Pg 11

Question 1

How do oral or telephonic search warrants work?

Answer 1

There must be an oath or a sworn statement to the magistrate, but this can be over the phone or electronically if it is understood by both parties to be an act of swearing that is enough that perjury could be charged if any material allegation of the warrant is false.

Question 2

What is rubberstamping?

Answer 2

When a judge issued a warrant didn’t read the affidavit

Question 3

What does it mean that police cannot magistrate-shop when it comes to warrants?

Answer 3

If one judge or magistrate denies a warrant, they cannot take the affidavit to another judge because the first decision is final and binding

Question 4

What does the element of “contemporaneity” mean for search warrants?

Answer 4

The person must believe that the items being sought are currently in the place to be searched (or will be there when the search happens).

Question 5

Is it necessary that the description in a search warrant be perfect?

Answer 5

No, you just have to give sufficient information so that the officer can, with reasonable effort, identify the thing or the place with reasonable clarity.

Question 6

What is required for the description in a search warrant for an urban location?

Answer 6

The street address or other description to identify the premises

Question 7

What is required for description for a search warrant for a rural property?

Answer 7

The owner’s name, or general directions, or highway or landmarks

Question 8

If a warrant has ambiguous wording, can the police use other facts that are not in the warrant but known to the police in order to find the location?

Answer 8

Yes

Question 9

What do you do to describe with particularity the place to be searched in a warrant if it is a multiple occupancy building?

Answer 9

If the description doesn’t state the subunit, it is invalid.

Question 10

If a building appears to be a single occupancy building and the cops don’t know or have any reason to know that it isn’t, is a warrant defective if it doesn’t state the subunit?

Answer 10

No, as long as discovery happened after the police went so far that withdrawal would’ve hurt the search or if the police, on discovery, made reasonable efforts to figure out which subunit it was and to confine their search to that

Question 11

If a search warrant is done in urgency because of imminent removal or destruction of evidence, what happens with regard to the description?

Answer 11

Leeway can be given if it could have been more particularized.

Question 12

If you have a search warrant for a vehicle, what is required for the description?

Answer 12

A few of these together is enough:
– owner's name
– make or model
– year
– color
– license number
– location

Question 13

What are situations when more ambiguity with regard to the description in a search warrant is allowed?

Answer 13

When the police have done their best under the circumstances to get all descriptive facts that they could and to include them in the warrant, or the nature of the objects don’t have more specific characteristics. For example, a less precise description is needed for contraband

Question 14

If false statements are knowingly or intentionally made by the affiant, or with reckless disregard for the truth and then included in the warrant, is that treated the same as negligence or innocent mistake?

Answer 14

No

Question 15

If a police officer correctly recites what he was told by an informant to make an affidavit, but it turns out that the informant was lying, even though the police officer believed the information was reliable, is that a problem?

Answer 15

No, because the person that gets in trouble for speaking untruths can only be the police officer, not an informant

Question 16

Does the basis for probable cause need to be written into the warrant?

Answer 16

No, it can be sworn or can be unrecorded oral testimony

Question 17

What is the pervasive fraud theory?

Answer 17

Warrants for “all records” can be given if a pattern of illegal conduct is likely to extend beyond the conduct in evidence or to infest the rest of the company’s business. The focus is on the extent that the fraud permeates the business and is likely to be found in all the records

Question 18

Is it possible to cross reference other documents in a warrant, such as the affidavit?

Answer 18

No, the fourth amendment prohibits this. The warrant should inform the person that is searched of the particulars of the search, and a defect in the warrant cannot be overcome by sufficient descriptions in the affidavit

Question 19

If a warrant specifies the time allotted to execute the warrant, what happens if that is not followed?

Answer 19

Then it is invalid

Question 20

What do many states say about timing for the execution of a warrant?

Answer 20

Then it must be done in daytime hours unless there’s a serious special showing or authorization from a concurrence of two magistrates, or inability to show that the property will definitely be found, or a need for proper prompt action, etc.

Question 21

What are considered to be federal daytime hours where the execution of a warrant can happen?

Answer 21

6 AM to 10 PM

Question 22

What is impoundment?

Answer 22

To wait at the house while the officers get a warrant and the interim occupants can be arrested or forced to leave, or to stay under police surveillance

Question 23

Why is impoundment a good idea?

Answer 23

Because

Question 24

What is required for impoundment?

Answer 24

It must be a relatively short period

Question 25

If police made a warrantless entry and they arrested everyone and took them all down to the station, and then the police stayed at the house for 19 hours until a search warrant could be gotten and executed, would that be OK?

Answer 25

Yes because the illegal entry had nothing to do with the seizure

Question 26

If police guarded a home while the woman got her things from inside so that she could leave her husband and then the woman told the police that her husband had pot inside, and when they asked for permission to search, the husband refused, and then one cop left to get a warrant while the other one stayed on the porch with the husband and told him he couldn’t go back inside unless he was with him, and then two hours later a warrant arrived, would that be ok?

Answer 26

Yes, this is reasonable because the police had probable cause to think that the home had evidence of a crime, the police had a good reason to think if the defendant was not restrained he would destroy it before they could get a warrant, they made reasonable efforts to balance the law-enforcement needs with personal privacy, they only imposed minimal restraint instead of doing a warrantless search, and the time period was limited to two hours

Question 27

If there is a risk of bodily harm or death, what is the timing for a warrant?

Answer 27

The police can do an immediate search of the premises without a warrant. This is OK if there’s reasonable cause to think that the premises had:
– individuals in imminent danger of death or serious bodily harm
– things that are imminently likely to burn, explode, or cause death or destruction of property
– things that are subject to seizure that could be used to cause death, harm, or destruction of property

Question 28

If there was a homicide and no life-threatening emergency currently exists, would that be considered exigent circumstances for a warrantless search?

Answer 28

No, because there’s no longer any risk of bodily harm or death

Question 29

What must be the wait time for police after they knock on the door before they execute a warrant?

Answer 29

You must wait as long as it reasonably takes a person to get to the door. This is 15 to 20 seconds in the daytime. And this is determined by the nature of the risk, and by the size of the place. You must wait longer to make a forced entry to be sure that the occupant had time to answer

Question 30

If police have reasonable suspicion to enter without giving notice, is that OK?

Answer 30

If there is a risk of evidence destruction

Question 31

What is the entry wait time before a warrant is executed based on?

Answer 31

Facts that are known to the police officer at the time. So if a person was in the shower and didn’t hear the doorbell, that is irrelevant

Question 32

What must police do before they enter a property?

Answer 32

Give notice of their authority and their purpose

Question 33

What are all the different situations that police must give notice of entry for?

Answer 33

– entering by force
– using a pass key
– opening a closed door

But not for entering by ruse like as an undercover agent

Question 34

Do police need a warrant in order to search business records that include computer data on a computer or a cell phone?

Answer 34

Yes

Question 35

Is it possible for police to take a computer or a cell phone to a different location to sort through the information?

Answer 35

Yes, if it would take so long that it would be less intrusive to just take the device away for sorting or if an expert is needed. One year is not considered to be too long

Question 36

If police are executing a search warrant and during the search they find a computer, what do they need in order to look at the contents of the computer?

Answer 36

A second warrant. This is the equivalent of the suspect’s home since it has a universe of private information

Question 37

If police electronically copy something, what is that?

Answer 37

A seizure

Question 38

What is a search?

Answer 38

Investigatory trespass against a person’s home, effects, person, or papers, even if exposed to the public, or any other intrusion on reasonable expectation of privacy

Question 39

What are areas that a person has a reasonable expectation of privacy in?

Answer 39

His home or curtilege, areas of his workplace, desk drawers, lockers, leased premises, hotel rooms, etc.

Question 40

What is the test for a search?

Answer 40

Ask if the suspect is excluding others from the area, and does society recognize the area is reasonable

Question 41

If a person is smoking pot on a public street and a cop sees it, is that considered to be a search?

Answer 41

No, because there is no reasonable expectation of privacy in public

Question 42

What things are usually needed for a search to occur?

Answer 42

Trespass and trying to find something or to get information

Question 43

The threshold of a house should not be crossed without a warrant unless what?

Answer 43

There are exigent circumstances

Question 44

If you take DNA from a buccal swab when a person is arrested, is that considered to be a search?

Answer 44

No, because there’s very little expectation of privacy involved and this is reasonable