In our previous blog post of the “Understanding Search Warrants” series, vehicle search warrants, we covered tips for writing search warrants to collect evidence from vehicles, infotainment systems and motorhomes. Today, we discuss writing search warrants for people, collecting evidence from a person’s body, and collecting their body from a place.
When a search warrant is for a person, it needs to clearly identify who that person is. This can be done by stating the person’s name, describing what they look like, or both. If it’s helpful, a picture of the person, like a photo from their driver’s license or a mugshot, can be attached to the warrant. Sometimes a warrant might allow the search of “all residents” living at a certain place or everyone who is there when the police arrive. However, this is only allowed in special cases where the police have a strong reason to believe that some of the evidence they’re looking for will be found on each person who lives there or is there at the time. Before we start, let’s break down what we’ll be talking about. There are two big parts to this topic. The first part is about searching a person, the second part is about searching for a person.
KEY TERMS TO KNOW:
Arrest Warrant: An arrest warrant is a legal document issued by a judge or a magistrate that authorizes law enforcement officers to arrest a person suspected of a crime.
Stegald: A type of search warrant that authorizes the search of a place to collect a person that has an active arrest warrant. Steagald v. United States :: 451 U.S. 204 (1981)
Buccal Swab: A buccal swab is a way to collect DNA from the cells on the inside of a person’s cheek.
Searching a person:
Persons search warrant affidavits are supported by four pillars:
- The probable cause establishing the facts of the crime.
- What evidence the affiant wants to collect.
- Why the affiant believes the person will have the evidence on them.
- The likelihood the evidence will be found on the person.
The probable cause statement should be straight forward by outlining the facts of the crime that occurred. The evidence that will be collected is where search warrants for persons starts to get tricky. Remember, a persons search warrant identifies the crime scene as the location to be searched; this can be in-addition to a physical location that will also be searched.
Example: A narcotics detective uses a confidential informant (CI) to purchase drugs from Jesse Pinkman at Pinkman’s residence (1234 Main St. in River City). In the post-buy debrief the CI tells the detective that Pinkman produced bindles of meth from his front left pocket. The detective wants to write a search warrant immediately to enter the residence, collect the drugs and arrest Pinkman. Assuming that the CI is a reliable source, the detectives warrant would address the four pillars.
- The CI’s statement establishes that Pinkman sold methamphetamine while at 1234 Main St. in River City.
- The evidence to be collected is bindles of meth.
- The CI’s statement establishes that Pinkman had bindles of meth in his front left pocket.
- Because no other buys were observed during the debrief, it is likely the other bindles are still in Pinkman’s pocket.
In our narcotics example, both Pinkman and his residence are separate locations to be searched because you want to search his front left pocket and his residence. For more tips, check out our guide for residential search warrants.
Sometimes a persons search warrant is designed to collect biological evidence like DNA or a person’s blood for toxicology. The most common biological warrant is a buccal swab warrant. The process is simple and painless consisting of a healthcare professional rubbing a small brush or cotton swab against the inside of the suspect’s cheek. This collects a sample of cheek cells, which contain the person’s DNA. The swab is then sealed and sent to a laboratory for analysis. It is less intrusive than a blood draw common in DUI investigations, but still requires entering a person’s body to collect evidence.
In some investigations it is necessary to take photographs of a person’s body to document distinctive marks and tattoos. One of the most famous incidents of a search warrant to photograph a person’s body is the 1993 investigation of popstar Michael Jackson. Jackson was accused of grooming and molesting a 13-year-old boy who reported distinctive markings on Jackson’s penis and buttocks. Jackson suffered from skin condition vitiligo and the child was able to draw specific markings present on Jackson. A search warrant to photograph Jackson’s genitals was obtained in order to compare the photos to the drawings.
Many modern criminal investigations have some digital evidence component to them. From Facebook posts to text messages, a person’s mobile phone is often a significant source of evidence. If the evidence you are trying to collect is within the digital crime scene of a mobile phone, which just happens to be present in a person’s pocket, a search warrant to collect the device from the suspect’s pocket or purse would be required.
Investigators should consider adding the search of a person when their intent is to collect a device simply because you cannot predict with 100% certainty where the suspect will be when the warrant is executed. For example, the warrant team is prepped and ready to serve a residential warrant at 7:00AM. At 6:55AM the suspect walks out their front door, hops in their car, and starts driving to work early. If the team conducts a vehicle stop down the road, does their residential search warrant cover the collection of the phone from the suspect’s pocket? No, it does not…
Persons Search Warrants: Collecting a wanted person from a residence
Imagine a scenario where a domestic violence suspect with an active arrest warrant suddenly contacts their victim via text message to apologize. The victim, by virtue of their relationship with the abuser, has access to the suspect’s iCloud Find My location. The victim looks up the suspect’s location, sees that the suspect’s phone is presently inside his mother’s house, and reports his location to police.
In this case, the mother’s house is not open to search and seizure and police want to enter the residence to effect the arrest warrant. A Steagald warrant is just the solution! A Stegald warrant allows law enforcement to search a physical place to collect a person.
Steagald v. United States, 451 U.S. 204 (1981), is a decision by the United States Supreme Court involving the Fourth Amendment protection against unreasonable searches and seizures. In this case, police had a valid arrest warrant for Gary Steagald, a fugitive, and entered his home without a search warrant to look for him despite having no evidence that he was present. They did not find Steagald, but they did find drugs in his home and later arrested him on drug charges. Steagald’s motion to suppress the drug evidence was denied by the trial court, and this was upheld by the Court of Appeals.
The Supreme Court reversed the decision, holding that a search warrant was required to enter Steagald’s home to search for the fugitive, even though agents had an arrest warrant for the fugitive. The Court reasoned that the arrest warrant protected the fugitive’s rights but did not protect the privacy rights of the third party, in this case, Steagald. Therefore, in order to search a third party’s home for a wanted person, law enforcement agents must obtain a search warrant based on probable cause to believe that the wanted person is in the third party’s home. The decision clarified the distinction between search warrants and arrest warrants and set a precedent for protecting the privacy rights of individuals who are not the subject of an investigation.
This case taught us that two different interests are at play when searching a home to find a person: the interest of the person being arrested and the interest of the homeowner. An arrest warrant addresses the first interest but not the second. In other words, a warrant to arrest the suspect doesn’t give the police the right to search the mother’s home without her consent or without an emergency situation.
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.