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Search and Seizure for Police and Prosecutors

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Requirements for All Affidavits

 

  1. Introductory information.
    1. Provide information about the affiant.
      1. State the date and time the affidavit is completed.
      2. Provide the affiant’s name, occupation or title and place of employment.
      3. Briefly describe the affiant’s experience as it relates to the investigation for which the warrant is sought (i.e., if investigation involves drugs, describe previous investigation in drug cases, or experience identifying drugs and drug related contraband).
    2. Provide information about the place to be searched.
      (provide as many of the following as possible)

      1. Give the address of the place.
      2. Describe the physical appearance of the place.
      3. Describe the location of the place.
  2. Information about the evidence sought.
    1. Specifically describe each item of evidence sought to be seized.
    2. Establish the affiant’s reason for believing the items are evidence of a crime by providing one or more of the following types of information:
      1. Affiant’s personal observation of the crime (provide the information required for police investigation or reports – see relevant outline),
      2. Affiant’s personal observation of illegal contraband (provide the information required for police investigation or reports – see relevant outline),
      3. Police investigation by another officer or agency (provide the information required for police investigation or reports – see relevant outline),
      4. Information received from an informant (provide the information required for each type of informant – see relevant outlines).
  3. Establish a connection between the place and the evidence sought. (Always provide information under A, plus information under either B or C.)
    1. State reasons for believing the evidence is still at the place.
      (Provide as many of the following as possible)

      1. Place is suspect’s residence and evidence sought is the type of item likely to be kept in a residence (i.e. handgun, clothing, receipts).
      2. Suspect is unaware of police suspicion or believes he has deflected suspicion.
      3. The criminal activity has been ongoing over a period of time (state how much time and how many times affiant knows or has reason to believe the criminal activity has occurred; this is especially important if the items to be seized are disposable, such as drugs).
      4. Information about the suspect indicates he frequently engages in similar criminal activity (prior convictions, prior arrests, prior specific criminal acts).
      5. Police investigation corroborates facts that indicate the evidence is still at the place.
      6. Provide information required for each different source of information (informant, police investigation, controlled buy, etc.) – see relevant outlines.
    2. ANDEstablish that the place to be searched is the defendant’s residence.
      1. Describe why the defendant is a suspect, AND
      2. Describe how the affiant knows it is currently the defendant’s residence (i.e. utility records, police records, motel registration records, information from an informant), AND
      3. Provide information required for each different source of information (informant, police investigation, controlled buy, etc.) – see relevant outlines
    3. OREstablish that the evidence was seen or known to be at the place.
      1.  Establish how the affiant knows the evidence was seen or known to be at the place, AND
      2. Establish when the evidence was seen or known to be at the place (give a date, if possible, or indicate how many hours, days or weeks prior to the application for the search warrant), AND
      3. Provide information required for each different source of information (informant, police investigation, controlled buy, etc.) – see relevant outlines.
As discussed in the introduction, a search warrant can be issued only if it is supported by probable cause. Thus, all search warrant affidavits must meet the probable cause requirement. To do so, every search warrant affidavit must provide sufficient information to allow the issuing judge or magistrate to conclude “(1) that the items sought to be seized are evidence of a crime; and (2) that the criminal evidence sought is located at the place to be searched.”1

Provide information about the place to be searched.

Besides identifying the affiant, one of the first things an affidavit must do is particularly describe the premises to be searched.2 “A description in a search warrant is sufficient if the description enables the officer to identify the place intended to be searched with reasonable effort.”3 However, the description should leave no doubt or discretion as to the premises to be searched.4 If the description in the affidavit will undoubtedly lead the officers serving the warrant to the correct premises, the description is sufficient, even if there is a mistake in the description.5 In determining what or how much information to include in the description of the premises, the affiant should keep in mind that the goal is always to provide enough information to allow another person to locate the correct premises simply by using the affiant’s description.6

Provide information about the evidence sought.

In establishing the first requirement for probable cause, that the items sought to be seized are evidence of a crime, the affiant must begin by particularly describing each item of evidence sought to be seized.7 A particular description of each item “makes general searches . . .impossible and prevents the seizure of one thing under a warrant describing another.”8 How specific the description of each item must be depends on the “circumstances and nature of activity under investigation[.]”9 If the crime under investigation is complex and involves the use of items that ordinarily do not appear to be incriminating, the description may be less specific than under other circumstances.10 For example, if the investigation involves a complex scheme to sell stolen property through a legitimate business, officers may not be able to describe exactly which particular documents sought contain the records of the illegal transactions. In such a situation, the affidavit is sufficient if it generally describes the items sought as invoices, inventory cards, checkbooks and bank records.11  The affidavit does not have to specifically identify which invoices, inventory cards, checkbooks and bank records kept in the suspect’s residence were evidence of a crime.12 Similarly, when the investigation involves drug dealing, and there is evidence of dealing or possession of more than one illegal drug, a description of the items to be seized as “controlled substances” is sufficiently particular.13 However, a general description of the items simply as evidence of criminal activity is not sufficient.14

After describing the items to be seized, the affidavit must provide information to establish a basis for believing the items are evidence of a crime. This information includes any information regarding how the investigation began, the nature of the suspected crime, a description of how the crime was committed, and a description of the evidence believed to exist. In providing this information, the affiant must disclose the nature of the affiant’s source of information. The source of information provided in a search warrant affidavit can include the affiant’s personal observations of the crime, the crime scene, the results of the crime, or the evidence of the crime, as well as such observations of others that have been relayed to the affiant. A large part of the search warrant affidavit must discuss the source of the affiant’s information and establish reasons why the issuing judge or magistrate should believe that information.15 The requirements for establishing the reasons to believe the information are contained below in the outlines and corresponding summaries relevant to each of the following sources: Confidential Informants, Citizen Informants, Anonymous Informants and Crimestoppers Tips, Police Investigation or Reports, and Controlled Buys.

Establish a connection between the place to be searched and the evidence sought.

Not only must the affidavit establish that the items to be seized are evidence of a crime, as discussed above, the affidavit must also establish that the items sought are located at the place to be searched.16 In other words, every search warrant affidavit must establish a connection between the evidence of criminal activity to be seized and the place to be searched.

Evidence of this connection may take one of two forms. First, the affidavit may contain information that “evidence relating to the commission of a crime exists on the premises sought to be searched.” 17 For example, an affidavit may state that certain vehicles, known to be stolen, were seen on the premises to be searched. 18 In this example, the connection between the evidence of a crime and the place to be searched is established by the fact that the evidence was seen on the premises.

Second, the affidavit may contain information that a particular person, who is suspected of committing a crime, resides at the premises to be searched. For example, the affidavit may state that the suspect was seen shooting at people in a vehicle while wearing dark sunglasses and that the suspect lives at the premises to be searched. In this example, the connection between the evidence sought (the gun and the sunglasses) and the place to be searched is the fact that the suspect resides at the place to be searched.19  Thus, for this method, it is essential to establish that the suspect in fact resides at the place to be searched.20 It is equally essential to establish that the evidence sought is the sort that would likely be found at the suspect’s residence.21 Without information that the suspect resides at the place to be searched, the affiant must rely on the other method of establishing a connection between the items sought and the place to be searched.22

Regardless of which method of establishing the connection between the premises and the evidence is used, it is essential to establish an existing connection. That is, the connection must not be “stale.” If information that evidence of a crime was seen on the premises, or information establishing the premises as the suspect’s residence, is “stale,” the connection between the evidence and the premises is stale and, therefore, will not establish probable cause.23 In other words, the affidavit must establish probable cause to believe that the evidence is still on the premises at the time of the application for the search warrant.24

Staleness is a matter of time. The more time that has elapsed between the observations on which the information in the affidavit is based and the application for the warrant, the more stale the information becomes. Whether the elapse of a particular amount of time renders the information stale depends on the nature of the place to be searched and the nature of the items to be seized.25 For example, the transitory nature of a motel room requires a short amount of time between the observance of the evidence in the room and the application for the search warrant.26 On the other hand, a longer period of time between the observance of the evidence and the application for the warrant may be acceptable when the place to be searched is a permanent residence.27

Moreover, the nature of the items to be seized also affects the issue of staleness. A suspect is more likely to keep permanent items, such as weapons, receipts, ammunition and sunglasses, for a longer period of time.28 Therefore, a police officer can expect to find such

items at a suspect’s residence, since those items are not inherently incriminating and are usually kept at one’s home.29 This expectation is even more reasonable if the suspect is not aware that he is a suspect or believes that he has deflected police suspicion.30 

If the items to be seized are easily disposable, consumable or movable, such as drugs, the information becomes stale more quickly. 31 A search warrant for such items must be based on information that raises a reasonable inference that such items are at the place to be searched, such as evidence of criminal activity of an ongoing continuous nature. For example, information that illegal drugs were recently seen at the place to be searched on several different occasions, by either the same person or several different people, raises a reasonable inference that the drugs are still at the place to be searched at the time of the application for the search warrant.32 Similarly, information regarding observations of frequent, short visits by known drug users or dealers to the location which is identified by investigation or reports as a site of illegal drug activity might raise the same inference. 33

A staleness problem that may exist can be cured by further police investigation. For example, if an affidavit is based on information that an informant observed illegal drugs in the suspect’s motel room three days before the application for the search warrant, the information will be deemed stale without more information.34 However, that staleness problem can be cured if further investigation corroborates the informant’s information and raises reasonable inferences that the suspect is still residing at the motel room and drugs are still in the motel room.35 Such investigation might include a controlled buy, confirmation with the motel management that the room is rented to the suspect, and police observation of continuing activity consistent with drug dealing occurring at the motel room.

Because the issue of staleness depends on so many factors, such as the nature of the evidence and the place to be searched, there is no definitive time period which will defeat a claim of staleness. Thus, the best approach is to act on information as quickly as possible and recite information in the affidavit placing the items in the premises to be searched as close in time to the application for the warrant as possible.  In addition, further police investigation of information received from an informant should be conducted whenever practical, the results of which should be included in the affidavit.

 

 

ENDNOTES

1 State v. Herrera, 1985-NMSC-005, ¶ 6, 102 N.M. 254, 694 P.2d 510; State v. Sabeerin, 2014-NMCA-110, ¶ 9, 336 P.3d 990.

2 State v. Sero, 1970-NMCA-102, ¶ 20, 82 N.M. 17, 474 P.2d 503; State v. Robiti, 1994-NMCA-003, ¶ 24, 117 N.M. 108, 869 P.2d 296; State v. Hamilton, 2012-NMCA-115, ¶ 13, 290 P.3d 271.

3 Robiti, 1994-NMCA-003, ¶ 24.

4 Hamilton, 2012-NMCA-115, ¶ 13

5 Robiti, 1994-NMCA-003, ¶ 24.

6 Sero, 1970-NMCA-102, ¶ 20.

7 State v. Turkal, 1979-NMSC-071, ¶ 15, 93 N.M. 248, 599 P.2d 1045 (quoting Marron v. United States, 275 U.S. 192, 196 (1927)); State v. Jones, 1988-NMCA-058, ¶ 5, 107 N.M. 503, 760 P.2d 796 (citing Stanford v. Texas, 379 U.S. 476 (1965)).

8 Turkal, 1979-NMSC-071, ¶ 15 (quoting Marron , 275 U.S. at 196).

9 Jones, 1988-NMCA-058, ¶ 13; State v. Patscheck, 2000-NMCA-062, ¶ 7, 129 N.M. 296, 6 P.3d 498.

10 Jones, 1988-NMCA-058, ¶ 13; State v. Hinahara, 2007-NMCA-116, ¶¶ 9-10, 142 N.M. 475, 166 P.3d 1129 (reference in affidavit to computers and computer disks was sufficient for police to seize the hard drive of the computer where affidavit also included information that the defendant possessed child pornography on his computer).

11 Jones, 1988-NMCA-058, ¶ 13.

12 Id.

13 State v. Quintana, 1975-NMCA-034, ¶ 12, 87 N.M. 414, 534 P.2d 1126.

14 See Turkal, 1979-NMSC-071, ¶ 15; Jones, 1988-NMCA-058, ¶ 13.

15 State v. Cordova, 1989-NMSC-083, ¶ 6, 109 N.M. 211, 784 P.2d 30.

16 Id.

17 State v. Donaldson, 1983-NMCA-064, ¶ 9, 100 N.M. 111, 666 P.2d 1258.

18 State v. Barker, 1992-NMCA-117, ¶ 5, 114 N.M. 589, 844 P.2d 839 (first-hand observations are sufficient to establish the basis for believing evidence will be found on the premises); See State v. Wisdom, 1990-NMCA-099, ¶ 18, 110 N.M. 772, 800 P.2d 206 (affidavit was sufficient because it indicated that the confidential informants personally observed stolen items and controlled substances at the locations to be searched).

19 State v. Pargas, 1997-NMCA-110, ¶ 15, 124 N.M. 249, 948 P.2d 267.

20 Id. ¶ 8 (citing State v. Lovato, 1994-NMCA-042, ¶ 9, 118 N.M. 155, 879 P.2d 787).

21 State v. Evans, 2009-NMSC-027, ¶¶ 24-25, 146 N.M. 319, 210 P.3d 216 (“The fundamental inquiry is whether there is probable cause to believe there will be evidence of a crime at a particular location. Residence may be a component of this, but residence is not necessary, nor is it always sufficient, to establish probable cause to believe that the location to be searched contains evidence of a crime. Police must give the issuing magistrate probable cause to believe that evidence will be at the particular location in question, whether it is a suspect’s home or not.” (internal citation omitted)).

22 Id. Decisions by the Court of Appeals seem to suggest that the affidavit must always establish that the suspect resides at the place to be searched. That is not an accurate view of the caselaw. The affidavit must always establish that the suspect resides at the place to be searched when the connection between the items sought and the place to be searched is the fact that the suspect resides at the place. However, if the affiant does not know who resides at the place to be searched, but has reliable and credible information that evidence of a crime is located at the place to be searched, who lives at the place is not relevant to the magistrate’s determination that evidence of a crime will probably be found at the place to be searched. It is only relevant when the sole connection between the place and the evidence is the person who committed the crime. Compare State v. Lovato, 1994- NMCA-042, ¶ 9, with State v. Donaldson, 1983-NMCA-064, ¶ 9.

23 Lovato, 1994-NMCA-042, ¶ 9; State v. Whitley, 1999-NMCA-155, ¶ 8, 128 N.M. 403, 993 P.2d 117.

24 Whitley, 1999-NMCA-155, ¶ 8.

25 State v. Gonzales, 2003-NMCA-008, ¶ 19, 133 N.M. 158, 61 P.3d 867.

26 Lovato, 1994-NMCA-042, ¶ 9; Whitley, 1999-NMCA-155, ¶ 8.

27 Pargas, 1997-NMCA-110, ¶¶ 15, 22; Gonzales, 2003-NMCA-008, ¶¶ 27, 29.

28 Pargas, 1997-NMCA-110, ¶ 22.

29 Id. ¶ 16.

30Id. ¶¶ 15, 22 (citing out-of-state cases).

31 Id. ¶ 15.

32 Lovato, 1994-NMCA-042, ¶ 9.

33 State v. Eskridge, 1997-NMCA-106, ¶ 20, 124 N.M. 227; State v. Garcia, 1977-NMCA-056, ¶

7, 90 N.M. 577, 566 P.2d 426.

34 Lovato, 1994-NMCA-042, ¶ 9.

35 Id. at ¶ 10.