) The officer should be held accountable for the information made to you under oath.

34. “We hold that the five-day period in which a search warrant must be executed … is to be computed using calendar days rather than hours. Thus, a search warrant is valid if executed by midnight of the fifth day after its issuance, with the calculation of days to exclude the day of issuance.State v. Stanley, 67 S.W.3d 1, 3 (Tenn. Crim. App. 2001).

35. #12 WHEN YOU SIGN AND DATE THE RETURN, MAKE SURE THE OFFICER HAS SIGNED IT FIRST, AND THAT IT IS FILED WITH YOUR COURT CLERK’S OFFICE.

36. Tenn. R. Crim. P. 41 (d) provides in pertinent part that the “magistrate shall ... transmit the executed original warrant with the officer's return and inventory to the clerk of the court having jurisdiction of the alleged offense in respect to which the search warrant was issued.”

37. #13 FILE YOUR EXACT COPY OF THE WARRANT IN YOUR PERMANENT FILES AFTER IT IS RETURNED.

38. “Good Faith” Exception TCA 40-6-108, eff. 7/1/11, states as follows: [A]ny evidence that is seized as a result of executing a search warrant issued pursuant to [Rule 41] that is otherwise admissible in a criminal proceeding and not in violation of the constitutions of the United States or the State of Tennessee shall not be suppressed as a result of any violation of [Rule 41] if the court determines that such violation was a result of a good faith mistake or technical violation made by a law enforcement officer, court official, or the issuing magistrate … . BUT >>>>>

39. What is a “good faith mistake” or “technical violation?” It means one of three things: (1) An unintentional clerical error or clerical omission made by a law enforcement officer, court official or issuing magistrate in the form, preparation, issuance, filing and handling of copies, or return and inventory of a search warrant;

40. (2) When the officer to whom the warrant is delivered for execution is not present during the execution but an officer with law enforcement authority over the premises does otherwise execute the search warrant; and (3) A reasonable reliance on a statute, rule or procedure that is later ruled unconstitutional.

41. Warning! This law may be unconstitutional. It will not save a warrant that lacks probable cause, is based on an unreliable informant, or has a bad description of the place or property to be seized. If the case goes Federal, that judge may not care anything about our state statute.

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