GENERAL ORDER # 055
SUBJECT: SEARCH WARRANTS
# OF PAGES: 10
The written directives developed by the Police Department are for internal use only, and do not enlarge an officer’s civil or criminal liability in any way. They should not be construed as the creation of a higher standard of safety or care in an evidentiary sense, with respect to third party claims. Violations of written directives can only be the basis of a complaint by this department, and then only in an administrative disciplinary setting.
PURPOSE: To set forth the procedure to be utilized by all officers in applying for, executing and documenting the search warrant process.
POLICY: The search warrant is one of the most powerful weapons in the law enforcement arsenal. Properly obtained and executed, the search warrant assists police and prosecutors in finding vital evidence, securing its admissibility at trial, and ultimately obtaining a conviction. To that end, and pursuant to Attorney General’s Law Enforcement Directive 2002-2, officers must submit a completed Search Warrant Approval Form to the designated Burlington County Assistant Prosecutor for any search warrant being sought. This is intended to ensure that search warrants are properly and effectively utilized, and that officers are aware of and comply with all rules and procedures established by law or Court Rules that are designed to safeguard the rights of citizens under the United States and New Jersey Constitutions to be free from unreasonable searches and seizures.
A. The Fourth Amendment to the United States Constitution prohibits unreasonable searches. Officers who conduct a search without a warrant bear the burden of proving that the search was reasonable.
B. Although there are certain situations where it is prudent and necessary to conduct a search without first obtaining a warrant, there are also reasons why officers should always attempt to secure a warrant, whenever time and circumstances permit, rather than attempt to invoke one of the exceptions to the written warrant requirement.
1. The warrant shifts the burden of proof to the defendant on the admissibility of the evidence.
· Warrantless searches are, in effect, presumed by the courts to be unreasonable, and the officer must prove to the court that the search, though warrantless, was reasonable.
· Conversely, a search conducted under the authority of a valid warrant is presumed by the courts to be reasonable. In order to challenge the validity of the search, the burden shifts to the defendant to prove that the search was improper.
2. The exceptions to the written warrant requirement are often highly technical and generally very narrowly construed by the courts.
3. The practice of obtaining and properly executing a valid search warrant will vastly increase the likelihood that evidence seized as a result of the search will be deemed admissible by the courts.
4. The existence of a valid search warrant greatly reduces the chances of a defendant successfully suing an officer for a violation of the defendant’s civil rights.
C. The decision to make application for a search warrant shall be made by the investigator assigned to the case and must be approved by a supervisor assigned to the investigative bureau.
1. If the patrol bureau is investigating the incident giving rise to the need for a search warrant, the watch commander shall review the need for such action and, if approved, the duty detective shall be summoned to provide assistance with the search warrant process.
2. The duty detective shall be responsible for assisting patrol bureau personnel with all phases of the search warrant proceedings.
II. Basis for Issuance of a Search Warrant
A. In order for an officer to satisfy the requirements of Fourth Amendment in seeking a search warrant it will be necessary for the officer to:
1. Demonstrate that probable cause exists to conduct the search,
2. Present the underlying probable cause to a judge while under oath,
3. Ensure that the application and the warrant itself specifically describe the place to be searched and the evidence being sought.
B. In determining whether these requirements have been satisfied, the judge is NOT entitled to rely on the judgment of law enforcement officers. He or she is expected to review the materials submitted to make a detached, independent judgment as to the existence of probable cause.
1. Thus, the importance of including all relevant information in the search warrant application cannot be overstated.
2. At a Motion to Suppress, the prosecutor cannot introduce information for consideration that is not included in the search warrant application.
III. Probable Cause
A. Probable cause does not require an absolute certainty that the items sought will be found at a particular location, but, on the other hand, a mere hunch or possibility is not enough.
B. Upon considering a search warrant application, the judge must make a practical, common sense decision whether, given all the circumstances set forth in the application (affidavit), there is a fair probability that contraband or evidence of a crime will be found in a particular place.
C. Although probable cause is generally considered time-sensitive, it may not be necessary to show that there is probable cause to believe that the evidence is presently to be found at the specified location.
1. If an officer can show that the evidence, though not currently at the specified location, will be found there at some point in the near future, the judge may issue a search warrant.
2. These Anticipatory Search Warrants have been approved by the courts provided an officer can show that the evidence is on a “sure course” to arrive at the specified location.
D. There is no set time limit to the timeliness of probable cause and it will be determined by the circumstances that are generally unique to each case. However, in order to avoid a possible judicial finding that probable cause has grown stale prior to the issuance of a warrant, officers should act quickly to obtain a search warrant once they have determined that they have probable cause to search a particular location.
IV. The Affidavit
A. In order to request issuance of a search warrant, it will be necessary to make application with a judge in the form of an Affidavit.
1. An affidavit is simply a signed, sworn statement setting forth certain information regarding the proposed search.
2. While an affidavit does not need to be a lengthy or complex document, proper composition and wording are necessary to diminish the likelihood of a successful challenge by defense counsel to the validity of the warrant.
B. To satisfy the constitutional requirement of specificity, a search warrant affidavit should clearly state:
1. The offense in relation to which the search is being conducted.
2. The person, place, or thing to be searched.
3. The items to be searched for.
4. The probable cause for believing that such items are to be found at that location.
C. In describing the “place to be searched”, it will be necessary to describe specifically what it is that an officer desires to search. (i.e., a specific house, a specific person or a specific automobile)
1. The detailed description must appear in both the affidavit and the warrant.
2. The method or methods of describing the “place to be searched” will vary depending on the circumstances.
3. The description must be sufficiently precise to make it clear to the officers executing the warrant, which premises are to be searched.
D. Where specific premises are to be searched, the description of those premises shall include such items as:
1. Street addresses.
2. Physical description of the property.
3. Legal description of the property (lot & block number).
4. The names of the owners or occupants.
5. Map coordinates or distances from given points.
6. Photographs, diagrams, maps, etc.
E. A search conducted under a warrant may not exceed the limits defined in the warrant. It is therefore imperative that the affidavit and warrant describe all of the areas that the officers desire to search.
1. An important concept related to the search of premises is the “curtilage”. This term generally refers to the land immediately surrounding a residence and any outbuildings found upon that land.
2. Because the extent to which the court will recognize the curtilage can be uncertain from case to case, if at all; it is desirable to include specific references to a yard, garage, tool shed, barn, etc. in the warrant description, when such building are known to exist.
F. The “particularity” requirement of the Fourth Amendment, that requires detailed identification of the person, place or thing to be searched, also mandates that the warrant specifically describe the items to be searched for.
1. Therefore, it is necessary when applying for a warrant to list in detail the items being sought.
· Setting forth a detailed description of the items to be searched for will not necessarily prevent the admission of other evidence found at the scene.
· However, if the officers applying for the warrant have probable cause to believe that a certain item will be found at the location specified, these items should be listed.
2. It may be useful to include a statement in the description of things to be searched, that the search is not just for the entire item itself, but also for parts or pieces of that item.
G. Rule 3:5-5 provides that: “The warrant must be executed within 10 days after its issuance and within the hours fixed therein by the judge issuing it, unless for good cause shown the warrant provides for its execution at any time of the day or night.”
1. If the circumstances are such that it cannot be determined when the search warrant will be executed, and as a result the affiant is requesting permission to execute the warrant during any hour of the day or night, then the affidavit in support of the application for the search warrant must set forth specific reasons to justify such a warrant.
V. Approval of Search Warrant (A.G. Directive 2002-2)
A. All officers applying to a New Jersey Judge for the issuance of a Search Warrant must first obtain the expressed authorization of a designated Assistant Prosecutor.
1. The Prosecutor has designated the Duty Prosecutor as the appropriate point of contact for all officers seeking a Search Warrant.
2. During regular business hours, the Duty Prosecutor can be contacted at the Prosecutor’s Office. Thereafter, the officer making application shall personally present the Duty Prosecutor with the completed Affidavit, Search Warrant and Search Warrant Approval Form.
3. During non-business hours, the Duty Prosecutor shall be contacted through Central Communications, and the officer making application will be required to fax a copy of the Search Warrant Approval Form to _________________.
B. The Duty Prosecutor charged with reviewing the Search Warrant Application is authorized to deny the application, approve the application, amend the application or make approval of the application contingent upon some further investigative step, notification and/or consultation with some other law enforcement officer/agency or such other action to be taken by the applicant as deemed necessary to satisfy the requirements of the Attorney General’s directive governing Search warrants.
C. In the event that a reviewing Duty Prosecutor declines to approve an application, or conditionally approves an application subject to a condition that has not been satisfied, the applicant, or any other person representing the applicant’s law enforcement agency, shall be prohibited from making an application to any other Prosecutor without revealing in the successive application the fact that an application has previously been reviewed by another Prosecutor.
D. The officer who contacts the Duty Prosecutor to seek review of the application for a Search Warrant should be the actual affiant or lead officer associated with the investigation.
E. The Duty Prosecutor responsible for reviewing the application for a Search Warrant shall determine the appropriate Judge before whom the application shall be made and shall additionally be responsible for contacting the Judge.
F. Any law enforcement officer having knowledge of an application for or the execution of a Search warrant shall be strictly prohibited from disclosing to a non law enforcement officer any facts contained in or concerning the application for the warrant, or the fact that such a warrant will or has been sought or executed, unless such disclosure is expressly authorized by the County Prosecutor or his designee.
G. The officer applying for issuance of a search warrant is responsible for informing the reviewing Duty Prosecutor if circumstances exist that would justify a request to the Judge for permission to include special conditions relative to the manner of execution of the search warrant (i.e., “no-knock”, special hours, etc.).
H. Upon obtaining a search warrant from a Judge, the assigned officer shall carefully review the warrant to ensure that all pertinent information set forth in the Affidavit is accurately included and that the warrant has been properly signed. Officers shall not attempt to serve any search warrant that is known to contain substantive or administrative errors.
VI. Search Warrant Approval Form
A. A Search Warrant Approval Form has been developed by the Division of Criminal Justice for statewide utilization in conjunction with the search warrant application process. The use of the form is mandatory in all instances where an officer will be seeking court approval for a search warrant. The purpose of the form is two-fold:
1. First, the form will assist the duty prosecutor charged with reviewing the search warrant application in determining if there is legal sufficiency for issuance of the search warrant.
2. Second, the form seeks answers to a series of questions intended to alert the reviewer to the possibility of an independent investigative interest on the part of another law enforcement agency in the target, informant or cooperating witness being utilized to support the search warrant.
B. The officer completing the Search Warrant Application Form is not required to contact every other law enforcement agency that might conceivably have an interest in the execution of the search warrant. However, at a minimum the investigating officer shall:
1. Conduct a computerized NCIC criminal history inquiry on the target to determine the existence of any pending criminal complaints.
2. Consult with the appropriate representative from a specialized unit within the County Prosecutor’s Office to determine if similar enforcement activities are occurring elsewhere in the county.
3. It should be noted that in situations where a criminal investigation develops swiftly and spontaneously, so that time is of the essence in executing a search warrant, it would not be reasonable to expect an officer to delay execution of a search warrant in order to determine whether or not another law enforcement agency might have an interest in the target of the investigation or the place to be searched.
C. The Search Warrant Application Form and Approval Process are not required for Administrative Search Warrants, or for Court Orders to enter premises to retrieve weapons pursuant to N.J.S.A. 2C:25-21 (Domestic Violence) where the weapons to be seized are not believed to be contraband, evidence or an instrumentality of a criminal offense.
D. Completed Search Warrant Approval Forms are not discoverable pursuant to R. 3:13-3 and shall not be included routine discovery packages.
E. Before leaving the office of the judge, officers are directed to carefully review the warrant to make certain that it sets forth all of the affidavit information accurately and completely, and that the warrant has been signed in the proper place by the issuing judge.
VII. Knock and Announce Rule
A. The reasonableness requirement of the Fourth Amendment requires officers to knock and announce their identity and purpose before forcibly entering a dwelling. This is known as the knock and announce rule.
B. Officers armed with a search warrant to search a dwelling must comply with the knock and announce rule, and failure to do so will result in the suppression of evidence otherwise lawfully seized pursuant to the warrant.
C. The following describes several sets of circumstances that have been identified as recognized exceptions to the knock and announce rule that, when present, would justify an officer from dispensing with the knock and announce requirement:
1. Officer need not knock and announce their identity and purpose if they have reason to believe that to do so would result in the destruction of evidence sought.
2. There is no need to comply with the knock and announce rule where an arrest is also sought to be effected, AND the police have reason to believe that compliance with the knock and announce rule will substantially aid in the escape of the person sought.
3. Compliance with the knock and announce rule is not required where there is reason to believe that to do so would imperil the safety of the officers or someone within the premises.
D. Similarly, where following the knock, the persons inside the premises engage in activities which justify the officers in believing that the evidence sought is being destroyed or that a person to be arrested is escaping, then compliance with the announcement portion of the knock and announce rule is excused and force may be used to gain admittance, as necessary.
E. When officers knock and announce both their identity and purpose, and the response is an expressed refusal to permit the police to enter, then force may be used to gain admittance.
F. Officers may force their way into the premises if, after complying with the knock and announce rule, there is an implied refusal of admittance. There are no set rules as to the length of time that officers must wait after complying with the knock and announce rule.
G. The Courts have made it clear that the reasonableness of a no-knock entry must be evaluated in light of the facts known to the officers at the time of the entry.
H. Although there is no statute that expressly authorizes a judge to issue a “no-knock” search warrant, the Appellate Division (State v. Goodson) assumed that a judge may issue a no-knock search warrant. The officer applying for the warrant will need to provide the judge with sufficient facts that would justify dispensing with the knock and announce rule.
VIII. Operational Plan and Briefing
A. Prior to executing any search warrant, the lead investigator shall be required to formulate an Operational Plan detailing the planned operation. The Operations Plan Checklist shall be used to assist the lead investigator in the preparation of a comprehensive operations plan.
B. The Operational Plan shall address the following areas:
1. Operational overview – Included shall be a brief synopsis of the investigation that led to the issuance of the search warrant, type of warrant (knock or no-knock), address and description of the target location, number and identity of probable occupants at target location, number and identity of persons for whom arrest warrants have been issued, number and identity of persons to be searched in accordance with the warrant.
2. Personnel assignments
· Supervisory personnel and the incident commander
· Entry Team
· Search Teams
· Evidence Collection
· Perimeter Teams
· Arrestee Security/Transportation
3. Authorized equipment and weapons
4. Designated hospitals for injured officers/civilians
5. Designated police radio channel (primary and secondary)
6. Location of processing/holding facility
7. Special instructions/information
C. All Operational Plans must be submitted to the investigative bureau supervisor for preliminary review and approval. Final review and approval must be made by the operations division commander or, in his absence, an alternate command officer.
D. All law enforcement personnel participating in the execution of a search warrant will be instructed to muster at a designated time and location in order to facilitate a complete briefing of the proposed operation. The officer in charge or his designee (briefing Officer) shall conduct the operational briefing.
IX. Executing the Search Warrant
A. Only law enforcement officers shall be present during the execution of a search warrant unless extenuating circumstances exist and the presence of non law enforcement personnel is deemed necessary and has been approved by a command officer.
1. In Wilson v. Layne, the United States Supreme Court held that the Fourth Amendment forbids police to allow reporters to be present during the execution of an arrest or search warrant in a private residence.
B. Comply with the knock and announce rule unless armed with a “no-knock” search warrant.
C. Once inside the target premises, locate those persons who are to be searched pursuant to the warrant or who are to be arrested pursuant to arrest warrants.
1. Persons named in arrest warrants shall be handcuffed at the earliest opportunity.
2. Generally, a warrant to search a premises does not authorize a search of each person in those premises at the time the warrant is executed.
3. A warrant to search a premises does not even authorize a frisk of a suspect found in those premises unless there is a reasonable belief that the suspect is armed and presently dangerous.
4. However, when the warrant authorizes a search for contraband, occupants of the premises who are not named in either the search or arrest warrants may be detained while the search is being conducted. Questions designed to elicit basic identification information may be asked.
5. After searching the persons who are to be searched pursuant to the warrant or incident to their arrest, gather all occupants of the premises at one location and read the search warrant verbatim to the occupants. Give a copy of the search warrant to any persons whose premises are to be searched.
D. Read Miranda Warnings to all occupants and make sure all of the persons present understand the warnings.
E. While the warrant and Miranda Warnings are being read to the occupants, designated officers shall photograph and/or videotape the premises to mitigate any claims of damage caused by officers during the execution of the search warrant.
F. Assign sufficient personnel to secure the occupants to prevent interference with the search and/or destruction of evidence.
G. Officers are authorized to search any container that could reasonably contain the objects sought by the warrant. The general rule is that the object of the search governs the scope of the search.
H. Officers assigned to the search teams shall use care to ensure that the premises and its contents are not unnecessarily damaged as a result of the search.
1. Any item that is not seized as a result of the search shall be returned to its original location.
2. Reckless destruction of property is prohibited and may subject an officer to discipline and/or civil liability.
I. The object of the search limits the scope of the search. Common sense dictates that officers who are searching for a television cannot find it in a pill bottle. Thus, a search of a pill bottle by an officer armed with a search warrant for a television would not be authorized by the warrant and any evidence found in the pill bottle would likely be suppressed.
1. Also, if the warrant identifies only a particular item that is being sought, once that item is found the authorization to search is terminated.
2. However, if the warrant authorizes a search for items of a general type, rather than specific items, the search authorization would not terminate upon finding the first item. For example, authorization for a search for “explosive devices” would not terminate merely because one such device was located.
J. Upon completion of the search, a copy of the warrant and a Search Warrant Receipt form shall be given to each person from whom property was seized pursuant to the warrant, and to each person from whose premises property was seized pursuant to the warrant.
1. The person shall be asked to sign the receipt acknowledging exactly what property police seized.
2. If there are no persons present at the premises during the search, a copy of the search warrant and the receipt form shall be left in a conspicuous location within the premises.
3. In situations where the person refuses to sign the receipt or there are no persons present at the premises, a supervisory officer shall be summoned to verify the accuracy of the receipt and thereafter shall co-sign the receipt to attest to its accuracy.
K. Court Rule 3:5-5 requires the officer executing the warrant to leave a receipt with the person from whom or from whose premises property is taken pursuant to a search warrant. It also requires the officer to file an inventory with the Return of Search Warrant. For purposes of the above-cited Court Rule, the receipt and inventory are to be considered the same document, i.e. the Search Warrant Receipt form.
X. Return and Filing
A. The officer who filed the original affidavit in support of the search warrant shall be responsible for following through with the process to ensure that all procedural steps are accomplished in a timely fashion.
B. Promptly after concluding the search, and in no case later than 48 hours after the search is concluded, the officer shall make arrangements to appear in front of the judge who issued the search warrant. The officer must deliver to the issuing judge the following documents:
1. The original Search Warrant.
2. The original receipt/inventory (Search Warrant Receipt).
3. The Return of Search Warrant form.
· The officer shall sign the Return of Search Warrant form in the presence of the judge who administers the oath to the officer.
· The judge then signs the Return of Search Warrant in two places indicated on the form.
XI. Telephonic Search Warrants
A. A telephone authorized search warrant may be upheld as valid if the officer can show both the existence of probable cause for the search and seizure, AND that the failure to obtain a written warrant was necessitated by exigent circumstances.
B. Circumstances giving rise to emergency situations which have been upheld by the courts include, but are not limited to:
1. The degree of urgency involved/amount of time necessary to obtain a warrant;
2. Reasonable belief that contraband is about to be removed;
3. The possibility of danger to police officers guarding the site of the contraband while a search warrant is sought;
4. Information indicating that the possessors of the contraband are aware that the police are on their trail; and
5. The ready destructibility of the contraband and the knowledge that efforts to dispose of the contraband and to escape are characteristic behavior of persons engaged in this type of crime.
C. The following are the general guidelines for issuance a telephonic search warrant:
1. The applicant police officer must suitably identify himself.
2. The officer must specify the purpose of his request.
3. The officer must also disclose the basis for the information he intends to impart to the judge and MUST be placed under oath or affirmation by the judge before presenting any information.
4. The judge will make a contemporaneous record of the application, whether by tape or stenographic recording or by making adequate notes thereof.
5. The judge will also make a contemporaneous record or notation of his factual determination as to exigent circumstances and probable cause.
6. The judge will memorialize the specific terms of his authorization to search. Further, promptly after such authorization, the judge will issue a written confirmatory search warrant and shall file that warrant together with all documents evidencing the oral application and authorization with the clerk of the court.
D. Court Rule 3:5-3(b) explains that the sworn testimony given by the officer over the telephone to the judge “shall be deemed to be an affidavit for the purpose of issuance of a search warrant”.
1. If the judge is satisfied that the exigent circumstances and probable cause are sufficient, he will note this in writing and direct the officer “to enter his authorization verbatim on a form, or other appropriate paper, which shall be designated as the Duplicate Original Search Warrant.
2. This “Duplicate Original Search Warrant” shall be deemed a valid search warrant. The judge will then direct the officer to print the judge’s name on the warrant. By completing these procedural steps, the officer is permitted to utilize the telephonic search warrant in the same way he would utilize a standard written warrant.