SEARCH WARRANTS: �A PRIMER

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BY NICHOLAS HOLCE

GOALS OF THIS PRESENTATION

• Identify issues involving:
• Whether officers developed probable cause with the help of reporting parties and confidential informants
• Whether officers developed probable cause based on an officer’s own observations
• Whether the officer used other tools to develop probable cause
• Whether the thing to be searched was adequately articulated
• Whether the location subject to scrutiny was properly identified
• Whether the criminal charge is supported by the information on hand
• Identify the framework of a motion to suppress

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CRR 2.3: SEARCH AND SEIZURE

• (a) Authority to Issue Warrant
• (b) Property or Person Which May Be Seized With a Warrant
• (c) Issuance and Contents
• (d) Execution and Return With Inventory
• (e) Motion for Return of Property
• (f) Searches of Media

WHAT A SEARCH WARRANT LOOKS LIKE IRL.

APPLICATION SUPPORTING THE SEARCH WARRANT VERSUS THE SEARCH WARRANT ITSELF

• “The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents.” Groh v. Ramirez, 540 U.S. 551, 557, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004).
• The particularity requirement may be satisfied if “the affidavit and the search warrant are physically attached, and the warrant expressly refers to the affidavit and incorporates it with ‘suitable words of reference’.” State v. Riley, 121 Wn.2d 22, 29, 846 P.2d 1365 (1993).

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HOW SPECIFIC CAN THE OFFICER BE?

• Very specific
• Great! Do that!
• Not very specific

STATE CONSTITUTIONAL RIGHT TO PRIVACY

• “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Wn. Const. art. 1, sec. 7.

LACK OF SPECIFICITY

“The required degree of particularity may be achieved by specifying the suspected crime,” although generic classifications of the crime may be sufficient. State v. Askham, 120 Wn. App. 872, 878, 86 P.3d 1224 (citing State v. Riley, 121 Wn.2d 22, 28, 846 P.2d 1365 (1993)). The test is whether the warrant is specific enough to allow police to recover the evidence for which there is probable cause, while limited enough to not go beyond. State v. Keodora, 191 Wn. App. 305, 313, 364 P.3d 777 (2015); State v. Perrone, 119 Wn.2d 538, 834 P.2d 611 (1992).

“A description [of what is being sought] is valid if it is as specific as the circumstances and the nature of the activity under investigation permit.” State v. Perrone, 119 Wn.2d 538, 547, 834 P.2d 611 (1992).

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The underlying measure of adequacy in a description is whether, given the specificity of the warrant, a violation of personal rights is likely. State v. Reep, 161 Wash.2d 808, 814, 167 P.3d 1156 (2007). The fact that a warrant lists generic classifications, however, does not necessarily result in an impermissibly broad warrant. State v. Stenson, 132 Wash.2d 668, 692, 940 P.2d 1239 (1997). But blanket inferences and generalities cannot substitute for the required showing of “reasonably specific ‘underlying circumstances' that establish evidence of illegal activity will likely be found in the place to be searched in any particular case.” State v. Thein, 138 Wash.2d 133, 147–48, 977 P.2d 582 (1999).

Keodora, 191 Wn. App. at 313, 364 P.3d 777.

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DEALING WITH MINOR ERRORS

• Scrivener’s errors: State v. Bohan, 72 Wn. App. 335, 339-40, 864 P.2d 26 (1993) (lack of particularity in the warrant not dispositive where officers had probable cause to search a location but inadvertently mislabeled the address of the location to be searched); State v. Vickers, 148 Wn.2d 91, 109, 59 P.3d 58 (2002) (incorrect date in warrant affidavit was an immaterial scrivener's error); State v. O’Meara, 143 Wn. App. 638, 180 P.3d 196 (2008) (additional digit in charging information’s RCW was a scrivener’s error).

GETTING INTO THE MEAT AND POTATOES OF THE WARRANT

WHAT PROMPTED THE INVESTIGATION? THE ROAD TO PROBABLE CAUSE.

• Is there a reporting party?
• No.
• Continue to next issue.
• Yes.
• Private citizen?
• Confidential Informant?

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PRIVATE CITIZEN

• Indicia of reliability. Did the person provide:
• Information to verify person’s identity? Name? Phone number? Address?
• Facts that law enforcement could corroborate?

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• Private citizens are considered presumptively reliable because they generally don’t have any skin in the game. State v. Howerton, 187 Wn. App. 357, 366, 348 P.3d 781 (2015).

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CONFIDENTIAL INFORMANTS

• Confidential informants are not considered presumptively reliable because they often receive some benefit for providing information.
• An affidavit supporting the warrant should provide indicia of reliability demonstrating the CI’s (1) basis of knowledge and (2) veracity. State v. Vickers, 148 Wn.2d 91, 59 P.3d 58 (2002); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).
• Cases often refer to this test as the Aguilar-Spinelli test.
• Hearsay statements from an unidentified informant cannot support a search warrant. State v. Matlock, 27 Wn. App. 152, 155 n.4, 616 P.2d 684 (1980).

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EVALUATING A CONFIDENTIAL INFORMANT’S INFORMATION

• Basis of knowledge refers to how the informant obtained the information.
• Personal observation?
• Information from a third party?
• Is the CI reporting legal or innocuous activity?
• Veracity refers to what led to you believing the informant.
• Prior service with the agency?
• Does the officer know the CI’s name and contact information?
• If the CI’s information is not sufficient to create probable cause by itself, law enforcement needs to substantiate their observations with their own corroboration.

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AGUILAR V. TEXAS, 378 U.S. 108, 84 S. CT. 1509, 12 L. ED. 2D 723 (1964)

• "Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law."

SPINELLI V. UNITED STATES, 393 U.S. 410, 89 S. CT. 584, 21 L. ED. 2D 637 (1969)

• "William Spinelli is known to this affiant and to federal law enforcement agents and local law enforcement agents as a bookmaker, an associate of bookmakers, a gambler, and an associate of gamblers."
• The FBI “has been informed by a confidential reliable informant that William Spinelli is operating a handbook and accepting wagers and disseminating wagering information by means of the telephones which have been assigned the numbers WYdown 4-0029 and WYdown 4-0136."

CONTINUING ON THE ROAD TO PROBABLE CAUSE: PERSONAL OBSERVATION

• Observations from a lawful vantage point
• Suspicious or deceptive answers
• Furtive movements

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“[P]robable cause to arrest the occupants of a car for possession of a controlled substance exists when a trained officer detects that the odor of a controlled substance is emanating from a vehicle. Other facts supportive of probable cause include furtive movements and lying to the police, both of which evidence consciousness of guilt.” State v. Huff, 64 Wn. App. 641, 647, 826 P.2d 698 (1992).

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PERSONAL OBSERVATIONS

• Is the officer identifying facts based on the use of the five senses?
• State v. Trang My Le, 33 Wn. App.2d 818, 564 P.3d 1019 (2025): officers could smell marijuana on property, could hear humming of equipment consistent with marijuana grow operations, saw luxury vehicles despite the property owner listing no income, etc.
• Is the officer in a lawful location to perceive things?
• Is the officer relying on assumptions or speculation?

“Conclusory statements, speculations, and suspicions do not provide a factual basis that supports probable cause.” State v. Phillip, 9 Wn. App.2d 464, 472, 444 P.3d 37 (2019) (citing State v. Thein, 138 Wn.2d 133, 977 P.2d 582 (1999)).

LAWFUL VANTAGE POINTS

• Police may enter onto areas of a property that are impliedly open to the public, such as access routes to a house. State v. Ross, 141 Wn.2d 304, 312-13, 4 P.3d 130 (2000); State v. Seagull, 95 Wn.2d 898, 902, 632 P.2d 44 (1981); State v. Jesson, 142 Wn. App. 852 177 P.3d 139 (2008).

SUSPICIOUS OR DECEPTIVE ANSWERS

• Providing suspicious or deceptive responses can grant police the latitude to continue investigating until the officer’s suspicions are allayed. See State v. Gonzales, 46 Wn. App. 388, 398, 731 P.2d 1101 (1986); State v. McIntosh, 42 Wn. App. 579, 583, 712 P.2d 212 (1986); see also State v. Heritage, 152 Wn.2d 210, 218-19, 95 P.3d 345 (2004) (citing Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S. Ct. 3138, 82 L.Ed.2d 317 (1984)) (an investigating officer making “a routine, on-the street Terry stop or a comparable traffic stop” may “ask a moderate number of questions to determine the identity of the suspect and to confirm or dispel the officer’s suspicions without rendering the suspect ‘in custody’ for the purposes of Miranda.”).
• A suspect’s refusal to allow a search does not create probable cause to search.

FURTIVE MOVEMENTS

• “Simply labeling a suspect's action a ‘furtive movement,’ without explaining how it gives rise to a reasonable and articulable suspicion, is not sufficient to justify a Terry stop.” State v. Weyand, 188 Wn.2d 804, 816, 399 P.3d 530 (2017).
• “Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited.” United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005).

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SUSPECT’S CRIMINAL HISTORY

• Police may consider an individual’s similar criminal history when developing probable cause. State v. Neth, 165 Wn.2d 177, 185-86, 196 P.3d 658 (2008)
• Prior convictions cannot establish probable cause, but can be used as a factor in establishing probable cause. State v. Tarter, 111 Wn. App. 336, 341, 44 P.3d 899 (2002).

USE OF INVESTIGATIVE AIDS

• Dog Sniff
• “Generally, an ‘alert’ by a trained drug dog is sufficient to establish probable cause for the presence of a controlled substance.” State v. Jackson, 82 Wn. App. 594, 606, 918 P.2d 945 (1996).
• Did the canine alert in a manner consistent with its training?
• Does the affidavit adequately reflect the training you and the canine have undergone?
• Florida v. Harris, 568 U.S. 237, 246-47, 133 S Ct. 1050, 185 L.Ed.2d 61 (2013).

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CELL SITE WARRANTS

• A cell site location information warrant authorizes searches of cellphone data to locate devices within certain geographical areas.

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• The dissent in State v. Denham, 197 Wn.2d 759, 489 P.3d 1138 (2021) is a good starting point for analysis.

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• As with any other warrant, the information sought should be linked by time, location, and other facts. A cell site warrant can be overbroad just like any other warrant.

SEARCH WARRANTS FOR OUT-OF-STATE RECORDS

• RCW 10.96.020
• Applies to any records in the actual or constructive possession of a recipient who receives service outside Washington.
• (2) Criminal process issued under this section must contain the following language in bold type on the first page of the document: "This [warrant, subpoena, order] is issued pursuant to RCW [insert citation to this statute]. A response is due within twenty business days of receipt, unless a shorter time is stated herein, or the applicant consents to a recipient's request for additional time to comply."

WHAT DOES LAW ENFORCEMENT WANT TO SEARCH?

• Person
• House/Apartment
• Building other than Dwelling
• Car
• Person located in the house/car/building at the time of execution of the warrant
• Computer
• Cell phone
• Small container, such as backpack, purse, wallet, etc.

WHAT CRIME IS BEING INVESTIGATED?

• List the crime or crimes, including the applicable RCWs.
• Citation to the wrong subsection can be fatal to the warrant. See State v. Higgins, 136 Wn. App. 87, 93, 147 P.3d 649 (2006).
• List all alternative ways supported by PC that the crime could have been committed.

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“A search warrant that fails to specify the crime under investigation without otherwise limiting the items that may be seized violates the particularity requirement of the Fourth Amendment.” State v. Riley, 121 Wn.2d 22, 27, 846 P.2d 1365 (1993).

Practice Tip: Check whether the RCW is included at the beginning and whether it includes the actual language from the RCW in limiting what is being searched. For example, if the warrant is for child abuse material, the warrant should include the applicable RCW at the beginning, but then it would be best practice to include the actual language defining what qualifies as child abuse material in the body of the warrant. See State v. Friedrich, 4 Wn. App.2d 945, 425 P.3d 518 (2018).

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WHAT TYPE OF EVIDENCE IS BEING SOUGHT?

• Drugs
• Weapons
• Stolen property
• Child abuse material =
• Video
• Blood results

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*State v. Riley, 121 Wn. 2d 22, 846 P.2d 1365 (1993)

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“any fruits, instrumentalities and/or evidence of a crime, to-wit: notes, records, lists, ledgers, information stored on hard or floppy discs, personal computers, modems, monitors, speed dialers, touchtone telephones, electronic calculator, electronic notebooks or any electronic recording device.”

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Bad.*

HOW QUICKLY SHOULD THE WARRANT BE SOUGHT?

• A search warrant should be pursued as soon as practicable. Waiting too long may result in the information supporting the warrant becoming stale. State v. Maddox, 152 Wn.2d 499, 98 P.3d 1199 (2004). A determination whether a warrant is stale applies a “common sense” test. See State v. Hall, 53 Wn. App. 296, 766 P.2d 512 (1989) (2 month delay between obtaining info of marijuana grow and getting warrant based on that info not too long because common sense says a grow would still be going two months later); Andersen v. Maryland, 427 U.S. 469, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976) (probable cause not stale despite three month delay in warrant’s execution because of the nature of the documentary evidence and defendant’s ongoing criminal activity); State v. Hashman, 46 Wn. App. 211, 217, 729 P2d 651 (1986); State v. Anderson, 41 Wn. App. 85, 702 P.2d 481 (1985); State v. Hett, 31 Wn. App. 849, 852, 644 P.2d 1187 (1982).

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• If law enforcement receives information that negates or undermines probable cause after a warrant has been issued but before it has been executed, then law enforcement must go back to the judge for a new warrant. State v. Maddox, 152 Wn.2d at 508-09, 98 P.3d 1199.

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[A] search warrant may be issued only upon information establishing the probable contemporaneous presence of property to be seized on the described premises. The key is whether the property sought is on the premises to be searched at the time the search warrant is issued. 

State v. Johnson, 17 Wn. App. 153, 156, 561 P.2d 701 (1977) (emphasis in original).

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CRR 3.6: SUPPRESSION HEARINGS

• Motions to suppress evidence must be in writing and must be supported by an affidavit and memorandum.
• When evaluating a search warrant for a suppression hearing, the court acts in an “appellate-like capacity; its review . . . is limited to the four corners of the affidavit supporting probable cause.” State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008).

DOES THE WARRANT SUFFICIENTLY LIMIT THE SEARCH TO AVOID OVERBREADTH?

[A] warrant can be overbroad “either because it fails to describe with particularity items for which probable cause exists, or because it describes, particularly or otherwise, items for which probable cause does not exist.” [State v.] Maddox I, 116 Wn. App. [796,] 805 [67 P.3d 1135 (2003)] (footnote omitted). Further, a warrant will be found overbroad if some portions are supported by probable cause and other portions are not. Maddox I, 116 Wn. App. at 806.

 State v. Higgs, 177 Wn. App. 414, 426, 311 P.3d 1266 (2013).

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SEVERABILITY MAY PREVENT SUPPRESSION OF ALL EVIDENCE

“Under the severability doctrine, ‘infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant’ but does not require suppression of anything seized pursuant to valid parts of the warrant.” State v. Perrone, 119 Wn.2d 538, 556, 834 P.2d 611 (1992). However, courts will not apply the severability doctrine “where to do so would render meaningless the standards of particularity which ensure the avoidance of general searches and the controlled exercise of discretion by the executing officer.” Perrone, 119 Wn.2d at 558; see also State v. Higgs, 177 Wn. App. 414, 430-36311 P.3d 1266 (2013).

FRANKS HEARING

• Under the Fourth Amendment, an omission or false statement made in an affidavit in support of a search warrant may invalidate the warrant if it was (1) material, and (2) made intentionally or with reckless disregard for the truth. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); State v. Cord, 103 Wn.2d 361, 366-67, 693 P.2d 81 (1985).

ADDRESS 1 VEHICLE

ADDRESS 2

ISSUES RELATED TO SEARCH WARRANTS

• Plain view
• Inevitable discovery

PLAIN VIEW

• The “plain view” doctrine is an exception to the Fourth Amendment's warrant requirement that applies after police intrude into an area in which there is a reasonable expectation of privacy. State v. Daugherty, 94 Wn.2d 263, 267, 616 P.2d 649 (1980), cert. denied,450 U.S. 958, 101 S.Ct. 1417, 67 L.Ed.2d 382 (1981). Under the plain view doctrine, an officer must: (1) have a prior justification for the intrusion; (2) inadvertently discover the incriminating evidence; and (3) immediately recognize the item as contraband. State v. Kennedy, 107 Wn.2d 1, 13, 726 P.2d 445 (1986). . . . Discovery is inadvertent if the officer “discovered the evidence while in a position that does not infringe upon any reasonable expectation of privacy, and did not take any further unreasonable steps to find the evidence from that position.” State v. Patterson, 37 Wn. App. 275, 281, 679 P.2d 416, review denied,103 Wn.2d 1005 (1984). The requirement that a discovery be inadvertent does not mean that an officer must act with a completely neutral, benign attitude when investigating suspicious activity. Patterson, at 280, 679 P.2d 416.

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• State v. Myers, 117 Wn.2d 332, 346, 815 P.2d 761 (1991); cf. United States v. Mann, 592 F.3d 779, 785-86 (7th Cir. 2010) (recognizing the plain view doctrine extends to computers); see also United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009) (recognizing that, when executing a search warrant on a computer, “But in the end, there may be no practical substitute for actually looking in many (perhaps all) folders and sometimes at the documents contained within those folders, and that is true whether the search is of computer files or physical files. It is particularly true with image files.”).

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INEVITABLE DISCOVERY DOCTRINE

“The federal doctrine allows admission of illegally obtained evidence if the State can ‘establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.’ Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984).” State v. Winterstein, 167 Wn.2d 620, 634, 220 P.3d 1226 (2009). The rule is incompatible with article 1, section 7 of the Washington State Constitution. State v. Winterstein, 167 Wn.2d at 636.

THINGS WE DIDN’T GET TO

• Issues with the actual execution of the warrant:
• For example, it requires at least two people present
• Are there issues with using a template form instead of a bespoke document?
• Some language is statutorily required. For example, with out-of-state media requests.
• What happens after the warrant is executed?
• 10 days to complete return of inventory
• What happens to the property after it’s been evaluated?

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QUESTIONS?

Nicholas Holce

Holce Law Firm, PLLC

318 W. Main St.

Walla Walla, WA. 99362

509-876-7471

nholce@holcelawfirm.com

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