September 21, 1999
SEARCH WARRANTS-DISCLOSURE TO PROPERTY OWNER
By: George Coppolo, Chief Attorney
You asked whether police must show property owners a copy of the search warrant when they conduct a search.
There is no constitutional requirement that police show property owners a copy of the search warrant before they conduct a search. A statute requires that a copy of the search warrant be presented but it is not clear exactly when it must be presented. Moreover, that same statute allows a judge to seal the supporting affidavits under certain circumstances. Because the Judicial Department form for a search warrant contains the application, the warrant, and room for supporting affidavits, apparently judges are also sealing the warrant when they seal the supporting affidavits. Whether this is permissible under the statute has not been decided by a court in any reported decision.
State law requires that a copy of a search warrant be given to the owner or occupant of the dwelling, structure, motor vehicle, or place designated in the warrant or to the person designated in it (CGS § 54-33c). The law does not specify when it must be given or who has the duty to give it. Nor does it specify the consequences of not complying. No Connecticut court has decided these issues in any reported decision. But the way the entire law is written, especially in light of other provisions relating to supporting affidavits, suggests that the police must give the copy when they conduct the search.
This law also requires that within 48 hours of the search, a copy of the application for the warrant and a copy of all affidavits upon which the warrant is based be given to that person. But the law allows the judge who issues the warrant to dispense with this requirement if the applicant files a detailed affidavit demonstrating any one of three situations to the judge. The first is that a confidential informant's safety would be jeopardized. The second is that the search is part of a continuing investigation, which would be adversely affected. The third is that it would require disclosing information in violation of the wiretapping and electronic surveillance law.
Thus, the law allows a court to seal the supporting affidavits. But, the law does not explicitly authorize the court to seal the warrant. However, because the Judicial Department form used for search warrants (JD-CR-61) includes the warrant, the application for the warrant, and affidavits in support of the application, apparently some courts are construing the authority to seal the affidavits to include the warrant as well. Thus, courts as a matter of practice sometimes seal the warrant as well as the application and supporting affidavits.
Any court order dispensing with the requirement that a copy of the affidavits be given within 48 hours of the search must be for a specific time period not exceeding two weeks (CGS § 54-33c). Within that time, the prosecutor may seek an extension. After a search warrant has been executed, affidavits that were sealed must remain in the custody of the clerk's office in a secure location apart from the court file.
If a judge dispenses with the requirement that a copy of the affidavits be given within 48 hours it does not affect the right to get a copy later. Also, such an order does not affect the right of access of the attorney of the person arrested in connection with the warrant unless upon a motion of the prosecutor within two weeks of the person's arraignment the court finds that the state's interest in continuing nondisclosure substantially outweighs the defendant's right to disclosure.
RULE IN OTHER STATES
Unless a statute or court rule requires it, an officer conducting a search pursuant to a search warrant does not have to show the warrant as a prerequisite to executing it. Nor does the officer have to read the warrant to the person against whom the search is directed. Rather, the officer executes the search warrant by conducting the search. But even in the absence of a statute, the officer must reveal his identity and authority to conduct the search (68 Am Jur. 2d Searches and Seizure § 211).
Under federal rules of criminal procedure, an officer taking property under the authority of a search warrant must give the person from whom, or from whose premises, he is taking the property a copy of the warrant and a receipt for the property taken, or leave the copy and a receipt at the place from which the property was taken (FR Crim. P, 4(d)).
The fact that a warrant was not actually served on a defendant until after the search was begun does not invalidate the search if it is otherwise valid (U.S. v. Cooper, 421F. Supp. 804, (1976)).