The Realities of Search Warrants
As investigators, we are often asked by our clients to use search warrants to obtain information that will further an investigation. Of course, wanting to please our clients, we would be happy to do so whenever possible, and indicated. However, most often we are in a position where we must explain why we cannot obtain a search warrant, or why using a search warrant would not be appropriate in the circumstances. I have written about search warrants in the past and explained the process for obtaining one. This time I want to expand on the challenges in obtaining a search warrant and why we are sometimes simply not able to use this method to gather information.
The first issue in obtaining a search warrant is that you must have a legislative authority to obtain a search warrant. We work with Regulators and many private and public organizations. With regulators, our work falls under legislation where in most cases, there is an authority to obtain a search warrant to gather information. However, if we are investigating for an employer conducting a workplace investigation into code of conduct violations such as internal theft, harassment, bullying etc. there is no such authority. So, in the case of our clients, only those who are regulators may have the legislative authority to obtain a search warrant. For regulators, this is only one very small piece of the puzzle. Having the authority to get a search warrant is by no means “carte blanche” to obtain and use them in any circumstance.
Regulators have been provided legislated powers of investigation that are designed to ensure they can meet their mandate to protect the public. When it comes to obtaining information, most regulators have the ability, without a search warrant, to compel sworn testimony, inspect and collect documents or objects, and observe procedures by those they are investigating. In most cases, these powers are enough to get the job done. However, there are sometimes unique circumstances or failures to cooperate that lead regulatory investigators to the use of search warrants. Search warrants are the most invasive method available for obtaining evidence, and as such, they are not simply handed out because you need one.
It is important to consider what evidence is needed for the investigation to ensure that a search warrant is the appropriate means to obtain that evidence. I have always maintained that using less invasive and intrusive means to obtain information is best, provided we have the cooperation of those from whom we seek the information. We will assume for the purposes of this article that other less invasive means to obtain information have been attempted without success, or for some reason should not be attempted (e.g. fear of destruction of evidence) and we determined that a search warrant is the only way to get what we need.
Search warrants allow investigators to enter a premises and search for evidence, which may include physical items, documents, or electronic media. Search warrants do not compel testimony or permit the observing of procedures.
Obtaining the Warrant
A warrant is issued by a Justice of the Peace (JP), or in some jurisdictions, a Judge, who will consider your application for the warrant and determine whether it provides reasonable and probable grounds that satisfy the following two tests:
- Are the items you seek relevant to the investigation and will they afford evidence as to the commission of an offence.
- Are the items you seek located in the place you wish to search?
These two considerations are extremely important. Consider this case example: A man is being investigated for passing along fraudulent documents in return for payment. All his transactions are thought to be done electronically. We need access to his computer where we think the fraudulent materials will be located and the proof of the transactions will be located. We do not know, which computer he is using or if he is using only one computer, it could be a laptop or a desktop computer. A desktop computer could be in his house or his office and a laptop could be in his car or on his person, or some other place we are not aware of. Now in this scenario satisfying number 1 above is not difficult, because we know how he operates and have evidence already collected to support this. Number 2 however, is a problem. If we attempt to get a search warrant for his home, we cannot say with any degree of reasonableness that the computer we need will be there. A search warrant will not be issued to look at every computer in the home. Especially when we know he has multiple laptops and an office full of computers. We cannot reasonably get search warrants for his office, home, car, or cars if he owns more than one. In fact, for all we know he could be using a computer at an internet café and using cloud based software.
Search warrants are not permission slips to fish around wherever we want to find what will help our case. Rather they must be specific and we must be able to provide reasonable grounds to support our belief the evidence we need will be in a specific place. In this scenario, we have no ability to do that and we will not be given a search warrant to go from place to place and look on every computer the subject might have access to.
Even when a search warrant is issued for a location, the person(s) executing the warrant must be vigilant and not search in an inappropriate place. For example, if a warrant is issued to enter a person’s office to obtain a client records and specific human resources files, it would be inappropriate for the investigator to look through all the email communications on someone’s computer. If there is reason to look at email communications, the warrant application must specify exactly what is being sought in the email communication, why it is likely to be there and how it is relevant to the investigation. The corresponding warrant must specify these items.
So, how do we provide this information to support our request for the search warrant?
Search warrants are obtained through an application process that uses prescribed forms. The first form is the “Information to Obtain a Search Warrant.” This document identifies the following information:
- The applicant (the person requesting the warrant)
- The premises to be searched
- What items are desired from the search
- The offence for which it is believed the items will afford evidence
- The reasons for believing the items will afford evidence of the offence
- Why you believe the items are in the place you want to search
The “reasons for believing” portion listed above is the most crucial aspect of the application. As this portion is usually quite lengthy, it is most often attached to the Information to Obtain a Search Warrant document as a Schedule ‘A’. This portion of the application needs to provide several items for the JP’s consideration, including:
- Who you are and what authority you have to request the warrant
- The legislation under which you are applying for the warrant
- A brief background of the investigation completed to date and the suspected offences committed
- A detailed description of the reasons you believe the items you seek will afford evidence of the offence
- A description of any efforts undertaken previously to obtain the items you seek
- A detailed description of how you believe the items you seek will be in the place you want to search
- The names and a brief background on the people who will assist with the search, such as a computer forensic specialist who will assist with the collection of electronic records
Accompanying all the above will be copies of documents that support your reasonable and probable grounds, copies of legislation that authorize you to conduct the investigation and apply for the warrant, a copy of the investigator’s authorization to investigate, and any other supporting documents that you feel are required. These applications can quickly become very voluminous.
It is imperative when writing a search warrant application that you include all the information you have available, use neutral language in the application, and never leave out information you think might hinder your chances of getting the warrant. Even if you applied for the search warrant once and were turned down, the second application, should you try again, must disclose that you tried once before, were refused, and why. Applying for a search warrant is an ex parte process, meaning the person under investigation or the people in charge of the premises you want to search do not have a say in the application. The JP only has your word to rely on. Leaving out information that you think might jeopardize your chances could result in a ruling in a subsequent proceeding that all the evidence obtained with the search warrant be excluded from the proceedings.
The other form that will be completed is the search warrant itself. This is the document that you will produce when you execute the search warrant. It contains all the same information as the “Information to Obtain,” except for the detailed rationale you provided to obtain the warrant. The warrant also contains the parameters of the search in terms of the dates and times it may be executed, as well as the expiry date. If you are successful in obtaining the warrant, the JP will sign this document.
Once all the paper work is completed, the applicant must swear or affirm the information included in the application. This is typically done prior to submitting it to the JP. In most jurisdictions, the JP will read the warrant and decide, based on the documents provided. This means that the application package needs to be well written, clear, and organized, as you may not get a chance to speak to it. Contrary to many TV shows, you do not get to have that casual conversation in the judge’s chambers.
There is much more detail to the above process than space in this article allows for. In most cases, the only way to learn how to write successful warrants is to work with someone who has done many of them.
Executing the Warrant
Once the warrant is granted, the next step is to execute it. Your first consideration should be safety. Generally, people do not take kindly to having a person show up at their office, or worse, their home, to search it and take what they need. In most cases, we notify the local police department and have one or two police officers attend at the outset of the warrant to keep the peace and allow us to establish some rapport and understanding with whomever we are dealing. Often the police can leave shortly after we arrive. If you choose not to have the police attend, it is still a good practice and appropriate courtesy to notify the local police that you will be in their jurisdiction executing a search warrant.
Search warrants allow for the use of force to complete the task of search and seizure. This means doors can be breached and people can be physically restrained if necessary. This is the last thing an investigator wants to do and any use of force should be avoided at all costs. If no one is present when you are trying to gain access to the premises, call the landlord or a locksmith to gain entry; do not damage property. If people become violent, it is better to remove yourself from the premises and call police. If police are present, let them handle any unruly people, as they are equipped and trained for that purpose.
Be systematic in your search. If you have multiple people handling the search, assign each a location within the premises. Ensure one person acts as the exhibit officer who will make notations of everything found, where it was located, and apply an evidence tag or number for each item seized. Do not attempt to engage any persons on the premises in an interview or ask questions that would be part of an interview. Your authority is to search and obtain the items you came for, but it does not include the authority to compel testimony from anyone. If you engage in this form of discussion, there could be an argument made later that you obtained a statement improperly or coerced a statement given the circumstances of your attendance at the premises.
Be sure to thoroughly document all activities related to the search, including the time you entered the premises and the time you left the premises. Make notes on the general condition of the premises and the condition of items seized. Remember to confine your search to what is reasonable. If you are searching for an item such as a file folder, it is not reasonable to assume it is in a jewellery box, so do not open the jewellery box.
It is acceptable to use the people on the premises to assist you. For example, if you went to an office to obtain several different items, it is reasonable to ask the responsible person to point you to the location. Rather than having to spend time searching in multiple locations, if the items you seek can be readily located and removed, the warrant will be completed more quickly, benefitting everyone involved.
After the Warrant
After the search warrant is complete and everything is properly documented, it is then necessary to attend a JP again and provide a completed search warrant return. A return essentially documents for the JP the fact that you executed the warrant and what items you obtained. The JP will sign off that the items may be retained in your custody until the matter is disposed of through the applicable judicial proceeding.
There is much more that could be said about search warrants and this article is only the tip of the iceberg. If you want additional information, please feel free to contact Dean Benard. As you can see from this article, search warrants are time consuming, often challenging to obtain, and must always be defensible in terms of the information you provided to get the warrant. They are not the most efficient tool in the investigator’s toolbox, however, there are times when a search warrant is needed and, when those times arise, the best advice is to get expert assistance from experienced and knowledgeable people in this area of investigations.
Our new company Nuance Education + Training provides a wealth of education in all aspects of investigations and conflict resolution. Please visit us at www.nuance-edu.comor visit Benard + Associates for any investigation needs or advice you may require at www.benardinc.com.
Please note that the information contained in the following article is based on the jurisdiction Benard + Associates works within and there are some differences between jurisdictions, including who approves search warrants and the process for obtaining them. However, the information contained below is meant to be generic enough to assist anyone considering search warrants in any jurisdiction.