SPECIAL PROCEDURES.pmd

POINT OF VIEW

Summer 2011

Adapt yourself to changing circumstances.

—Chinese proverb

Before we discuss these requirements, it should be

noted that we have incorporated these and other

special procedures into new search warrant forms

that officers and prosecutors can download from

our website. The address is: http://le.alcoda.org

(click on Publications). To receive copies via email

in Microsoft Word format, send a request from a

departmental email address to [email protected].

Night Service

Officers are ordinarily prohibited from executing

warrants between the hours of 10 P.M. and 7 A.M.

That is because late night entries are “particularly

intrusive,”

especially since officers may need to

make a forcible entry if, as is often the case, the

occupants are asleep and are thus unable to promptly

respond to the officers’ announcement. Still, the

courts understand there are situations in which the

added intrusiveness of night service is offset by other

circumstances, usually the need to prevent the de-

struction of evidence or to protect the search team

from violence by catching the occupants by surprise.

For this reason, California law permits judges to

authorize an entry at any hour of the day or night if

there is “good cause.”

WHAT IS “GOOD CAUSE”? Good cause exists if there

is reason to believe that (1) some or all of the

evidence on the premises would be destroyed or

removed before 7 A.M., (2) night service is necessary

for the safety of the search team or others,

or (3)

there is some other “factual basis for a prudent

conclusion that the greater intrusiveness of a night-

time search is justified.”

Like probable cause, good

Search Warrant

Special Procedures

here is perhaps no profession that is more

susceptible to changing circumstances than

law enforcement. Which means that law

enforcement officers must know how to adapt. One

task in which adaptability is especially important

(although frequently overlooked) is the writing of

search warrants and affidavits. That is because

every search warrant must be customized to fit the

unique circumstances of the crime under investiga-

tion, the place being searched, the people who live or

work in the location, the nature of the evidence

being sought, and any difficulties that the search

team might encounter.

For instance, officers may have well-founded

concerns about their safety or evidence destruction

that make it necessary to execute the warrant late at

night, or to make a no-knock entry. Officers might

also need to keep the contents of the affidavit secret

to protect the identity of an informant or to prevent

the disclosure of confidential information. Although

less common, it is sometimes necessary to obtain a

covert warrant or an anticipatory warrant, or a

warrant to search something in another county or

state, or a warrant to search the confidential files of

a lawyer or physician.

All of these things are doable. But because they

add to the intrusiveness of the search, they must be

authorized by the judge who issues the warrant. And

to obtain authorization, officers must know exactly

what information judges require and how it must be

presented.

Rogers v. Superior Court (1973) 35 Cal.App.3d 716, 720.

See Pen. Code § 1533; People v. Kimble (1988) 44 Cal.3d 480, 494 [“a magistrate may authorize nighttime service of a warrant in

a particular case for ‘good cause’”].

See Pen. Code § 1533; Tuttle v. Superior Court (1981) 120 Cal.App.3d 320, 329-30 [“Safety of police officers is of extreme importance

and is a factor which may be considered in determining cause for night service.”]; People v. Kimble (1988) 44 Cal.3d 480, 495 [“in

view of the nature of the homicides that were under investigation, the magistrate could reasonably conclude that there was an

exceptionally compelling interest in permitting the police to expedite their investigation”].

People v. Kimble (1988) 44 Cal.3d 480, 494.

ALAMEDA COUNTY DISTRICT ATTORNEY’S OFFICE

cause must be based on facts contained in the

affidavit, or at least reasonable inferences from the

facts.

“[T]he test to be applied,” said the Court of

Appeal, “is whether the affidavit read as a whole in

a common sense manner reasonably supports a

finding that such service will best serve the interests

of justice.”

Because specific facts are required, good cause to

believe that evidence would be destroyed or removed

cannot be based on generalizations or unsupported

allegations. For example, the courts have rejected

arguments that good cause existed merely because

the affiant said “the property sought will be disposed

of or become nonexistent through sale or transfer to

other persons,”

or because “drug distributors often

utilize the cover of darkness to conceal their trans-

portation and handling of contraband,”

or because

the warrant authorized a search for evidence (such

as drugs) that can be quickly sold or consumed.

Accordingly, the court in People v. Mardian

ruled

that “an affiant’s averment that in his experience

(generally) particular types of contraband are easily

disposed of does not, in itself, constitute a sufficient

showing for the necessity of a nighttime search.”

The question, then, is what types of circumstances

will suffice? In the case of evidence destruction, the

following have been deemed sufficient:

 The suspects were selling drugs or stolen prop-

erty from the residence at night.

 The suspect had become aware that he was

about to be arrested or that a search of his home

was imminent, and it was therefore reasonably

likely that he would immediately try to move or

destroy the evidence.

 The suspect was planning to vacate the pre-

mises early the next morning.

 Stolen food, liquor, and cigarettes were con-

sumed at a party in the residence the night

before the warrant was executed.

 The suspect had been released on bail in the

early evening, the evidence in his house was

“small in size and easily disposed of,” and the

only way to keep him from destroying it would

have been to assign “police resources in an all

night vigil.”

 The warrant authorized a search for valuable

stolen property which the suspects had the abil-

ity and motive to quickly sell or abandon.

As for officer safety, good cause must also be

based on facts, not unsupported assertions. As the

Court of Appeal explained, “[A]llegations in an

affidavit with respect to safety of officers must

inform the magistrate of specific facts showing why

See People v. Watson (1977) 75 Cal.App.3d 592, 598 [“the affidavit furnished the magistrate must set forth specific facts which show

a necessity for [night] service”].

People v. Flores (1979) 100 Cal.App.3d 221, 234. ALSO SEE People v. McCarter (1981) 117 Cal.App.3d 894, 906-907.

People v. Lopez (1985) 173 Cal.App.3d 125, 136. ALSO SEE In re Donald R. (1978) 85 Cal.App.3d 23, 25-26 [generalized statement

that the stolen property being sought was “primarily perishable items and easily disposed of ”].

Tuttle v. Superior Court (1981) 120 Cal.App.3d 320, 328.

See People v. Watson (1977) 75 Cal.App.3d 592, 597 [night service “cannot be based solely on the nature of the contraband to be

seized or the type of crime involved”]; People v. Flores (1979) 100 Cal.App.3d 221, 234 [“mere assertion of suspected unlawful drug

activities in the place to be searched is insufficient to justify night service”].

(1975) 47 Cal.App.3d 16, 34.

See People v. Watson (1977) 75 Cal.App.3d 592, 598; Nunes v. Superior Court (1980) 100 Cal.App.3d 915, 938; People v. Grant

(1969) 1 Cal.App.3d 563, 567-68; People v. Govea (1965) 235 Cal.App.2d 285, 299.

See People v. Siripongs (1988) 45 Cal.3d 548, 569-70 [following his arrest, the arrestee made a phone call from jail (speaking in

Thai) to the residence in which stolen property was stored]; People v. Cletcher (1982) 132 Cal.App.3d 878, 883 [there was reason

to believe the suspect was aware that artwork he had stolen had just been observed in his home by the victim]; People v. Flores (1979)

100 Cal.App.3d 221, 234 [warrant to search suspect’s motel room was issued after the suspect was arrested in the lobby at 8:30 P.M.];

Galena v. Municipal Court (1965) 237 Cal.App.2d 581, 592 [“It is common knowledge that those in the possession of contraband or

stolen goods make every effort to effectuate its immediate disposition when they learn that persons connected with it have been

apprehended by the authorities.”].

See People v. Mardian (1975) 47 Cal.App.3d 16, 35 [the occupants were planning to leave the residence at 6 A.M.].

See In re Donald R. (1978) 85 Cal.App.3d 23, 26.

See People v. Lowery (1983) 145 Cal.App.3d 902, 909-10 [“This is not a question of convenience to the police, but acknowledges

the interest of the entire community in efficient use of police personnel.”]; People v. Flores (1979) 100 Cal.App.3d 221, 234.

See People v. Kimble (1988) 44 Cal.3d 480, 494-95; People v. Lopez (1985) 173 Cal.App.3d 125, 138 [“The affidavit disclosed that

four persons committed the robbery, all of whom, it appeared, had continuing access to the property.”].

POINT OF VIEW

nighttime service would lessen a possibility of vio-

lent confrontation, e.g., that the particular defen-

dant is prepared to use deadly force against officers

executing the warrant.”

Thus, in Rodriguez v.

Superior Court the court ruled that good cause was

not shown based merely on a statement that “any

time you got people dealing in drugs there’s always

a danger of being shot or hurt.”

One other thing about night service: If officers

enter before 10

P.M. they do not need authorization

to continue the search after 10 P.M.

HOW TO OBTAIN AUTHORIZATION: There are essen-

tially four things the affiant must do to obtain

authorization for night service:

(1) S

TATE THE FACTS: The affiant must set forth the

facts upon which “good cause” is based. Al-

though the affidavit need not contain a sepa-

rate section for this purpose, it is usually helpful

to the judge; e.g., For the following reasons, I

hereby request authorization to execute this war-

rant at any hour of the day or night . . .

(2) NOTIFY JUDGE: When submitting the affidavit to

the judge, the affiant should notify him or her

that he is requesting night service authorization

based on facts contained in the affidavit.

(3) J

UDGE REVIEWS: As the judge reads the affidavit

looking for probable cause, he or she will also

look for facts that tend to establish good cause

for night service.

(4) A

UTHORIZATION GIVEN: If the judge finds that

good cause exists, he or she will authorize night

service on the face of the warrant,

usually by

checking an authorization box or by inserting

words such as the following: Good cause having

been demonstrated, this warrant may be executed

at any hour of the day or night.

No-Knock Warrants

[Violent knocks on the front door]

“Police with a search warrant! Open the door or

we’ll kick it in.”

Blanca ran into the bathroom and emptied a

glassine envelope containing cocaine into the

swirling bowl.

“Is that everything?” he said.

“I think so,” she said.

That was fiction. It was a scene from the novel

To Live and Die in L.A. But similar scenes are played

out every day in real life when officers knock, give

notice, and wait for a “reasonable” amount of time

before making a forcible entry. Because this delay

provides the occupants with the time they need to

destroy evidence or arm themselves, the knock-

notice requirement has been a continuing source of

friction between the courts and law enforcement.

As the Court of Appeal observed:

[A]lthough one purpose of the [knock-notice]

requirement is to prevent startled occupants

from using violence against unannounced in-

truders, the delay caused by the statute might

give a forewarned occupant exactly the oppor-

tunity necessary to arm himself, causing in-

jury to officers and bystanders. . . . Since one

has no right to deny entry to the holder of a

search warrant in any event, critics ask, what

public policy requires that entry be delayed

while police engage in meaningless formali-

ties?

While it is debatable whether the knock-notice

requirements are “meaningless,” we are concerned

here with explaining how officers can, when neces-

sary, obtain authorization to enter without giving

notice.

Tuttle v. Superior Court (1981) 120 Cal.App.3d 320, 329.

(1988) 199 Cal.App.3d 1453, 1468.

See People v. Zepeda (1980) 102 Cal.App.3d 1, 7 [“Once that execution began, it was unreasonable to require its cessation merely

because the hour reached 10 P.M.”]; People v. Maita (1984) 157 Cal.App.3d 309, 322.

See People v. Cletcher (1982) 132 Cal.App.3d 878, 882 [“[Pen. Code § 1533] does not require a separate statement of good cause

for nighttime service.”].

See Pen. Code § 1533 [“Upon a showing of good cause, the magistrate may, in his or her discretion, insert a direction in a search

warrant that it may be served at any time of the day or night.”].

People v. Gonzalez (1989) 211 Cal.App.3d 1043, 1048.

NOTE: While the United States Supreme Court ruled in 1995 that knock-notice is not an absolute requirement—that the Fourth

Amendment requires only that officers enter in a reasonable manner

(Wilson v. Arkansas (1995) 514 U.S. 927, 934)—an unannounced

entry is such a serious and dangerous intrusion that knock-notice will ordinarily be required unless there were exigent circumstances.

See United States v. Banks (2003) 540 U.S. 31, 43 [“Absent exigency, the police must knock and receive an actual refusal or wait

out the time necessary to infer one.”].

ALAMEDA COUNTY DISTRICT ATTORNEY’S OFFICE

A judge who issues a search warrant may autho-

rize a no-knock entry if there was “sufficient cause”

or “reasonable grounds”. As the United States Su-

preme Court explained:

When a warrant applicant gives reasonable

grounds to expect futility or to suspect that one

or another such exigency already exists or will

arise instantly upon knocking, a magistrate

judge is acting within the Constitution to au-

thorize a “no-knock” entry.

WHAT ARE “REASONABLE GROUNDS”? Reasonable

grounds for a no-knock warrant exist if the affidavit

establishes reasonable suspicion to believe that giv-

ing notice would (1) be used by the occupants to

arm themselves or otherwise engage in violent resis-

tance, (2) be used by the occupants to destroy

evidence, or (3) be futile.

Like good cause for night service, grounds for no-

knock authorization must be based on facts, not

unsupported conclusions or vague generalizations.

Thus, in Richards v. Wisconsin

the United States

Supreme Court ruled that an affidavit for a warrant

to search a drug house was insufficient because it

was based solely on the generalization that drugs

can be easily destroyed. In contrast, the following

circumstances have been deemed adequate:

 The suspect had a history of attempting to

destroy evidence, including a “penchant for

flushing toilets even when nature did not call.”

 The suspect told an informant that, if he knew

the police “were around,” he would destroy the

drugs he was selling and that “he would not get

caught again with the evidence.”

 The premises, which contained a “large amount”

of crack, were protected by a steel door.

 The house was a “virtual fortress.”

 The house “was equipped with security cameras

and flood lights.

 The suspect displayed a firearm during previous

drug sales and had “exhibited abnormal and

unpredictable behavior—specifically, answer-

ing the door wearing only a pair of socks—

while wielding a chambered semi-automatic

pistol in a threatening manner.”

 The suspect’s rap sheet showed “assaultive”

behavior in the past, possession of guns, and a

prior altercation with an officer.

PROCEDURE FOR OBTAINING AUTHORIZATION: The

usual procedure for obtaining a no-knock warrant

is as follows:

(1) SET FORTH THE FACTS: The affidavit must include

the facts upon which the request is made. Al-

though it need not contain a separate section

for this purpose, it will be helpful to the judge;

e.g., I hereby request authorization for a no-

knock entry for the following reasons . . .

(2) NOTIFY JUDGE: When submitting the affidavit to

the judge, the affiant should notify him or her

that he is requesting no-knock authorization.

(3) JUDGE REVIEWS: As the judge reads the affidavit

looking for probable cause, he or she will also

look for facts establishing grounds for a no-

knock entry.

(4) AUTHORIZATION GIVEN: If the judge determines

that grounds for a no-knock warrant exist, he

or she will authorize a no-knock entry on the

face of the warrant; e.g., Good cause having

been demonstrated in the affidavit herein, the

officers who execute this warrant are authorized

to make a forcible entry without giving notice

unless a change in circumstances negates the need

for non-compliance.

Richards v. Wisconsin (1997) 520 U.S. 385, 399, fn.7. NOTE: If a no-knock entry is authorized, officers may, if reasonably necessary,

make a forcible entry. United States v. Ramirez (1998) 523 U.S. 65, 71.

United States v. Banks (2003) 540 U.S. 31, 36.

See Richards v. Wisconsin (1997) 520 U.S. 385, 394; United States v. Banks (2003) 540 U.S. 31, 37, fn.3 [“The standard for a no-

knock entry stated in Richards applies on reasonable suspicion of exigency or futility.”].

(1997) 520 U.S. 385.

People v. Alaniz (1986) 182 Cal.App.3d 903, 906.

People v. Gonzales (1971) 14 Cal.App.3d 881.

U.S. v. Stowe (7

Cir. 1996) 100 F.3d 494, 499.

People v. Thompson (1979) 89 Cal.App.3d 425.

U.S. v. Combs (9

Cir. 2005) 394 F.3d 739, 745.

U.S. v. Bynum (9

Cir. 2004) 362 F.3d 574, 581.

People v. Henderson (1976) 58 Cal.App.3d 349, 356.

POINT OF VIEW

Two other things should be noted about no-knock

warrants. First, although officers are not required

to re-evaluate the circumstances before entering,

they are not permitted to make a no-knock entry if,

before entering, they become aware of circum-

stances that eliminated the need for it.

Second, if

the judge refused to issue a no-knock warrant,

officers may nevertheless make an unannounced

entry if, upon arrival, they become aware of circum-

stances that constituted grounds to do so.

Sealing Orders

Search warrants, including their supporting affi-

davits and any incorporated documents, become a

public record when they are returned to the court or,

if not executed, ten days after they were issued.

But

because public disclosure may have serious adverse

consequences, the affiant may apply for a sealing

order which would require that all or part of the

affidavit be kept confidential until further order of

the court.

GROUNDS FOR SEALING ORDERS: In most cases,

sealing orders are issued for either of the following

reasons:

(1) P

ROTECT INFORMANT’S IDENTITY: If the warrant is

based wholly or in part on information from a

confidential informant, the judge may seal the

parts of the affidavit that would reveal or tend

to reveal his identity.

(2) PROTECT “OFFICIAL INFORMATION”: An affidavit

may be sealed if it tends to disclose “official

information,” which is defined as confidential

information whose disclosure would not be in

the public interest; e.g., information obtained

in the course of an ongoing criminal investiga-

tion; information that would tend to reveal the

identity of an undercover officer, a citizen in-

formant, a confidential surveillance site, or the

secret location of VIN numbers.

PROCEDURE: To obtain a sealing order, the affiant

must do the following:

(1) D

ETERMINE SCOPE OF ORDER: The first step is to

determine whether it is necessary to request the

sealing of only certain information, certain

documents, or everything.

(2) SEGREGATE CONFIDENTIAL INFORMATION: If the

affiant is requesting that only part of the affida-

vit be sealed, he will present the judge with two

affidavits for review: one containing informa-

tion that may be disclosed; the other containing

information that would be subject to the seal-

ing order.

The latter affidavit should be clearly

See U.S. v. Spry (7

Cir. 1999) 190 F.3d 829, 833.

See United States v. Banks (2003) 540 U.S. 31, 36-37 [“even when executing a warrant silent about [no-knock authorization], if

circumstances support a reasonable suspicion of exigency when the officers arrive at the door, they may go straight in”]; Richards v.

Wisconsin (1997) 520 U.S. 385, 395-96, fn.7 [“[A] magistrate’s decision not to authorize no-knock entry should not be interpreted

to remove the officers’ authority to exercise independent judgment concerning the wisdom of a no-knock entry at the time the warrant

is being executed.”]. NOTE RE MOTORIZED BATTERING RAMS: The following are the requirements for utilizing a motorized

battering ram to make entry: (1) the issuing judge must have authorized the procedure; and (2) when the ram was utilized, officers

reasonably believed that evidence inside the premises was presently being destroyed, or there was an immediate threat of resistance

from the occupants which posed a serious danger to officers. Langford v. Superior Court (1987) 43 Cal.3d 21, 29-32.

See Pen. Code § 1534; Oziel v. Superior Court (1990) 223 Cal.App.3d 1284, 1295.

NOTE: Although a court may later lift the sealing order, officers and prosecutors retain control over the sealed information because

they have the option of incurring sanctions rather than releasing it. See People v. Hobbs (1994) 7 Cal.4

948, 959.

See Evid. Code § 1041; People v. Hobbs (1994) 7 Cal.4

948, 962 [“[I]f disclosure of the contents of the informant’s statement would

tend to disclose the identity of the informer, the communication itself should come within the privilege.”].

See Evid. Code § 1040(a); County of Orange v. Superior Court (Feilong Wu) (2000) 79 Cal.App.4

759, 764 [“Evidence gathered

by police as part of an ongoing criminal investigation is by its nature confidential.”]; Torres v. Superior Court (2000) 80 Cal.App.4

867, 872-73 [a person’s name may constitute official information; e.g., name of undercover officer]; PSC Geothermal Services Co. v.

Superior Court (1994) 25 Cal.App.4

1697, 1714 [the “official information” privilege covers “information obtained by a public

employee and which, if disclosed, is against the public interest.”]; In re Sergio M. (1993) 13 Cal.App.4

809 [nondisclosure of

surveillance site]; In re David W. (1976) 62 Cal.App.3d 840, 847-48 [confidentiality of secret VIN location].

See People v. Hobbs (1994) 7 Cal.4

948, 971 [“all or any part of a search warrant affidavit may be sealed if necessary to . . . protect

the identity of a confidential informant”].

See People v. Hobbs (1994) 7 Cal.4

948, 962-63 [“the courts have sanctioned a procedure whereby those portions of a search warrant

affidavit which, if disclosed to the defense, would effectively reveal the identity of an informant, are redacted, and the resulting ‘edited’

affidavit furnished to the defendant”].

ALAMEDA COUNTY DISTRICT ATTORNEY’S OFFICE

identified by assigning it an exhibit number or

letter, then writing that number or letter in a

conspicuous place at the top of the document;

e.g., Exhibit A.

(3) R

EQUEST ORDER: The affiant should state in the

affidavit that he is seeking a sealing order; e.g.,

For the following reasons, I am hereby requesting

that Exhibit A be sealed pending further order of

the court . . .

(4) P

ROVING CONFIDENTIALITY: The affiant must ex-

plain why the sealing is reasonably necessary.

To prove that the sealed information would

tend to disclose the identity of a confidential

informant, the affiant should explain why the

informant or his family would be in danger if

his identity was revealed. To prove that sealed

information is covered under the “official infor-

mation” privilege, the affiant should set forth

facts demonstrating that the information was

“acquired in confidence by a public employee in

the course of his or her duty and not open, or

officially disclosed, to the public prior to the

time the claim of privilege is made.”

(5) JUDGE ISSUES ORDER: If the affiant’s request is

granted, the judge will sign the sealing order.

Although the order may be included in the

warrant, it is better to incorporate it into a

separate document so that it is not disclosed to

the people who are served with the warrant. A

sealing order is available on our website.

(6) W

HERE SEALED DOCUMENTS MUST BE KEPT: All

sealed documents must be retained by the court,

unless the judge determines that court security

is inadequate.

In such cases, the documents

may be retained by the affiant if he submits

proof that the security precautions within his

agency are sufficient, and that his agency has

established procedures to ensure that the sealed

affidavit is retained for ten years after final

disposition of noncapital cases, and perma-

nently in capital cases.

Nondisclosure Orders

Officers will frequently utilize a search warrant

to obtain the records of a customer of a financial

institution, phone company, or provider of an email

or internet service. If, as in most cases, they do not

want the customer to learn about it, they may ask

the issuing judge for a temporary nondisclosure

order. Such an order may ordinarily be issued if the

affiant demonstrates that disclosure would seri-

ously jeopardize an ongoing investigation or endan-

ger the life of any person.

A nondisclosure order should appear on the war-

rant to help ensure that the people who are served

with the warrant will be aware of it. The following

is an example of such an order: Pending further order

of this court, the employees and agents of the entity

served with the warrant] are hereby ordered not to

disclose information to any person that would reveal,

or tend to reveal, the contents of this warrant or the

fact that it was issued.

Out-of-Jurisdiction Warrants

It is not unusual for officers to develop probable

cause to believe that evidence of the crime they are

investigating is located in another county or state. If

they need a warrant to obtain it, the question arises:

Can the warrant be issued by a judge in the officers’

county? Or must it be issued by a judge in the county

or state in which the evidence is located? The rules

pertaining to out-of-jurisdiction warrants are as

follows.

OUT-OF-COUNTY WARRANTS: A judge in California

may issue a warrant to search a person, place, or

thing located in any county in the state if the

affidavit establishes probable cause to believe that

the evidence listed in the warrant pertains to a crime

that was committed in the county in which the judge

sits. As the California Supreme Court explained,

“[A] magistrate has jurisdiction to issue an out-of-

county warrant when he has probable cause to

believe that the evidence sought relates to a crime

Evid. Code § 1040(a).

See People v. Galland (2008) 45 Cal.4

354, 368 [sealed search warrant affidavits “should ordinarily be part of the court record

that is maintained at the court”].

People v. Galland (2008) 45 Cal.4

354, 359.

See, for example, Gov. Code § 7475 [financial institutions]; 12 U.S.C. 3409 [financial records]; 18 U.S.C. 3123(b) [phone records].

POINT OF VIEW

committed within his county and thus pertains to a

present or future prosecution in that county.”

For example, in People v. Easley

officers who

were investigating a double murder in Modesto

(Stanislaus County) obtained a warrant from a

local judge to search for evidence of the crimes in

Easley’s homes and cars in Fresno County. In ruling

that the judge had the authority to issue the warrant,

the California Supreme Court said:

[T]he search warrant sought evidence relating

to two homicides committed in Stanislaus

County. The magistrate had probable cause to

believe that evidence relevant to those crimes

might be found in defendant’s residences and

automobiles. He therefore had jurisdiction to

issue a warrant for an out-of-county search

for that evidence.

Not surprisingly, out-of-county search warrants

are especially common in drug trafficking cases

because sellers seldom restrict their operations to a

single county. Thus, in such cases a warrant may be

issued by a judge in any country in which some

illegal act pertaining to the enterprise was commit-

ted. For example in People v. Fleming

an under-

cover Santa Barbara County sheriff’s deputy bought

cocaine from Bryn Martin in Santa Barbara. The

deputy later learned that Martin’s supplier was Scott

Fleming, who lived in Los Angeles County. The

deputy then obtained a warrant from a Santa Bar-

bara judge to search Fleming’s house, and the search

netted drugs and sales paraphernalia.

Fleming, who was tried and convicted in Santa

Barbara County, argued that the evidence should

have been suppressed, claiming that the judge lacked

the authority to issue the warrant. But the California

Supreme Court disagreed, pointing out that because

both sales were negotiated in Santa Barbara County,

and because a person can be prosecuted in any

county in which “some act of a continuing crime

occurs,” the judge “acted within his jurisdiction in

issuing the warrant in question.”

Two procedural matters. First, an out-of-county

warrant must be directed to peace officers employed

in the issuing judge’s county.

For example, a

warrant to conduct a search in Santa Clara County

issued by a judge in Alameda County should be

headed, The People of the State of California to any

peace officer in Alameda County. Second, although

the warrant may be executed by officers in the

issuing judge’s county, it is standard practice to

notify and request assistance from officers in whose

jurisdiction the search will occur.

OUT-OF-STATE WARRANTS: California judges do

not have the authority to issue warrants to search a

person, place, or thing located in another state.

Consequently, officers who need an out-of-state

warrant must either travel to the other state and

apply for it themselves or, more commonly, request

assistance from an officer in that state. Because the

officers who are requesting assistance should com-

plete as much of the paperwork as possible, they

should ordinarily do the following:

(1) Write an affidavit establishing probable cause

for the search and sign it under penalty of

perjury. (As discussed below, this affidavit will

become an attachment to the affidavit signed

by the out-of-state officer.)

(2) Write an affidavit for the out-of-state officer’s

signature in which the out-of-state officer sim-

ply states that he is incorporating the California

officer’s affidavit, and that it was submitted to

him by a California officer; e.g., Attached hereto

and incorporated by reference is the affidavit of

[name of California officer] who is a law enforce-

ment officer employed by the [name of California

officer’s agency] in the State of California. I de-

clare under penalty of perjury that the foregoing

is true. (The reason the out-of-state officer must

not sign the affidavit establishing probable cause

is that will have no personal knowledge of the

facts upon which probable cause was based.)

People v. Fleming (1981) 29 Cal.3d 698, 707. ALSO SEE People v. Galvan (1992) 5 Cal.App.4

866, 870; People v. Redman(1981)

125 Cal.App.3d 317; People v. Dantzler (1988) 206 Cal.App.3d 289, 293. NOTE: In identity theft cases, the warrant may also be issued

by a judge in the county in which the victim lives. Pen. Code § 1524(j).

(1983) 34 Cal.3d 858.

(1981) 29 Cal.3d 698.

See Pen. Code § 1528(a); People v. Fleming (1981) 29 Cal.3d 698, 703; People v. Galvan (1992) 5 Cal.App.4

866, 870.

See People v. Fleming (1981) 29 Cal.3d 698, 704, fn. 4.

See Calpin v. Page (1873) 85 U.S. 366 [“The tribunals of one State . . . cannot extend their process into other States”].

ALAMEDA COUNTY DISTRICT ATTORNEY’S OFFICE

(3) Attach the California officer’s probable-cause

affidavit to the out-of-state officer’s unsigned

affidavit.

(4) In a separate document, write the following:

(a) Descriptions of the person, place, or thing

to be searched.

(b) Descriptions of the evidence to be seized.

disposition of seized evidence; e.g., All evi-

dence seized pursuant to this warrant shall

be retained by [name of California officer] of

the [name of California officer’s agency] in

California. Such evidence may thereafter be

transferred to the possession of a court of

competent jurisdiction in California if it is

found to be admissible in a court proceeding.

(5) Email, fax, or mail all of these documents to the

out-of-state officer.

Upon receipt of these documents, the out-of-state

officer should do the following:

(1) Prepare a search warrant in accordance with

local rules and procedures using the descrip-

tions provided by the California officer, and

incorporating the order that all seized evidence

be transferred to the California officer.

(2) Take the search warrant and affidavit (to which

the California officer’s affidavit has been at-

tached) to a local judge.

(3) In the judge’s presence, sign the affidavit in

which he swears that the incorporated and

attached affidavit was submitted to him by a

California law enforcement officer.

If the judge issues the warrant, it will be executed

by officers in whose jurisdiction the search will

occur. Those officers will then give or send the

evidence to the California authorities.

Special Master Procedure

A search for documents in the office of a lawyer,

physician, or psychotherapist (hereinafter “profes-

sional”) is touchy because these papers often con-

tain information that is privileged under the law.

Still, officers can obtain a warrant to search for

them if the search is conducted in accordance with

a protocol—known as the “special master proce-

dure”—that was designed to ensure that privileged

communications remain confidential.

Before going further, it should be noted that the

law in this area has changed. In the past, officers in

California were required to implement this proce-

dure only if the suspect was a client or patient of the

professional; i.e., the professional was not the sus-

pect. In 2001, however, the California Supreme

Court essentially ruled that this procedure must be

employed in all searches of patient or client files

because, even if the professional was the suspect, he

or his custodian of records is ethically obligated to

assert the confidentiality privilege as to all files that

officers intend to read.

As we will now discuss, under the mandated

procedure the files must be searched by an indepen-

dent attorney, called a “special master,” who is

trained in determining what materials are privi-

leged. Accordingly, officers will ordinarily utilize

the following protocol:

(1) A

FFIANT REQUESTS SPECIAL MASTER: The affiant

will state in the affidavit that he believes the

search will require the appointment of a special

master; e.g., It appears that the requested search

will implicate the confidentially of privileged com-

munications. Accordingly, pursuant to Penal Code

section 1524(c) I request that a special master be

appointed to conduct the search.

See Pen. Code § 1524(c); Fenwick & West v. Superior Court (1996) 43 Cal.App.4

1272, 1279. ALSO SEE Evid. Code § 952 [“As

used in this article, ‘confidential communication between client and lawyer’ means information transmitted between a client and his

or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information

to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure

is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted,

and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.”]; Evid. Code § 992 [sets

forth the physician-patient privilege, essentially the same as Evid. Code § 952].

People v. Superior Court (Laff) (2001) 25 Cal.4

703, 713 [“Even if the custodian is suspected of a crime, when privileged materials

in the custodian’s possession are seized pursuant to a search warrant, he or she still owes a duty to take appropriate steps to protect

the interest of the privilege holders in not disclosing the materials to law enforcement authorities or others.”]. ALSO SEE People v.

Superior Court (Bauman & Rose) (1995) 37 Cal.App.4

1757, 1766 [“the attorney is professionally obligated to claim [the privilege]

on his client’s behalf whenever the opportunity arises unless he has been instructed otherwise by the client”].

POINT OF VIEW

(2) SPECIAL MASTER APPOINTED: If the warrant is

issued, the judge will appoint a special master

whom the judge will select from a list of quali-

fied attorneys compiled by the State Bar.

(3) S

PECIAL MASTER EXECUTES WARRANT: Officers

will accompany the special master to the place

to be searched. When practical, the warrant

must be executed during regular business hours.

Upon arrival, the special master will provide the

professional (or custodian of records) with a

copy of the warrant so that the professional will

know exactly what documents the special mas-

ter is authorized to seize. The special master

must then give the professional an opportunity

to voluntarily furnish the described documents.

If he fails or refuses, the special master—not the

officers—will conduct the search while the offic-

ers stand by.

(4) P

RIVILEGED DOCUMENTS SEALED: If the special

master finds or is given documents that are

described in the warrant, he will determine

whether they are confidential. If not confiden-

tial, he may give them to the officers. But if they

appear to be confidential, or if the professional

claims they are, he must (a) seal them (e.g., put

them in a sealed container); (b) contact the

clerk for the issuing judge and obtain a date and

time for a hearing to determine whether any

sealed documents are privileged; and (c) notify

the professional and the officers of the date,

time, and location of the hearing.

Note that if a hearing is scheduled, officers should

immediately notify their district attorney’s office or

city attorney’s office so that a prosecutor can, if

necessary, attend and represent the officers and

their interests.

Search Conducted By An Expert

While most searches are conducted by officers,

there are situations in which it is impossible or

extremely difficult for officers to do so because the

evidence is such that it can best be identified by a

person with certain expertise. When this happens

the affiant may seek authorization to have an expert

in such matters accompany the officers and con-

duct the search himself.

For example, in People v.

Superior Court (Moore)

officers were investigating

an attempted theft of trade secrets from Intel and, in

the course of the investigation, they sought a war-

rant to search a suspect’s business for several items

that were highly technical in nature; e.g., “magnetic

data base tape containing Intel Mask data or fac-

simile for product No. 2147 4K Ram.” The affiant

realized that “he could not identify the property due

to its technical nature without expert assistance,” so

he requested such assistance in the affidavit. The

request was granted.

As the Court of Appeal explained, when the war-

rant was executed “none of the officers present

actually did any searching, since none of them knew

what the items described in the warrant looked like.

Rather, at the direction of the officer in charge, they

stood and watched while the experts searched”; and

when an expert found any of the listed evidence, he

would notify the officers who would then seize it.

The court summarily ruled that such a procedure

was proper.

Note that if the search will be conducted by

officers, they do not need authorization to have an

expert or other civilian accompany them and watch.

And if the civilian sees any seizable property, he will

notify the officers who will take it; e.g., burglary

victim identifies stolen property.

See Pen. Code § 1524(i); People v. Superior Court (Laff) (2001) 25 Cal.4

703, 720; People v. Superior Court (Bauman and Rose)

(1995) 37 Cal.App.4

1757, 1765 [“In essence, the special master procedure . . . requires (1) that a search of premises owned or

controlled by a nonsuspect privilege holder must be overseen by a special master; (2) that any item as to which the privilege holder

asserts the privilege, or gives some other reason precluding disclosure, must be sealed on the spot; and (3) that a hearing must be

held within three days of the service of the warrant, or as expeditiously as otherwise possible, on the privilege holder’s assertion of

the privilege or any issues which may be raised pursuant to [Pen. Code] Section 1538.5.”].

NOTE: Such authorization is not required under the Fourth Amendment, and may also be unnecessary under California law. See

Pen. Code § 1530; U.S. v. Bach (8

Cir. 2002) 310 F.3d 1063, 1066. It is, however, a good practice if officers know ahead of time that

it will be necessary for an expert to conduct the search.

(1980) 104 Cal.App.3d 1001.

See Wilson v. Layne (1999) 526 U.S. 603, 611-12 [“the presence of third parties for the purpose of identifying the stolen property

has long been approved by the Court”]; Pen. Code § 1530 [the search may be conducted by a civilian “in aid of the officer”].

ALAMEDA COUNTY DISTRICT ATTORNEY’S OFFICE

Anticipatory Search Warrants

Most search warrants are issued because officers

have probable cause to believe that evidence of a

crime is presently located in the place to be searched.

There is, however, another type of warrant—known

as an “anticipatory” or “contingent” warrant—that

is issued before the evidence has arrived there. Specifi-

cally, an anticipatory search warrant may be issued

when officers have probable cause to believe that the

evidence—although not currently on the premises—

will be there when a “triggering event” occurs.

other words, the occurrence of the triggering event

demonstrates that the evidence has arrived and,

thus, probable cause now exists.

As the Fourth

Circuit put it, the triggering event “becomes the

final piece of evidence needed to establish probable

cause.”

The courts permit anticipatory warrants because,

as the court noted in U.S. v. Hugoboom, without

them officers “would have to wait until the trigger-

ing event occurred; then, if time did not permit a

warrant application, they would have to forego a

legitimate search, or, more likely, simply conduct

the search (justified by exigent circumstances) with-

out any warrant at all.”

Although there are no restrictions on the types of

evidence that may be sought by means of an antici-

patory warrant, most are used in conjunction with

controlled deliveries of drugs or other contraband.

As the First Circuit observed:

Anticipatory search warrants are peculiar to

property in transit. Such warrants provide a

solution to a dilemma that has long vexed law

enforcement agencies: whether, on the one

hand, to allow the delivery of contraband to be

completed before obtaining a search warrant,

thus risking the destruction or disbursement of

evidence in the ensuring interval, or, on the

other hand, seizing the contraband on its arrival

without a warrant, thus risking suppression.

Procedure

The procedure for obtaining an anticipatory war-

rant is essentially the same as that for a conven-

tional warrant, except that the affidavit must also

contain the following:

(1) D

ESCRIPTION OF TRIGGERING EVENT: The affidavit

must contain an “explicit, clear, and narrowly

drawn” description of the triggering event;

i.e., the description should be “both ascertainable

and preordained” so as to “restrict the officers’

discretion in detecting the occurrence of the

event to almost ministerial proportions.”

(2) TRIGGERING EVENT WILL OCCUR: The affidavit

must establish probable cause to believe the

triggering event will, in fact, occur; and that it

will occur before the warrant expires.

(3) PROBABLE CAUSE WILL EXIST: Finally, it must

appear from the affidavit that the occurrence of

the triggering event will give rise to probable

cause to search the premises.

See People v. Sousa (1993) 18 Cal.App.4

549, 557 [“An anticipatory or contingent search warrant is one based on an adequate

showing that all the requisites for a valid search will ripen at a specified future time or upon the occurrence of a specified event.”].

U.S. v. Andrews (4

Cir. 2009) 577 F.3d 231, 237.

(10

Cir. 1997) 112 F.3d 1081, 1086. ALSO SEE People v. Sousa (1993) 18 Cal.App.4

549, 557 [anticipatory warrants “recognize

that the police often must act quickly, especially when dealing with the furtive and transitory activities of persons who traffic in

narcotics”]; U.S. v. Garcia (2

Cir. 1989) 882 F.2d 699, 703 [without anticipatory warrants, officers might be forced “to go to the

scene without a warrant, and, if necessary, proceed under the constraints of the exigent circumstances exception”].

See People v. Sousa (1993) 18 Cal.App.4

549, 558 [“It is true that most anticipatory warrant cases involve controlled deliveries

of packages containing contraband. None of them, however, holds that anticipatory warrants are improper in other contexts.”].

U.S. v. Ricciardelli (1

Cir. 1993) 998 F.2d 8, 10.

See U.S. v. Gendron (1

Cir. 1994) 18 F.3d 955, 965; U.S. v. Penney (6

Cir. 2009) 576 F.3d 297, 310.

U.S. v. Ricciardelli (1

Cir. 1993) 998 F.2d 8, 12. ALSO SEE U.S. v. Brack (7

Cir. 1999) 188 F.3d 748, 757.

See United States v. Grubbs (2006) 547 U.S. 90, 96 [there must be “probable cause to believe the triggering condition will occur”].

NOTE: The triggering event must also occur before the warrant expires; i.e., within ten days after the warrant was issued. See Pen.

Code § 1534(a); Alvidres v. Superior Court (1970) 12 Cal.App.3d 575, 581 [“This time period, of course, would be subject to the 10-

day limitation which is set out in Penal Code section 1534.”].

See United States v. Grubbs (2006) 547 U.S. 90, 94 [“It must be true [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”]; U.S. v. Elst (7

Cir. 2009) 579 F.3d 740, 744 [there must

be “a fair probability that contraband or evidence of a crime will be found in the place to be searched if the triggering condition occurs”].

POINT OF VIEW

WHERE THE DESCRIPTION MUST APPEAR: Although

the United States Supreme Court has ruled that the

triggering event need not be described on the face of

the warrant,

the warrant should at least indicate

that the judge determined that it may be executed

when the triggering event occurs, and not, as in

conventional warrants, on any day before the war-

rant expires. Consequently, language such as the

following should be added to the warrant: Having

determined that probable cause for this search will

result when the triggering event described in the sup-

porting affidavit occurs; and, furthermore, that there

is probable cause to believe that this triggering event

will occur; it is ordered that this warrant shall be

executed without undue delay when the triggering

event occurs.

CONTROLLED DELIVERIES: As noted, most of the

cases in which anticipatory warrants have been

utilized involved controlled deliveries of drugs or

other contraband, usually to the suspect’s home. In

these situations, the triggering event will commonly

consist of a delivery of the evidence directly to the

suspect’s residence by the Postal Service, a delivery

company such as UPS or FedEx, an undercover

officer, or an informant under the supervision of

officers.

Probable cause may also be found when

there was strong circumstantial evidence that the

contraband would be delivered to the premises; e.g.,

undercover officers had previously purchased drugs

there,

or if intercepted contraband consisted of a

quantity of drugs that was “too great an amount to

be sent on a whim.”

THE “SURE AND IRREVERSIBLE COURSE” RULE: There

is one other issue that must be addressed. Some

courts have ruled that, when the triggering event is

a controlled delivery, it is not sufficient that there is

probable cause to believe the triggering event will

occur; i.e., that there is a fair probability that the

contraband will be taken to the place to be searched.

Instead, it must appear that the contraband was on

a “sure and irreversible course” to the location. The

theoretical justification for this “requirement” is,

according to the Seventh Circuit, “to prevent law

enforcement authorities or third parties from deliv-

ering or causing to be delivered contraband to a

residence to create probable cause to search the

premises where it otherwise would not exist.”

Based on the complete absence of any proof (or

even a suggestion) that anyone had actually en-

gaged in such blatantly illegal conduct, it appears

the court’s concern was based on nothing more than

its overwrought imagination. Moreover, the “sure

course” requirement is plainly contrary to the Su-

preme Court’s ruling that only probable cause is

required; i.e., that grounds for an anticipatory war-

rant will exist if “it is now probable that contraband,

evidence of a crime, or a fugitive will be on the

described premises when the warrant is executed.”

It is therefore likely that, because the “sure and

irreversible course” requirement establishes a stan-

dard higher than probable cause, it is a nullity.

Furthermore, there has never been a need for a

“sure course” requirement because the cases in

which it has been applied to invalidate a search

United States v. Grubbs (2006) 547 U.S. 90, 98 [“[T]he Fourth Amendment does not require that the triggering condition for an

anticipatory search warrant be set forth in the warrant itself ”].

See United States v. Grubbs (2006) 547 U.S. 90, 97 [delivery by USPS]; U.S. v. Hugoboom (10

Cir. 1997) 112 F.3d 1081, 1087

[delivery by undercover postal inspector]; U.S. v. Ruddell (9

Cir. 1995) 71 F.3d 331, 333 [delivery by undercover postal inspector];

U.S. v. Vesikuru (9

Cir. 2002) 314 F.3d 1116, 1122 [delivery by police agent posing as a commercial package carrier]; U.S. v. Dennis

Cir. 1997) 115 F.3d 524, 531 [“simply discovering the package in the mail stream and placing it back into the mail stream to effect

a controlled delivery should satisfy the sure course requirement”]; U.S. v. Leidner (7

Cir. 1996) 99 F.3d 1423, 1429 [“the informant

would personally deliver the marijuana to Leidner’s residence, under the direction and supervision of the government”].

See U.S. v. Brack (7

Cir. 1999) 188 F.3d 748, 757 [“Brack had been selling drugs out of Room 109”].

See U.S. v. Lawson (6

Cir. 1993) 999 F.2d 985, 988 [six ounces of cocaine “was too large an amount to be sent on a whim”]; U.S.

v. Dennis (7

Cir. 1997) 115 F.3d 524, 530 [16 ounces of cocaine].

U.S. v. Elst (7

Cir. 2009) 579 F.3d 740, 745.

United States v. Grubbs (2006) 547 U.S. 90, 96.

NOTE: The “sure course” rule was announced in U.S. v. Ricciardelli (1

Cir. 1993) 998 F.2d 8. But just one year later, the court explained

that, while its earlier opinion might be read as instituting a higher standard than probable cause, that was not the court’s intention.

Said the court, “But we know of no justification for a stricter standard in respect to specificity of time [when probable cause can be said

to exist] than in respect to the other two (constitutionally referenced) search parameters. Ricciardelli, while stating that contraband

must be on a ‘sure and irreversible course’ to the place to be searched, did not purport to set forth any special new rule requiring more

specificity where time, rather than, say, place, is at issue.” U.S. v. Gendron (1

Cir. 1994) 18 F.3d 955, 966.

ALAMEDA COUNTY DISTRICT ATTORNEY’S OFFICE

could have been decided without it on grounds that

the affidavit simply failed to establish probable cause

to believe the evidence would be taken to the place

to be searched. In fact, almost all cases in which the

courts have invalidated searches based on a “sure

course” transgression have involved controlled de-

liveries in which (1) the evidence was initially deliv-

ered to a location other than the suspect’s home

(e.g., a post office box), or was intercepted before it

reached the suspect’s home; (2) the affidavit failed

to establish probable cause to believe it would be

taken to the suspect’s home; and (3) there was no

independent probable cause linking the suspect’s

home to the criminal activity under investigation.

Thus, in these cases the affidavits would have failed

irrespective of the “sure course” deficiency because

they did not establish probable cause to believe the

evidence would be taken to the place to be searched.

The case of U.S. v. Rowland

demonstrates the

uselessness of the “sure course” concoction. In

Rowland, postal inspectors intercepted child por-

nography that had been mailed to Rowland’s post

office box. So they obtained an anticipatory war-

rant that authorized a search of Rowland’s home

when the package was picked up and brought

inside. The court ruled, however, that the warrant

was invalid, not because of a “sure course” viola-

tion, but because the affidavit simply lacked facts

that established a fair probability that the evidence

would, in fact, be taken to Rowland’s house. As the

court pointed out, “The affidavit stated: ‘It is antici-

pated that [Rowland], after picking up the tapes

from the post office box, will go to his place of

employment and after work to his residence.’ The

affidavit contained no information suggesting that

Rowland had previously transported contraband

from his private post office box to his home or that

he had previously stored contraband at his home.

Nor, did the affidavit provide any facts linking

Rowland’s residence to suspected illegal activity.”

Warrants to Search Computers

Although computer searches are notoriously com-

plex, the procedure for obtaining a warrant to

search a computer is not much different than any

other warrant. In fact, there are only three signifi-

cant differences: (1) the manner of describing the

hardware to be searched and the data to be seized

(we covered those subjects in the Spring 2011 edi-

tion), (2) obtaining authorization for an off-site

search, and (3) incorporating search protocols.

IS AN OFF-SITE SEARCH NECESSARY? As a practical

matter, it will almost always be necessary to con-

duct a computer search off-site unless officers plan

to conduct only a superficial examination; e.g., they

will be trying to locate the listed information by

conducting a simple word search or merely looking

at the names of directories and files. As the federal

courts have observed, because it is “no easy task to

search a well-laden hard drive,”

the “practical

realities of computer investigations preclude on-site

searches.”

IS OFF-SITE AUTHORIZATION NECESSARY? Although

some courts have ruled that officers do not need

express authorization to conduct the search off

site,

the better practice is to seek it. This is espe-

cially so when, as is usually the case, officers know

when they apply for the warrant that an off-site

search may be necessary.

HOW TO OBTAIN AUTHORIZATION: To obtain autho-

rization for an off-site search, the affiant must

explain why it is necessary.

Here’s an example:

See, for example, U.S. v. Hendricks (9

Cir. 1984) 743 F.2d 653, 655; U.S. v. Leidner (7

Cir. 1996) 99 F.3d 1423, 1428; U.S. v.

Loy (3d Cir. 1999) 191 F.3d 360, 365.

(10

Cir. 1998) 145 F.3d 1194.

U.S. v. Upham (1

Cir. 1999) 168 F.3d 532, 535. ALSO SEE U.S. v. Brooks (10

Cir. 2005) 427 F.3d 1246, 1251-52 [“Given the

numerous ways information is stored on a computer, openly and surreptitiously, a search can be as much an art as a science.”].

U.S. v. Stabile (3d Cir. 2011) 633 F.3d 219, 234.

See, for example, U.S. v. Horn (8

Cir. 1999) 187 F.3d 781, 788; U.S. v. Lamb (N.D.N.Y. 1996) 945 F.Supp. 441, 462.

See U.S. v. Banks (9

Cir. 2009) 556 F.3d 967, 973 [“[T]he affidavit explained why it was necessary to seize the entire computer

system”]; U.S. v. Hill (9

Cir. 2006) 459 F.3d 966, 976 [“We do not approve of issuing warrants authorizing blanket removal of all

computer storage media for later examination when there is no affidavit giving a reasonable explanation . . . as to why a wholesale

seizure is necessary.”]; U.S. v. Hay (9

Cir. 2000) 231 F.3d 630, 637 [the affidavit “justified taking the entire system off site because

of the time, expertise, and controlled environment required for a proper analysis”].

POINT OF VIEW

Request for Off-Site Search Authorization: For the

following reasons, I request authorization to re-

move the listed computers and computer-related

equipment from the premises and search them at a

secure location:

(1) The amount of data that may be stored digitally

is enormous, and I do not know the number or

size of the hard drives and removable storage

devices on the premises that will have to be

searched pursuant to this warrant.

(2) The listed data may be located anywhere on the

hard drives and removable storage devices, in-

cluding hidden files, program files, and “deleted”

files that have not been overwritten.

(3) The data may have been encrypted, it may be

inaccessible without a password, and it may be

protected by self-destruct programming, all of

which will take time to detect and bypass.

(4) Because data stored on computers can be easily

destroyed or altered, either intentionally or acci-

dentally, the search must be conducted carefully

and in a secure environment.

(5) To prevent alteration of data and to ensure the

integrity of the search, we plan to make clones of

all drives and devices, then search the clones;

this, too, will take time and special equipment.

(6) A lengthy search at the scene may pose a severe

hardship on all people who [live][work] there,

as it would require the presence of law enforce-

ment officers to secure the premises while the

search is being conducted.

The affiant should then add some language to the

proposed search warrant that would authorize an

off-site search; e.g., Good cause having been estab-

lished in the affidavit filed herein, the officers who

execute this warrant are authorized to remove the

computers and computer-related equipment listed in

this warrant and search them at a secure location.

One other thing: If the warrant was executed

within ten days after it was issued, officers do not

need specific authorization to continue searching

after the warrant expires.

Officers must, however,

conduct the search diligently.

TILIZING PROTOCOLS: If officers expect to find seiz-

able files intermingled with non-seizable files, they

may—but are not required to

—seek authoriza-

tion to conduct the search pursuant to a protocol.

Generally speaking, a protocol sets forth the manner

in which the search must be conducted so as to

minimize examinations and seizures of files that do

not constitute evidence.

For example, a protocol

might require “an analysis of the file structure, next

looking for suspicious file folders, then looking for

files and types of files most likely to contain the

objects of the search by doing keyword searches.”

Covert Search Warrants

Covert search warrants, commonly known as

“sneak and peek” warrants, authorize officers to

enter a home or business when no one is present,

search for the listed evidence, then depart—taking

nothing and, if all goes well, leaving no clue that

they were there. Covert warrants are rarely neces-

sary, but they may be useful if officers need to know

whether evidence or some other items are on the

premises, but the investigation is continuing and

they do not want to alert the suspects that investiga-

tors are closing in. Covert warrants may also be

helpful to identify the co-conspirators in a criminal

enterprise before officers start making arrests.

THE “NOTICE” REQUIREMENT: The main objection

to covert warrants is that the people whose homes

and offices are searched are not immediately noti-

fied that a search has occurred. But the United States

Supreme Court has described this objection as “frivo-

lous,” pointing out that instant notification is not a

See People v. Zepeda (1980) 102 Cal.App.3d 1, 7 [“the warrant was actually served when the search began”]; People v. Schroeder

(1979) 96 Cal.App.3d 730, 734 [“When the responding banks immediately indicated that it would take time for them to assemble

the voluminous material called for in the warrants, the purpose of the [time limit] was met.”]; People v. Superior Court (Nasmeth) (2007)

151 Cal.App.4

85, 99.

See Dalia v. United States (1979) 441 U.S. 238, 257 [“[T]he specificity required by the Fourth Amendment does not generally extend

to the means by which warrants are executed.”]; U.S. v. Hill (9

Cir. 2006) 459 F.3d 966, 978 [“[W]e look favorably upon the inclusion

of a search protocol; but its absence is not fatal.”]; U.S. v. Cartier (8

Cir. 2008) 543 F.3d 442, 447 [“the warrant need not include

a search protocol to satisfy the particularity requirement”].

U.S. v. Burgess (10

Cir. 2009) 576 F.3d 1078, 1094.

See, for example, U.S. v. Villegas (2

Cir. 1990) 899 F.2d 1324, 1330; U.S. v. Pangburn (2

Cir. 1993) 983 F.2d 449.

ALAMEDA COUNTY DISTRICT ATTORNEY’S OFFICE

constitutional requirement, as demonstrated by the

delayed-notice provisions in the federal wiretap

law.

Still, because notice must be given eventually,

some federal courts have required that the occu-

pants of the premise be given notice of the search

within seven days of its execution, although exten-

sions may be granted.

Note that the Ninth Circuit

has ruled that a judge may authorize a delay of over

seven days if the affiant makes a “strong showing of

necessity.”

While California courts have not yet

ruled on the legality of this procedure, it seems to

provide a reasonable solution to the notification

concerns.

O OBTAIN AUTHORIZATION: The following proce-

dure, adapted by the federal courts, should suffice to

obtain a covert entry warrant in California:

(1) DEMONSTRATE REASONABLE NECESSITY: In addi-

tion to establishing probable cause to search,

the affidavit must demonstrate that a covert

search is reasonably necessary.

Note that rea-

sonable necessity does not exist merely because

a covert search would facilitate the investiga-

tion or would otherwise be helpful to officers.

(2) ADD SPECIAL INSTRUCTIONS: Instructions, such as

the following, should be added to the warrant:

The evidence described in this warrant shall not be

removed from the premises. An inventory of all

evidence on the premises shall be prepared show-

ing its location when discovered. Said evidence

shall also be photographed or videotaped to

show its location. Compliance with the receipt

requirement of Penal Code § 1535 is excused until

____________ unless an extension is granted by

this court. Within two days after this warrant is

executed, the following shall be filed with this

court: (a) the inventory, and (b) the original or

copy of all photographs and/or videotapes.

Steagald Search Warrants

A Steagald warrant is a search warrant that

authorizes officers to enter a home, business office,

or other structure for the purpose of locating and

arresting a person who (1) is the subject of an

outstanding arrest warrant, and (2) does not live on

the premises. For example, officers would need a

Steagald warrant to search for the arrestee in the

home of a friend or relative.

In contrast, only an

arrest warrant (a conventional warrant or a Ramey

warrant) would be necessary to enter the arrestee’s

home to make the arrest.

The reason that officers need a Steagald warrant

(or consent or exigent circumstances) to enter a

third person’s home is that, otherwise, the homes of

virtually everyone who knows the arrestee would be

subject to search at any time until the arrestee was

taken into custody.

As we will now discuss, a judge may issue a

Steagald warrant if the affidavit demonstrates both

probable cause to arrest and search.

ROBABLE CAUSE TO ARREST: There are two ways to

establish probable cause to arrest:

(1) W

ARRANT OUTSTANDING: If a conventional or

Ramey arrest warrant is outstanding, the affi-

ant can simply attach a copy to the affidavit and

incorporate it by reference; e.g., Attached hereto

and incorporated by reference is a copy of the

warrant for the arrest of [name of arrestee]. It is

marked Exhibit A.

(2) P

ROBABLE CAUSE: If an arrest warrant has not yet

been issued, the affidavit for the Steagald war-

rant must establish probable cause to arrest, as

well as probable cause to search. (In such cases,

the Steagald warrant serves as both an arrest

and search warrant.)

Dalia v. United States (1979) 441 U.S. 238, 247-48.

See U.S. v. Freitas (9

Cir. 1986) 800 F.2d 1451, 1456.

U.S. v. Freitas (9

Cir. 1986) 800 F.2d 1451, 1456.

See U.S. v. Villegas (2

Cir. 1990) 899 F.2d 1324, 1337 [“[T]he court should not allow the officers to dispense with advance or

contemporaneous notice of the search unless they have made a showing of reasonable necessity for the delay.”]. NOTE: Although the

Ninth Circuit has indicated that a showing of necessity is not a requirement under the Fourth Amendment (U.S. v. Freitas (9

Cir. 1986)

800 F.2d 1451, 1456 [“we do not hold that a showing of necessity is constitutionally required”) it would seem that the overall

reasonableness of the search may depend on whether the delayed notice was necessary. Wilson v. Arkansas (1995) 514 U.S. 927 982.

See U.S. v. Freitas (9

Cir. 1986) 800 F.2d 1451, 1456 [the record “merely demonstrates that the search and seizure would facilitate

the investigation of Freitas, not that it was necessary”].

See Steagald v. United States (1981) 451 U.S. 204.

POINT OF VIEW

PROBABLE CAUSE TO SEARCH: There are two ways

to establish probable cause to search.

(1) A

RRESTEE IS INSIDE: Establish probable cause to

believe that the arrestee was inside the resi-

dence when the warrant was issued and would

still be there when the warrant was executed.

(2) ANTICIPATORY SEARCH WARRANT: Establish a fair

probability that the arrestee would be inside the

residence when a “triggering event” occurs

(e.g., when officers see the arrestee enter), and

that there is probable cause to believe the trig-

gering event will occur; e.g., the arrestee has

been staying in the house for a few days.

The

subject of anticipatory search warrants was

covered earlier in this article.

Email Search Warrants

While most warrant applications are made by

submitting hard copies of the affidavit and warrant

to the issuing judge, California law has long permit-

ted officers to seek warrants via telephone and fax.

More recently, however, officers were given the

added option of obtaining search warrants by email.

And because the email procedure is so easy (and the

others are so cumbersome), phone and fax war-

rants are now virtually obsolete.

Before setting forth the email procedure, it is

necessary to define two terms that have been added

to this area of the law:

Digital signature: The term “digital signature”

means “an electronic identifier, created by com-

puter, intended by the party using it to have the

same force and effect as the use of a manual

signature.”

Electronic signature: The term “electronic sig-

nature” means “an electronic sound, symbol,

or process attached to or logically associated

with an electronic record and executed or

adopted by a person with the intent to sign the

electronic record.”

The following is the procedure established by

California statute that officers must implement to

obtain a warrant by email:

(1) PREPARE AFFIDAVIT AND WARRANT: Complete the

affidavit and search warrant as an email mes-

sage or in a word processing file that can be

attached to an email message.

(2) P

HONE JUDGE: Notify the on-call judge that an

affidavit and search warrant have been pre-

pared for immediate transmission by email.

(3) O

ATH: Before the documents are transmitted,

the judge administers the oath to the affiant

over the telephone.

(4) A

FFIANT SIGNS: Having been sworn, the affiant

signs the affidavit via digital or electronic sig-

nature.

(5) A

FFIANT TRANSMITS DOCUMENTS: After confirm-

ing the judge’s email address, the affiant sends

the following by email: (a) the affidavit (includ-

ing any attachments), and (b) the warrant.

(6) C

ONFIRMATION: The judge confirms that all

documents were received and are legible. Miss-

ing or illegible documents must be re-transmit-

ted. Affiant confirms that the digital or elec-

tronic signature on the affidavit is his.

(7) J

UDGE READS AFFIDAVIT: The judge determines

whether the facts contained in the affidavit and

any attachments constitute probable cause.

(8) J

UDGE ISSUES WARRANT: If the judge determines

that probable cause to search exists, he or she

will do the following: (a) Sign the warrant

digitally or electronically; (b) note the follow-

ing on the warrant: (i) the date and time it was

signed, and (ii) that the affiant’s oath was

administered over the telephone; and (c) email

the signed warrant to the affiant.

(9) A

FFIANT ACKNOWLEDGES RECEIPT: The affiant

acknowledges that he received the warrant.

(10) A

FFIANT PRINTS HARD COPY: The affiant prints a

hard copy of the warrant.

(11) D

UPLICATE ORIGINAL CREATED: The judge in-

structs the affiant over the telephone to write

the words “duplicate original” on the hard copy.

(12) P

ROCESS COMPLETE: The duplicate original is a

lawful search warrant.

See United States v. Grubbs (2006) 547 U.S. 90, 96 [grounds for an anticipatory warrant will exist if “it is now probable that . . . a fugitive

will be on the described premises when the warrant is executed”].

See Gov. Code § 16.5(d).

See Civ. Code § 1633.2(h).

See Pen. Code § 1526(b)(2).

ALAMEDA COUNTY DISTRICT ATTORNEY’S OFFICE

Warrant Reissuance

A warrant is void if not executed within ten days

after it was issued.

If the warrant becomes void, a

judge cannot simply authorize an extension; in-

stead, the affiant must apply for a new warrant,

which includes submitting a new affidavit.

The

required procedure is, however, relatively simple.

Specifically, if the information in the original

affidavit is still accurate, the affiant can incorporate

the original affidavit by reference into the new

one—but he must explain why he believes the infor-

mation is still correct;

e.g., Affidavit for Reissuance

of Search Warrant: On [insert date of first warrant]

a warrant (hereinafter Warrant Number One) was

issued by [insert name of judge who issued it]

authorizing a search of [insert place to be searched].

A copy of the affidavit upon which Warrant Number

One was based is attached hereto, incorporated by

reference, and marked “Exhibit A”. For the following

reasons, Warrant Number One was not executed within

10 days of issuance: [Explain reasons]. I am not

aware of any information contained in Exhibit A that

is no longer accurate or current. Consequently, I

believe that the evidence listed in Warrant Number One

is still located at the place to be searched, and I am

hereby applying for a second search warrant identical

in all material respects to Warrant Number One. I

declare under penalty of perjury that the foregoing is

true and correct.

If any information in the original affidavit is no

longer accurate, it must be deleted. If there have

been new developments or circumstances that may

have undermined the existence of probable cause,

the additional information must be included in the

new affidavit.

If new developments have strength-

ened probable cause, officers should ordinarily in-

clude them in the new affidavit.

Other Special Procedures

RELEASING SEIZED EVIDENCE: When officers seize

evidence pursuant to a search warrant, the evidence

is technically in the custody and control of the judge

who issued the warrant.

Consequently, the officers

cannot transfer possession of the evidence to offic-

ers from another agency or any other person unless

they have obtained a court order to do so. (We have

posted such a court order on our website.) If, how-

ever, the property was seized by mistake, officers do

not need court authorization to return it to the

owner.

100

INSPECTION OF DOCUMENTS BY OTHER AGENCY: If

officers from another agency want to make copies

of documents seized pursuant to a warrant, they

should seek an “Order to Examine and Copy Docu-

ments Seized by Search Warrant.”

101

(We have also

posted a form for this purpose on our website.) This

order should be supported by an affidavit establish-

ing probable cause to believe the documents are

evidence of a crime that the outside agency is inves-

tigating. The order should, if possible, be issued by

the judge who issued the warrant.

102

SUBPOENA DUCES TECUM: Officers have occasion-

ally asked whether they can obtain evidence by

means of a subpoena duces tecum instead of a

search warrant. Although the subpoena procedure

may be quicker, a subpoena duces tecum is not a

practical alternative for the following reasons. First,

unless the subpoena is issued in conjunction with a

criminal investigation conducted by a grand jury,

103

it may be issued only if (1) the defendant had already

been charged with the crime under investigation,

and (2) the officers are seeking evidence pertaining

to that crime. Second, a person who is served with a

subpoena must deliver the documents to the court—

not to officers.

104

See Pen. Code § 1534(a).

See Srgo v. United States (1932) 287 U.S. 206, 211; People v. Sanchez (1972) 24 Cal.App.3d 664, 682 [“[T]here is no statutory

authority for the revalidation and reissuance of a search warrant.”].

See Srgo v. United States (1932) 287 U.S. 206, 211.

See People v. Sanchez (1972) 24 Cal.App.3d 664, 681-82.

See Pen. Code § 1536; People v. Superior Court (Laff) (2001) 25 Cal.4

703, 713.

100

See Andresen v. Maryland (1976) 427 U.S. 463, 482, fn.11.

101

See Oziel v. Superior Court (1990) 223 Cal.App.3d 1284, 1293, 1302.

102

See Pen. Code § 1536.

103

Pen. Code § 939.2; M.B. v. Superior Court (2002) 103 Cal.App.4

1384, 1388.

104

Pen. Code §§ 1326 et seq.; Evid. Code § 1560.

POV