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After a search warrant has been executed, law enforcement generally has to secure the premises and notify the property owner about the search. They also have to provide an inventory of anything that was seized and return the warrant to the magistrate that issued it. Anything seized will be held in police custody until it is presented in court.
After a search warrant has been executed, law enforcement generally has to do 5 things:
Securing the premises may be as simple as locking the doors. However, after executing a no-knock warrant or a search that required a forced entry, the process can be substantial. Doors or windows that were broken will have to be replaced or boarded up. The requirement is not limited to windows or the front door of a residence. If police forced open a trunk or a car door, for example, they will have to take reasonable steps to secure it, as well.
If the search warrant was executed in the party’s presence, then there is little need to notify them of the search. However, many search warrants are executed when a building is empty and no one is around. Unless the warrant was for a “sneak and peek” search, police will generally have to promptly inform the owners of the premises that a search had occurred.
Police also have to provide a receipt of anything that was seized. This is often provided alongside the notification of the search. The inventory has to list, in detail, what was taken during the search.
Both the notification and the inventory of items seized is often given to the premises owner on site. If the owner was arrested and taken away, the papers can be left in a conspicuous and secure place on the premises.1
Police must then return the search warrant to the magistrate that issued it. This includes any duplicate originals that were provided. A written inventory of any items seized has to be provided, as well.
Finally, anything that the police seized during the search has to be kept in secure police custody until it gets presented in court. The only way for seized property to be returned before trial is if a court orders it.
If police officers execute a search warrant but then fail to do one of these things, it generally will not invalidate the search. Any evidence obtained in the search can still be used against the defendant in the criminal case.
However, if the owner or occupier of the premises was not notified of the search, and the lack of notice was done to keep them in the dark, it may make it an unreasonable search. In these cases, any evidence found in the search would be inadmissible.2
A “sneak and peek” search warrant – also known as a surreptitious entry warrant or a delayed notice warrant – does not have the same notification requirements as regular search warrants do. These warrants do not immediately notify premises owners or suspects of the search. Instead, the warrant specifies when the notice will be provided. It has to be provided in a short but reasonable time after the search is conducted.
The delay in the notice is meant to allow law enforcement to continue a criminal investigation without the suspects becoming aware of it.
These sneak and peek warrants allow police to enter a building or other premises by stealth. Inside, they conduct a clandestine search without the awareness of the owners or occupants. They may seize incriminating evidence during this search. They then leave without notifying anyone, so that any criminal activity would continue on, as normal. Notification of the execution of a sneak and peek warrant is provided, later on.
The execution of a search warrant has to be done according to the terms in the warrant. The warrant has to state, with reasonable particularity, the particular place to be searched and the things to be seized. It should be thorough enough that the members of the law enforcement agency tasked with the execution of the warrant do not have any discretion in how to do so.3
Under the Fourth Amendment, federal law on search and seizure, and state rules of criminal procedure, search warrants are obtained when law enforcement persuades a magistrate that there is probable cause to believe that evidence of a crime will be found. The magistrate does not have to be a judge. He or she can be a judicial officer of a district court. Evidence of probable cause is provided by the testimony of officers, confidential informants, or witnesses, or by sworn affidavit. The issuance of the warrant can be challenged in a Franks hearing if it was based on false information by an affiant.
After the issuance of a search warrant, the execution of the search warrant has to happen within a certain period of time. Under California criminal law, peace officers have to execute it within 10 days.4
Generally, officers executing search warrants have to knock and announce their presence. In many states, they have to show a copy of the search warrant to anyone on the premises who asks to see it. Only if they are denied entry or there are exigent circumstances, like if they have good cause to believe that evidence is being destroyed or that suspects are fleeing, can police force entry. However, in some states, an issuing magistrate can approve “no-knock” warrants if there is reasonable cause to believe that notifying any occupants of the police presence would:
Once inside, law enforcement officers can stop and frisk anyone on the premises if they have a reasonable suspicion that such person might be a danger.6 A more thorough search can be made if the warrant authorizes a search for contraband or instrumentalities of a crime.7 They can search the entire property, including any outbuildings or detached garages on the premises, but only areas that could conceivably hide the items listed in the warrant.8 This means that police could open a desk drawer if the search warrant was for a suspected drug crime, but not if the warrant was for a stolen car. However, police can seize incriminating evidence not listed in the warrant if it was in plain view.9
Once the items listed in the warrant have been found or the entire premises has been searched, the warrant’s authority to continue to search ends.
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.