Executing a Search Warrant Introduction

 Article II, § 10 of the New Mexico Constitution, and the Fourth Amendment to the United States Constitution, protect individuals from unreasonable searches and seizures. This protection extends to the execution of valid search warrants. Thus, when executing a valid search warrant, police officers must act reasonably, and must limit their search to the premises and items identified in the search warrant. This requirement gives rise to decisions which must be made during the execution of a search warrant, such as how to enter the premises to be searched, whether to detain and search people found in the premises during the search, and what items to seize from the premises. Each of these decisions must be reasonable under the circumstances, or the search will be deemed unreasonable.

For example, a search pursuant to a valid search warrant may be deemed unreasonable if the manner of entry into the premises is unreasonable. Entry is unreasonable if the officers executing the search warrant fail to comply with the “knock and announce” requirement.¹ Similarly, in executing a valid search warrant, officers must be reasonable in their treatment of anyone occupying the premises at the time of the search. Although the resident of the premises may be detained during the search, detention of others requires the officers to have a reasonable basis for believing those people have a connection to the premises or to the suspected criminal activity.² Finally, the seizure of items from the premises during the execution of a valid search warrant must be reasonable. To be reasonable, seizure of items from the premises is limited to items specifically named in the search warrant,³ or found in “plain view” by the officers during the search.⁴

ENDNOTES

1 State v. Attaway, 1994-NMSC-011, ¶ 22, 117 N.M. 141, 870 P.2d 103.

2 State v. Graves, 1994-NMCA-151, ¶ 8, 119 N.M 89, 888 P.2d 971.

3 See State v. Patscheck, 2000-NMCA-062, ¶¶ 14-15, 129 N.M. 296, 6 P.3d 498. In Patscheck, suppression of evidence seized pursuant to a warrant was not required because the evidence in question was described in the warrant. In dicta, the court stated that if the officers had seized evidence not described in the warrant, the trial court would have been required to suppress only that evidence, but not other evidence seized during the search that was described in the warrant. In other words, blanket suppression of all evidence is not necessary when some evidence not authorized under the warrant is seized. Also in dicta, the Supreme Court cited Patscheck for the same proposition in State v. Jacobs, 2000-NMSC-026, ¶ 43, 129 N.M. 448, 10 P.3d 127.

4 State v. Williams, 1994-NMSC-050, ¶ 11, 117 N.M. 551, 874 P.2d 12.