A search warrant is a legal document issued by a Judge or Magistrate that authorizes law enforcement officials to search a particular location, such as a home or business, and seize evidence related to a suspected crime. The primary goal of a search warrant is to safeguard the Fourth Amendment rights of citizens against unreasonable searches and seizures by mandating a demonstration of probable cause before a search can be conducted.
In order to establish probable cause, law enforcement officials must present a Judge or Magistrate with enough evidence to demonstrate that there is a reasonable likelihood that evidence related to a crime will be found in the location to be searched. The search warrant document must include or refer to the specific items to be seized.
When it comes to writing search warrants for a residence or a person, specifying the specific items is usually simple and straightforward. However, when officers begin drafting warrants for technology or situations with which they are unfamiliar, they may fall into the “any and all” trap.
Overly broad search warrants
Some states have enacted laws to discourage overly broad warrants for electronic records by requiring specific date ranges or the retention of only those records related to the crime, such as California’s ECPA. Nonetheless, it is typical to see the terms “any” and “all” in the description of items to be searched. These terms are often included in search warrants in order to gather all potential evidence in a case. While the intention is commendable, the broad request may gather more records than the Officer anticipated. The “everything and the kitchen sink” approach can cause unexpected complications for the case down the line. Additionally, the presence of any and all in your search warrant document can call into question the scope of the warrant and lead to allegations of Officers being on a “fishing expedition”.
All documents showing any bank credit agreement with, or any credit extended by the Navy Federal Credit Union to the account holder to cover overdrafts of checks drawn on said account.
I collected everything, now what?
The price you pay for collecting everything, is reviewing everything. The Brady v. Maryland decision outlines the duty of all law enforcement agencies to identify and provide to the prosecution any exculpatory material that would have a reasonable probability of altering the results in a trial, or any material that could reasonably mitigate the sentencing of a defendant. That means that if your Facebook warrant return is 4,000 pages long, you need to review all 4,000 pages.
Striking a balance between what can be collected and what needs to be collected can be difficult. Here are the top three suggestions for avoiding any and all warrants:
- Clearly define the scope of the search: When preparing a search warrant, it’s essential to clearly define the scope of the search. This means identifying the location to be searched, the items to be seized, and any limitations or restrictions that should be placed on the search. By being specific and clear in your warrant application, you can avoid broad and intrusive searches.
- Provide a detailed description of the evidence sought: It’s also crucial to provide a detailed description of the evidence sought in the search warrant application. This will help to ensure that the search is narrowly tailored and does not exceed its authorized scope. The more specific and detailed the description of the evidence, the more likely it is that the search will be limited to only the evidence described.
- Use precise language: When drafting a search warrant, it’s important to use precise and unambiguous language. This means avoiding vague or general terms and instead using specific language that accurately describes the evidence sought and the scope of the search.
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