A Search Warrant is a type of Court Order, signed by a Judge or Magistrate, allowing law enforcement to conduct a search of a private place for the purpose of obtaining or “seizing“ evidence of a suspected crime.
In Criminal Sexual Conduct cases, especially at the investigation stage before any charges are brought, Search Warrants can be quite common. At Prain Law, PLLC, we concentrate specifically on representing those who are accused of Criminal Sexual Conduct (CSC for short), and therefore we deal with Search Warrants quite frequently on behalf of our clients.
If you are being investigated for or charged with Criminal Sexual Conduct, how do police obtain a Search Warrant? How will you know if they have or will obtain Search Warrants for things in your case? Where exactly are they allowed to search, and what can they seize? We will answer these questions below.
In Criminal Sexual Conduct cases, we hear about Search Warrants for people's houses, phones, computers, cars, DNA evidence, and a multitude of other places and things, depending on the case. Before going further, let’s briefly examine some examples of how Search Warrants might be used in a CSC case using an example from each of the four Degrees of Criminal Sexual Conduct in Michigan:
- John is under investigation for possible charges of First Degree Criminal Sexual Conduct under MCL 750.520b after being accused of several types of sexual penetration upon his 12-year-old step-daughter. Because the step-daughter claimed in her CARE House forensic interview that John also showed her inappropriate pictures on the computer, the lead Detective writes this in her Affidavit, and a Search Warrant is authorized allowing police to seize the computer for a forensic examination to attempt to recover proof of this claim.
Tom is involved in a bitter custody battle and suddenly finds himself under investigation for possible charges of Second Degree Criminal Sexual Conduct under MCL 750.520c after his wife claims their 10 year-old daughter accused him of sexual contact by touching her private areas. Three weeks into the investigation, Tom's wife now claims a touching incident happened very recently where he supposedly touched their daughter inappropriately under her clothes, and claims that the clothes have not been washed yet. The Officer in Charge relays this in an Affidavit, and a Search Warrant is obtained to seize the clothing items and take a DNA sample from both Tom and his daughter.
Mike is a well-known business executive charged with Third Degree Criminal Sexual Conduct under MCL750.520d after a woman he met online and went out with accuses him of "date rape," claiming he forced her to have sex. A "rape kit" or SANE Examination is performed on the woman. Mike refuses to speak to police, but in District Court at the Preliminary Examination, his lawyer insinuates that the Defense position at trial may be that no sex occurred at all. After the case is "bound over" to Circuit Court, at the request of the Prosecution, police get a Search Warrant for Mike's DNA sample to compare to the rape kit. It's unexplained why this was not done during investigation, but this does happen from time to time, perhaps where the Prosecution took it for granted that they could blindly believe the woman when she claims they had sex.
Jake, a college student, is under investigation for Fourth Degree Criminal Sexual Conduct under MCL750.520e after a female student he met at a party claims he initiated unwanted touching of a sexual nature with her. The female student tells the Detective that Jake sent a text message on a popular social media platform the next morning "apologizing" to her, but she allegedly deleted it because "she didn't want her boyfriend to see it." The Detective states the student's claims in his Affidavit to obtain a Search Warrant to seize and forensically examine Jake's phone for evidence of the alleged message, and the Detective also sends a "preservation request" to the social media platform. The exam revels that a message did exist, and that Jake tried to delete it, too - not a good idea. (Criminal Sexual Conduct 4th Degree is the least serious Michigan CSC charge, but it is still extremely serious!).
Interestingly, the legal foundation for the issuance of Search Warrants was established long before many of these places and things being searched ever existed. The best way to begin to understand how and why Search Warrants are used in CSC cases is to ask this question: “If someone has been accused of Criminal Sexual Conduct, what exactly is stopping him law enforcement from searching and seizing whatever they want in the first place without having to go through any special procedures or getting permission from a Court?“
The answer to this question goes all the way back to the founding of our country and the Bill of Rights. Under the Fourth Amendment to the United States Constitution:
"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."
The default rule, therefore, is that all U.S. citizens, including those under investigation for Criminal Sexual Conduct or other Sex Crimes, have a right to privacy in certain places, items, and other things that cannot be invaded unless certain legal requirements are met, including a finding of "probable cause" to believe that evidence of the alleged crime being investigated will be found there.
As you can see, the Fourth Amendment only talks about “unreasonable“ searches and seizures. What this has been interpreted to mean by our Courts over he years is that a search or seizure without a Search Warrant is unlawful only if it concerns a place or thing in which a person has a “reasonable expectation of privacy.“
For example, the things a person does or items they possess inside of their own home behind closed doors are more private than things that other people can easily be seen by way of "plan view" by other people who are lawfully on public property (i.e., such as from the street or sidewalk, etc.).
So first, in order for there to be a need for police to get a Search Warrant, the person or place to be searched must be such that the law says people are entitled to a reasonable expectation of privacy, such as inside their home, car, phone, computer, body, and other places. On the other hand, there are places where the Courts have ruled there is no expectation of privacy, such as something plainly visible by an Officer looking in the back window of a car on public property.
When police have a good reason to believe that evidence of a crime, specifically Criminal Sexual Conduct for our purposes, is contained within a place where a person has a "reasonable expectation of privacy," then they generally must obtain a Search Warrant before searching in that place or seizing any items or possible evidence from it.
The idea is, if a search is conducted and evidence seized without a proper Search Warrant from a place where the person has a reasonable expectation of privacy, then the search and/or seizure is unlawful, and any evidence obtained as a result would have to be "suppressed," in a prosecution for Criminal Sexual Conduct because it is considered the "fruit of the poisonous tree."
Be aware, though, that evidence being excluded from a CSC trial as "fruit of the poisonous tree" does not mean that an active CSC case in Court would have to be completely dismissed - it simply means that the Prosecution cannot use that unlawfully obtained evidence, and will therefore have to evaluate the strength and sufficiently of their case in its absence, whether it be DNA, cell phone forensics, photographs taken inside a home, social media records, or the like.
However, as stated above, even where there would normally be a "reasonable expectation of privacy," there are still situations where no Search Warrant is required to search for and seize evidence, and these are known as the "Warrantless exceptions" to the Fourth Amendment, including:
Certain situations where a person or place is searched during the course of a lawful arrest
Evidence obtained during an "inventory search" of an automobile pursuant to an established Department policy
Where the evidence is sitting right out in "plain view" (openly visible by police from a place where they have a lawful right to be)
Where a person freely consents to the search where a Search Warrant would have otherwise been required
Where evidence is apparent when an Officer conducts a pat-down search or "Terry" stop-and-frisk of a person who is being detained or arrested (think of common scenes from TV shows like "Cops")
Certain situations where, if the police took the time to get a Search Warrant, the evidence would end up being lost or destroyed
Speaking of the time it takes police to get a Search Warrant, the process by which one is obtained is actually quite simple. A Police Officer (usually the Detective or "Officer in Charge" overseeing the CSC investigation) first types out and signs a sworn Affidavit under oath, just as required by the Fourth Amendment. This Affidavit describes all of the facts and circumstances that leads the Officer to believe they are entitled to override a person's default right to privacy and get a Search Warrant - in other words, why they believe there is "probable cause." This often reads like a narrative of what their entire investigation has revealed thus far.
The Affidavit will be reviewed by a Judge or Magistrate who will decide if enough "probable cause" exists to issue the Search Warrant. "Probable cause" for the purpose of Search Warrants means there is "a ‘substantial basis’ for inferring a ‘fair probability’ that contraband or evidence of a crime will be found in a particular place."
This sounds like a heavy burden, but in reality, it is one of the lower standards of proof in the law. The Judge or Magistrate looks at the "totality of the circumstances" and decides each Search Warrant on a case-by-case basis. So in reality, two different Judges or Magistrates could have a completely different view on whether the same Officer's Affidavit establishes probable cause or not.
In all practical reality, it seems police routinely obtain Search Warrants with a little effort. Police typically have access to a Judge or Magistrate on standby, even after regular business hours. The Officer's sworn Affidavit and proposed Search Warrant ready to be signed are often sent by fax. When these documents are produced in our Criminal Sexual Conduct cases during the discovery process, we can’t help but notice sometimes that the timestamp on the outgoing fax to the Judge and the timestamp on the return fax with the fully signed and authorized Search Warrant are often only minutes apart, leaving one to wonder how there would have even been time to read the Affidavit, let alone scrutinize it.
Also, most Search Warrants occur during the investigative stage, often before we are even involved in the case. Not only does this mean that most Search Warrants are authorized in the absence of anyone to make sure on behalf of the accused that the rules are being followed, but it also means that Judges and Magistrates are not taking testimony from accusers and other government witnesses. In other words, the Officer's Affidavit can be based on hearsay ("Suzy said Johnny touched her..."). In-fact, an Affidavit can be ordered "sealed" so it cannot be viewed.
Perhaps you’ve realized that this means there could be situations where a Search Warrant is authorized even though the Officer was not completely truthful and accurate in their Affidavit, including simply by "omission," where they "cherry-pick" only incriminating facts and leave out things that are favorable to the accused.
When this happens, there is a legal procedure by which your Michigan Criminal Sexual Conduct Attorney can later file something called a “Franks Motion" (if you are charged). This is a legal challenge to the truthfulness and completeness of the Officer's Affidavit, and it prompts a hearing where your Attorney can question the Officer on the stand. If the trial Judge finds that the Affidavit is untruthful, then whatever evidence was seized as a result of the Search Warrant will be suppressed and cannot be used against you.