Journal of Criminal Law and Criminology

Volume 641 Issue 3                                                                                                                                Article 2

——-

1974

 

Evaluation of Affidavits and Inssuance of Search

Warrants: A Practical Guide for Federal Magistrates

 

Arthur L.Burnett

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Recommended Citation

Arthur L. Burnett,Evaluation  of Affidavits and Inssuance of Search Warrants:A Practical Guide for Federal Magistrates, 64 J. Crim. L.

& Criminology 270 (1973)

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VoL 64, No. 3

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EVALUATION OF AFFIDAVITS AND INSSUANCE OF SEARCH WARRANTS: A PRACTICAL GUIDE FOR FEDERAL MAGISTRATES

 

ARTHUR  L. BURNETT*

 

INTRODUCTION

While the critical role played by magistrates  in securing the liberties granted by the fourth amend­ ment  has  long  been  recognized,1 several  recent decisions by  the  United  States  Supreme  Court have reemphasized that  wherever possible govern­ ment  searches  and  seizures  must  be  conducted only  after  sanction  by  a neutral  and  detached magistrate.   For   example,   in   United  States  v. United Stales District Court for tire Eastern District of Michigan,2 which dealt with the constitutionality of   warrantless   wiretaps   of   alleged   subversive activities,  Mr.  Justice  Powell  referred  to  Lord Mansfield’s  observations  of  some  two  centuries ago:

 

It is not fit that  the receiving or judging of infor­ mation ought to be left to the discretion of the offi­ cer.The magistrate ought to judge, and should give certain directions to the officer.:

 

Mr. Jusice Powell concluded:

 

Lord  ansfield’s formulation  touches  the  very heart  o!the Fourth  Amendment directive: that, where practical, a government search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of  the  magistrate  that  the collected evidence is sufficient to justify invasion of a citizen’s private premises or conversation.Inherent  in the concept of a warrant is its issuance by a ‘neutral and de­ tached magistrate”

 

* United States  Magistrate   United States  District Court,  Washington, D.C.  B.A., Howard  University; L.L.B., New York University School of Law, 1958.

tSee  e.g.{ Johnson  v. United States, 333 U.S. 10,

13- 14 \1948), where Mr.Justice Jackson noted:

The point of the fourth amendment, which is not

often grasped by zealous officers, is  not  tha.t it denies law enforcement officers the support of the usual inferences which reasonable men draw from the evidence. Its  protection consists in requiring that  those inferences be drawn by a neutral  and detached magistrate  instead  of being  judged by the officer engaged in the often competitive enter­ prise of ferreting out crime.

2407           297 (1972).

ald. at  316, quoting Leach v.Three of the  King’s

Messengers, 19 How. St. Tr.1001, 1027 (1765).

  • 407 U.S. at 316. See al$o Coolidge v. New Hamp­

shire, 403 U.S. 443, 453 (1971).

On the same day that the decision in the wiretap case was announced, the Court also defined the concept of a neutral and detached magistrate in Skaitwick v. City of Tampa:5

 

..• [A)n issuing magistrate must meet two tests.He must be neutral and detached, and he must be capable  of   determining whether  probable cause

ensts for the requested arrest or search.’

 

The opinion by Mr.Justice Powell further suggests at least one hallmark of the”neutml and detached” magistrate:

 

Whatever  else neutrality  and  detachment  might entail, it is clear that it requires severence and dis· engagement from  activities  of  law enforcement. There has been no showing whatever here of par­ tiality,or affiliation of theseclerks withprosecutors or police. The record shows no connection with any law enforcement activity or authority which would distort   the   independent  judgment  the   Fourth Amendment requires.l

 

Thus,  while magistrates  must  recognize and protect   legitimate   law   enforcement   objectives, they must also remain on guard against becoming a  participant in  the  overzealous  efforts  of  law enforcement  officers. The  purpose of  this  article is to focus on certain problems which face federal magistrates  today, and  to offer some suggestions to aid them in the proper exercise of their critical function.

 

GROUNDS   FOR.  ISSUING  A   SEARCH  WA.ImANT: TRE  BALANCING  OF PR.OBA:BILlTIES

Although the information submitted  to a magis­ trate must  set  forth   sufficient grounds  for  the issuance of a search warrant, factual statements in an  affidavit  need  not  establish  proof  beyond  a reasonable doubt, nor even by a preponderance of the  evidence. What  is required is a balancing of

 

5407 U.S. 345  (1972). The  case upheld the consti tutionality  of  municipal court  clerks issuing arrest warrants  for  petty   offenses under  Tampa,   Florida municipal ordinances.

‘ld.at350.

7 Id.at 3SQ-51.

270

 

1973]  .                                                    SEARCH WARRANTS                                                          271

 

 

the   probabilities.8 Employing a  mathematical concept, the  magistrate must  be at least 1ifty-one percent satisfied  after reading the affidavit and considering  everyday factual experiences on which reasonable and  prudent men  act,  that the factual assertions justify  the  conclusion  that a search  of the premises will uncover the items sought.9

For the purposes of balancing these probabilities,

the United States Supreme Court has established certain  rules  which  magistrates are  required  to follow when  evaluating the information contained within: an  affidavit.  If an  affiant  comes  before  a magistrate with information based  on his own observations,  the    Court  has  clearly   indicated

 

8 United States v.Harris,403 U.S. 5731?.79n.l (1971). At this point it sbould be noted that wnile Rule 41(b) of the Federal Rules provides that  a warrant may be

issued to search for and seize any property constituting evidence of a. criminal offense in VIolation of the laws of the  United States, one important  limitation has been set  forth  in  several recent  cases. In  VonderAhe v. Howland,13 Crim.L.R. 2096 (May 2, 1973), the ninth circuit, relying on Boyd v. United States, 116 U.S. 616

(1886, held that  the massive seizure by the Internal Revenue Service of business and personal records during the execution of a search warrant in connection with a tax  investigation  for  their  possible  communicative and testimonial content violated the self-incrimination privilege of their possessors. See also Hill v. Philpott,

445 F.2d 144, 149 (7th Cir.1971), cert.detJied,404- U.S.

991 (1971). Cotztra, United States  v. Blank, 459 F.2d

383!385  (6th  Cir. 1972), cerl.denied, 409  U.S. 887 (19t2), where worksheets of a  sport  and  horse-book betting business were held not subject to suppression on fifth amendment gronnds, even though in the de­ fendant’s  handwriting, since they  were not  personal communications but rather  business acounts rendered extraordinary only by  the fact  that  the business was itself  illegal. It might  be argued  that  Blatk  can  be distinguished from VotlderAlte in that the items seized in Blauk  could be considered seized for their corporeal value as physical items manifesting the criminal offense itself rather  than  for their communicative value and content with reference to past criminal conduct.

t See Brinegar v. United States, 338 U.S. 160, 175 (1949). See also United States v. Ventresca 380 U.S.

102, 108 (1965), in which Mr.Justice Goldberg, after reviewing the Court’s prior holdings under the fourth amendment, stated:

These  decisions reflect the  recognition that  the Fourth  Amendment commands, like all constitu­ tional requirements, are practical and not abstact. If the teachings of the Court’s cases are to be fol­ lowed and  the  constitutional  policy  served, affi­ davits for search warrants,such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and  baste of criminal investigation. Tech­ nical requirements of elaborate specificity once e.ucted  under common law pleadings have  no proper place in this area. A grudging or negative attitude  by  reviewing courts  toward  warrants will tend  to  discourage police officers from sub­ mitting their evidence to a judicial officer before acting.

that the affiant  must  support any  suspicions  and beliefs  he  might   have with  adequate supporting facts from  which  the  magistrate can make  an independent judgment about probable cause. In Natlmnson ‘11.United StoJes1° the Court enunciated the appropriate rule:

 

Under the Fourth Amendment, an officer may not properly issue a warrant to search a private dwell­ ing unless he can findprobable cause therefore from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspi­ cion is not enough.u

 

H the affiant  is seeking a search warrant on the basis of information provided by an informant, he must supply  the magistrate with  details sufficient to  credit   this  hearsay  testimony. In  Agnilar v. TexasJ!l  the  Supreme Court held  that an  affiant must  inform  the  magistrate of  (1) the  underlying circumstances from which the informant concluded that illegal  activities were occurring, (2)  the  cir­ cumstances which lead him to believe  that his informant was reliable.l.l!

 

DETAlL  lh:QumED IN  AN A:FFmAVIT: ‘IiiE

FIRST PRoNG OF  AG’Oll..AR

In  evaluating an  affidavit a magistrate must first  determine how  the  affiant  or  his informant acquired his information. The matter is quite simple  when  the  affiant  asserts  that he  or his informant actually saw  the  criminal  activity. Where personal observations of a crime occur, the first  prong of  AgUt’lar is met  and  the issue  is re­

duced  to whether the informant is credible.u

Whlle  probable cause  can  be  established even

though the  informant did  not observe  the  illegal activity, the  information must be sufficiently  de­ tailed  for  the  magistrate to draw  an  inference  of personal knowledge;  otherwise the informant’s tip may  be  merely  rumor  or  gossip.15 If there is  no

10 290 u.s. 41 (1938).

u.s.

11Jd. at47.

11378       108 (1964).

11Id.at 113.

uSee,  e.g., United States  v. Harris, 403 U.S. 573,

579 (1971)·United  States  v. Suarez, 380  F.2d  713

(2d Cir. 1967); Coyne v. Watson, 282 F. Supp. 235

(S.D.Ohio 1967).

t•Spinelli v.United States, 393 U.S.4101417 (1969). A problem does arise when the informant iS basing his assertions  on  hearsay  infonnation. Thus,  where an

affiant’s  sonrce relates that  mends  and  associates of principals involved in an interstate gambling operation have furnished him with  information concerning the principal’s operation, it has been held that  this fails to meet the Aguilar requirements, since the real issue is the credibility  of the so-called mends and associates,

 

272                                            ARTHUR  L.BURNETT                                                        [VoL 64

 

 

indication in the affidavit as to how the informant received  his information, a search warrant should not  be issued,unless other facts within the affidavit support a finding of probable cause.

Should  the affidavit state that the informant has

“personal knowledge” of  criminal activities, the magistrate should  require the  affiant  to  indicate clearly  how  the  informant obtained his first-hand information. In  Unitetl Stales “· Lynwood Longte the  Court of Appeals for  the District of Columbia held a search  warrant invalid in  an interstate gambling case  because  the  affiants merely  stated that the  informants had “personal knowledge” of gambling activities. The   court   concluded  that even though the tip was based on what the affidavit called personal knowledge:

 

[T)his is only a conclusion, however, and standing alone, it does not cure the lack of specificity in­ herent in the  affidavit. There is no indication  of the source of the informant’s ‘personal knowledge’, nor  are  their  tips  sufficiently detailed  to  allow a magistrate   to  infer  that   the  informant   had gained information in a reliable way.11

 

A  somewhat related  problem   arises   when   an affiant makes a statement in the form of a factual assertion, which  is in  effect  a conclusion   of  the affiant. For  example, in  Berger v. CommonwemthlB

 

and   the  circumstances  under   which  they   obtained their  information.  Se6  United  States   v.  DeCesaro,

349 F. Supp. 549, 550 (E.D.Wts. 1972).Indeed, there

has been some questioning of the use of double hearsay even when the affiant’s source is another law enforce­ ment agent. Taking  the position that  double hearsay is not  to  be encouraged, the  second circuit  recently commented:

Where an informant speaks to an agent, it is that

agent who should normally relay that information

to the  magistrate  evaluating  the search  warrant application.   Informants’  tips   relayed   through two agents and  then to  the magistrate, however accurately reported, unnecessarily reduce the magistrates ability to make an independent de­ termination of the information’s reliability.

United States  v. Fiorella, 468 F.2d  688, 692 (2d Cir.

1972). However, when the information originates from

named  citizens who are  eyewitnesses or  have  other direct  knowledge, such as statements or admissions by a suspect, and the afliant  relates the collective informa­ tion  received through  other  law  enforcement agents’ interviews with these witnesses, it has been held that the double hearsay does not preclude a finding of probable cause.Su United States v.McCoy, 478 F.2d

176 (lOth Cir. 1973). Apparently, the ultimate  test is whether the information, taken in light of the totality of the circumstances, can reasonably be said to be reliable. These two cases also suggest a distinction between information  originating from confidential police informants and private citizens. Su note 51itJfra.

15 439 F.2d 628 (D.C.Cir. 1971).

11Id.at 630.

lB 213 Va. 54, 189 S.E.2d 360 (1972).

law  enforcement officials sought a. search wa.nant based   on   an  affidavit  which   alleged   that  after observing a rural farm house for over  two months they “further observed persons in the tent smoking a substance which  required use of a great number of  matches to remain lighted and  the  substance being smoke appeared to be used in such a manner as that of Cannabis Sativa L…• ” 19 The Virginia supreme court  held   that this  statement  lacked those  details which  would  enable   the  magistrate to determine for himself what was actually being smoked. The court concluded: “The  number of matches used is insignificant without the  detection of an odor or description of some observed method of use peculiar to the smoking of marijuana.’1to

Although an affiant does  not  have  to name his informant  in   the   affidavit,21  in   some   cases   an affiant may bereluctant toprovide any  information which  might reveal the  identity of  his informant, and   possibly endanger  his life.  As described by

one court:

 

  • •• [O}fficer-affiants should be encouraged to fur­ nish to the magistrate as specific ‘underlying cir­ cumstances’ as possible• • •• We realize the reluc­ tancy of officer-aftiants from being  more specific than absolutely necessary for fear  of giving  away the identity of the informer which for one reason or  another  they  may  feel  the  need to protect. Unless there is a real necessity for doing so they may well compound the problems of the probable cause assessing magistrate, the trial court and this court.lrl

 

Since  the  Federal Rules of  Criminal Procedure do  not   specifically  require that  affidavits be  at· tached to f ederal search   warrants, nor   that the

 

tv Id.at 361.

20 Id.

tt United  States  v.  Ventresca, 380  U.S. 102, 108 (1965); Aguilar v. Texas, 378 U.S. 108, 114   1964); R.ugendorf v. United States, 376 U.S. 528, 533   1963}; Jones  v. United States, 362 U.S. 257, 271-72     1960). Some federal  courts  have  applied  the  same  rule  of nondisclosure in  both warrant  and  nonwarrant cases.  Se6 Smith  v. United States, 358 F.2d 833 (D.C. Cir.

1966); Jones v. United States, 326 F.2d 124 (9th Cir.

1963), cerl.denied,377  U.S. 956 (1964); United States

v.One 1957 Ford Ranchero Pickup, 265 F.2d 21 (10th Cir. 1959}. Other  federal  courts  have  distinguished these two classes of cases and have required the identifi­ cation   in  nonwarrant   cases.  Su United  States   v. Robinson, 325 F.2d  391 (2d Cir. 1963);  Cochran v. United States,  291 F.2d 633 (8th  Cir. 1961). Su also McCray  v. Dlinois, 386 U.S. 300  (1967), where the Supreme Court held that an informant’s tdentity need not be disclosed at a preliminary hearing to determine the sufliciency of an arrest or search.

u Adair v. State,  482 S.A.2d 247, 252 {Tex. Crlm.

App.1972).

 

SEARCH WARRANTS                                                            273

 

 

search wammt  contain the  facts  recited in  the

23

Micltigan,u  Mr. Justice Powell   answered   this

 

affidavit which  establish probable cause1

an  ap­

contention by stating:

 

propriate solution to this problem is the  use of  a

“supplemental affidavit,” sepamte from  the  pri­ mazy  affidavit, setting forth all the available information. This  special affidavit can  then be sealed  and  preserved for  review  should  any claim arise that the warrant was improperly issued.«

A similar problem  arises when  the  government claims that it cannot reveal certain  facts in  an affidavit because  it does not want to compromise

classified information.In United Stales ‘D. United

Stales Distrid Courl for fhe Eastern District of

 

PJ:&;e;ty

uThe relevent subsections of Rule 41 provide: (c)  A warrant shall issue only on an affidavit or affidavits swom  to before the federal magistrate or  state  judge and  establishing the  grounds for issuing the  warrant. If the federal magistrate  or state  judgeis satisfied that grounds for application exist or that thereis probable cause to believe that they exist,he shall iSsue a. warrant identifying the property and naming or describing the person or place to be searched.The:finding of probable cause may be based upon hear.;a.y evidence in whole or in part. Before luling on a request for a warrant the federal magistrate or state  judge may require the affiant to appear personally and may emmine under oath  the  affiant and  any  witness he  may produce, provided that  such proceedings sball be taken down by a court reporter or recording equip­ ment and made part of the affidavit.The wamlllt shall be directed to a civil  ofiicer of the  United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized  by the President of the Ullited States. It shall com­ mand the officer to search,within a.specified period of time not to exceed 10 days, the person or place

named for the                specified.•••

(d) The officer     • g property under the warrant sh8ll give to the person from whom or from whose premises the  property  was taken  a. copy of the

warrant and a receipt for property taken or shall leave the copy and receipt at a place from which the proc;,.r was taken. • • •

FED.R.           P.41(c), (d).

In Ledbetter v. United States, 211 F.2d 628 (D.C.

Cir. 1953), cerl. denied, 347 U.S. 977 {1954), the de­ fendant, convicted of violating the District of Colum­ bia’s  lottery  law, ar ed that  the  execution  of  the search warrant  was  mvalid  because no copy  of  the a.Oidavit was attached to the copy of the warrant served upon  him. The  defendant  contended  that  since the offense was a crime under the  D.C. code, a copy of the  affidavit pursuant  to  the  D.C. code had  to  be attached. The  wamlllt,  however, was issued by  the United  States  Commissioner upon  application  of  a. United States m.a.rshalL The court held that  the D.C. code provision was inapplicable and  that  the federal officials had  complied with  the  federal requirements under role 41(c).

s•There are  some practical  reasons for  attaching

affidavits to search warrants  prior to execution. First, it furnishes the accused with the  reasons for the in­ trusion on his privacy. Second, it avoids any  possible claim that  the a.Oidavit later located in the official Die was in fact inserted after the search. Thus, whenever possible magistrates should attach all a.Oida:vits to the

Nor do we believe prior judicial approval will frac­ ture  the  secrecy  essential  to  ollicial intelligence gathering.••.Moreover, a warrant  application involves no public or adversary  proceeding:It is an e:c Parle request before a magistrate or judge.

Whatever security dangers clerical and secretarial personnel may pose can be minimized by proper administrative measures, possibly to the point of allowing the  Government  itself  to  provide  the necessary clerical assistance.”

 

In addition to   the   measures suggested by  Mr. Justice Powell,  the  magistrate can utilize  the supplemental affidavit to serve  as a record  of his reasons for issuing  the search warrant.

In connection with   the  factual assertions re­

quired in  an  affidavit, an  affiant  will frequently lapse  into the  passive voice  in  setting forth in­

formation, after initially stating that he had inter­ viewed  an  informant.  Although the  implication might be that the informant supplied the informa­ tion,  the  affiant  ma.y be setting forth facts unre­ lated  to   his   conversation with  the  informant. For  example, in  United States v.Nelson’n a motel clerk  had observed burglary tools,  money, guns and a. cutting torch  in  one  of  his  rooms. Later, information concerning blank  postal money orders and  a Bank Americard was obtained through two warrantless  entries  by   police   officers  into the same room. In applying for a search  warrant, the police  commingled the results of the two  entries. Judge Miller, concurring in  finding   the   search wammt invalid, stated his  belief  that  the  officer involved was  not satisfied   that  the  information supplied him by  the room  clerk  would  support a wammt   and.  therefore, used   the   information gathered in  both entries in  hopes  of  establishing probable cause.28 To  a.void the  situation  described by  Judge Miller, magistrates should  be skeptical of   affidavits which  begin  with   such  phrases  as “investigation disclosed,” “it  was leamed that,” “information received disclosed,” or “observations made disclosed,” since  they do  not indicate the source of the information or the reliability or trust­

worthiness of that source.28

search warrant. See eg. Moore v. Ullited States,  461

u.s.

F.2d  1236 (D.C. Cir. 1972).

25407         297 (1972).

2S Id.a.t 32 21.

11 459 F.2d 884 (6th Cir.1972).

28 Id.at 895.

“Federal magistrates must also guard against  the possibility that  information in an affidavit may have

 

274                                                         ARTHUR  L. BURNETT                                                      [VoLM

 

 

Another problem facing the magistrate in evaluating  the  factual  assertions  in an  affidavit is the  determination  of whether  the  information is currently  accurate. In United States v. Harris3° the Supreme  Court  held  that an  informant’s re­ port  that he  had  purchased  whiskey within  the past  two weeks was sufficiently current, especially since these purchases were part  of a history of purchases over a two year period,Bl Mr. Justice Harlan, in his dissenting opinion, also rejected the contention  that the information was too stale, observing that, “the  totality of the tip reveals that the informer purported  to describe an on-going operation which he had claimed he had personally observed over the course of two years.” 32

Although the permissible lapse of time between the  finding of  the  evidence and  the  application for the search warrant  will vary with each case,33 the   facts   submitted   to   the   magistrate   should specify the  time at which the evidence was gath­ ered,” and must convince him that  the property which is the object  of the search is probably  on the person or  the premises to  be searched  at  the

 

been obtained in an illegal manner.If such information constitutes a material part of the affidavit, the search warrant is invalid, and what is seized pursuant to the warrant will be suppressed.See United States v.Nelson,

459 F.2d 884 (6th Cir.1972); United States v.Rosen­ berg, 416 F.2d 680 (7th Cir. 1969). However, where the untainted information in an affidavit is sufficient, the fact that  other information in the affidavit was obtained as a result of illegal means will not invalidate the search. See James v. United States 418 F.2d 1150 (D.C. Cir. 1969); Chin Kay v. United States, 311 F.2d

317 (9th Cir. 1962). A search warrant will not  be invalidated even though predicated upon information obtained through entrapment. See  Harness v. Ken­ tucky, 475 S.W.2d 485 (Ky. Ct. App.), cerl. denied,

409 u.s. 844 (1972).

time the warrant  is issued.35   Federal  magistrates will have  to  consider the  totality of the  circum­ stances surrounding  the  requested  search such as the nature  of the items  to be seized, the type of criminal activity involved, and  the nature of the premises to be searched.

 

ESl’ABLISHING    A…”T       ImoRMANT’s RELIAlliLlTY:

TliE SEcoND  PRONG  oF  AGUILAR

The second prong of Aguilar requires that an affiant set forth information in the affidavit which will allow the magistrate  to make an independent judgment about  the informant’s reliability. The magistrate cannot rely solely on theaffiant’sasser­ tion  that  his  informant  is trustworthy, truthful, prudent, reliable or credible.

The  informant’s  trustworthiness can  be  estab­ lished in two ways. First, an affiant can set forth in the affidavit an informant’s record of past performance,  which .m.ight indicate   that  he  has provided  information  in the  past  which has lead to  the  seizure of illegal  materials  or  resulted  in the arrest  of persons who were later  convicted.3& Second, an informant’s  trustworthiness can be established  through  independent  corroboration  of the informant’s claims by law enforcement in­ vestigation or surveillance activities.37

The United States Supreme Court has elaborated on these methods for crediting an informant’s tip. In Spinelli v. United Statests the Court  discussed the  proper  guidelines for  evaluating  an  affidavit which contains among other things an informant’s tip, corroborating evidence of matters contained within  the  tip, and  information  unrelated  to  the tip  itself  compiled  by independent  law  enforce­

39

 

30 403 u.s. 573 (1971).

ment  investigation.

According to the Court,  the

 

nld.at 579 n. 1.

a: /d. at 589.

: :Jin Schoeneman  v. United States, 317 F.2d 173,

177 (D.C. Cir. 1963), the court observed that  “the Government could cite, and we could find,  no case which sustained a search warrant issued more than 30 days after finding of  the evidence which constituted the basis of the search.”InSclwtmenusn the court held a

107 day delay invalid. See  also  Dandrea v.  United

States, 7 F.2d 861 (8th Cir.1925) (42 days-invalid); United States v. Sawyer, 213 F. Supp. 38 (E.D. Penn.

1963) {107  days-  invalid)· United States  v. Long,

169 F. Supp. 730 (D. D.C. 1959) (11  days-valid);

United States v. Allen, 147 F. Supp. 955 (E.D. Ky.

1957) (16 days-valid).

“ The failure to include within an afiidavit the time the  affiant received his   information will normally invalidate a search warrant See Rosencranz v. United States, 356 F.2d 310 (1st  Cir. 1966)·United States v. Bosch, F.Supp.15 {E.D. Mich. 1962). Bttt see Rider v. United States, 355 F.2d 192 (5th Cir.1966), where the court held that  narration  in the  present tense was sufficient to conclude that the information was current.

36 See PROCED’OllES   MANuAL  FOR   UNITED STATES MAGISTRATES  7-3 and 7-4 (1972):

A showing to the effect that the property to be seized was at the place to be searched a substantial time before the application is made does not justify the issuance of  a search warrant, for the reason that  during the intervening period the property may have been moved away.The facts must show that the property to be seized was known to be at the place to be searched so recently as to justify the belief that the property is still there at the time of the issuance of thesearch warrant. It is advisable to indicate the time of issuance upon the warrant.

as See,  e.g., United States v. Dunnings, 425 F.2d

836 {2d Cir.1969), cert.denied, 397 U.S. 1002 (1970);

United States  v. Stallings, 413 F.2d 200 (7th Cir.

1969).

17See,  e.g,.  United States v. Roman, 451 F.2d 579 (4th Cir. 1971), Schulgz v. United States, 432 F.2d 25 (lOth  Cir. 1970).

118 393 u.s. 410 (1969).

aa In  Spinelli the affidavit contained the follo?.·ing

allegations:

 

1Y1.1J                                                                            :>EARCH WARRANTS                                                            275

 

 

proper method is to look fust at the informant’s tip and  the affiant’s assertions about the reliability of his informant to seeif they alone establish a reliable factual basis from which  the  magistrate can make an  independent judgment about probable cause.’0

If the   reliability  of  the   tip  is  not  established through this procedure, the magistrate must  then look  at the  corroborating  evidence to  see  if it

credits the   tip.” If the  magistrate decides  that

the  tip  cannot be credited in  either  of  these  two ways,  the  magistrate must   then   look   to  other parts of the affidavit to determine if the  informa­ tion compiled  by independent police investigation sufficiently establishes probable cause.c

More recently, in Ut ited States v.Ha”is, 43 Chief

Justice Burger, speaking for  a plurality of  the Court,” indicated that a  magistrate should not evaluate an  affidavit  in a highly  technical manner in order  to determine whether an informant’s tip is reliable.(5 According to  the  Chief Justice, the affi­ davit must  be considered as a whole to determine

 

(1) The  FBI  had  kept  track  of Spinelli’s move­

ments on live days during the  month of August

1965.On four of these occasions, Spinelli was seen crossing one of two bridges leading from Illinois into St. Louis, Missouri. On four of the live days 1

Spinelli was also seen parking his car in a lot usea

by residents of an apartment in St.Louis. On one

da.y, Spinelli was seen to enter a particular apart­

ment m  the  building.

(2) An FBI  check with  the  telephone company revealed that this apartment had two listed phones. (3) Spinelli was known to agents as a bookmaker, an  associate of  bookmakers, a gambler, and  an

associate  of gamblers.

(4)  The FBI has been informed by a confidential reliable informant that  Spinelli is operating a wagering operation  by  means of  the  two  listed

phone numbers.

Icl.at 413-14.

(0 Id.

U.[d.

u.s.

“ld.at417.

0 403        573 (1971).

u Chief Justice Burger’s  opinion was divided into

three parts. Part I held there was sufficient informa­ tion in  the  affidavit to  find  the  informant  reliable. Part  II criticized the  ruling in Spinelli as  being too

technical. In Part m the Court held that  a declara­

tion against penal interest  was sufficient to credit the

informant’s  tip. Justices  Black and  Bla.ckmun con­

curred in all three parts. Justice Stewart concurred in

Part I and Jnstice White concurred in Part mJustices

Harlan, Brennan, Douglas and Marshall dissented.

ta In Harris  the affidavit alleged:

(1).The accused had been known as a trafficker in whiskey.

(2) Another  officer had  seized whiskey  on  the

premises before.

(3) An unnamed person, fearing for his life, re­

vealed that  he hail purchased whiskey from the accused within the past two weeks.

(4) The affiant found this person to be  prudent.

Id.at 575-76.

whether there is a “substantial basis”for crediting an informant’s tip.46 The  Court also indicated that a declaration against penal interest by  the  in­ formant  would   meet    the   requirement  of   the second  prong of Aguilar.<

Although the decision in Harris appeazs  to give

the   magistrate  broad   discretion  in  determining the  reliability of  the informant,” federal   magis­ trates should   nevertheless insure  that fact.s con­ tained within an  affidavit, whether of  the in­ formant’s past record or of corroborating evidence of  the  informant’s claims,  establish a sufficient basis for crediting a tip. Both Chief Justice Burger and Mr.Justice Harlan, who wrote the  dissent in Ha”is, agreed  that a bare statement by an affiant that he   believed   the   informant  to  be  truthful without any  supporting evidence  would  not  pro­ vide a basis for crediting the report of an unnamed informant.’9

In some  cases  law  enforcement  officials  may indicate in an affidavit  that the  information was provided  by  a  citizen-informant. Unlike   police informants, who often  receive  some consideration for  their  information, the  citizen-informant may have  less  reason   to  make  statements which  are

self-serving.6° Consequently, there may   be  more

justification for  crediting their  tips. Nevertheless,

the  magistrate should  require the  affiant  to indi­ cate the demeanor, age,  occupation, reputation, any arrest or conviction record,or any employment record of his citizen-informant as well as the under­ lying  circumstances surrounding the  citizen­ informant’s  knowledge    of    the    alleged    illegal

activities.61 While  the absence of such information

 

u.s.

cs The “substantial basis” test  was first enunciated by Mr. Justice Frankfurter in Jones v. United States,

362         257,272 (1960):

We have decided that, as hearsay alone does not

render an affidavit insufficienthe Commissioner need not  have  required the  informants or their affidavits to  be produced, or  that  Didone have personally made inquiries about  the  apartment, so long as there was a.substantial basisfor crediting the hearsay.

“‘403 U.S.at 583.

“See, e.g.L United States  v. Unger, 469 F.2d 1283

(7th Cir.1912); United States v. Guinn, 454 F.2d 29 (5th  Cir. 1972); United  States  v. Rollilll!t 451 F.2d

579 (4th Cir.1971); United Statesrel.viRienzo v. Yeager, 443 F.2d 228 (3rd Cir. 1971).

  • 11Id.at578, 59()…91.

aosee United States v. Unger, 469 F.2d 1283, 1287

N.Y. (7th Cir.1972); People v.Hoffman, 45 IU.2d 221 1

258 N.E.2d 836  (1970); State  v. Paszek, SO \V1S.2a

619,189 N.W.2d 836 (1971).

RSee  Adair  v. State,  482 S.W.2d  247, 250 (Tex.

Crim. App.1972), in wliich the Texas court noted the problem faciug the magistrate in the case of a citizen­

Informant:

 

.1./U                                                                           .IJ.KHJ.UK L. J$UJ<lVl!:.‘.J,”J.’                                                                     tVol.64

 

 

may  not  be fatal, it will enable the  magistrate to determine that the affiant is in fact dealing with a citizen-informant, and  also help  him make  a more precise  judgment about  the  reliability of  this particular citizen-informant.112

 

Thum:FULNESS  OF  FACTS   CONTAINED WITRIN  TB:E  MFIDAVlT

 

Although the sufficiency of the factual assertions supporting the   issuance   of  a  search  warrant  is clearly  open  to  attack, the  law  is somewhat un­ settled as to whether the  truthfulness of facts set out in  an  affidavit can also be  challenged at a hearing to suppress evidence. The  position that the substance of the assertions within an affidavit cannot be  attacked was  very re(:entJy  set  forth by the  New Jersey supreme court:63

 

In our view the constitutional safeguards are met when the impartial  judge finds the  affidavit for the warrant  credible and legally sufficient. Com­ pliance with  the requirement for an oath by the officer must  be regarded as  a procedurally ade­ quate  manifestation  of his  veracity.  That   oath followed by the judge’s determination that thefacts vouched for show probable cause are all the Consti­ tution demand and guarantee to our citizens.If the police officers lie, the truth of the accused’s alleged criminal  activities  as  revealed  by  the  evidence seized under  the warrant  will not  be diluted. In that event • .. the accused will have to meet noth­ ing more nor  worse than  the  ‘truth’ at  plenary trial. ••• Further,  so far as the untruthful officers are  concerned,  they  expose  themselves  to  the

 

The police are often confronted with the first time informer sometimes referred to as a ‘walk in’ who is unknown to the police and with whom the police have had no previous experience. When they give information as to criminal activity  their informa­ tion should not  become unusuable because there has  not  been a  previous instance  of  reliability. When citizens are involved it cannot be expected that they would have past transactions or dealings with the police. And whilein many cases less reason may  exist for  failing  to  disclose the  informer’s identity to the magistrate than where the ordinary police informer is  involved, nevertheless, many citizens prefer to cooperate in ananymity with the police or fear  possible retribution by the accused. Certainly   where  sufficient  ‘underlying   circum­ stances’ are presented to the magistrate so he can make  an  independent  determination  as  to  the credibility  of  the  informer, the  use of  such  in­ formers is not to be excluded.

See alsiJ United States  v. Brooks, 350 F. Supp. 1152 (E.D. Wis. 1972).

62 Some of the  underlying  circumstances will  also help the ma trate to determine whether the pruem information lS reliable. See Harris  v. United  States,

403 U.S.at 582.

63 State  v. Petillo, 61 N.J.165, 293 A.2d 649 (1972).

sanction of indictment for perjury or false swear­ ing, a charge of criminal contempt, and assessment of monetary damages in a civil actionu.

 

While  the   United   States Supreme Court has not clearly  decided  the  issue,lis the  Court of Ap­ peals  for   the   Second   Circuit has acknowledged that llnder    certain  circumstances  a  defendant can  challenge the  substance of  assertions in  an affidavit.66 In  United  States  v. Dmmingsn  the court indicated that  upon   a  proper preliminary

showing  by a defendant of falsehood  or imposition on  a magistrate, a district  judge  can  conduct a hearing to  determine whether these  claims  are justified. 58 In this context, the  court went  on  to place  the  responsibility of  insuring that  the  in­ formation is accurate on the magistrate reviewing the affidavit:

 

The interposition of an independent judicial officer whose decision, not that  of the police, (will] govern whether liberty or privacy is to be invaded …goes a long way toward accomplishing the objectives of the Fourth  Amendment. True, the objectives are not accomplished if the judicial officer is put upon by the police. But it is the responsibility of such officers, particularly inlight of their new dignity as United States magistrates and the requirements for their membership in the  bar  and  periodic train­ ing ••.to see to it that  they are not deceived. 19

 

Prior to the  issuance of a search  warrant, there are  several  methods available to a magistrate to

54 !d.at 174, 293 A.2d at 653-54. See alsa Kenney v. United States, 157 F.2d 442  (D.C. Cir. 1946); United States v. Burnett, 53 F.2d 219 (W.D. Mo.1931)( State v. Anselmo, 260 La. 306, 256 So.2d 98  (1971), cert. denied, 4{)7 U.S.911 (1972).

66 !n Steele  v.  United  States1  267 U.S. 498, 501 (1925), Chief Justice Taft  statea  in dicta:

If the grounds on which the warrant was issued be controverted, the  judge ••• must  proceed to take testimony in relation thereto,  • .• .If it appears

  • • • that there is no probable cause for believing the existence of the grounds on which the warrant was issued …must cause the property to be re­ stored to the person from whom it was taken.

66 The Fourth Circuit had previously taken a similar

position. See King v.United States, 282 F.2d 398 (4th Cir.1960), in which the court indicated that  a search warrant could be challenged on such grounds, and that false facts given by an affiant could vitiate a wanant and a subsequent search. See alsa Theodor v.Superior Court, 104 Cal. Rptr. 226, 501 P.2d 234 (1972), where the California supreme court held that  under the Cali­ fornia Penal  Code a defendant  may on  a motion to suppress challenge thefactualaccuracy of statements in an  affidavit.

Iii 425 F.2d 836 (2d Cir.1969).

68 Id.at 840.

“Id.

 

1973)                                                      SEARCH WARRANTS                                                             277

 

 

reduce  the  possibility  that the  warrant will  be issued on the basis of false assertions in the affida­ vits.First, the magistrate can analyze the affidavit for  internal  consistency. If there  are  reasonable grounds to question some of the factual representa­ tions, he should question the affiant under oath,Go and   include  this  testimony   in  the  affidavit,  or perhapsin a supplementalaffidavit if appropriate.a If the magistrate has suspicions about  assertions made by an informant to the affiant,he might re­ quire  that  the informant be produced for further questioning under oath.If these procedures do not resolve the  questions  the  magistrate might  have conceming the  veracity  of the affiant, the magis­ trate should  warn  the  affiant  about   the  conse­ quences of perjuiy  or contempt  of court,  as well as possible liability  for civil damages.62  As a last resort,  the  magistrate can, of  course, refuse  to issue the search warrant.

NIGllT’IIl.tE SEARCH wAIUUNTS

Although  there has been  strong  reluctance  in the   past   to  allow  nighttime   searches,63   recent changes in federal Jaw have abandoned  the “posi­ tivity” standard,” and   substituted a  standard which requires that the affiant show that “reason­ able cause” exists for  the execution of a warrant at night.Rule 41 (c) of the Federal Rules of Crimi­ nal Procedure now provides in part:

 

GO Rule 41(c) of the federal rules provides in part: Before ruliDg on a request for a warrant thefederal magistrate or sta.te judge may require the afiiant to appear personally and may examine under oath the afliant and any witlless he may produce, pro­ vided that  such prcx:eeding shall be taken down by a court reporter or recording equipment and made part of the affidavit.

FED.R.C:am. P.41(c).

l See note 23, supra.

62 In Bivens v. Six Unknown Agents, 402 U.S. 388 (1971), the Supreme Court held that a law enforcement official ma.y be liable for civil  damages for an illegal search and seizure.

“See Monroe v:_PaJ?eJ  65  U.S. 167, 210 (1960), where Mr.Justice l’TanJUUrter stated:

Searches of the dwelling house were the special object of this universal condemnation of official intrusion. N ght-time search was  the evil in its most obnoxious form.

See also Frank v.State of Maryland, 359 U.S.360, 366 (1959); Jones v. United Sta.tes, 357 U.S. 493, 498 (1958); Distefano v.United Sta.tes, 58 F.2d 963 (5th Cir.1932).

“The prior standard under Rule 4l(c) provided: The wattant shall direct that it be served in the daytime, but if the affidavits are positive that the property is on the person or in the pla.ce to be searched, the wanant may direct that it may be served at any time.

FED.R.CRIM.P.41(c) (1966).

The warrant shall be served in the daytime, unless the issuing authority, by appropriate provision in the  warrant,  and  for  reasonable cause shown, authorizes its execution at times other than day­ time.!6

 

Significantly, Congress has also abandoned  the positivity rule in enacting the “District of Colum­ bia Court  Reform and  Criminal Procedure Act of

1970.”  The D.C.  code  sets  forth   the  following grounds for permitting  the execution of a search warrant during nighttime:

 

The application may also contain-(1) a request that the search warrent be made executable at any hour of the day or night, upon the ground that thereis probable cause to believe that (A) it cannot be executed during the hours of daylight, (B) the property sought is likely to be removed or de­ stroyed if not seized forthwith, or (C) the property sought is not likely to be found except at certain times or incertain circumstances.ss

 

While  the  provisions  within  the  new  federal rule do not provide clear-ot standards for deter­ mining  when a nighttime  warrant would  be ap­ propriate, the  provisions  within  the  D.C.  code suggest workable guidelines which  are consistent with  the  federal  rule. Under  the  D.C. code, for example, a nighttime  warrant would be  justified if a narcotics dealer maintained  “lookouts” during the day  to warn of police approach, and a police­ affiant claimed that he needed the “cloak of dark­ ness”  to  enter  the  premises  before the  narcotics were destroyed.

It should  also be noted  that  the  federal  rules

now define “daytime” to mean the hours between

6:00A.M. and 10:00 P.M.ss This definition reflects

the   increasing   urbanization  of  our   society   in which  most  persons  infrequently   retire  for  the night prior to 10:00 P.M.and usually  arise some­ time around 6:00A.M.It also reflects a judgment concerning law enforcement needs in coping with an  ever-increasing  volume  of  crimes  associated with  our population  shift. The  choice appears  to strike  a reasonable balance between  the needs of law enforcement  and  the right  of special privacy

“FED. R. Clmr. P. 41(c) was  amended April 24,

1972 eff.October 1, 1972.

&s D.c.CoDE ANN.§23.S22 (1970).

n For sta.te court rulings under a reasonable grounds

standard much like the new federal rul!! ee People v. Aguilar, 240 Cal. App. 2d 502, 49 uu.  Rptr. 584 (1966)·Galena v.Municipal Court, 237 Cal. App. 2d

581, 47 Cal. Rptr. 88 (1965); People v. Watson, 39

Misc. 2d 808, 241 N.Y.S.2d 934 (1963).

“FED.R. Clmt. P.41(h), effective October 1,1972.

 

278                    ARTHUR  L. BURNETT                                                     LVol. 64

 

 

during those  houiS  of  repose,  rest   and  sleep,  in which  an  intrusion  should   only   be  justified   by exceptional circumstances. With  this  expansion of   the   hours  for   daytime  warrants,  nighttime warrants should   only   be  issued   upon   a  proper showing that  execution must  be  made  between

the  boUTS of 10:00 P.M. and 6:00 A.M.6s

 

SP.ECIFICil’Y OF  AREA TO  BE  SEARCHED

 

Under the Fourth Amendment a search warrant must describe the  place  to  be searched with  par­ ticularity. Generally, a search warrant sufficiently describes the  place  if “the officer  with  a search warrant can with  reasonable effort  ascertain and identify the  place  intended.” 70   A single  warrant

 

ee It should be noted that  applications for narcotics violations are now covered by 21. U.S.C. §879 (1970},

a provision of  the  Comprehensive Drug  Abuse Pre­

vention and control Act of 1970, which provides:

A  search  warrant  relating  to  offenses involving controlled substances may be served at any  time of the day or ni ht if the  judge or United States Magistrate is satisfied that  there is probable cause to believe that  grounds  exist for  the warrant  and for its service at such time.

See United States v. Gooding 1477 F.2d 428 (D.C. Cir.

1973), where Judge  Wilkey m the lead opinion con­

cluded that Section 879(a) was merely a re-enactment

of  18  U.S.C. § 1405(1) requiring only a showing of probable cause to search for all substances controlled by the  1970 Comprehensive Drug Abuse Prevention and Control Act, regardless of whether the warrant was to be executed in the daytime or at night. While Judge Fahey concurred that  Section 879(a) was merely a re­ enactment of Section 1405(1), be intimates that  the amendment to Rule 41(c} requiring “reasonable cause” fora nighttimesearch might be considered as requiring some additional showing for a nighttime warrant, not­ ing that no significant burden would be imposed on the magistrate or other officials by requiring special reasons for a search at night even for narcotics. However  he

does not  formally  adopt  this  position at this  t1ime,

stating:

The salutary effect of the modification of subpara­ graph (c) of the Rule remains for consideration with respect to search warrants issued after its effective date.

/d. at  439. Judge Robinson   concurring in the result, concludes that Section 879(a) is not merely a re-enact­ ment of Section 1405(1).According to Judge Robinson, the  language (“and for its service at such time”)  re­ quires something more than simple probable cause.He reasons that Section 879(a) now requires a showing of probable cause for the service of the search warrant  at night  and  that  an  on-going drugg operation  is suflicleot for this purpose. He concludes:

[W]here ..• a search   is  calculated   not   only  to garner evidence of past crime but also to terminate

a serious species of ongoing criminality,  rea­ sonable cause for a  nocturnal intrusion is demon­ strated.

Id. at 444. See also United States v. Thomas, 294 A.2d

164 (D.C.Cir.1972).

TO Steelev. United States, 267 U.S. 498, 503 (1925).

See United States  v. DePugh, 452 F.2d 915 (lOth Cir.

cannot describe an  entire building  when  cause  is

shown  for  searching only  one apartment therein.71

Nor  can a warrant, describing a business premises on  the first :floor, be executed to include  an apart­ ment on  the  second  floor  which  is separate and distinct, even though under  the control of the same person.12

A warrant has been sustained where it specified

a premises  at a given  address, even  though  there

were  two  separate apartments at  that  address, where the warrant itself went on  to limit its scope to the  premises occupied  by  a named individual and  over  which  he had possession  and  control.71

The New  Jersey supreme court recently  held  that even  though  a warrant failed  to indicate by num­ ber  which  of  three  apartments on  the :floor of an apartment building was intended, but  did indicate that the  apartment was  the  one  occupied  by  the defendant, and, in fact, the defendant’s apartment

had no number on  the door,  the description of the premises was  adequate and   the  search   warrant was sufficient.?•

When law enforcement agents prior  to executing a search warrant have no notice of internal altera­ tions  in  a  house  with  attic and   basement apart­ ments, a  search of  the  entire premises  pursuant to the  warrant has  been held  proper  in  Santore v. United States.75 In SaJZiore the court stated that it was  too  late,  consistent with  the  mission  of  law enforcement officials, to  retreat to obtain a new warrant.76 However, when law enforcement officials have  prior  notice  of possible dual  occupancy of a premises,  they cannot properly seek a warrant for the entire premises  but can only seek a warrant for that portion of the premises within the possession and  under  the control of the person  whose alleged criminal activities  are   the   basis   of  the   search warrant.77

These cases  suggest   that  magistrates must carefully scrutinize the  efforts  of  police  officials in connection with  the  description of the premises

 

1971); United States  v. Hannon,  317 F. Supp. 923 (D.C.Tenn.1970).

n United States  v. Hinton, 219 F.2d 324 (7th Cir.

1955).

n United States  v. Kaye, 432 F.2d  647 (D.C. Cir.

1970).

n Kenney  v.  United  States,  157  F.2d  442 (D.C.

Cir.1946).

n State v. Wright, 61 N.J. 146t 293 A.2d 380 (1972).

1s 290 F.2d  51 (2d Cir. 1960J.

1s Id.at 67.

77 United States  v. Esters, 336 F. Supp.214  (E.D. Mich. 1962).

 

1973]                                                                          SEARCH WARRANTS                                                            279

 

 

to be searched. Should there be any  question as to  the  particularity  of the  premises arising out of  the  description in  the  affidavit, the  affiant should be questioned in order to insure that  the search warrant, when issued, contains the proper description.

 

ANTICIPATORY SEARCH WARRANTS

 

Federal  magistrates  have  recently  been  con­ fronted with search warrant applications involving controlled deliveries of marijuana, or tampered or stolen mail, pursuant  to the direction of customs or postal officials in which the affiant requests the magistrate  to  sign   the  wanant  prior  to  actual delivery. Two recent cases have upheld such war­ rants. In Uniletl States ex rei. Beal v.Ska:fF  the Court  of  Appeals for  the  Seventh  Circuit  held such a wanant valid because it  found that  the wanant  could not have been executed until after the contraband was delivered.In sustaining the wanant,  the  court  acknowledged that   certain difficulties arise in wanants of these types:

 

{A] warrant which antedates the commission of the offense which is relied upon to support its issuance might Jack an essential element of judicial control: the requirement that probable causee:rist to believe that  execution  will not  precede the commission of the crime or possession of the goods to be seized.7i

 

The court concluded:

 

Therewasno danger that theproperty seized would be other  than  that specified in the  affidavit  upon which  the  warrant was issued.•..Moreover, the nature of the article  to be seized [marijuana}-the very  real  possibility   that delay  might   have  re­ sulted  in its disposal  or  concealment-compelled quick action  by the magistrate. Confined to these facts, we are  of the  opinion  that  the warrant and its execution  were constitutionally valide.o

 

The New York Court of Appeals has gone even further in upholding such warrants. In People v. Glenlll the  court sustained a warrant  issued  one week prior to the time the affidavit indicated that the  contraband  would  be  delivered. The  court took  the  position that  in most cases possession when a warrant is normally issued is only proba­ tive of the likelihood of future possession when

78418 F.2d 430 (7th Cir.1969).

‘  Id.at433.

£o Id.at 433-34.

8130 N.Y.S.2d 252, 282 N.E.2d 614 (1972).

the warrant  is actually executed. It further  ob­ served that even after a warrant isissued an officer has some discretion in delaying execution, with the result that  at the time of execution the con­ traband may no longer be in the suspect’s posses­ sion.Accordingly, the court concluded:

 

The ultimate answer to the problem is that as long as the evidence creates substantial probability that the seizable property will be on the premises when searched, the warrant should  be sustained. To  be sure, where there is no present possession the sup­ porting evidence for the prospective warrant  must be strong thattheparticular possessionof particular property will occur and that the elements to bring about  the possession arein process and  will result in the  possession at the time  and  place specified. Otherwise, the hated general writs  of assistance of Pre-Revolutionary timeswould be revived,in effect, despite  the  constitutional limitations. Moreover, the  issuing Judge should be satisfied  that there  is no likelihood  that the  warrant will  be  executed prematurely 112

 

Notwithstanding this limited support  for  the use  of  anticipatory   search  warrants,83 federal magistrates  should  be  very  cautious in issuing these warrants. When, with  a minimum of  in­ convenience, law enforcement officials can com­ municate  by  radio  or  telephone with  a fellow officer at the  judicial official’s residence, and the wanant can be issued and executed shortly after delivery of  the items to be seized, the magistrate should decline to issue such wanants  in advance. Another possible solution would be for the magis­ trate  to  include in  the  wanant   itself language restricting the execution of the warrant until law enforcement officials have actually observed the delivery. As an added safeguard, the magistrate should also  require execution within a specified number of hours after delivery.84

 

82 Id.at 259, 282 N.E.2d at 617.

83 B:U see State v. Ferrigno,  256 A.2d  ?95 (Collll.

Cir. Ct. 1969), which  held  that  obtaining “advance” search warrants which are executed  at the time crimi­ nal activity is in progress is unconstitutional

u A   recent   memorandum   by   the   Administrative

Office of the  United States Courts dated  May  3, 1973 to all Federal Judges, United  States Magistrates, and District Court Clerks suggests that in connection  with Revised  Rule  41(c) providing  that all search warrants must  be executed within a specified period of time, not exceeding   ten   days,   the   issuing  magistrate  should specify on the search warrant the time period in which the search must be executed endorsing on the warrant:

”The search,   herein   authorized,  must   be  executed within the period of — ”

 

280                                            ARTHUR L. BURNETT                                                   [VoL 64

 

 

CONCLUSION

Because the law of search and seizure has be­ come increasingly complicated, the  role of  the “neutral   and  detached”  magistrate  has never been  more critical  for  the  protection  of  those rights  guaranteed    by  the   fourth   amendment.

 

With this role in mind, it has been the purpose of this article to identify some of the pressing prob­ lems confronting magistrates today. It is hoped that  the suggestions made throughout this article will act as working rules to help the federal magis­ trate perform his function more effectively.