PURPOSE OF THIS SECTIONPURPOSE OF THIS SECTION

HISTORY OF SEARCH WARRANTSHISTORY OF SEARCH WARRANTS BASIC REQUIREMENTS FOR BASIC REQUIREMENTS FOR

WRITING AND OBTAINING A WRITING AND OBTAINING A SEARCH WARRANT IN OHIOSEARCH WARRANT IN OHIO

SEARCH WARRANTSSEARCH WARRANTS

During the colonial period in America, British During the colonial period in America, British officials were permitted to conduct random and officials were permitted to conduct random and unlimited searches.unlimited searches.

The unlimited and oftentimes, unwarranted, The unlimited and oftentimes, unwarranted, intrusions became one of the causes of the intrusions became one of the causes of the American revolution.American revolution.

When the framers of the U.S. Constitution When the framers of the U.S. Constitution gathered to write that historic document, the gathered to write that historic document, the Fourth Amendment was written to ensure the Fourth Amendment was written to ensure the right of Americans to be free from unreasonable right of Americans to be free from unreasonable searches and seizures.searches and seizures.

44THTH AMENDMENT AMENDMENT

ORIGINATING SOURCE FOR ALL ORIGINATING SOURCE FOR ALL LAWS RELATING TO SEARCH AND LAWS RELATING TO SEARCH AND SEIZURESEIZURE

““RIGHT OF THE PEOPLE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR TO BE SECURE IN THEIR PERSONS, PLACES AND PERSONS, PLACES AND THINGS” THINGS”

OHIO STATE CONSTITUTIONOHIO STATE CONSTITUTION

The right of the people to be secure in their The right of the people to be secure in their persons, houses, papers, and possessions, against persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, probable cause, supported by oath or affirmation, particularly describing the place to be searched particularly describing the place to be searched and the person and things to be seized.and the person and things to be seized.

This language is almost verbatim to the language This language is almost verbatim to the language of the Fourth Amendment to the U.S. of the Fourth Amendment to the U.S. Constitution.Constitution.

SEARCH WARRANTS CAN BE SEARCH WARRANTS CAN BE ISSUED FOR - ORC 2933.21ISSUED FOR - ORC 2933.21 STOLEN PROPERTYSTOLEN PROPERTY WEAPONSWEAPONS DRUGSDRUGS FORGED OR COUNTERFEIT ITEMSFORGED OR COUNTERFEIT ITEMS OBSCENE MATERIALS (MAPP V. OHIO)OBSCENE MATERIALS (MAPP V. OHIO) GAMBLING DEVICESGAMBLING DEVICES ILLEGAL LIQUORILLEGAL LIQUOR HAZ/MATHAZ/MAT ETC ETC

CRITERIACRITERIA BEFORE SEARCH WARRANTS ARE BEFORE SEARCH WARRANTS ARE

ISSUED, MUST HAVE PROBABLE ISSUED, MUST HAVE PROBABLE CAUSE.CAUSE.

MORE THAN MERE MORE THAN MERE SUSPICION/LESS THAN PROOF SUSPICION/LESS THAN PROOF BEYOND A REASONABLE DOUBTBEYOND A REASONABLE DOUBT

SEARCH WARRANT MUST SEARCH WARRANT MUST INCLUDE/DESCRIBEINCLUDE/DESCRIBE

PLACE TO BE SEARCHEDPLACE TO BE SEARCHED PERSONS TO BE SEARCHEDPERSONS TO BE SEARCHED PROPERTY TO BE SEARCH FORPROPERTY TO BE SEARCH FOR OFFENSE IN RELATION TO OFFENSE IN RELATION TO

PROPERTYPROPERTY PROBABLE CAUSEPROBABLE CAUSE WHY AFFIANT BELIEVES PROPERTY WHY AFFIANT BELIEVES PROPERTY

WILL BE THEREWILL BE THERE ANY OTHER FACTS RELIVANTANY OTHER FACTS RELIVANT

AFFIDAVIT DEFINEDAFFIDAVIT DEFINEDWRITTEN OR PRINTED STATEMENT OF WRITTEN OR PRINTED STATEMENT OF

FACTS, MADE VOLUNTARILY, AND FACTS, MADE VOLUNTARILY, AND CONFIRMED BY OATH OR CONFIRMED BY OATH OR AFFIRMATION OF THE AFFIRMATION OF THE PARTY MAKING IT, TAKEN PARTY MAKING IT, TAKEN BY A PERSON HAVING BY A PERSON HAVING THE AUTHORITY TO THE AUTHORITY TO ADMINISTER SUCH OATH ADMINISTER SUCH OATH OR AFFIRMATION OR AFFIRMATION

SPO #3-AFFIANT DEFINEDSPO #3-AFFIANT DEFINEDTHE PERSON WHO MAKES OR THE PERSON WHO MAKES OR

SUBSCRIBES THE AFFIDAVITSUBSCRIBES THE AFFIDAVIT

OHIO LAW DEFINES DAYTIME AS OHIO LAW DEFINES DAYTIME AS THE HOURS BETWEEN 7:00 AM AND THE HOURS BETWEEN 7:00 AM AND 8:00 PM. SEE CRIM.R. 41 (F)8:00 PM. SEE CRIM.R. 41 (F)

THE WARRANT MUST BE THE WARRANT MUST BE RETURNED TO THE ISSUING JUDGE RETURNED TO THE ISSUING JUDGE OR MAGISTRATE NO LATER THAN OR MAGISTRATE NO LATER THAN THREE DAYS AFTER ITS ISSUANCE THREE DAYS AFTER ITS ISSUANCE (NOT INCLUDING SATURDAY, (NOT INCLUDING SATURDAY, SUNDAY, OR LEGAL HOLIDAYS).SUNDAY, OR LEGAL HOLIDAYS).

STATUTORY RECONDITIONS STATUTORY RECONDITIONS or NON-CONSENSUAL ENTRYor NON-CONSENSUAL ENTRY

MUST GIVE NOTICE OF PURPOSE MUST GIVE NOTICE OF PURPOSE BEFORE ENTRY MAY BE MADEBEFORE ENTRY MAY BE MADE

If a nighttime search is requested, officers If a nighttime search is requested, officers must indicate some type of urgent must indicate some type of urgent necessity, such asnecessity, such as

1.1. The Criminal activity is being conducted The Criminal activity is being conducted during nighttime;during nighttime;

2.2. Protection to officers conducting the Protection to officers conducting the search and seizure;search and seizure;

3.3. Prevention of the destruction of evidence;Prevention of the destruction of evidence;

4.4. Other types of emergency circumstancesOther types of emergency circumstances

Richards v. Wisconsin, U.S. (1997)Richards v. Wisconsin, U.S. (1997)

The U.S. Supreme Court overruled a The U.S. Supreme Court overruled a blanket exception created by a lower blanket exception created by a lower court that permitted no-knock court that permitted no-knock entries in all felony drug cases.entries in all felony drug cases.

The Court required lower courts to The Court required lower courts to decide on a case-by-case basis decide on a case-by-case basis whether the facts of the case justify a whether the facts of the case justify a no-knock entryno-knock entry..

Richards v. Wisconsin, U.S. (1997)Richards v. Wisconsin, U.S. (1997)

The Court further held for officers to The Court further held for officers to establish the need for a no-knock entry, establish the need for a no-knock entry, they must “have a reasonable suspicion they must “have a reasonable suspicion that knocking and announcing their that knocking and announcing their presence, under the particular presence, under the particular circumstances, would be dangerous or circumstances, would be dangerous or futile, or that it would inhibit the effective futile, or that it would inhibit the effective investigation of the crime by, for example, investigation of the crime by, for example, allowing the destruction of evidence.”allowing the destruction of evidence.”

SPO #5-BURDEN OF PROOFSPO #5-BURDEN OF PROOF

MUST BE SATISFIED BEFORE MUST BE SATISFIED BEFORE WARRANT WILL BE ISSUED IS WARRANT WILL BE ISSUED IS PROBABLE CAUSE TO BELIEVE ITEMS PROBABLE CAUSE TO BELIEVE ITEMS WILL BE AT A CERTAIN WILL BE AT A CERTAIN LOCATION. LOCATION. MORE THAN MERE MORE THAN MERE SUSPICION/LESS THAN SUSPICION/LESS THAN PROOF BEYOND A PROOF BEYOND A REASONABLE DOUBT REASONABLE DOUBT

Probable cause is a set of facts and Probable cause is a set of facts and circumstances known to the affiant personally circumstances known to the affiant personally or supplied by an informant or witnesses or supplied by an informant or witnesses which causes the affiant to believe that items which causes the affiant to believe that items sought can be seized by virtue of being sought can be seized by virtue of being connected with illegal activity and those items connected with illegal activity and those items will be found in the place to be searchedwill be found in the place to be searched

The finding of probable cause may be based The finding of probable cause may be based upon hearsay in whole or in part, provided upon hearsay in whole or in part, provided there is a substantial basis for believing the there is a substantial basis for believing the source of the hearsay to be crediblesource of the hearsay to be credible

Not every fact must be included in the Not every fact must be included in the warrant in order to establish probable warrant in order to establish probable cause, however, those facts that are cause, however, those facts that are included must lead the judge or magistrate included must lead the judge or magistrate to the conclusion that probable cause exists to the conclusion that probable cause exists to believe the items to be seized are located to believe the items to be seized are located in the area to be searched.in the area to be searched.

The warrant must be supported by the The warrant must be supported by the affiant swearing or affirming the affiant swearing or affirming the information contained in the warrant is information contained in the warrant is truetrue

BEFORE LEAVING LOCATIONBEFORE LEAVING LOCATION MUST LEAVE COPY OF SEARCH MUST LEAVE COPY OF SEARCH

WARRANT AND INVENTORY (NOT THE WARRANT AND INVENTORY (NOT THE AFFIDAVIT)AFFIDAVIT)

PROMPTLY RETURN THE AFFIDAVIT, PROMPTLY RETURN THE AFFIDAVIT, THE WARRANT ITSELF, AND THE THE WARRANT ITSELF, AND THE COMPLETED RETURN TO THE ISSUING COMPLETED RETURN TO THE ISSUING JUDGE.JUDGE.

THE EVIDENCE MUST BE AVAILABLE THE EVIDENCE MUST BE AVAILABLE TO THE JUDGE IF REQUESTED.TO THE JUDGE IF REQUESTED.

SEARCH WARRANT REQUESTSEARCH WARRANT REQUEST

SEARCH WARRANT REQUESTSEARCH WARRANT REQUEST

SEARCH WARRANTS CAN SEARCH WARRANTS CAN BE SEALED WITH THE BE SEALED WITH THE APPROVAL OF A JUDGEAPPROVAL OF A JUDGE

ESPECIALLY WHEN ESPECIALLY WHEN PROTECTING PROTECTING

CONFIDENTIAL CONFIDENTIAL INFORMANTSINFORMANTS

United States v. GrubbsUnited States v. Grubbs126 S. Ct. 1494 (2006)126 S. Ct. 1494 (2006) The defendant purchased contraband from a The defendant purchased contraband from a

web site operated by an undercover officer. The web site operated by an undercover officer. The government sought an anticipatory search government sought an anticipatory search warrant.warrant.

The contingency of the search was based on The contingency of the search was based on probable cause that would exist if the parcel probable cause that would exist if the parcel has been received by a person(s) and has been has been received by a person(s) and has been physically taken into the residence.physically taken into the residence.

Good search?Good search?

United States v. GrubbsUnited States v. Grubbs126 S. Ct. 1494 (2006)126 S. Ct. 1494 (2006) The Supreme Court held that probable cause to The Supreme Court held that probable cause to

sustain a search warrant need only be present sustain a search warrant need only be present at the time the search is conducted.at the time the search is conducted.

They require the magistrate to determine (1) They require the magistrate to determine (1) that it is now probable that (2) contraband, that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is described premises (3) when the warrant is executed.executed.

Winston v. LeeWinston v. Lee470 U.S. 753, 105 S. Ct. 1611 (1985)470 U.S. 753, 105 S. Ct. 1611 (1985) The defendant shot a victim during an armed The defendant shot a victim during an armed

robbery, receiving a gunshot wound in the robbery, receiving a gunshot wound in the exchange. Shortly after the officers took the exchange. Shortly after the officers took the victim to a hospital, police found the defendant victim to a hospital, police found the defendant several blocks away from the shooting. The several blocks away from the shooting. The officers took him to the hospital, where the officers took him to the hospital, where the victim identified him as the assailant. The victim identified him as the assailant. The government asked the court to order the government asked the court to order the defendant to undergo surgery to remove the defendant to undergo surgery to remove the bullet lodged under his collarbone.bullet lodged under his collarbone.

Winston v. LeeWinston v. Lee470 U.S. 753, 105 S. Ct. 1611 (1985)470 U.S. 753, 105 S. Ct. 1611 (1985) It asserted that the bullet would provide It asserted that the bullet would provide

evidence of the defendant‘s guilt or innocence. evidence of the defendant‘s guilt or innocence. Expert testimony suggested that the surgery Expert testimony suggested that the surgery would only entail a minor incision and could be would only entail a minor incision and could be performed under local anesthesia. The court performed under local anesthesia. The court granted the motion. However, X-rays taken just granted the motion. However, X-rays taken just before surgery was scheduled showed that the before surgery was scheduled showed that the bullet was lodged much deeper than the bullet was lodged much deeper than the surgeon had originally believed.surgeon had originally believed.

Winston v. LeeWinston v. Lee470 U.S. 753, 105 S. Ct. 1611 (1985)470 U.S. 753, 105 S. Ct. 1611 (1985) ISSUE: Whether courts can order surgery to

remove evidence of a criminal act from a suspect‘s body?

HELD: Yes. However, this is a serious intrusion into the suspect‘s reasonable expectation of privacy and must be used only in extreme circumstances.

As the government had available substantial additional evidence that the defendant was the criminal, its need to obtain the bullet was diminished.