In our previous blog post of the “Understanding Search Warrants” series, Expertise Statements, we explored what it takes to prove to the court that you know what you are talking about. Today, we examine one of the most critical components of a search warrant, Particularity in search warrants.
Search warrants are important legal documents that authorize law enforcement officers to search a search a place and seize a thing. It’s not enough to simply say they’re searching for “evidence”. The description of the things officers can seize has to be “particular,” or very specific. Before we start, let’s break down what we’ll be talking about.
This concept of particularity isn’t just a good idea, it’s a requirement that’s part of the United States Constitution specifically in the Fourth Amendment. The Fourth Amendment protects people from unreasonable searches and seizures. This means that the police can’t just search a person’s property without a good reason and without being clear about what they’re looking for. In simpler terms, if the police have a warrant to search for a stolen blue bicycle, they can’t use that warrant to search for and seize a computer. The warrant must clearly say what they are looking for, and they can only search for that specific item or items.
KEY TERMS TO KNOW:
Particularity: The term particularity refers to the constitutional requirement that a search warrant must clearly describe:
- The places and things to be searched.
- The items or records that can be seized.
Boilerplate: A list of descriptions that are copied word-for-word from other warrants.
General Warrants: A General Warrant is an illegal warrant that provides a vague description of the evidence to be seized, allowing officers to carry out an almost unrestricted search of the location.
Overbroad Warrants: An Overbroad Warrant is one where the accompanying affidavit doesn’t convincingly show that each item the officers are allowed to search for are evidence of a crime and will be found at the location to be searched.
Severance Rule: The process of separating or excluding certain pieces of evidence in a trial to avoid prejudicing the jury.
So, what does it mean for a search warrant to be particular? Even though different courts have sometimes given different answers, as discussed in U.S. v. Upham (1st Cir. 1999), generally a description is good enough if it gives clear rules that police officers can follow to know what they can and can’t search for and take.
Let’s talk about some important ideas around this:
- Practical, not complicated descriptions: In the past, some courts wanted very technical and detailed descriptions. But now, the courts look for descriptions that are practically accurate, not super technical. This means that a description is good enough if it gives just enough information to identify what specific evidence can be taken.
- Whole description matters: Courts look at the whole description, not just individual words. This means they consider the context, not just the specific words used.
- Reasonably available information: Sometimes, officers can’t give a detailed description of the evidence, because they simply cannot predict what will be at the search location. For example, the officer knows the suspect has a phone but doesn’t know its make, model or serial number. In these situations, a description is usually good enough if the officer gives as much detail as they can, based on the information they have or could get.
But this also means that a warrant might not be valid if officers could have given a more detailed description but didn’t. For example, if they know what the evidence looks like and where to find it, but don’t include this information in the warrant, then the court might say the warrant isn’t particular enough. Ref U.S. v. Stubbs (9th Cir. 1989)
Basics of particularity in evidence descriptions
While courts recognize that officers may not always have lots of details, they do expect officers to use all reasonable methods to narrow down what they’re searching for. Let’s look at the most common ways officers do this.
Avoid General Descriptions:
Using exact and clear language to describe evidence is the key to crafting a particular description in a warrant. The following are examples of good descriptions:
- Unauthorized prescription medications, specifically Oxycontin and Adderall, located in unmarked bottles or containers.
- Devices capable of storing digital evidence including computers and laptops, hard drives, USB drives, and compact discs.
- A red woolen beanie hat, suspected to be worn during the commission of the crime, potentially carrying DNA evidence.
The following are examples of inadequate descriptions:
- Any harmful substances.
- Items related to illegal activities.
- All electronic devices owned by the suspect.
Exact location of evidence:
If officers know the exact location of the evidence within a property – like a specific room or container – they can include this information in the warrant. However, unless they are absolutely sure that the evidence will only be in that specific spot when they carry out the search, they should make it clear that this detailed location is just to help identify the evidence. It doesn’t mean they are only allowed to search in that specific spot.
This can be a common problem when using Confidential Informants (CI) in narcotics cases. A CI conducts a drug buy and observes the drugs in a blue backpack on the living room coffee table. The Affiant specifies that they want to search the “blue backpack on the living room coffee table”, but when police knock on the door the suspects hide the backpack in a closet. Would the officers be allowed to seize the backpack and drugs from the closet?
Boilerplate Language:
The problem with boilerplate, sometimes called “canned language”, is that these descriptions often don’t match the evidence that there’s probable cause for. So, if a warrant authorizes searches for boilerplate evidence, it might not be valid unless the “severance rule” applies. This doesn’t mean officers can never use boilerplate. It can be used properly to describe evidence that can only be described by inference.
Wildcard Descriptions:
Sometimes, when officers write a search warrant, they might list some specific things they’re looking for and then add words like “including, but not limited to,” or “any and all”. This is kind of like adding a “wildcard” – it lets them search for similar things, even if they’re not listed. Wildcard descriptions need to strike a delicate balance between utility being so open-ended they make the warrant invalid.
For example, if a warrant says officers can search for “drugs, among other things,” it’s not specific enough because it doesn’t limit what else they can look for and take. In U.S. v. Bridges (9th Cir. 2003), a warrant allowed officers to search for all records related to the suspect’s clients and victims, “including but not limited to” some specific records listed in the warrant. The court said this was invalid because it basically let officers search for “all records,” not just the ones listed.
Severance Suppression:
Imagine you apply for a search warrant asking to seize two items of evidence – we’ll call them item A and item B. If the description for item A is good, but item B’s description is too vague, then only item B would likely be ignored, or “suppressed,” when the court looks at the evidence. Suppression can occur both before and after a warrant is issued. The best case scenario is the judge seeing there is an issue with vagueness and telling the affiant to fix their warrant before they sign it; the worst case is having evidence suppressed in trial.
If the warrant is mostly filled with poorly described items, like our item B, it becomes a problem. This is because it could lead to what’s called a “general search,” where the police might be searching for just about anything, and that’s not allowed. The Ninth Circuit court explained that you can’t just ignore the poorly described items if they make up most of the warrant. For instance, in Burrows v. Superior Court (1974), the warrant asked for “any file or documents” related to the suspects. This was seen as too broad and unclear, and it didn’t meet the requirements of the Constitution causing the evidence to be tossed out.
NOTE: Severance can be used when the warrant fails to provide enough probable cause to search for some of the listed items. If the reason for searching for some items is weak but strong for others, only the items with weak reasons might be ignored.
Want to learn more about search warrants? Follow our blog series to learn more about how search warrants work, tips & tricks for writing great warrants, and insights on evidence that law enforcement can collect. There is a lot to learn, so rely on the experts at WarrantBuilder.com! Sign up for a free trial and learn why cops across the country trust Warrant Builder for fast, efficient, and complete search warrants.
