Washington State Search Warrant Issue Spotter

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Standing*

Standing in Washington is either “automatic” or based upon and “expectation of privacy.” "A defendant has automatic standing to challenge a search or seizure if: 1) the offense with which he is charged involves possession as an "essential" element of the offense; and 2) the defendant was in possession of the contraband at the time of the contested search." State v. Simpson, 95 Wn.2d 170, 181 (1980). "A defendant who lacks automatic standing may still possess a legitimate expectation of privacy in the place searched or the thing seized, and on that basis be able to challenge the search or seizure." State v. Carter, 127 Wn.2d 836, 841 (1995).

Qualifications of Issuing Magistrate

	a. Does the judge meet the test for a neutral & independent magistrate?
	"Thus, an issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search." Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119 (1972). Courts must also insist that the magistrate not serve merely as a “rubber stamp” for the police. U.S. v. Leon, 468 U.S. 897, 914 (1984). “A magistrate failing to ‘manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application’ and who acts instead as ‘an adjunct law enforcement officer’ cannot provide valid authorization for an otherwise unconstitutional search.” U.S. v. Leon, 468 U.S. 897, 914 (1984) (citing Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-327 (1979).) The suppression hearing does not provide society protection against unreasonable search and seizure--it is the decision of the independent judicial officer which serves this purpose. State v. Stephens, 37 Wn.App. 76, 80 (1984).
	b. Was the magistrate authorized to issue warrants?
	In State v. Walker, 101 Wn.App. 1 (2000), the court of appeals held that issuance of a bench warrant by a municipal court clerk instead of a judge violated the court rules and therefore evidence seized during execution of the warrant was required to be suppressed under Article 1, Section 7 as without authority of law.
	c. Did the magistrate have jurisdiction to issue the warrant?
	A search warrant issued by a judicial officer without jurisdiction is void and any evidence obtained pursuant to it is subject to suppression. See State v. Moore, 73 Wn.App. 805, 814 (1994). Judge of invalid municipal department lacked jurisdiction de facto or de jure to issue warrant. See State v. Canady, 116 Wn.2d 853, 856-57 (1991). See RCW chapters 3.30-3.74 regarding organization of district courts, municipal departemnts of district courts and municipal courts and RCW 3.34.140 regarding visiting district judges. District court warrants are not authorized beyond the territorial jurisdiction of the county. See State v. Davidson, 26 Wn.App 623, 626 (1980). Arguably district court warrants are therefore not authorized to search for evidence of felonies over which the court has no jurisdiction. But see State v. Stock, 44 Wn.App 467 (1986).

Procedural Requirements of Warrant Application

	a. Was the warrant affidavit sworn to by each affiant?
	The oath or affirmation clause of the Fourth Amendment requires that the person presenting the warrant application swear to the information the statement contains. See State v. Myers, 117 Wn.2d 332, 337 (1991). Article 1, Section 7 of the Washington State Constitution has also been held to require that statements supporting warrants be sworn. See id. The criminal rules provide that a warrant must be supported by “an affidavit, a document as provided in RCW 9A.72.085 or any law amendatory thereto, or sworn testimony establishing the grounds for issuing the warrant.” CrRLJ 2.3(c) and CrR 2.3(c). All affiants must be sworn. See, e.g., People v. Asaro 57 Misc.2d 373, 377, 291 N.Y.S.2d 613 (1968),
	b. Was the warrant request by a peace officer or prosecutor?
	See CrR 2.3(a). “A search warrant authorized by this rule may be issued by the court upon request of a peace officer or a prosecuting attorney.” CrR 2.3(a).
	c. If the warrant process was telephonic was it recorded as required by rule?
	"The sworn testimony may be an electronically recorded telephonic statement. The recording or a duplication of the recording shall be a part of the court record and shall be transcribed if requested by a party if there is a challenge to the validity of the warrant or if ordered by the court." CrR 2.3(c).
	d. Was the application and evidence in support of the warrant preserved?
	“The evidence in support of the finding of probable cause shall be preserved and shall be subject to constitutional limitations for such determinations and may be hearsay in whole or in part.” CrR 2.3(a).
	e. Does the warrant application name the crime under investigation?
	The warrant application must specify the crime under investigation. State v. Riley, 121 Wn.2d 22, 29-30 (1993).

Probable Cause for Warrant

...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." Fourth Amendment.

	a. Was there a nexus between the evidence, place of search, and time of search at the time warrant issued?
	Probable cause requires a nexus between the items to be seized and the place to be searched. That nexus must exist at the time the warrant issues. [Probable cause] is established if, when the warrant issues, the magistrate has information that would cause a reasonably prudent person to believe that the items to be seized will probably be found in the place to be searched at the time the search is conducted. Thus, the question here is whether the Lewis County magistrate, at the time he issued the warrant, had probable cause to believe that contraband would be present in Goble's house when the warrant was served. State v. Goble, 88 Wn.App. 503, 511 (1997). If at the time of issuance of the warrant there is reason to believe that evidence of criminal activity will be found at the place to be searched at the time of search, then there is probable cause for the search. (what, when, where) To be sufficient, an affidavit in support of a search warrant must “recite specific data as to times, places and magnitude of previous criminal activity.” State v. Higby, 26 Wn.App. 457, 463 (1980). Specific Nexus Issues Multiple-occupancy units A search warrant for a multiple-occupancy building will usually be held invalid if it fails to describe the particular subunit to be searched with sufficient definiteness to preclude a search of one or more subunits indiscriminatel State v. Alexander 41 Wn.App 152, 153-54 (1985). Probable cause at time of issuance. It is not enough, however, to set forth that criminal activity occurred at some prior time. The facts or circumstances must support the reasonable probability that the criminal activity was occurring at or about the time the warrant was issued. Tabulation of the intervening number of days is not the final determinant of probable cause, but is only one factor considered along with all the other circumstances including the nature and scope of the suspected criminal activity. State v. Higby, 26 Wash.App. 457, 460-61 (1980) (citations omitted.) Obviously, there may be probable cause to search for and seize one item but not another. A typical example is the police requesting and the warrant granting authorization to search for records of drug sales when there is evidence of possession but not of dealing.
	b. Is there an Augilar-Spinelli issue relating to evidence based on informant statements?
	To satisfy both parts of the Aguilar-Spinelli test, a magistrate must require an affidavit to state underlying circumstances which the magistrate may draw upon to conclude the informant was credible and obtained the information in a reliable manner. If either or both parts of the Aguilar-Spinelli test are deficient, probable cause may yet be satisfied by independent police investigation corroborating the informant's tip to the extent it cures the deficiency. The knowledge part is satisfied by a showing that the information provided by the informant was based upon personal knowledge. State v. Vickers, 148 Wn.2d 91, 111 (2002). The two prongs of the Aguilar-Spinelli test have an independent status; they are analytically severable and each insures the validity of the information. The officer's oath that the informant has often furnished reliable information in the past establishes general trustworthiness. While this is important, it is still necessary that the “basis of knowledge” prong be satisfied-the officer must explain how the informant claims to have come by the information in this case. The converse is also true. Even if the informant states how he obtained the information which led him to conclude that contraband is located in a certain building, it is still necessary to establish the informant's credibility. The most common way to satisfy the “veracity” prong is to evaluate the informant's “track record”, i.e., has he provided accurate information to the police a number of times in the past? If the informant's track record is inadequate, it may be possible to satisfy the veracity prong by showing that the accusation was a declaration against the informant's penal interest. To satisfy the “basis of knowledge” prong, the informant must declare that he personally has seen the facts asserted and is passing on first-hand information. If the informant's information is hearsay, the basis of knowledge prong can be satisfied if there is sufficient information so that the hearsay establishes basis of knowledge. State v. Jackson, 102 Wn.2d 432, 437-38 (1984) (citations omitted). A conclusory statement, which presents no underlying facts from which the issuing judicial officer could independently determine the informant's reliability, is insufficient. Thus, the description “ ‘[a] reliable informant who has proven to be reliable in the past’ ” was held insufficient . . . ." State v. Colin, 61 Wn.App 111, 113 (1991). Note: If the informant's tip fails under either or both of the two prongs of Aguilar–Spinelli, probable cause may yet be established by independent police investigatory work that corroborates the tip to such an extent that it supports the missing elements of the Aguilar–Spinelli test. State v. Kennedy, 72 Wn.App 244, 250 (1993).
	c. Does the warrant application fail to inlucde the criminal history of the informants?
	A known informant's criminal history of conviction for crimes of dishonesty, should be included in the affidavit. U.S. v. Elliiot, 322 F.3d 710 (9th Cir. 2003). When an informant's criminal history includes crimes of dishonesty additional evidence mut be included in the affidavit to bolster credibility or the reliability of the tip. Without such bolstering information the informant's criminal past involving dishonesty is fatal to the reliability of the informant's information, and such information cannot alone support probable cause. See id. at 716.
	d. Are there Franks issues with the warrant application?
	A criminal defendant may challenge a facially sufficient affidavit by showing it contains intentional or deliberate falsehoods, or statements made with reckless disregard for the truth. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674 (1978). The validity of a search warrant must be assessed on the basis of information that officers disclosed as well as information that they had a duty to disclose. Maryland v. Garrison, 480 U.S. 79, 85, 107 S.Ct. 1013 (1987). Police officers have a duty to reveal “serious doubts” about an informant's testimony. Molina ex rel. Molina v. Cooper, 325 F.3d 963 (7th Cir. 2003).
	e. Did the officers discover information negating probable cause after obtaining the warrant but before executing it?
	When law enforcement received information after issuance of search warrant but before its execution, which negated probable cause, officers were required to return to magistrate for reevaluation of probable cause. State v. Maddox, 152 Wn.2d 499, 508 (2004) but see State v. Chenoweth, 160 Wn.2d 454, (2007) (Negligent mistatements or ommisions do not invalidate warrant).
	f. Does the application rely on illegally obtained evidence?
	Illegally obtained evidence must be excluded from probable cause determination. State v. Eisfeldt, 163 Wn.2d 628, 636 (2008).
	g. Are the statements in support of probable cause merely the applicant's conclusions?
	The judicial officer must be given sufficient facts, not mere conclusions, in order to perform his “ ‘neutral and detached’ function and not serve merely as a rubber stamp for the police.” State v. Woodall, 100 Wn.2d 74, 77 (1983). Negligent or innocent misstatements will be excised if they are of a conclusory nature unsupported by sufficient underlying facts to inform the magistrate of the basis for the affiant’s conclusion. State v. Stephens, 37 Wn. App. 76, 79 (1984). See also State v. Taylor, 74 Wn.App.111, 122 n.7 (1994), stating that it is not sufficient to simply assert the standard controlled buy scenario was followed.

Procedural Requirements of Warrant

	a. Is the warrant in writing?
	State v. Ettenhofer, 119 Wn.App 300, 302 (2003), requires that warrants be written. The description of the items to be seized should leave nothing to the executing officers' discretion. State v. Askham, 120 Wn.App. 872, 878 (2004). This is so because the purpose of a warrant is not only to limit the executing officer's discretion, but to inform the person subject to the search what items the officer may seize. State v. Riley, 121 Wn.2d 22, 29 (1993).
	b. Was the warrant signed by magistrate or at her direction?
	The warrant must be signed. State v. Ettenhofer, 119 Wn.App 300, 302 (2003).
	c. Does the warrant adequately identify the places or persons to be searched?
	"If the court finds that probable cause for the issuance of a warrant exists, it shall issue a warrant or direct an individual whom it authorizes for such purpose to affix the court's signature to a warrant identifying the property or person and naming or describing the person, place or thing to be searched." CrR 2.3(c). The warrant must "particularly" describe the place, person or thing to be searched. State v. Martinez, 51 Wn. App. 397, 399 (1988). "A search warrant sufficiently describes the place to be searched with particularity if it enables the executing officer to find and identify the location without mistake." State v. Boyer, 124 Wn.Ap 593, 603 (2004). "The validity of a warrant commanding the search of an individual depends essentially upon whether it describes the individual to be searched with such particularity he may be identified with reasonable certainty." State v. Rollie M., 41 Wn.App. 55 58 (1985).
	d. Did the warrant require execution not exceeeding ten days?
	“It shall command the officer to search, within a specified period of time not to exceed 10 days, the person, place, or thing named for the property or person specified.” CrR 2.3(c)
	e. Does the warrant order that a return be made and to whom?
	RCW 69.50.509 requires a return be made within three days in cases of controlled substance. "It shall designate to whom it shall be returned." CrR2.3(c).
	f. Is the warant directed to a peace officer?
	CrRLJ 2.3(c), states in relevant part: “The warrant may be directed to any peace officer. The warrant shall command the officer to search ... the person, place, or thing named for the property or person specified." ”We also note that any potential error resulting from delegation of the search would be at most ministerial. Because Kern does not allege prejudice as a result of the delegation, suppression would not be appropriate.” State v. Kern, 81 Wn.App. 308, 316 (1996).
	g. Does the warrant make a determination of probable cause within the body of he warrant?
	“A warrant may be issued only if the court determines there is probable cause for the issuance of the warrant.” CrR 2.3(c). Court must make determination of probable cause and it cannot be assumed that such a finding was made merely because the rules require it. State v. Parks, 136 Wn.App. 232, 238 (2006). “Because in this case there was no judicial determination that probable cause existed to believe Parks guilty of the charge of minor in possession of alcohol, the bench warrant for his arrest should have been held invalid and the motion to suppress granted.” Id. at 239-40. The law would appear to require that the finding of probable cause be found within the text of the warrant.
	h. Is the warrant sufficiently particular in its descriptions?
	A warrant can be “overbroad” either because it fails to describe with particularity items for which probable cause exists, or because it describes, particularly or otherwise, items for which probable cause does not exist. State v. Maddox, 116 Wn.App. 796, 805 (2003). Thus, where most search warrants are concerned, a description is valid if it is as specific as the circumstances and the nature of the activity under investigation permits. Accordingly, the use of a generic term or a general description is not per se a violation of the particularity requirement. Rather, where the precise identity of goods cannot be determined when the warrant is issued, a generic or general description may be sufficient, if probable cause is shown and a more specific description is impossible. Conversely, courts have reasoned that the use of a generic term or general description is constitutionally acceptable only when a more particular description of the items to be seized is not available at the time the warrant issues. State v. Perrone, 119 Wn.2d 538 (1992) (citations omitted.) The description of the items to be seized should leave nothing to the executing officers' discretion. State v. Askham, 120 Wn.App. 872, 878 (2004). Partiuclar specifity issues. “We review a warrant describing physical objects with less scrutiny than we use for a warrant for documents because the former involves less potential for intrusion into personal privacy.” State v. Chambers, 88 Wn.App. 640, 644 (1997) When a warrant lists items protected by the First Amendment, courts demand the highest degree of particularity. State v. Perrone, 119 Wn.2d 538, 547 (1992). "If items such as books or films are the subject of the search, the particularity requirement 'takes on special importance.'” See id. at 548. Exceptional specfiicty required for searches of computers more than searches for other items. State v. Norlund, 113 Wn.App 171, 182 (2002). Indeed, the courts have said a “scrupulous exactitude” is required in the first amendment on context. State v. Perrone, 119 Wn.2d 538, 548 (1992). Searches of media must be via subpoena duces tecum per CrR 2.3(f).
	i. Did the triggering condition occur for an anticpatory warrant?
	In other words, for a conditioned anticipatory warrant to comply with the Fourth Amendment's requirement of probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the triggering condition occurs “there is a fair probability that contraband or evidence of a crime will be found in a particular place,” but also that there is probable cause to believe the triggering condition will occur. The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination. U.S. v. Grubbs, 547 U.S. 90, 96-97,126 S.Ct. 1494 (2006).6).

Reasonableness of Warrant

a. Is the warrant reasonable?

“Reasonableness is the key in testing the validity of a search warrant.” State v. Sainz, 23 Wn.App. 532, 534 (1979).

The Callaghan court looked to the purpose of the limitation, and noted that the statute sought to avoid the danger involved in searches initiated at night (“the invasion of private premises in the small hours of the night smacks of totalitarian methods and is more likely to create the terror that precipitates gun battles.” ). State v. Kern, 81 Wash.App. 308, 314 (1996).

The United States Supreme Court has not decided whether the Fourth Amendment requires additional justification for nighttime search warrants. But see Gooding v. United States, 416 U.S. 430, 460, 94 S. Ct. 1780, 1795 (1974) (Marshall, J., dissenting) ("The purpose of the restriction upon nighttime searches was to limit such intrusions to those instances where there is 'some justification for it"'); see also 2 LaFave, Search and Seizure § 4.7(b), at 588-89 nn.22-24 (constitutionality of a nighttime search depends on whether it was necessary to make the search at that time).

Execution of search warrant at night was not per se unreasonable despite absence of specific showing of need for nocturnal execution. State v. Smith, 15 Wn.App. 716, 719-20 (1976).

The test for reasonableness includes consideration of the "severity of the crime at issue." Seaman v. Karr, 114 Wn.App. 665, 683 (2002).

Severability

	a. Can the defective portions of the warrant be severed from the valid portions so as to save the warrant?
	Five part severability test. First, the warrant must lawfully have authorized entry into the premises. Second, the warrant must include one or more particularly described items for which there is probable cause. Third, the part of the warrant that includes particularly described items supported by probable cause must be significant when compared to the warrant as a whole. Fourth, the searching officers must have found and seized the disputed items while executing the valid part of the warrant Fifth, the officers must not have conducted a general search, i.e., a search in which they "flagrantly disregarded" the warrant's scope. State v. Maddox, 116 Wn.App. 796, 807-08 (2003).

Additional Information Learned Before Execution

	a. Did the police learn additional information negating probable cause prior to service of the warrant?
	When law enforcement received information after issuance of search warrant but before its execution, which negated probable cause, officers were required to return to magistrate for reevaluation of probable cause. State v. Maddox, 152 Wn.2d 499, 508 (2004).

Timely and Proper Execution

	a. Was the warrant timely executed?
	''The warrant shall command the officer to search, within a specified period of time not to exceed 10 days, the person, place or thing named for the property or person specified." CrR 2.3(c). The federal rules of criminal procedure similarly require that a federal search warrants command the officer to “execute the warrant within a specified time no longer than 14 days”. FRCrP 41(e)(2). The purpose of this provision is to “prevent the execution of a stale warrant.” United States v. Syphers, 426 F.3d 461, 469 (1st Cir. 2005). As Syphers explained, the restrictions in Rule 41 “not only ensure that probable cause continues to exist, but also that it is the neutral magistrate, not the executing officers, who determines whether probable cause continues to exist.” Id. The Fourth Amendment likely places limitations on the time period within which a warrant must be executed, for “[i]f the police were allowed to execute the warrant at leisure, the safeguard of judicial control over the search which the fourth amendment is intended to accomplish would be eviscerated.” United States v. Bedford, 519 F.2d 650, 655 (3rd Cir. 1975).
	b. Did the officers knock and wait prior to beginning the search?
	“The purposes of the knock and announce rule are to (1) reduce the potential for violence, to both occupants and police, arising from an unannounced entry; (2) prevent unnecessary property damage; and (3) protect an occupant's right to privacy. Although the statute specifically refers to an entry “to make an arrest,” the knock and announce rule also applies when police officers execute a search warrant. Further, the rule applies not only when force is used to gain entry, but whenever the police enter without the valid permission of an occupant.” State v. Shelly, 58 Wn.App. 908, 910 (1990) (citations omitted).
	c. Was the warrant execution objectively reasonable?
	"The Supreme Court has held that claims of excessive force in the course of making an arrest are properly analyzed under the Fourth Amendment's “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865 (1989). The same standard applies when analyzing claims of excessive force in executing a search warrant." Seaman v. Karr, 114 Wn.App. 665 (2002). "In Graham, the Supreme Court listed facts and circumstances that a court should consider when applying the “test of reasonableness”: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865 (1989)." Seaman v. Karr, 114 Wn.App. 665 (2002). Searches of private homes are constrained by a requirement of reasonableness. San Jose Charter of Hells Angels v. San Jose, 402 F.3d 962, 972 (9th Cir. 2005). Cases assuming appropriateness of suppression when warranted search is rendered unreasonable becuase "it exceeds in scope or intensity the terms of the warrant." United States v. Becker, 929 F.2d 442, 446-47 (9th Cir. 1991); United States v. Chen, 979 F.2d 714, 717 (9th Cir. 1992).
	d. Did the execution of the warrant exceed its proper scope?
	Pursuant to the Fourth Amendment, an officer must execute a search warrant strictly within the bounds set by the warrant. State v. Kelley, 52 Wn.App. 581, 585 (1988). Whether a search exceeds the scope of a warrant depends on a common sense reading of the warrant. State v. Cheatam, 112 Wn. App 778, 783 (2002). See also State v. Klinger, 96 Wn.App. 619 (1999) (Regarding out buildings.) A search warrant does not authorize a search of receptacles and containers that are not “plausible repositories for the objects named in the warrant.” State v. Hill, 123 Wn.2d 641, 643 (1994). Mere presence at a residence where a search warrant is being executed does not justify a search of the person. State v. Broadnax, 98 Wn.2d 289, 298 (1982). Personal effects and clothing worn by persons present but not named in the warrant cannot be searched pursuant to the warrant. State v. Worth, 37 Wn. App. 889, 892 (1984). Division Three has held that the “[p]lain view doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” State v. Legas, 20 Wn.App. 535, 541 (1978).
	e. Was the executing officer accompanied?
	The inventory shall be made in the presence of the person from whose possession or premises the property is taken, or in the presence of at least one person other than the officer. CrR 2.3(d)
	f. Was a copy of the warrant given to an occupant who was present?
	Failure to deliberately give a copy of he warrant to a defendant who is present at the time of the search may violate the Fourth Amendment. State v. Aase, 121 Wn.App 558, 555-56 (2004). Although officers gave a telephonic statement in applying for a search warrant and a judge determined that probable cause existed, nobody executed a written warrant, affixed the authorizing court's signature to a warrant, or gave Ettenhofer a copy of a warrant. We hold that these failures constitute a warrantless search in violation of CrR 2.3(c), RCW 10.79.040, and article 1, section 7 of the Washington State Constitution. Suppression is the appropriate remedy. State v. Ettenofer, 119 Wn.App 300, 302 (2003).

Martonick Law - Washington State Search Warrant Issue Spotter - 2014

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