Chapter 34: Search Warrant Affadavits
Contents of Affidavits
A search warrant affidavit must contain the following:
Identity of affiant: The affiant’s name and agency.
Description of premises: A description of the place to be searched and/or the person or thing to be searched. Also see Chapter 33
Search Warrant Basics
(Description of the Person, Place, or Thing to be Searched).
Description of evidence: A description of the evidence to be searched for and seized.[1]
See Chapter 33
Search Warrant Basics
(Describing the Evidence).
Evidence classification: See Chapter 33
Search Warrant Basics
(Evidence Classification).
Statement of probable cause: See “Statement of Probable Cause,” below.
Grounds to utilize special procedures: In most cases, the affiant will request that the judge authorize the search team to implement one or more special procedures, such as night service, no-knock entry, sealing of the affidavit. If so, the affidavit must contain the facts upon which the request was based. See Chapter 35
Search Warrant Special Procedures.
Signature under oath: See “The Oath,” below.
Who Should Be the Affiant?
The affiant should ordinarily be the officer who is “most directly involved in the investigation and most familiar with the facts stated in the affidavit.”[2]
Although most affiants are peace officers, anyone can be an affiant; e.g., prosecutor, victim, informant.[3]
Statement of Probable Cause
: This is the main part of the affidavit—the part that contains the facts upon which probable cause is based.[4]
See Chapter 1
Principles of Probable Cause and Reasonable Suspicion,
Chapter 2
Probable Cause: Reliability of Information, and
Chapter 4
Probable Cause to Search.
Affiant’s training and experience: A summary of the affiant’s training and experience should be included if (1) the existence of probable cause will be based, even partly, on the affiant’s opinion concerning the meaning or significance of information in the affidavit; or (2) the description of the place to be searched or the evidence to be seized will be based in part on an inference drawn by the affiant. Avoid including a summary of training and experience as a matter of routine. See Chapter 1
Principles of Probable Cause (Basic Principles, Training and experience).
Should a prosecutor review the affidavit? Although this may depend on departmental policies, a knowledgeable prosecutor should ordinarily review the affidavit and warrant if (1) there were legal issues with which the affiant was unfamiliar or uncertain, or (2) the affiant was uncertain as to the existence of probable cause.[5]
The Oath
: The affiant is required to sign the affidavit under oath; e.g., “I declare under penalty of perjury that the information contained herein is true.”[6]
By doing so, he is swearing to two things: (1) the information within his personal knowledge is true; and (2) information within the personal knowledge of another person was, in fact, received by the affiant from that person and the affiant had no reason to doubt its accuracy.
Do not swear to probable cause: It is improper for the affiant to swear that the information in the affidavit constitutes probable cause.[7]
This is a legal determination to be made by the judge.
When to sign: The affiant must not sign the affidavit until he is directed to do so by the judge. This is because the judge must indicate on the warrant that the affiant swore to the judge that the information in the affidavit was true; e.g., the information “was sworn to and subscribed before me.” See Chapter 33
Search Warrant Basics
(Technical Requirements, The jurat and ID of the affiant).
Writing Suggestions
Although a statement of probable cause will not be judged as “an entry in an essay contest,”[8]
the facts should be presented in a logical sequence to help the judge understand the basis for the warrant and the relevance of particular facts.
Complex cases: A logical presentation is especially important in complex cases.[9]
Simplify: The statement of probable cause should seldom include all of the information that officers have obtained. Instead, it “need only furnish the magistrate with information, favorable and adverse, sufficient to permit a reasonable, common sense [probable cause] determination.”[10]
Typographical errors: Although affidavits and warrants should be reviewed for typos, most are harmless (but not house and apartment numbers).[11]
Including Attachments to Warrants
: One of the most efficient ways of inserting information into affidavits and warrants (whether to establish probable cause or provide a description) is to incorporate documents that already contain that information; e.g., witness statements, prior affidavits, police reports, autopsy reports, rap sheets, business records, Google maps, photographs.[12]
Requirements: An attachment will not be deemed incorporated merely because it was submitted to the judge along with the affidavit and warrant. Instead, the law imposes three requirements that are designed to eliminate any confusion as to the status of supplementary documents:
(1) Identify the attachment: The affiant must clearly identify the document that is being incorporated into the warrant or affidavit.[13]
This is typically accomplished by assigning it an exhibit number or letter, then writing that number or letter in a conspicuous location at the top of the attachment.
(2) Incorporate by reference: The affiant must specify what document (or other thing) is being incorporated. This is usually done by assigning the document a number or letter (Exhibit A) and inserting “appropriate words of reference”[14];
e.g., “The autopsy report, identified as Exhibit 4, is attached hereto and incorporated by reference.”[15]
(3) Physical attachment: The attachment must be physically attached to the warrant or affidavit as follows:
To provide instructions: If the attachment limits or explains how the officers must execute the warrant (e.g., computer search protocol) the attachment must be attached to the warrant.
To establish probable cause only: If the attachment is being utilized solely to establish probable cause in the affidavit, the courts do not require that it be physically attached to the affidavit.[16]
To describe places and evidence: If the attachment is used to describe the place to be searched or the evidence to be seized (i.e., information that is needed by the officers who are executing the warrant), the attachment must be physically attached to the warrant or at least available at the scene so that the officers will be able to refer to it in the course of the search.[17]
Other attachment issues
Legibility: Attachments must be legible.[18]
Avoid lengthy attachments: Because judges must read incorporated attachments,[19]
affiants should not incorporate lengthy attachments that contain only a small amount of relevant information. Instead, the relevant information should be extracted from the attachment and inserted into the affidavit.
Hearsay is permitted: Hearsay in incorporated documents may be considered in determining the existence of probable cause. See Chapter 1
Principles of Probable Cause and Reasonable Suspicion
(Information Inadmissible in Court).
Omitting ID and Negative Information
Omitting ID information: Although officers may withhold details that would reveal or tend to reveal the informant’s identity, they must include details that are necessary to establish his track record. Also see Chapter 2
Probable Cause: Reliability of Information
(Tested Informants, Proving an informant’s track record).
Negative information
Direct evidence of unreliability: The affiant must reveal any direct evidence that the informant may be unreliable; e.g., he provided false information in the past, he had reason to fabricate evidence against the suspect, he had been coerced by officers or others into providing the information, his tip had been contradicted by an independent police investigation.[20]
Circumstantial evidence of unreliability: The affidavit need not reveal circumstantial evidence that merely indicates that the informant’s reliability is questionable, so long as the affidavit makes it clear that he is merely an informant.[21]
Notes
[1] NOTE: A description of the evidence
to be searched for and seized is necessary because the affiant
must to swear to the accuracy of this information. See
P v. Coulon (1969) 273 CA2 148, 152 [“both the affidavit
upon which [the warrant] is based and the warrant itself must
describe the place of search with particularity”].
[2] QUOTE FROM: Bennett
v. City of Grand Rapids (5C 1989) 883 F2 400, 407.
[3] CAL: P v. Bell (1996)
45 CA4 1030, 1055.
[4] CAL: Pen. Code§ 1527 [“The
affidavit or affidavits must set forth the facts tending to
establish the grounds of the application, or probable cause for
believing that they exist.”].
[5] USSC: Massachusetts
v. Sheppard (1984) 468 US 981, 989 [“The officers in
this case took every step that could reasonably be expected of
them. Detective O’Malley prepared an affidavit which was reviewed
and approved by the District Attorney.”]. CAL: P v.
Camarella (1991) 54 C3 592, 605, fn.5 [“It is, of course,
proper to consider whether the affidavit was previously reviewed
by a deputy district attorney,” edited.]. 9th CIR:
Dixon v. Wallowa County (9C 2003) 336 F3
1013, 1019 [“Though not conclusive, reliance on [the District
Attorney’s] advice is some evidence of good faith.”]. OTHER:
US v. Matthews (7C 2021) 12 F4 647, 654
[“Detective Becherer also sought the substantial assistance of the
State’s Attorney in the preparation of this affidavit and the
other material submitted to the state court judge.”];
US v. Cotto (10C 2021) 995 F3 786, 797 [“the process the
detective followed when applying for the warrant indicates he was
acting in good faith. He received approval from a district
attorney before bringing the affidavit to the state judge”];
US v. Otero (10C 2009) 563 F3 1127, 1135
[“[One of the more important facts is the officers’ attempts to
satisfy all legal requirements by consulting a lawyer,” edited.].
[6] CAL: P v. Egan (1983)
141 CA3 798, 804 [“The purpose of requiring an oath is to insure
the good faith of the affiant and to hold the affiant responsible
for any false statements.”]; P v. Hale (2005)
133 CA4 942, 947 [“The test of the sufficiency of an officer’s
oath in support of a search warrant is whether he can be
prosecuted for perjury should his statement of probable cause
prove false.”]; P v. Leonard (1996) 50 CA4
878, 884 [“The failure of the affiant to swear to the truth of the
information given to the magistrate cannot be construed as a
‘technical’ defect. It is a defect of substance, not form.”].
[7] USSC: Groh v. Ramirez (2004)
540 US 551, 557-58 [warrant said the affidavit establishes
probable cause]. CAL: P v. Leonard (1996) 50
CA4 878, 883 [“Warrants must be issued on the basis of facts, not
beliefs”].
[8] QUOTE FROM: US v.
Harris (1971) 403 US 573, 579. OTHER:
US v. Castro (6C 2019) 881 F3 961, 965 [warrants “need not
meet the rigors of Roget, Mereriam, Webster, Strunk and White. A
commonsense contextual reading usually suffices”];
US v. Orozco (4C 2022) 41 F4 403, 411 [“warrant
applications are commonsense documents, not Wiccan rituals”];
State v. Multaler (Wis. 2002) 643 NW2 437,
447 [an affidavit “is not a research paper or legal brief that
demands citations for every proposition”].
[9] 9th CIR: US v.
Spilotro (9C 1986) 800 F2 959, 967 [157-page affidavit was
“nonindexed, unorganized”].
[10] QUOTE FROM: P v.
Sanchez (1982) 131 CA3 323, 332. CAL:
P v. Veasey (1979) 98 CA3 779, 785 [“we do not examine [an
affidavit] as if it had been drafted by a Wall Street law firm.
Our touchstone is common sense”].
[11] CAL: P v.
Egan (1983) 141 CA3 798, 805 [“the courts have refused to
invalidate search warrants based upon minor, technical
irregularities”]. OTHER: US v. Clark (7C 2014) 754
F3 401, 410 [“the Fourth Amendment is not a bulwark against
typos”]; US v. Walker (2C 2008) 534 F3 168,
171 [“dating errors” were “harmless”].
[12] CAL:
P v. Westerfield (2019) 6 C5 632, 661 [“affidavit
incorporated the facts asserted in the prior three search warrant
affidavits”]; P v. Goldberg (1984) 161 CA3 170, 181
[incorporating police reports]. OTHER:
US v. Ulbricht (2C 2017) 858 F3 71, 101 [“By incorporating
the affidavit by reference, the Laptop Warrant lists the charged
crimes, describes the place to be searched, and designates the
information to be seized”]; Baranski v.
Fifteen Unknown Agents (6C 2006) 452 F3 433, 440 [“all of
the courts of appeals (save the Federal Circuit) have permitted
warrants to cross-reference supporting affidavits and to satisfy
the particularity requirement through an incorporated and attached
document—at least when it comes to the validity of the warrant at
the time of issuance.”]; State v. Wade (Fla.
App. 1989) 544 S2 1028, 1030 [incorporation “is a recognized
method of making one document of any kind become a part of another
separate document without actually copying it at length in the
other”].
[13] USSC:
Groh v. Ramirez (2004) 540 US 551, 557-58 [warrant did not
incorporate the supporting affidavit when it merely states that
the affidavit establishes probable cause]. CAL:
P v. Egan (1983) 141 CA3 798, 803 [“It is necessary
that the incorporated document be clearly identified.”]. 9th CIR:
US v. Sedaghaty (9C 2013) 728 F3 885, 913
[“We have never held that an affidavit could expand the scope of a
legitimate warrant beyond its express limitations nor do we do so
here.”]. OTHER: US v. Wright (1C 2019) 937 F3 8, 19
[“The warrant expressly cross-references Attachment A in
describing the property that may be seized. Attachment A, in turn,
expressly provides for the off-site searching of electronic media
devices. Thus, the warrant—by virtue of its cross reference to
Attachment A—is best read to authorize not only the seizure, but
also the search of the devices at issue, as expressly contemplated
by the text of Attachment A.”]; US v. Szczerba (8C 2018)
897 F3 929, 937 [“a warrant does not incorporate a supporting
affidavit when it merely states that the affidavit establishes
probable cause”].
[14] QUOTE FROM: Groh v.
Ramirez (2004) 540 US 551, 557-58 [“Indeed, most Courts of
Appeals have held that a court may construe a warrant with
reference to a supporting application or affidavit if the warrant
uses appropriate words of incorporation, and if the supporting
document accompanies the warrant.” Citations omitted.]. CAL:
P v. Egan (1983) 141 CA3 798, 803
[“Incorporation by reference occurs when one complete document
expressly refers to and embodies another document.”]. 9th CIR:
US v. SDI Future Health, Inc. (9C 2009) 568 F3 684, 699
[“A warrant expressly incorporates an affidavit when it uses suitable
words of reference.”]; US v. Vesikuru (9C
2002) 314 F3 1116, 1121 [“Our case law requires only suitable
words of incorporation”].
[15] CAL: Nunes v.
Superior Court (1980) 100 CA3 915, 933 [sufficient notice
was given when the warrant authorized a search for “stolen
property as indicated in the Affidavit and attached Police
report”]; P v. Stipo (2011) 195 CA4 664, 670
[it was sufficient that the affiant referred to the document and
said it was attached]. 9th CIR: Marks v.
Clarke (9C 1996) 102 F3 1012, 1030-331 [“see attached
lists”]. OTHER: US v. Waker (2C 2008)
534 F3 168, 172, fn.2 [“see attached Affidavit as to Items to be
Seized”]; US v. Tracey (3C 2010) 597 F3 140,
148 [“Other Courts of Appeals have accepted phrases such as
‘attached affidavit which is incorporated herein,’ ‘see attached
affidavit,’ and ‘described in the affidavit,’ as suitable words of
incorporation.” Citations omitted.]; Rodriguez v.
Beninato (1C 2006) 469 F3 1, 5 [“See attached affidavit”
was sufficient]; US v. Lazar (6C 2010) 604 F3
230, 236 [incorporation resulted when affidavit referred to “the
below listed patients”]; Baranski v.
Fifteen Unknown ATF Agents (6C 2006) 452 F3 433, 439-40
[“See Attached Affidavit”].
[16] OTHER: Baranski v.
Fifteen Unknown ATF Agents (6C 2006) 452 F3 433, 444.
[17] USSC: Groh v.
Ramirez (2004) 540 US 551, 560. 9th CIR:
Millender v. County of Los Angeles (9C 2010)
620 F3 1016, 1026 [the affidavit must be either “attached
physically to the warrant or at least accompanies the warrant”]
(overturned on other grounds in Messerschmidt v.
Millender (2012) 565 US 535). 9th CIR:
US v. Kahre (9C 2013) 737 F3 554, 556-67; US
v. SDI Future Health, Inc. (9C 2009) 568 F3 684, 699
[“We consider an affidavit to be part of a warrant, and therefore
potentially curative of any defects if the affidavit either is
attached physically to the warrant or at least accompanies the
warrant while agents execute the search.”]; US v.
Towne (9C 1993) 997 F2 537, 547 [“in no case have we ever
held that an affidavit that was expressly incorporated by
reference and that did accompany the warrant when the search was
authorized and carried out could not be treated as part of the
warrant because it was not physically attached to it”]; US
v. Stubbs (9C 1989) 873 F2 210, 212 [“We will not,
however, rely on an affidavit to cure the generality of a warrant
where the affidavit is not attached to and incorporated by
reference in the warrant.”]; US v.
Spilotro (9C 1986) 800 F2 959, 967 [“We are unable to rely
on the affidavit to cure the generality of the warrants, however,
since it was not attached to and incorporated by reference in the
warrants”].
[18] CAL: Kaylor v.
Superior Court (1980) 108 CA3 451, 457 [“illegible
declaration or exhibits cannot form the basis for a probable cause
ruling”].
[19] CAL: Kaylor v.
Superior Court (1980) 108 CA3 451, 457 [“all the writings
offered in support [of the warrant] must be read.”];
P v. Goldberg (1984) 161 CA3 170, 183 [same].
[20] CAL: P v.
Kurland (1980) 28 C3 376, 395 [“We caution that when the
affiant knows or should know of specific facts which bear
adversely on the informant’s probable accuracy
in the particular case, those facts must be disclosed.”];
P v. Webb (1993) 6 C4 494, 521-22. 9th CIR:
US v. Ruiz (9C 2014) 758 F3 1144, 1149 [“The magistrate
judge knew nothing of Scales’s history of drug sales, her
evasiveness concerning the drug paraphernalia at the scene of the
shooting …. These are serious omissions.”]. OTHER:
US v. Bradford (7C 2018) 905 F3 497, 504 [“Agent Ulery’s
warrant application left out adverse information bearing on
Smith’s credibility: his three felony convictions, one of which he
failed to disclose to law enforcement; his probation status; and
the payments he received for his services as an informant.”];
US v. Glover (7C 2014) 755 F3 811, 817 [there was a
“complete omission of known, highly relevant, and damaging
information about Doe’s credibility”].
[21] CAL: P v.
Kurland (1980) 28 C3 376, 394 [“Even if [the omitted] facts
might support an inference of Z’s dishonesty or vulnerability to
police pressure, that inference was already inherent in Z’s status
as a confidential tipster.”]; P v. Lopez (1985) 173
CA3 125, 134; P v. Webb (1993) 6 C4 494, 522 [“we
deem it unrealistic to require that a warrant affidavit include an
informant’s detailed drug and psychiatric history, or every past
act that can be considered unlawful or dishonest”]. 9th CIR:
Garcia v.
County of Merced (9C 2011) 639 F3 1206, 1212 [“The precise
details of an informant’s problems with the law are not normally
necessary to alert a judge to [his credibility issues].”].
OTHER: US v. Stropes (8C 2004) 387 F3
766, 772 [omission of untested informant’s criminal history and
his previous lies to officers was not material because judges
“understand that criminal suspects often have criminal records and
frequently are uncooperative or untruthful before they eventually
cooperate and provide truthful admissions”].