The Proper Procedures for Executing a Warrant
and Testifying to Law Enforcement Actions
BY: Dr. Peter A. Barone, Esq.
When executing a Warrant to Search to Seize property or an Arrest
Warrant to Seize a Person the law
enforcement official(s) need to make sure that they document everything that is
done on the scene so it can be testified to in a criminal proceeding or
criminal trial. This information will be examined and scrutinized by the
defense attorney in all criminal cases.
Understanding the various issues and aspects of obtaining, executing, performing an inventory, creating property receipts, and accomplishing the return of the warrant and the accompanying forms will provide the law enforcement officer with the ability to better provide valuable testimony when the defense attempts to suppress it and the prosecution tries to have it admitted.
Noting the Date,
Time and Location
The officer executing the
warrant must enter on it the exact date and time it was executed and any and
all documentation regarding the day, time, and location of the execution is
critical and will definitely be a point of in depth examination by defense
attorneys. It must be remembered that any discrepancy here will provide the
defense with a window into attacking the law enforcement official’s case and
the prosecutor’s case.
Inventory
An officer present during
the execution of the warrant must prepare and verify an inventory of any
property seized. The officer must do so in the presence of another officer and
the person from whom, or from whose premises, the property was taken. If either
one is not present, the officer must prepare and verify the inventory in the
presence of at least one other credible person. In a case involving the seizure
of electronic storage media or the seizure or copying of electronically stored
information, the inventory may be limited to describing the physical storage
media that were seized or copied. The officer may retain a copy of the
electronically stored information that was seized or copied. This inventory
must be accomplished in the most perfect and accurate manner. If one item is
not memorialized properly it will be the beginning of the point of exploiting
the entire execution of the warrant and the collection of evidence.
Reciept
The officer executing the
warrant must give a copy of the warrant and a receipt for the property taken to
the person from whom, or from whose premises, the property was taken or leave a
copy of the warrant and receipt at the place where the officer took the
property. Again, like the inventory the property receipt must be accomplished
in the most perfect and accurate manner. If one item is not memorialized
properly it will be the beginning of the point of exploiting the entire
execution of the warrant and the collection of evidence.
Return
The officer executing the warrant
must promptly return it together with a copy of the inventory to the magistrate
or the judge designated on the warrant. The officer may do so by reliable
electronic means if the agency has the ability and the court allows for this
method. The judge must, on request, give a copy of the inventory to the person
from whom, or from whose premises, the property was taken and to the applicant
for the warrant. Again, like the inventory and the property receipt the return must
be accomplished in the most perfect and accurate manner. If one item is not
memorialized properly it will be the beginning of the point of exploiting the
entire execution of the warrant and the collection of evidence.
This is How the Court
Decides Whether Law Enforcement Actions Violated the Fourth Amendment
In general, a court
will ask two questions to conclude whether a police investigation turned into a
search and if it was conducted in a legal manner. The court will first to ask
if the person whose home or property were being investigated/searched expected
a degree of privacy. Second the court will then ask if that expectation of privacy
was reasonable. The question is answered in the light of society, meaning the
question revolves around whether society would recognize some sort of privacy
in the matter in question. To have an investigation to turn into a search, a
court must conclude that the investigation impinged or intruded upon a person's
"legitimate expectation of privacy." An intrusion into a person’s
legitimate expectation of privacy is found when the answer to the above two
questions is yes. If either question can be answered in the negative, meaning
that the person being search either did not have something to keep private, or
if the expectation of privacy was not reasonable, then there was no search. The
law enforcement officers are going to have to provide testimonial evidence
during a hearing for the judge to make the proper informed decision regarding
this issue. The best way to avoid the uncomfortable feeling of being in one of
these hearings is to obtain an arrest or search warrant prior to taking the
searching action. 