Search Warrants Affidavits and Returns

All of the attorneys at Eisenstadt Law have been handling a number of cases lately dealing with evidence obtained by police by search warrants.

Our clients often feel as though when they are charged in connection with evidence seized by a warrant, their case is hopeless. That is not always so. It is important to us that our clients know their rights and have at least a basic understanding of how search warrants work. While our lawyers spend countless hours analyzing the specifics of each search warrant and researching the case law to be applied, we thought it would be helpful to give at least a basic overview of the mechanics of a search warrant.

Many law enforcement agencies regularly apply for and are granted search warrants – Massachusetts State Police, Boston Police Department, Drug Enforcement Administration, Quincy Police, Dedham Police, Stoughton Police, Brockton Police to name only a few. All search warrants are governed by G.L. 276 § 1, § 2, and § 3. Under those laws, there are only certain things that can be the subject of a search warrant (all of which are enunciated in §1) Those things are: (1) stolen items or items obtained in commission of a crime; (2) items intended for the use in a crime, or have been used in a crime, instrumentalities of a crime, or of the concealment of a crime; (3) items that are illegal to possess (drugs, guns, etc.) or are possessed for an unlawful purpose; (4) dead bodies; or (5) a live body which is the subject of an arrest warrant.

Although those items are the only things that can be the subject of the warrant, other things may sometimes be seized by police if they are observed during the execution of the warrant and have obvious evidentiary value. This is one of the many things we look at on a case-by-case basis.

When we examine cases involving search warrants, we must closely evaluate the warrant piece by piece. We first look to the “Search Warrant” itself. This is the single paper that the police must have with them at the time of the search and it is the controlling document. It is what tells the searching participants where they may search and for what they may search.

We next look to the “Application” for the search warrant. The application will lay out what the affiant or person applying for the warrant wants. Things such as are they asking for a nighttime search (between 10 pm and 6 am)? Do they wish to search all persons present? What do they want to search for and where?

Next, we meticulously analyze the “Affidavit” in support of the warrant. This and the warrant itself are probably the two most important pieces. Here we look for key elements such as probable cause to believe that the items are presently there; nexus between items being searched for and location to be searched; justification for permission to search all persons present; and justification for a “no-knock” warrant.

The final piece to be examined is the “Return” of items seized. The warrant must be “returned” to the court as soon as it has been served – but no later than 7 days after being issued. Once the warrant is issued, the officers are directed to make an “immediate” search. This is obviously because the warrant assumes a connection that the items are presently at the place to be searched. Courts will not allow for a warrant to be issued and then police to wait intentionally. (e.g. for the target of the warrant to “load up”). Then the warrant must be returned no later than 7 days from the issuance. This time does not include the day the warrant was issued but does include weekends and holidays. A warrant executed more than 7 days after the issuance is per se invalid. A warrant executed within a reasonable time, but not returned within the 7 days is not necessarily invalid so we must further review the reasons and effects on our client.

Again, search warrant cases are very fact-specific and there are thousands upon thousands of state and federal cases and statutes that we look to in order to argue about the validity of the warrants in our cases.

If you are being charged a crime based on evidence seized with a search warrant, it is important to consult with experienced attorneys immediately. Contact us now for a consultation regarding your search warrant case.