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 _______________ 19____ 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. 19____

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 USAGES 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.

Another 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. 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 probably cause. The crime(s) for which these warrants can be used must be Title III crimes or their state equivalent(s). Transcripts of what the surveillance recorded is returned to the court, much like the return on a search warrant.

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.

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: 06/25/03
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