CP Ch. 13 Obtaining Search Warrants

Question 1

Who is authorized to issue a search warrant? (6)

Answer 1

1. Justices of the Supreme Judicial Court
2. Justices of the Superior court
3. Justices of the District court
4. Clerks of the District court
5. Assistant Clerks of the District court
6. Temporary Clerks of the District court

Interestingly, Appeals court justices and Superior Court clerks are NOT** empowered to issues warrants.

Question 2

Are Clerks of the Superior court empowered to issue search warrants?

Answer 2

NO.

Question 3

Where may magistrates issue a warrant authorizing a search for evidence?

Answer 3

Anywhere in the Commonwealth.

-Even if the criminal activity that is the subject of the warrant occurred outside the court’s territorial jurisdiction.

Question 4

A Massachusetts Judge or Clerk may not issue a search warrant for evidence outside the territorial boundaries or waters of the Commonwealth, except for:

Answer 4

Computer records.

Question 5

Must the officer submitting an affidavit for a search warrant personally appear before the magistrate?

Answer 5

Yes.

In the rare cases where an officer ends up communicating by phone or fax, he must have exhausted all reasonable efforts to personally appear before a magistrate (ex. holiday weekend insufficient)

Question 6

True or false:

Magistrates may only base their decision on the written materials submitted.

Answer 6

True.

276 sec 2B requires that probable cause exist “within the four corners” of the affidavit.

Question 7

Magistrates should resolve marginal cases in favor of the police to encourage:

Answer 7

their use of warrants.

If the first affidavit fails, police may resubmit it with additional information to satisfy the probable cause standard.

Question 8

Does an affiant applying for a search warrant need to disclose all steps of their investigation?

Answer 8

No. As long as probable cause supports the warrant AND the omitted information does not negate probable cause.

• On the other hand, if officers obtain information that casts doubt on the magistrates probable cause decision after a warrant has been issued, but before they execute it, the officer should return to the magistrate and present the information for a new probable cause determination.

Question 9

A clerical error (in regard to search warrants) does not nullify a warrant because:

Answer 9

it does not impact its underlying information.

Ex, judge forgot to sign warrrant

Question 10

Affidavit (for search warrant) no public until:

Answer 10

Filed.

Question 11

Search Warrants:

The judge or clerk who issues the search warrant must deliver the original affidavit within (blank) days to the court where the warrant will be returned. When the police return the warrant, their affidavit is attached to it and filed. At that point, the affidavit becomes a public document.

Answer 11

within 3 days.

Question 12

If officers do not want an affidavit to become public, the prosecutor may:

Answer 12

petition a judge to impound it.

Ex. child abuse investigations, etc.

Question 13

An affidavit must explain why evidence is probably:

Answer 13

probably located at the place to be searched.

Note: This connection need not be proven by direct observation. It may be based on “the type of crime, the nature of the missing items, the extent of the suspects opportunity for concealment, and normal inferences as to where a criminal would be likely to hide evidence.

Question 14

Is the mere fact that a house is a defendant’s residence enough to establish probably cause for a search warrant.

Answer 14

No. Must have probable cause to believe that evidence is located at the place to be searched.

Question 15

Is is permissible to infer that “useful items- items of durable and continuing utility to the defendant” (sneakers, clothing, face masks, etc) will be in the house at the time of the search?

Answer 15

Yes.

A defendant is unlikely to dispose of items that are not currently incriminating and are still of use to him.

Question 16

If probable cause exists to search a suspects business for evidence (for example, drug distribution), does that right automatically extend to the suspects home?

Answer 16

No.

Affidavit would need to contain specific information that ties defendants residence to the illegal drug transactions.

Question 17

When outside activity is involved, there must be (blank) in order for police to have probable cause to search inside the dealer’s residence.

Answer 17

Multiple sales.

Ex. multiple sales indicating defendant keeps his supply of drugs IN his apartment.

Question 18

May police present evidence and apply for a search warrant of a “stash house” even if the suspect only visits the location and never stays?

Answer 18

Yes.

High volume dealers often keep their drug business and home in separate locations to avoid detection.

Question 19

The affidavit must be based on stale information. The information must be recent enough to show that the evidence is located:

Answer 19

at the place to be searched.

Whether information is stale depends on the facts of each case.

The affidavit must disclose a clear time frame.

Question 20

Whether information is stale depends on:

Answer 20

the facts of each case.

Important factors: The character of the crime, character of the criminal, character of the thing to be seized (perishable and easily transferable or of enduring utility to its holder), character of the place to be searched.

“The observation of a half smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later. - FACTS OF EACH CASE

Question 21

Search warrants

Staleness: Durable vs. disposable evidence.

Stolen coins, 5 months later?

A quantity of drugs for personal use?

Answer 21

1. Likely to be present because they are not easy to transfer.
2. Unlikely to remain where it was observed, say a week earlier.

Sidenote: Also important factor when offender has no reason to get rid of the evidence (doesn’t know they are a suspect)

Question 22

Search warrants: Staleness

If the offender is involved in a “continuing enterprise”, the passage of time becomes:

Answer 22

Less important.

Question 23

Search warrants:

Staleness of deleted computer files: Child porn on defendant’s computer was not stale because:

Answer 23

evidence in computer files can be recovered long after it has been deleted.

Question 24

Police officers seek a warrant in advance if they have probable cause that evidence will arrive at a certain location. What is this called?

Answer 24

Anticipatory warrant.

Question 25

Search warrant:

The warrant must particularly describe: (2)

Answer 25

1. The premises to be searched; and
2. the items to be seized.

Question 26

Search Warrant:

The description in a warrant is adequate if it is unlikely that:

Answer 26

the wrong place will be searched.

Question 27

Search warrant:

Must the name of the owner/occupant of the place to be searched appear on the warrant?

Answer 27

No. So long as the premises are described adequately.

Question 28

Are “ Fill- in-the -blank” warrants acceptable? (Undercover trooper wearing a wire during weekly, “floating” poker game with various locations determined a the lat minute)

Answer 28

No.

SJC: Allowing these types of warrants would replace a magistrates judgment with police discretion.

Question 29

Search Warrants:

when police know (or should know) that a building contains more than one apartment, they must specify which apartment they have probable cause to search. A description that applies to more than one unit is invalid, unless: (2)

Answer 29

1. The suspect has access to all the units in the house
2. The police were legitimately unaware of the layout.

Question 30

When applying for a search warrant in a building with multiple units, must police research the layout?

Answer 30

No. Not required.

While police must properly designate the unit to be searched in a multi unit dwelling, they do not have to interview the owner of the building or take any other steps which might disclose the reason for their interest in the premises.

Question 31

What are the five classifications of evidence to be searched for? (5)

Answer 31

1. Fruits of crime
2. Intrumentalities
3. Contraband
4. Dead body
5. Living person with an arrest warrant

Question 32

Search warrants:

Clearly defining the evidence sought safeguards:

Answer 32

the rights of the individual whose property is being searched.

Question 33

Definition:

Fruit of crime

Answer 33

Property stolen or obtained during crime.

Question 34

Definition:

Instrumentalities:

Answer 34

Property or articles used to commit a crime.

Question 35

Definintion:

Contraband:

Answer 35

Property or articles that may not be legally possessed (ex cocaine).

Question 36

Search warrant:

True or false:
Officers must specifically describe items to be searched for.

Answer 36

True. If possible.

• generic terms such as “stolen jewelry” or “antique coins” are OFTEN too vague and inadequate.

However, sometimes only a general description is possible when police have probable cause, but lack specific information about the specific form evidence will take.

Question 37

To obtain a warrant for marijuana cultivation, police must have (blank) that the suspect is engaged in illegal activity.

Answer 37

Probable cause.

This depends on whether the suspect is growing marijuana under adult use guidelines or the medical marijuana program.

Question 38

Marijuana Cultivation: Adult use guidelines:

If they are not in the medical marijuana program, and do not have a commercial cultivation license from the Cannabis Control Commission, Mass citizens over 21 and over may legally cultivate marijuana for their own personal use. Their cultivation activity must: (3)

Answer 38

1. occur at their primary residence
2. Within a max quantity of 12 plants (if 2 or more adults); and
3. with no sales or intended sales.

Without a medical or commercial license, a person who violates any of these three conditions is guilty of criminal cultivation.

Question 39

Unlike the adult use law, medical marijuana regulations do not specify:

Answer 39

a maximum number of plants. (instead, up to 10oz- 60 day supply)

Question 40

If the evidence shows that the home grower gave marijuana or paraphernalia to someone under 21, who was not his child or grandchild and on his property, that is a (blank) violation.

Answer 40

a criminal “social host” violation.

Question 41

Medical marijuana program restrictions:

To legally grow medical marijuana, patients or caregivers must: (3)

Answer 41

1. have a hardship cultivation registration.
2. grow up to 10 oz every 60 days
3. not distribute, or intend to distribute, any amount of marijuana

Question 42

Mandatory warrant for alcohol in dwellings yields to:

Answer 42

exigent circumstances.

this “mandatory warrant” is an old statue largely overlooked today. exigency (underage drinking) takes precedence.

Question 43

In typical underage drinking situations, enter based on:(2)

Answer 43

(1) Consent, or (2) exigent circumstances.

Community caretaking- officers should attempt to deal with underage drinking the moment they become aware of it, so it doesn’t escalate. (dangers of allowing underage drinking, potential destruction of evidence)

Question 44

Following warrantless entry based into underage drinking party based on consent or exigency, if officers wish to make a more extensive search, the should:

Answer 44

secure the scene and get a warrant.

Question 45

138 Sec. 42 requires that any warrant for alcoholic beverages be based on the complaint of (blank).

If the warrant is directed toward a dwelling, (including the one above a store or tavern), the police have an additional obligation. Under 138 sec 43, one complainant must communicate that the illegal beverages were kept of sold (blank) prior to the warrant application.

Answer 45

1. two adults
2. within one month

Question 46

May a court issue a search warrant for a third-party, who was not involved in the underlying crime, if police believe the third party possesses evidence?

Answer 46

Yes.

Ex. Search warrant of office of student newspaper- specifically searching for photos of demonstrators who has seriously assaulted officers.

Question 47

Police access to the privileged files of (blank), (blank), and (blank) is severely restricted unless officers can persuade a judge that evidence will be destroyed, or one of these professionals is actually participating in the crime.

Answer 47

1. Lawyers
2. Therapists,
3. Religious officials

Question 48

Aaron Hernandez gave his attorney his cell phone; once the attorney downloaded the contents, he no longer needed the phone to represent Hernandez; at that point, investigators got a warrant for the phone because they had probable cause it contained evidence of witness intimidation. Was this proper?

Answer 48

Yes.

Question 49

A warrant may be partially invalid if the affidavit fails to establish:

Answer 49

probable cause for certain items.

Police may still seize the items supported by probable cause. They may even seize the improperly included items if found in areas where officers were legitimately searching for correctly listed items.

This rule give the benefit of the doubt to officers who attempt to list all items in their warrant application. * In contrast, purposefully omitted items may be suppressed under the inadvertance rule

Question 50

Does Massachusetts allow search warrants to be directed at named individuals?

Answer 50

Yes. (Defendant properly searched as he left his house)

However, court rejected that the person could be searched “wherever they may be found”

Question 51

Searching all persons may be authorized by a warrant if there is probable cause that anyone at the scene is a likely participant in crime. These factors are emphasized:(4)

Answer 51

1. The premises to be searched are small, confined, and private;

2.The criminal activity involves shifting participants (so it is practically impossible for police to predict who will be there at a given time)

3. The items targeted are easily concealed; and
4. Whether persons unconnected with the illegal activity have been on the premises (this information lets the magistrate assess the risk of innocent people being searched)

Question 52

An affidavit may not rely on information from and illegal (blank) or (blank):

Answer 52

search or interrogation.

Question 53

An affidavit may not rely on (blank) information furnished by police investigators.

Answer 53

false information.

Question 54

This landmark case allows a defendant to allege that information in the police affidavit is false. Following a hearing, the evidence will be suppressed if the court finds: (1) the police affiant included a false statement- which was made intentionally or with reckless disregard for the truth; AND (2) If the false statement is removed from the affidavit, probable cause no longer exists.

Answer 54

Franks Hearing.

Question 55

Franks Hearing: This landmark case allows a defendant to allege that information in the police affidavit is false. Following a hearing, the evidence will be suppressed if the court finds: (2)

Answer 55

(1) the police affiant included a false statement- which was made intentionally or with reckless disregard for the truth; AND (2) If the false statement is removed from the affidavit, probable cause no longer exists.

Question 56

False information does not affect the integrity of the warrant if:

Answer 56

if the affiant did not lie.

ex. detective relied on statement by the neighbor that he had been in the defendants house and seen letters and other evidence in a wooden box; the detective reasonably believed him since he had heard the same info from other witnesses.

Question 57

This case recognized that a defendant may have well-founded suspicions that the affidavit is false, yet be unable to make a preliminary showing entitling him to a Franks Hearing. The solution is a procedure that requires a judge to hold an IN CAMERA(private) hearing. The purpose of this hearing is to determine if the defendant deserves a Franks Hearing. What is this hearing called.

Answer 57

Amral Hearing.

*- Concrete facts: defendant must set forth his well- founded suspicion.
- Hearing- judge may quiz the affiant or even the informant (witness who gave statements leading to PC) to learn whether the affidavit contains false information. Note: a transcript of the hearing must be made to facilitate appellate review.