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View Full Version : Who makes a search warrant? And a few other warrant questions.



kaitie
05-01-2013, 06:34 AM
Okay, I'm writing a book with a lawyer in it, and sadly most of what I know about law comes from watching Law and Order. I know, unrealistic. I also am at least smart enough to recognize that it's not the best source material out there.

That said, I'm trying to figure something out. In this situation, a bad guy has been caught, but it looks like he can't be charged because he's been smart enough about what he did that they can't automatically prove he did anything wrong.

The prosecutor/detectives think the whole thing was planned and set up, and want to get a warrant to prove it. I guess my questions are:

1) Is it possible to get a warrant for email, phone logs, computers, etc? Would everything else in a house have to be included, or could you just search for these things?

2) I read that a warrant needs proof that a crime was committed to be approved. If they don't have the evidence to charge him without the warrant, does that mean the warrant wouldn't meet this requirement?

3) Who would actually make up the warrant? I've assumed the prosecutor would handle that and contact the judge, but does the detective? Is there someone else who does this?

4) Is there any way to fight a warrant once it's been issued? Could the bad guy's lawyers do something to stop them?

That's all I can think of right now. I'm thinking of having a plot element focused around this, but realized I don't really know what I'm doing, so I wanted to check my assumptions before I wrote it all in as though it was truth.

jclarkdawe
05-01-2013, 06:44 AM
Okay, I'm writing a book with a lawyer in it, and sadly most of what I know about law comes from watching Law and Order. I know, unrealistic. I also am at least smart enough to recognize that it's not the best source material out there.

That said, I'm trying to figure something out. In this situation, a bad guy has been caught, but it looks like he can't be charged because he's been smart enough about what he did that they can't automatically prove he did anything wrong. No idea exactly what you're trying to say here.

The prosecutor/detectives think the whole thing was planned and set up, and want to get a warrant to prove it. They want to get specific evidence, which requires them to have a reasonable belief that a search would reveal the specific evidence requested. I guess my questions are:

1) Is it possible to get a warrant for email, phone logs, computers, etc? Would everything else in a house have to be included, or could you just search for these things? Searches are for specific evidence. A search for email and phone logs would not be done at the house, but at either the ISP or the phone company. If you have a warrant to search a house, you can't search the computer without a warrant to search the computer.

2) I read that a warrant needs proof that a crime was committed to be approved. If they don't have the evidence to charge him without the warrant, does that mean the warrant wouldn't meet this requirement? A warrant (arrest or search) is issued if there is probable cause that a crime has been committed. This is a long way from the beyond reasonable doubt required after a trial to secure a conviction.

3) Who would actually make up the warrant? I've assumed the prosecutor would handle that and contact the judge, but does the detective? Is there someone else who does this? Depends upon the department and who is involved. If a prosecutor is involved, he or she will draft the search warrant. If only a detective is involved, they can usually draft basic search warrants.

4) Is there any way to fight a warrant once it's been issued? Could the bad guy's lawyers do something to stop them? If the defendant knows about the warrant before it is actually served, the defendant can ask that the court quash the warrant. Problem is you don't know about the warrant usually until way too late.

That's all I can think of right now. I'm thinking of having a plot element focused around this, but realized I don't really know what I'm doing, so I wanted to check my assumptions before I wrote it all in as though it was truth.

Best of luck,

Jim Clark-Dawe

kaitie
05-01-2013, 06:48 AM
Sorry for not explaining well! It's a weird/wonky situation and it's hard to explain without giving a run down. Your answers are spot on what I need, though.

As a follow up, the guy has been brought in for questioning and called his lawyer and isn't cooperating. Basically they're saying he's done nothing wrong, you have nothing on him, let it go. If his lawyer suspects they'll get a warrant for his communications, is there a way to find that out easily if he's not told?

It's not really necessary that he find out. I'm not even sure they're going to get the warrant, as I know it gets quashed somewhere. I'm just trying to figure out where in the line and by whom.

cornflake
05-01-2013, 06:50 AM
Okay, I'm writing a book with a lawyer in it, and sadly most of what I know about law comes from watching Law and Order. I know, unrealistic. I also am at least smart enough to recognize that it's not the best source material out there.

That said, I'm trying to figure something out. In this situation, a bad guy has been caught, but it looks like he can't be charged because he's been smart enough about what he did that they can't automatically prove he did anything wrong.

The prosecutor/detectives think the whole thing was planned and set up, and want to get a warrant to prove it. I guess my questions are:

1) Is it possible to get a warrant for email, phone logs, computers, etc? Would everything else in a house have to be included, or could you just search for these things?

2) I read that a warrant needs proof that a crime was committed to be approved. If they don't have the evidence to charge him without the warrant, does that mean the warrant wouldn't meet this requirement?

3) Who would actually make up the warrant? I've assumed the prosecutor would handle that and contact the judge, but does the detective? Is there someone else who does this?

4) Is there any way to fight a warrant once it's been issued? Could the bad guy's lawyers do something to stop them?

That's all I can think of right now. I'm thinking of having a plot element focused around this, but realized I don't really know what I'm doing, so I wanted to check my assumptions before I wrote it all in as though it was truth.

Warrants need to be specific about what they're for and what areas they cover. A warrant is almost never for like a whole house and all contents and computers to just look for x, y, or z. Sure, you can get a warrant for say, the contents of a hd and system - it'd likely be specific in what it'd be looking for and that that and whatever else is what can be taken or searched. Some computer and phone stuff, the person wouldn't ever know their stuff was searched until an indictment or arrest warrant comes out because the searches aren't physical, like phone taps. If someone is authorized to go in and take a computer to be able to search the hd, that's a physical warrant.

Also generally, though depending a lot on what type of crime, how long the investigation is going on, who's in charge of it, what level of stuff is being looked for, etc., cops draw up a warrant and go to a judge.

If there's not at least real probable cause to believe a crime was committed it's hard to ask for a warrant, but I'm not sure what you mean by proof and crime. People have been convicted of murder without a body ever being found but there's a difference between probable cause to believe something and 'Bob seems hinky, can I go through his computer and house?'

ULTRAGOTHA
05-01-2013, 06:57 AM
I am assuming your story is set in the United States of America in the 21st Century.



1) Is it possible to get a warrant for email, phone logs, computers, etc? Would everything else in a house have to be included, or could you just search for these things?

The Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Which means the warrant must particularly describe the place to be searched and the things to be seized. They can search the entire house if they convince a judge they have probable cause that the thing(s) they are looking for are in the house. But they can't take everything in the house. They can only seize the specific types of things listed on the warrant (computer equipment and storage devices, for example).



2) I read that a warrant needs proof that a crime was committed to be approved. If they don't have the evidence to charge him without the warrant, does that mean the warrant wouldn't meet this requirement?

No. The police do not need proof. They need probable cause. That means it must be reasonable for them to suspect that place contains the things they're looking for.


3) Who would actually make up the warrant? I've assumed the prosecutor would handle that and contact the judge, but does the detective? Is there someone else who does this?

Generally the police create the warrant and the judge signs off on it.



4) Is there any way to fight a warrant once it's been issued? Could the bad guy's lawyers do something to stop them?

It would depend highly on the circumstances. Generally, if you're fighting a warrant you're fighting after the fact. That the warrant wasn't issued properly, that the police did not have sufficient probable cause, that the constitution was violated in some way. The police don't have to tell you ahead of time they're getting a warrant. The suspect would know when the police turned up and by then it's usually to late to stop it.


That's all I can think of right now. I'm thinking of having a plot element focused around this, but realized I don't really know what I'm doing, so I wanted to check my assumptions before I wrote it all in as though it was truth.

http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution

Also, check out some law blogs that deal with constitutional issues.

There's also a Police Misconduct (http://www.policemisconduct.net/) site sponsored by the Cato institute that details when things go wrong. Often problems with warrants are explained there.

Popehat (http://www.popehat.com/)deals with First Amendment issues but occasionally wanders off into other amendments.


ETA: I obviously need to type faster.

kaitie
05-01-2013, 06:58 AM
Well, they'd know exactly what they were looking for in that they're looking for correspondence that shows that the bad guy was intending to go after a particular person.

Basically, they know what he did, it's just a matter of proving it. Right now he's got an explanation for everything, if that makes sense.

kaitie
05-01-2013, 07:00 AM
It would depend highly on the circumstances. Generally, if you're fighting a warrant you're fighting after the fact. That the warrant wasn't issued properly, that the police did not have sufficient probable cause, that the constitution was violated in some way. The police don't have to tell you ahead of time they're getting a warrant. The suspect would know when the police turned up and by then it's usually to late to stop it.



Ooh, you know, it didn't even occur to me that it would work to have them find out after the fact. That could make it more interesting. Instead of fighting to get it stopped, it would be fighting to get the evidence they did uncover thrown out. It would make it more interesting because if if the police had the evidence, they know what was going on, even if they can't use it.

That seems like such a duh thing I can't believe it didn't occur to me before.

ULTRAGOTHA
05-01-2013, 07:08 AM
Well, they'd know exactly what they were looking for in that they're looking for correspondence that shows that the bad guy was intending to go after a particular person.

Basically, they know what he did, it's just a matter of proving it. Right now he's got an explanation for everything, if that makes sense.

"Knowing" what he did is not enough. They have to have enough, for lack of a better word, 'evidence' that he did something to convince a judge to issue a warrant. They can't just say "Look, we know he did it, give us a warrant" they have to explain why they suspect the guy and show probable cause.

(OK, this is best case. There are certainly judges and police and prosecutors that cut corners.)

You can make of that what you will in your story. If the judge issues a warrant without sufficient probable cause, your lawyer can certainly fight against the evidence obtained in court. But by that time, your guy has been arrested, bailed, arraigned, and is at the least in pre-trial proceedings trying to get stuff excluded from evidence.

kaitie
05-01-2013, 07:14 AM
It's not really an issue of not having enough to support their theory. I don't want to explain the whole thing here because it's long and complicated, but basically he was caught on tape. There just isn't enough on the tape alone to charge him without more evidence.

I had just read the thing earlier and I think I misunderstood what it was saying. That's the problem when I read the legal explanations. I don't speak the jargon, so I read it and often have no idea what I just read, or when I do understand, find out that I didn't really understand.

ULTRAGOTHA
05-01-2013, 07:18 AM
If the police have a legally obtained recording that gives them probable cause to suspect he was involved with the crime, then they could certainly get a warrant from a judge. They'd have to tell the judge precisely what they want to seize and where they think it is. If it's in more than one place, then they'd need warrants for each place.

cornflake
05-01-2013, 07:23 AM
Ooh, you know, it didn't even occur to me that it would work to have them find out after the fact. That could make it more interesting. Instead of fighting to get it stopped, it would be fighting to get the evidence they did uncover thrown out. It would make it more interesting because if if the police had the evidence, they know what was going on, even if they can't use it.

That seems like such a duh thing I can't believe it didn't occur to me before.

That allows a whole other level of 'I know you did,' 'yeah, but nyah nyah,' yeah.

Don't forget fruit of the poisonous tree too if you go that way.

kaitie
05-01-2013, 07:26 AM
If the police have a legally obtained recording that gives them probable cause to suspect he was involved with the crime, then they could certainly get a warrant from a judge. They'd have to tell the judge precisely what they want to seize and where they think it is. If it's in more than one place, then they'd need warrants for each place.

Yeah, that's what I was wondering. I figured it would be phone company records, but I wasn't sure about email. I thought they'd need a computer for that, but if they can just go through the ISP that would make more sense. Basically I just wasn't quite sure on the logistics. It also sounds like the cops are the ones who should write it out.

And Cornflake, I definitely think I'm going to go with the guy not finding out til later. I love that idea of knowing what he did and having the proof, but not being able to use it. It adds a whole new level of motivation for the people involved to stop him, you know?

jclarkdawe
05-01-2013, 07:44 AM
If you can quash a search warrant, that's more likely to be successful then suppressing the evidence. Judges hate to throw out the evidence the government needs to convict the defendant, no matter how bad the search warrant.

Emails are usually searched on the ISP and the computer, as well as the email provider (such as Yahoo), budget permitting. Problem with emails is that they are "retained" on each of these sources in very different fashion, and may not show up at all. For example, this post will be recorded on my computer's key stroke file. But if I wasn't typing, it's only retained as a screen that I looked at, and maybe not even record.

Emails are often deleted and those deletions also effect the search for one. If you use emails, you need to find someone with the technical skills to describe how you search for them.

Probable cause for a search of a computer needs to show that there might be criminal activity recorded on the computer. For example, going in to the judge and saying, "He's a convicted pedophile, and pedophiles like to look at dirty pictures on their computer, therefore we should get a search warrant," won't work. However, if you say to the judge, "His girlfriend noticed a file name 'kids i like nude' on his computer. We think that might indicate a file that is related to either child pornography or pedophile type behavior. The suspect has been previously convicted of possessing child pornography," you'll get a search warrant.

Best of luck,

Jim Clark-Dawe

kaitie
05-01-2013, 07:51 AM
Thanks for the details. :)

cornflake
05-01-2013, 08:08 AM
If you can quash a search warrant, that's more likely to be successful then suppressing the evidence. Judges hate to throw out the evidence the government needs to convict the defendant, no matter how bad the search warrant.

Emails are usually searched on the ISP and the computer, as well as the email provider (such as Yahoo), budget permitting. Problem with emails is that they are "retained" on each of these sources in very different fashion, and may not show up at all. For example, this post will be recorded on my computer's key stroke file. But if I wasn't typing, it's only retained as a screen that I looked at, and maybe not even record.

Emails are often deleted and those deletions also effect the search for one. If you use emails, you need to find someone with the technical skills to describe how you search for them.

Probable cause for a search of a computer needs to show that there might be criminal activity recorded on the computer. For example, going in to the judge and saying, "He's a convicted pedophile, and pedophiles like to look at dirty pictures on their computer, therefore we should get a search warrant," won't work. However, if you say to the judge, "His girlfriend noticed a file name 'kids i like nude' on his computer. We think that might indicate a file that is related to either child pornography or pedophile type behavior. The suspect has been previously convicted of possessing child pornography," you'll get a search warrant.

Best of luck,

Jim Clark-Dawe

It has nothing to do with your point, but I'm persnickity and it's a fairly pervasive pop culture thing. No one is a convicted pedophile.

Possessing child porn is obvs. a crime one can be convicted of, but not all people who commit it are pedophiles and not all pedophiles commit crimes.

*I'm not defending or excusing or anything anything - the generalized conflating of child molester with pedophile irks as I think it's harmful to the creation of actually helpful legislation and investigation.

jclarkdawe
05-01-2013, 04:28 PM
It has nothing to do with your point, but I'm persnickity and it's a fairly pervasive pop culture thing. No one is a convicted pedophile. Yes, I was being lazy. I should have said something along the lines of "the suspect was convicted in 1992 of statutory rape with a victim under the age of 13, in violation of RSA 631.??, and served a sentence of 5 years at the New Hampshire State Prison, and is no longer on parole or probation (I'm not going to look up the exact statute)." Being a pedophile is not a crime; it is having sexual relationships with a minor under the age of 16 or so.

Possessing child porn is obvs. a crime one can be convicted of, but not all people who commit it are pedophiles and not all pedophiles commit crimes. Just like all forms of pornography that depicts illegal acts, many people possess and/or look at it and feel no need to act on it.

*I'm not defending or excusing or anything anything - the generalized conflating of child molester with pedophile irks as I think it's harmful to the creation of actually helpful legislation and investigation. You're right. This area of the law is a mess, and otherwise useful people are being convicted of crimes that have lifelong implications. On the other hand, some of the people involved in this type of behavior need to be locked up until they go out of prison in a box.

One should avoid laziness, but it's always so tempting.

Best of luck,

Jim Clark-Dawe

ironmikezero
05-01-2013, 08:37 PM
[QUOTE=ULTRAGOTHA;8148542]I am assuming your story is set in the United States of America in the 21st Century.



The Fourth Amendment:

Which means the warrant must particularly describe the place to be searched and the things to be seized. They can search the entire house if they convince a judge they have probable cause that the thing(s) they are looking for are in the house. But they can't take everything in the house. They can only seize the specific types of things listed on the warrant (computer equipment and storage devices, for example).

* Ah, point of order... In addition to items specifically listed on the search warrant, any prima facie evidence of a crime
(e.g., possession of contraband - think drugs, weapons with altered serial numbers, counterfeiting plates, stolen property, bodies under the floorboards, etc.) found in the lawful course of the execution of the search warrant may be seized and additional charges brought.

cornflake
05-01-2013, 11:38 PM
Yes, I was being lazy. I should have said something along the lines of "the suspect was convicted in 1992 of statutory rape with a victim under the age of 13, in violation of RSA 631.??, and served a sentence of 5 years at the New Hampshire State Prison, and is no longer on parole or probation (I'm not going to look up the exact statute)." Being a pedophile is not a crime; it is having sexual relationships with a minor under the age of 16 or so.

Just like all forms of pornography that depicts illegal acts, many people possess and/or look at it and feel no need to act on it.

You're right. This area of the law is a mess, and otherwise useful people are being convicted of crimes that have lifelong implications. On the other hand, some of the people involved in this type of behavior need to be locked up until they go out of prison in a box.

One should avoid laziness, but it's always so tempting.

Best of luck,

Jim Clark-Dawe

This was my problem - what you describe in the bolded is child molestation (provided the other person is an adult a number of years older), not pedophilia.

Being a pedophile has nothing at all to do with the sexual relationships one has, or the age of 16 as a barometer, or close.

This crossover is like describing people with foot fetishes as thieves, because there are some people with foot fetishes who steal shoes. One is a psychological disorder, one is a crime. People with the disorder may commit the crime but criminals don't necessarily have disorders nor do disordered people necessarily commit crimes.

Pedophilia is a paraphilia involving pervasive and pretty much exclusive sexual attraction to pre-pubescent children.

The majority of sex offenders who offend against children are NOT pedophiles. When pedophiles do offend, they tend to have large numbers of victims and be extremely hard to stop. They're thankfully rare, but this conflation in the public consciousness between child molester/abuser with pedophile causes problems in attempting to deal with them.

For instance, there are some classes of sex offenders, who offend against children, who are unlikely to reoffend. These people should obviously be jailed for their crimes, but their recidivism rate isn't particularly worrying (obviously, any abuse is worrying but in a practical, we cannot lock everyone up for life sense). An actual pedophile's recidivism rate is very worrying.

It's hard to write legislation to even begin to deal with these groups separately unless the public can begin to understand that they are separate groups. People tend to think 'sex offender of any type = will abduct, rape and kill any children' which isn't true or helpful to anything.

BradyH1861
05-02-2013, 03:21 AM
In my state, the specific procedure that you follow may vary a little from county to county. What you can get a warrant for and the level of proof (probable cause) is the same. The how to part is what is a little different. My county has a 24 hr DA intake and 24 hour magistrates. Some of your rural counties may not.

Also, my knowledge is limited to the State courts, not Federal. They may have different procedures. Your best bet is to talk to someone in the specific location where you are planning to set your novel if you want to get the local procedure down exactly right.

kaitie
05-02-2013, 03:47 AM
I actually just totally changed this and decided instead of going after the big bad directly, they're going after his hired thug, which fits everything into the plot nicely. :D