PHOTOS by Mark Ide
PHOTOS by Mark Ide
PHOTOS by Mark Ide
FEATURED IN INVESTIGATION
If you want to investigate gang members, you’d better be prepared to write search warrants—lots of them. Regardless of where in the U.S. you work, and despite formatting differences, search warrants are basically the same. Searches and seizures must be reasonable and based on probable cause. No warrants shall issue without probable cause per the Fourth Amendment, which protects individual privacy and prevents arbitrary intrusions by the government.
The Constitution provides a means for governmental agents—law enforcement officers—to conduct a reasonable search. Not only is it the law that you obtain a search warrant before you begin many criminal searches, it’s also in your best interest. With probable cause and a warrant, the court will reward you by presuming your search is legal, and it will attempt to uphold your search at every level of appellate review. Even better, the burden of attacking the warrant is now on the defense.
What They Do
Search warrants are a useful tool with which to combat gang activity. A solid working knowledge of the law regarding search warrants is critical if officers are to avoid common pitfalls when preparing warrants and affidavits.
The affidavit is essentially your report to the judge, detailing the facts of the case and why you believe you have probable cause to search the listed property and seize the listed items. In many states, the following six questions will need to be answered by the officer, regardless of the type of search warrant being requested.
1. What property do you wish to search?
2. What property do you wish to seize?
3. What investigation have you conducted regarding the listed property?
4. What training and experience do you have regarding this investigation?
5. Why do you believe the listed property will be at the listed address?
6. Is night service needed? And, do you need to seal this warrant? Why?
Answering these questions in proper legal language, the law enforcement officer must convince the judge that all relevant concerns have been addressed.
What Property to Search?
You must ensure that the location you intend to search has been properly investigated and a visual has been made by the investigator. There must be no mistake about the location, and the location must be described in detail. If you’re going to search a residence, for example, what kind of residence is it? A single- or multi-story building? A single-family-style house? Or a duplex, condominium, townhouse or apartment building?
Further, what does the residence look like? Describe the building color and composition. Include any identifying features, including where the address is on the residence. If it’s a vehicle, describe all the containers therein. Include the color, make, model and license plate number.
Always include the name of your gang member target, as well as all pertinent information on your target. The more detail the better. If you know your gang member’s social security number, driver’s license and/or immigration number, include these too.
What Property to Seize?
The property you wish to seize must relate to your investigation. This prevents an unnecessary seizure of items not related to a case. You may be looking for firearms, including ammunition, casings, holsters, targets and cleaning equipment; or evidence of street gang membership or affiliation with any street gang; paraphernalia to include any reference to the gang, including any drawings, writings, objects or graffiti depicting gang members’ names, initials, logos, monikers, slogans or mention of street gang membership or affiliation, activity or identity; any paintings, drawings, photographs, photograph albums, photographic negatives, undeveloped film, homemade videotapes, depicting persons, vehicles, weapons, or locations which appear upon observation to be relevant to gang membership or association, or which depict items believed to be evidence in the case being investigated with this warrant, or which depict evidence of any criminal activity; any newspaper clippings relating details of or referring to any crime or crimes of violence; any address books, lists of, or single references to addresses or telephone numbers of persons who are determined to belong to or to be affiliated with any street gangs; and papers, documents and effects tending to show dominion and control over said premises, including keys, fingerprints, clothing, photographs, photographic negatives, undeveloped film, homemade video tapes and any other non-commercially manufactured video/audio recordings, handwritings, documents and effects bearing a form of identification such as a person’s name, photograph, social security number or driver’s license number; and to answer incoming phone calls, either landline or cellular, during execution of the warrant; to view any video tapes seized pursuant to the warrant; and to open or download and forensically examine all computer software and programs seized pursuant to the warrant.
Does that sounds like a lot? Better to list it and not find it than to find it and have it thrown out of court because it wasn’t properly listed.
What investigations have you conducted to lead you to request this warrant? This outlines the who, what, when, where, why and how—probably the largest portion of your search warrant affidavit. Nonetheless, this section should be simple to complete, because this is basically the follow-up report of your investigation. What did you do or what did you see that you feel gives you probable cause to search?
Most warrants start off with a statement by the officer, who requests the warrant with substantial probable cause to search the premises and all parts therein, including all rooms, attics, basements, cellars, crawl spaces, safes, mail receptacles, storage areas, containers, surrounding grounds, trash areas, garages and outbuildings assigned to or part of the residence located at [address] of [city] and [county]. Often included are authority to search vehicles on site, search for items relevant to dominion and control (such as utility bills, U.S. mail, receipts, etc.) and permission to answer incoming phone calls. What are the facts of your case?
Relevant Experience & Training
Simply describe your experience as a law enforcement officer, an investigator and a gang investigator. How many search warrants you have been involved in? What is you training? and so on. The bottom line: Who are you and what are your qualifications?
Cause for Belief
Why do you believe the property you’re looking for is at this location? You must also establish that this property is relevant to the case being investigated. You must show up-to-date facts regarding the presence of items in the house and connection of a suspect to the residence. (See sidebar, below.) Typically but not always, information more than 10 days old may be considered stale and may need to be refreshed, but this varies by jurisdiction.
Regardless of the state you work in, officers must bear in mind the added dangers a nighttime service might engender. In some states, search warrants are executed during the day and early evening hours—unless a warrant is endorsed for night service.
There’s good reason for this. Imagine how a law enforcement officer would react if someone pounded on his/her front door in the middle of the night and claimed to be the police. As a person with easy access to firearms, the law enforcement officer’s natural reaction would be to reach for a weapon. Criminals, and citizens in general, have easy access to firearms too. The risk factors for both citizens and law enforcement may increase at night. These are particulars the officer must overcome if confronted with them by a magistrate. Therefore, a nighttime service endorsement is not granted easily.
Question: “Officer, why do you want a nighttime service endorsement?” Officers may want to execute the search at a period when those inside are most likely to be asleep, thereby lessening the risk to officers and citizens alike. The nighttime endorsement request may be for reasons of evidence (i.e., the suspects deal in controlled substances only in specific nighttime hours or evidence is known to be at a particular location only at specific nighttime hours). Perhaps witness or informant information is such that the investigator knows evidence is present, and such evidence will likely be disposed of or removed if there is further delay in executing the warrant.
Reasons for a nighttime endorsement request may be predicated on information found in police records, investigation or observations—for example, if your officers have found that a wanted suspect resides at the target residence, but efforts to find the subject during daylight hours have proven ineffective and his successful evading of law enforcement jeopardizes the safety of citizens in the community. The investigator needs only to articulate his reasons for requesting the nighttime service endorsement. This is done in a brief paragraph outlining the request.
Sample Cause-for-Belief Statement
Based on my training and experience, I know that people in general and street gang members in particular, commonly hide the weapons used in violent crimes. They hide other evidence associated with crimes, such as clothing and other paraphernalia, in their homes, the homes of coparticipants and the homes of fellow gang members or in their vehicles. Further, my experience indicates most street gang members are known by street names or monikers to their fellow gang members, and that they frequently write their gang name, their street name or moniker and the street names or monikers of their associates on walls, furniture, miscellaneous items or papers, both in residences and vehicles.
I know that gang members, especially Hispanic gang members, frequently adorn their bodies with tattoos, many of which declare their gang affiliation. Most gang members keep photographs and photograph albums in which are depicted: 1) themselves and fellow gang members who are posing and displaying hand gang signs, which indicate gang identity or affiliation; 2) gang members or associates posing with weapons, which are often used for criminal activities; 3) gang members or associates posing beside vehicles, which are occasionally used during the commission of crimes; and 4) gang members or associates posing at locations, which are known to be specific gang hangouts.
Gang members occasionally maintain scrapbooks or newspaper articles describing acts of aggression committed by or against their gang. They also frequently maintain the current phone numbers or addresses of fellow gang members or associates. It’s also my experience that gang paraphernalia (described above in detail) is frequently maintained. Therefore, it’s necessary and incident to the possession and use of such weapons. Furthermore, such evidence of gang membership and clothing aren’t normally disposed of, and, therefore, are likely to be found at the location to be searched.
It’s also my opinion that evidence of gang membership or affiliation with any street gang is important, as it may suggest motive for the commission of the crimes in the instant case, and it may provide evidence identifying other persons who have knowledge of, or who are involved in, the commission of the crimes in the instant case. It may also corroborate information given by other witnesses.
Furthermore, my training and experience indicates persons in control of premises leave evidence of their identification, such as fingerprints and handwritings, which are subject to expert identification, routinely in the normal course of living within their premises. Also, clothing, photographs, canceled mail and the like are routinely maintained in a person’s premises as necessary and incident to maintaining such premises. In addition, by intercepting phone calls at the premises while the search warrant is being executed, I expect to talk with persons who are familiar with the persons in control of the premises and will so testify. Such callers and described dominion-and-control evidence is vital to proving control over the described property to be seized.
Therefore, based on my training, experience and the above facts, which I believe to be true, I believe I have substantial cause to believe the above-described property or a portion thereof will be at the described premises when the warrant is served. Based on the aforementioned information and investigation, I believe grounds for the issuance of a search warrant exist as set forth in the penal code [insert relevant penal code numbers for your jurisdiction].
I, the affiant, hereby pray a search warrant be issued for the seizure of said property, or any part thereof, from said premises at any time of the day, good cause being shown therefore, and the same be brought before this magistrate or retained subject to the order of this Court.
Seal the Deal
The issue of victim or witness intimidation in gang-related cases is very real. Even if a culprit is arrested, gang associates will threaten, terrorize or target victims and witnesses to dissuade or prevent testimony. Furthermore, effective gang investigators often deal with paid informants or individuals who provide information on condition of anonymity. In such cases, “sealing” the warrant may save an ongoing case or prevent an informant from being killed.
Unless the informer is a percipient witness (i.e., a material witness to the guilt or innocence of the accused of the offense charged), investigators have the privilege and an obligation to prevent disclosure of this person’s name if information is provided in confidence. If this informer’s name is used in an affidavit in support of a search warrant, their name in some states will be in the public record for a given period. This means any defense investigator or attorney, as well as the defendant, will have access to it. Especially in gang cases, this may be a critical and life-threatening issue. Furthermore, any intimidation or violence aimed at witnesses who provide information in confidence will undermine the investigator’s credibility in future investigations and likely ruin the current case. More importantly, it may mean the injury or death of an innocent citizen who expected to remain anonymous.
In other cases, an investigator may want to simply delay disclosure of the informer, pending his relocation or completion of ongoing investigations. Premature disclosure of informer identity or other issues relevant to a current case may jeopardize other investigations or the health and safety of the informer. In either case, an investigator may consider a declaration requesting that the affidavit and/or attachment (outlining the victim/witness name) be sealed until further order from the court.
A Few Words on Service
Laws regarding knock and notice vary from state to state. Boiled down, knock and notice are required for two reasons: privacy and safety.
Note: In state statutes, the word break doesn’t necessarily mean smash, knock down or dismantle. Even peaceable entry might be construed as “breaking,” if doing so causes the officers to incur undue risk. There are cases where breaking the door down is warranted—for example, when knock and notice will cause suspects to flee or for evidence to be destroyed or tampered with—but before you commit your officers to taking such actions, ensure you’ve weighed the potential consequences of not waiting (legal and otherwise).
Common sense application of the knock-and-notice rule allows for exceptions due to emergencies or unusual conditions. Example: If, as police approach a fugitive’s house in order to serve an arrest warrant and see the suspect looking at them from a pulled back curtain, then suddenly move out of view, it would be reasonable to think the individual was trying to escape. The same conclusion could be reached if they heard retreating footsteps after giving their notice, or if a lookout was heard to be warning the suspect. In such instances, full compliance with the knock-and-announce requirement would be excused.
Destruction of evidence is another factor giving rise to a knock and notice waiver. If approaching narcotics officers hear the sound of a flushing toilet, it would be a logical inference they had been seen and dope was being dumped. Such a conclusion would, of course, be unreasonable if their search warrant was for stolen television sets.
For more on this important topic, see R.K. Miller’s “Tactical Standards, Part 2,” in the June issue of Law Officer, p. 48, and “Entry Essentials,” in the July issue, p. 54.
Gangs are organized and constantly evolving, but it’s our duty to protect our citizens from their depredations. Search warrants will allow your patrol officers to seek out the evidence they need to prove what the gang members don’t want them to prove—namely, the criminal nature of their activities.
Remember: The search is only as good as the search warrant that precedes it. Evidence thrown out of court serves no purpose, other than allowing the gang to adapt their strategy and further evade justice. In addition, once the location is secure, do a methodical search, document everything you do. If you can take photos before and after your search, make sure you record who located each piece of evidence and where it was found. Photograph evidence, hold it for prints and DNA if necessary, and maintain a proper chain of custody on all evidence located. Remember: Leave a copy of a receipt and inventory at the location detailing everything you seized, and file the receipt and inventory with the court at the conclusion of your warrant service. It’s imperative that supervisors work with their officers to ensure that warrants are executed in accordance with the law.