AFFIDAVITS AND WARRANTS
In the criminal justice system, there are three ways to ensure that
people tell the truth: by OATH, which is a solemn declaration to God that their
statement is true; by AFFIRMATION, which is a solemn declaration without
reference to God; and by AFFIDAVIT, which is a signed statement under penalty of
perjury that the facts contained in a document are true. For Fourth
Amendment purposes, an affidavit has the same weight as an oath or affirmation
even though it is little more than the equivalent of a notarized document.
Affidavits are usually part of the warrant application process, and the
procedure is the same whether the purpose is to obtain an arrest or search
warrant, although there are slight differences in wording which will be
explained below.
Affidavits should be more than simple statements which read "The undersigned
officer has information from a reliable source that establishes probable cause
to believe that..." for two reasons. One, the totality of circumstances test
(Illinois v. Gates) has replaced the reliable source doctrine (Aguilar test),
and two, judges must usually determine whether probable cause exists, not
officers. An officer denied a warrant cannot go to another judge with the same
application materials. An affidavit, therefore, must be done right the first
time and contain detailed facts. The general form of an affidavit is as follows:
GENERAL AFFIDAVIT
State of ______________;
County of _____________;
The undersigned, an officer duly commissioned by the laws of
_________ on this _______ day of _______________ 20____ personally appeared
before
__________________________________________________________________________ and
having been duly sworn do hereby say:
__________________________________________________________________________
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Officer signature: ___________________________
Officer address: ____________________________
Sworn to and subscribed before me this _______ day of ____________ A.D. 20____
Judicial signature: _____________________________
Judicial address: ______________________________
(SEAL)
An example of detailed facts which would go into the body of the affidavit
might be:
"The affiant, Officer Joe Blow, is employed as a peace officer for the
Metropolitan Police Department and has attached hereto and incorporates by
reference official reports and records of a law enforcement agency. These
reports and records were prepared by law enforcement officers and contain
factual information obtained from victims, witnesses, and other confidential
informants which establish commission of the following criminal offense(s): GS
13: 501 - Residential Burglary, by the following person(s): John Bartholoway
Jones, also known as "Bad Bart", a 21 year old black male, Social Security
Number 000-00-0000. WHEREFORE, the affiant prays that a warrant of arrest be
issued for said person."
Note two things in the above example which are essential in an arrest
warrant application. First, a detailed description as possible is given of the
suspect -- legal name, aliases, age and/or date of birth, height, weight,
ethnicity and social security number. Approximations may be used when
appropriate, but preference is to an exact description. This is because arrest
warrants are entered into computerized systems, such as NCIC or AWWS, and
officers totally unfamiliar with the case must be able to identify the suspect.
So-called "JOHN DOE WARRANTS" can be issued, but they still must give a
sufficient description of the suspect. In executing an arrest warrant, officers
must use reasonable care to ensure that the person arrested matches the
description, but they are protected from civil liability for false arrest when
they exercise due care.
Secondly, note that the wording of the offense (GS 13: 501 - Residential
Burglary) is exactly similar to the form of the COMPLAINT which the prosecutor
must file in order to initiate criminal charges. The affidavit also makes
reference to official police reports and records which will probably become part
of the case folder turned over to the prosecutor. This saves time and paperwork
because in some jurisdictions, the warrant substitutes for the criminal
complaint. Confidential informants will remain confidential unless the
prosecutor determines they are a material witness to the crime. The phrase
"incorporated by reference" means that the judge did or did not require a
dialogue with Officer Joe Blow to testify that the attached documents are
"official". If the judge required a personal appearance, the dialogue will be
transcribed and a copy attached to the warrant application. To save even more
time and paperwork, some jurisdictions allow affidavits, supporting materials,
and/or testimony to be given by phone, fax, e-mail, or computer conferencing.
Such "TELEPHONIC WARRANT SYSTEMS" usually involve a conference call between the
officer, the prosecutor, and a judge. A transcript of the proceeding substitutes
for a written affidavit.
Arrest warrants are usually valid for at least a year or a period equal to
the statute of limitations on the crime, but some crimes (like murder) have no
statute of limitation. Automated warrant systems usually purge old warrants that
have expired, but officers should check on expired or RECALLED warrants anyway
because arrest under these circumstances is invalid. Circumstances that might
produce a recall include the suspect turning themself in, arrest in another
jurisdiction, cooperation with police in another case, or prosecution for
another case. Usually in such cases, the affidavits and supporting materials
cannot become part of court records for prosecution purposes. Arrest warrants
must be obtained from the jurisdiction where the crime occurred.
Generally, a SEARCH WARRANT is not necessary if an arrest warrant is issued
because searches can be made incidental to arrest (Chimel Rule and Plain View
Doctrine). However, this only allows a search of the immediate area and obvious
places where the stolen property might be located. Officers could not, for
example, rummage through drawers looking for stolen TV sets (Elephant In a
Matchbox Doctrine). On the other hand, if they were looking for stolen coins,
they could probably look anywhere. To protect themselves, or in order to work up
to arrest by recovering evidence first, police departments use the affidavit
process to obtain a SEARCH WARRANT. Search warrants must be obtained from the
jurisdiction where the search will be conducted.
The process is the same as an arrest warrant, but the wording in the body of
the form is different. An example of detailed facts which would go into
application for a SEARCH WARRANT might be:
"The affiant, Officer Joe Blow, is employed as a peace officer for the
Metropolitan Police Department and has attached hereto and incorporates by
reference official reports and records of a law enforcement agency. These
reports and records were prepared by law enforcement officers and contain
factual information from victims, witnesses, and other confidential informants
which indicate that the following property described herein may be found at the
location(s) set forth herein and that such property was stolen, embezzled, or
otherwise obtained without the proper owner's permission. We therefore pray for
permission to search the premises at: 123 East Illinois Avenue which is a white,
two story house on the corner of Illinois Avenue and 2nd Street, enclosed by a
chain link fence, including all rooms, attics, basements, garages, outbuildings
and trash containers at these premises as well as the person of all residents
such as the known inhabitant, John Bartholoway Jones, also known as "Bad Bart",
a 21 year old black male, Social Security Number 000-00-0000, for the following
property: a SONY 21" Television set, serial number 000-0000; a GE 35" Television
set, serial number unknown, but having a black case, a GE 27" Television set,
serial number 000-0000, several 16" gold chains, and a coin collection
consisting of U.S. coins from the 1874-1919 time period in certain condition
(VF-XF) and specific year dates (1909) missing as well as any other items
tending to establish the identities of current resident(s) or owner(s)."
Many jurisdictions have PREPRINTED FORMS depending upon the type of crime.
Drug cases, for example, may list all controlled substances and associated
paraphenalia. The officer or judge then simply cross out the items which are
inapplicable. Broad, general language which gives the impression of an
unrestricted hunt or "fishing expedition" is not allowed. Property items with
known serial numbers are preferred, but some approximation is allowed in
description. However, the dwelling and areas outside the curtilage are usually
described in some detail. Statutory language is usually not necessary in
describing the offense. Words such as "stolen" or "obtained without permission"
are allowed. Supporting facts, such as information obtained from a confidential
informant, normally do not become part of court records as they would in the
case of an arrest warrant. The judge will look at whether police verified a
piece of the informant's tip through their own surveillance or other effort.
Generally, police reports on stolen property accompany the search warrant
affidavit.
A search warrant is valid only if the information on it is fresh. STALE
information cannot be used. If the time lapse is such that the items could have
been moved to another location, the search warrant is stale and considered
expired. Any evidence found in execution of a stale warrant is inadmissible. The
STALENESS DOCTRINE varies from state to state, but frequently is around 10 days.
State laws also control how and when a search warrant can be executed. The right
to search only once is usually protected, although some jurisdictions allow
teams of officers to conduct serial searches until the job is complete..
"Daytime" is also defined differently from state to state. NO-KNOCK WARRANTS are
allowed under circumstances involving danger, destruction of evidence, and the
possibility of escape. All executions of a search warrant require a RETURN, or
itemized inventory of everything seized, with a copy left at the location.
Usually, this is accomplished by a form on the back of a warrant copy, which is
also left at the scene with the names of all officers participating in the
search and seizure.
OTHER USES OF THE WORD "WARRANT" IN CRIMINAL JUSTICE
Although ARREST and SEARCH are the most commonly used
terms in connection with warrants, the term "BENCH" warrant refers to an order
for arrest issued by a judge after a conviction in absentia or when there is a
failure to appear in court. Laws governing bench warrants vary widely, as does
the meaning of the word "warrant" in certain contexts when a person is not
really a "suspect" but a "person of interest," for example.
Technology seems to add layers of complexity to warrants. A
typical situation is the ELECTRONIC SURVEILLANCE warrant. Federal laws under
Title III of the Omnibus Crime Control and Safe Streets Act (1968) require a
showing of necessity in issuing warrants for wiretaps and other forms of
electronic surveillance. Most states have passed laws emulating these federal
standards, but some states are more restrictive, others less restrictive. At the state level, usually the
Attorney General must approve of such techniques. Generally, such warrants are
only good for 30 days, with renewal available on the basis of probable cause.
Strictly speaking, the crime(s) for which these warrants can be used must be Title III crimes or
their state equivalent(s), and the transcripts of what the surveillance recorded is
returned to the court, much like the return on a search warrant. However,
practices vary.
Another use of the word occurs when an execution is to be carried out, in what is called the DEATH WARRANT, the basis of the state's legal authority for depriving someone of their life. In this sense, the word "warrant" implies a critical mission or function to be carried out.
INTERNET RESOURCES
Nolo's Guide to Warrants: When They Are and Are Not Necessary
PRINTED RESOURCES
Farb, R. (1996). Arrest Warrant and Indictment Forms. Durham: UNC-CH
Press.
Lonsdale, M. (1991). Raids: A Tactical Guide to High Risk Warrant Service.
LA: STTU Press.
Last updated: July 02, 2006
Not an official webpage of APSU, copyright restrictions apply, see
Megalinks in Criminal Justice
O'Connor, T. (Date of Last Update at bottom of page). In Part of web cited
(Windows name for file at top of browser), MegaLinks in Criminal Justice.
Retrieved from http://www.apsu.edu/oconnort/rest of URL accessed on
today's date.