SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

Court noted that the issue was whether the second search was
really no more than a continuation of the first. The Court decided
that it was, citing the fact that the files seized on the second trip
were listed in the warrant.
Leaving a Copy of the Warrant, Affidavit and/or Receipt and Inventory:
There is no state statutory nor constitutional rule requiring that searching
officers show the suspects the warrant, the affidavit to the warrant, or a
copy of either, or that a copy of either be left at the scene after the search.
(People v. Calabrese (2002) 101 Cal.App.4 th 79.)
Only a copy of the “receipt and inventory” (or “return”) must be
left with the occupants or at the scene. (P.C. § 1535)
Note: Fed. Rules of Criminal Procedure, Rule 41(d), applying
only to the execution of a federal search warrant, requires that the
occupant be given a copy of the warrant and a receipt for property
taken in the search, or that these documents be left at the scene.
The Ninth Circuit’s Opinion: The Ninth Circuit Court of Appeal is
of the belief that failure to provide to an occupant a copy of a
warrant, properly describing the place to be searched and the
property to be seized, may be a Fourth Amendment violation
(See Ramirez v. Butte Silver Bow County (9 th Cir. 2002) 298 F.3 rd
1022.), thus creating some potential federal civil liability for state
officers who choose to follow the state rule.
However, the Ninth Circuit has also noted that only a
“fundamental” violation of Rule 41(d) will mandate
suppression of evidence. Where the agent was not aware of
this rule, and otherwise insured that defendant was aware of
why they were in his home and what they were looking for,
suppression of evidence was not a proper remedy. (United
States v. Williamson (9 th Cir. 2006) 439 F.3 rd 1125;
discussing the difference between “intentionally,” but not
“deliberately,” failing to provide defendant with a copy of
the warrant prior to searching his house.)
Note: Therefore, despite not being required by state law, it
is probably good practice for a state law enforcement
officer to show the occupants a copy of the search warrant
(but not the affidavit), or, if no one is home, leave a copy of
the search warrant at the scene. There is no harm in doing
this, and brings the state execution of a search warrant in
compliance with the federal rules.
© 2012 Robert C. Phillips. All rights reserved
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