Lessons about search warrant affidavits
If you've never written an affidavit for a search warrant, now is the time to learn
This article was featured in Lexipol's Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!
Many times over the years, officers have heard me encourage them to “talk nice, think mean.” We’ve written about the language of consent and avoiding coercive speech in countless issues of Xiphos – Lexipol’s legal newsletter – over the nearly quarter-century that I’ve been editing the newsletter.
I learned the lesson early in my career, though I’ve forgotten it and had to re-learn the hard way a few times. One of my early arrests of an impaired driver involved a waitress who had been out drinking with friends on her birthday. During the search of her purse at the jail, I located a gag gift that was, to say the least, very embarrassing to her. Without thinking about it too much, I put it in an opaque evidence bag rather than leaving it on the counter as I filled out the booking sheet (in long hand those days!).
A few months later, I was dispatched to an all-night diner to “see the waitress.” I was surprised to see the same young woman I’d arrested. She told me she worked two jobs. In addition to waitressing, she cleaned motel rooms during the day. She showed me some drug paraphernalia she’d dug out of the trash in one of the rooms she cleaned earlier that day and told me about a large plastic bag full of white powder that “could be, I don’t know, coke.”
I asked her why she had called the police and why she had asked for me. After all, I took her to jail on her birthday. She said, “You talked nice to me,” and didn’t make a big deal of her embarrassing gag gift. Talk nice, think mean.
A short while later, I was typing out my first ever affidavit for a search warrant. I called for help from one of the narcotics officers who deigned to speak to lowly rookie patrol officers. I nervously drove to a judge’s house at 0200 hrs and woke him up. He signed the warrant but told me to wait until daylight to serve it.
It was indeed a large bag of cocaine. Talk nice, think mean, coupled with a quick lesson on the elements of an affidavit for a search warrant, paid off. With the hundreds and hundreds of warrant affidavits I’ve written and reviewed over the past decades, the formula remains the same.
If you’ve never written an affidavit for a search warrant, now is the time to learn. Find an experienced investigator, probably one who has worked drug cases, and ask to sit in the next time a warrant is sought. Work on your “hero statement” or affiant resume. Learn the format, but most importantly, learn what is required by the Fourth Amendment. Here’s the basic formula in 54 simple words:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Fourth Amendment to the United States Constitution)
Quick overview of a search warrant affidavit
- Caption: Include the proper title of the court that will issue the warrant.
- Affiant resume (“hero statement”): Describe your training and experience and tell the court about your prior search warrant experience (if any).
- Description: Particularly describe the place to be searched. Particularly describe the person or things to be seized. Have you discussed the curtilage and outbuildings?
- Probable cause: Give the court sufficient information to conclude there is probable cause to believe that fruits, instrumentalities or evidence of a crime will be found at the place to be searched.
- Notice: Will the warrant be served with notice or is it necessary to seek a no-knock warrant? If applicable, explain to the court the reasons a no-knock warrant is justified. Check for state statutes or other relevant restrictions that may limit the availability of a no-knock warrant.
- Time: If the warrant is to be served at night, provide a justification for nighttime service. Check for applicable state statutes.
The ability to write a complete and effective search warrant affidavit is essential for all law enforcement professionals. Take the time to understand what a good affidavit consists of and apply it. And subscribe to Xiphos to keep up with case law to learn lessons from the actions of other officers.