Better And Better

If you don't draw yours, I won't draw mine.

Sunday, January 25, 2015

Warrants: how you serve them. (For the cops out there.)

I'm a garden-variety cop. My phone number is not zero, and I'm not a Billy Badass. I believe that I am competent at my job, though, and one aspect of that job is case development and evidence-gathering. Another is making arrests of those whom I have proven had sufficient probable cause to be taken to jail. If the event was on-view, I arrest them then and there. If I put the P.C. together after the fact, I get a warrant, and go arrest them later. 


I list here the steps to getting a warrant, because it seems like there are those who don't follow them, sometimes, and they make the news. Maybe we need to publish a primer, or something. So here's mine:


The first step in getting a warrant is to soundboard your plan against a competent cop. Sometimes this is your boss. Sometimes it's a peer with another agency. But explain what you're trying to do, and what evidence you have, and ask him or her to review your plan to check it for blind spots or subjective assumptions.  This is not just about being a professional-- it's about being fair to the suspect and to the system. Sometimes an investigator will miss a glaring reason why either:
1) The charge is incorrect or less appropriate than another charge,
2) The suspect is exempt from the charge due to statute or case law
3) The investigator needs to recuse himself from further investigation due to a conflict of interest.
4) Reason X, which hasn't been thought of yet.
Lots of cops don't do this, because they don't want to look like they're not capable of handling it by themselves. I used to be like that. Trust me: the seasoned cop soundboards, and does a better job because of it.


A second step (which is not necessary in my jurisdiction but which is a very good idea) is to run your proposed action by the local assistant District Attorney. He or she can often give advice about the procedure which is helpful (after all, they're the ones you're asking to prosecute the case in court). Just as importantly, though, you're getting a D.A. to sign off on your case, and take ownership of the case. This definitely helps.


A third step, in the service of a Search Warrant or Search And Arrest Warrant on a property is to go get photographs of exactly what you plan to search. Is it the shed behind 101 Main St? Get a few digital photos of it. Attach them to your Probable Cause Affidavit for your search warrant. Describe the property carefully in the first paragraph of the Warrant Affidavit.


Go take the affidavit and the warrant (You should have a generic warrant form on your thumb drive and on an office computer. Don't have one? Get one, right now. Save it. Make it editable. Don't wait until you need it; that's too late. Ask your D.A.) to the judge or magistrate. Swear to it, and get the warrant. Attach the photographs to it.  Make a copy of the warrant for the property owner/manager/tenant.


SERVE THE WARRANT YOURSELF.
I'm not saying "serve it all by yourself." But you will physically be there. Even if you need to assemble a team of 20 snake-eating Professional Operators (tm) to help you, you will be present when that warrant is served. You will brief everyone helping you on what to expect, and what you're trying to accomplish.  "They got the wrong address" is not an acceptable excuse. In such an instance, you, the investigator obtaining the warrant, have personally failed.


You will see that everyone on the warrant service team is attired in an easily-recognizable police uniform. Warrant service is not the time to go Office Casual. This is the time for badges displayed, patches displayed, and large patches with the name of your agency presented prominently. You will all carry police identification as well, which you will gladly present if at all possible to do so safely. Every officer present on the warrant service team will be identified, and their role given, on the call for service or incident report.


You will make contact in a courteous, professional manner with the homeowner or resident or manager, and state your business. You will present them with a copy of the judge's order to search the specified property. You will then make clear that you are going to follow that order at that time. While there is a clear imperative, here, this does not have to be an adversarial dialogue. Be respectful to that citizen; you work for him or her.

Document how you go about this. Roll video, with audio. I like car video, backed up by body cameras.


Secure the scene. Be courteous but direct. Screaming "Get On The Ground" and pointing weapons at people who happen to be there is not courteous. Don't point weapons at people just because you're serving a warrant and they're present. You need to be able to articulate why they were a threat before you point a weapon at someone.  I'm serious about this.


As I've written before, don't serve No-Knock Warrants unless there's a hostage present.


Leave a list of what you took as a receipt for the resident or manager. Have a scribe keep the list during the search, and photograph what you took and what the condition of it was.


Get out.


Send a return to the judge or magistrate, showing that the warrant was served, and what you seized.




Lots of cops say, "that's above my pay grade." "That's for the detectives." "That's just the way I was shown how, and we don't have time for that." 


Fellow peace officers, a search warrant is a very specific exception to rights held by our citizens. Take it seriously. Do it right. Even if you don't do them, know HOW to do them. If learning how is too much trouble, then go find other work, please. We've got this.


Let us be professionals.

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15 Comments:

At Sunday, January 25, 2015 12:30:00 PM, Blogger Well Seasoned Fool said...

A very clear summation of the difference between a Peace Officer and the Police.

Thank you for being a Peace Officer.

 
At Sunday, January 25, 2015 4:23:00 PM, Blogger Old NFO said...

Not being sarcastic, but I 'thought' that was taught in academy training, and a routine in service training requirement.

 
At Monday, January 26, 2015 10:13:00 AM, Blogger Captain Tightpants said...

Well written - if you don't mind I'm actually going to print this out and pass it out to our current academy class for future reference.

 
At Monday, January 26, 2015 3:03:00 PM, Blogger JPG said...

Very well written, Sir. You're a better peace officer than I was, and you make me very proud.

 
At Monday, January 26, 2015 9:57:00 PM, Blogger Mr. Fixit said...

I don't do it often, in fact very few times so far. But this is printed saved for those times. Good words.

 
At Tuesday, January 27, 2015 6:13:00 PM, Blogger Matt G said...

Feel free, Cap.

We need to empower our new cops to Be Somebody, or at least know how, while maintaining the rights of the citizens whom they serve, even while (ESPECIALLY while!) enforcing the law on them.

 
At Wednesday, January 28, 2015 11:26:00 AM, Blogger Old NFO said...

Huh, guess my comment never posted, but I always 'thought' this was taught at the academy, and was a theme of recurrent training...

 
At Thursday, February 05, 2015 3:54:00 PM, Blogger Matt G said...

Sorry, NFO--

It's glossed over in academy, but never done like a check list. Notice that I don't put the boilerplate here, and don't put in a template of a warrant. Your local states and laws may vary slightly on requirements. Your local District Attorney will have the format of actual document that he wants.

But I was a veteran cop before I got into writing them, and serving them. It was only then that I realized that I had not actually been a finished cop, before that.

 
At Friday, February 06, 2015 9:03:00 AM, Blogger Charles Pergiel said...

You start off talking about arrest warrants, but then start talking about search warrants. I'm sure the legal and bureaucratic procedures are very similar, but I'd think that serving them could be very different. What are you allowed to seize, if anything, when serving an arrest warrant? Who are you allowed to arrest when serving a search warrant? I think you've got the beginnings of a class here, maybe not an academy class, but a continuing education class anyway.
On a side note: What about all those cops who man those one and two person cop shops out in the boonies. Do they go through a police academy?

 
At Friday, February 06, 2015 10:56:00 AM, Anonymous Evyl Robot Michael said...

I'm proud to count you among my friends. Keep up the good work sir!

 
At Friday, February 06, 2015 2:23:00 PM, Blogger Matt G said...

Charles, most cops who patrol and make arrests write affidavits of probable cause, which are used to obtain warrants of arrest. Those are very straightforward:
1. You are aware that Subject Smith committed crime X.
2. You gather your information together and put it into a concise document, which proves why you have Probable Cause to believe Smith committed X.
3. You swear to the veracity of the document, and a judge reviews it.
4. The judge agrees that Probable Cause, as you have sworn to it, exists, and signs a warrant for the arrest of Smith for the crime of X.
5. You serve that warrant, or else you put it into the local database, and another cop serves it, next time they come across Smith. This is called "filing at large."

If you have a felony warrant, you are granted more latitude in what you may do to serve the warrant, such as making forceful entry to a residence. Anything which is patently illegal observed in plain view during the service of the warrant may be seized, but best practice is to seal to location after making the arrest, and come back with a search and seizure warrant.

There are Search And Arrest warrants, which combine the two. We should take better advantage of those during blood draw warrants, frankly, for DWI's.

 
At Friday, February 06, 2015 6:29:00 PM, Blogger staghounds said...

Long time ADA here.

1. What Matt wrote. Search warrants can be a fantastic crime fighting tool ESPECIALLY for patrol officers. You caught a burglar, RIGHT NOW is the time to find out where he fences his stuff and hit that place. Turn a little arrest into a big recovery for victims and a serious hurt on thieves and their support network.


2. CALL ME (or rather the me in your jurisdiction) and I will be THRILLED to help you. Especially at two in the morning. If your ADAs haven't refined the warrant procedure so they can do them in 20 minutes from home, they are ignorant, stupid, or lazy. If they think helping officers learn to navigate warrants isn't part of their job, they aren't dedicated. Active warrant work is one of the most effective ways a prosecutor can fight evil.

3. It is masses of fun to catch crooks by surprise, and you never know what you may find.

 
At Tuesday, February 10, 2015 10:24:00 AM, Anonymous Anonymous said...

Before relying on the following discussion, please read the disclaimer at the end.

There are important differences between execution of a search warrant and a search incident to an arrest. The scope of a search incident to a valid arrest, with or without a warrant, is generally limited to places under the control of the suspect. The scope of a search warrant is only limited by the description in the warrant of the location to be searched and the items to be searched for. An arrest warrant, or a valid warrantless arrest, must be based on probable cause that that suspect has committed a crime that makes him liable to arrest. Search warrants require probable cause that there is specifically described evidence of a crime in the place to be searched.

For example, Officer Clever gets a search warrant for 123 Elm St to look for drugs and evidence of drug dealing (cash, scales, packaging material, cutting agents and so on) based on observations of traffic at the location, statements made by reliable informants, and a ‘controlled buy’ without ever identifying Clarence Sumdood as the suspect. The search warrant could describe the house and maybe the Escalade (registered to Mr. Sumdood) usually parked there. When the warrant is executed, the whole house and the Escalade can be searched. The occupants of the premises can be detained during the search and patted down for weapons. This is not an arrest. It’s a ‘less intrusive’ investigative detention like a traffic stop or the so-called ‘Terry’ stop and frisk. Officer Clever gets his grounds for a warrantless arrest when two kilos of Bolivian Marching Powder are found under Clarence’s bed.

Contrast Officer Clueless. Based on the same facts, Officer Clueless gets his informant to identify Clarence as the guy who sold him an eight ball at 123 Elm St. and gets an arrest warrant. But for some reason known only to Murphy, no search warrant. Even if Officer Clueless arrests Clarence at Elm Street, unless he is next to (or in) his bed, Officer Clueless won’t find the two pounds of marching powder because the scope of the permissible search under the arrest warrant is so much more limited.

By the way, if it’s a hostage situation, Officer Clever doesn’t waste time worrying about warrants. Exigent circumstances are an exception to the general requirement for warrants.

Disclaimer:
While I am a lawyer, I am not your lawyer. I’m likely not licensed to practice in your jurisdiction, and the law can be different in different places. In the United States, we have constitutional rights under both state and Federal law. These rights are not the same everywhere, and different courts can and do interpret the same words quite differently sometimes. If your liberty is at stake, or if the liberty of some guy like Clarence Sumdood is at stake, get a local lawyer or talk with your friendly local ADA. Oh, and lest I be accused of racial profiling, you should know that Clarence is Canadian.

 
At Wednesday, February 11, 2015 7:46:00 PM, Blogger staghounds said...

Which is why a good affidavit requests, and a good warrant commands, the search of 123 Elm Street, "and all persons, vehicles and outbuildings on the premises."

 
At Wednesday, February 11, 2015 7:48:00 PM, Blogger staghounds said...

Which is why a good affidavit requests, abd a good warrant commands, the search of 123 Elm St. "and all persons, vehicles, and outbuildings upon the premises".

 

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