OSEA Safety News

Search Warrants and Subpoenas

Wednesday, June 19th, 2019

Search Warrants and Subpoena’s! Are they tools for authorities or do they serve as protections for property owners and individuals? And if you’re not a public official or government operative, does that make you any less knowledgeable about these instruments?

This is not a legal discourse, I’m not a lawyer, but I have, like many, seen the arguments relating to illegal search & seizure, as well as subpoena’s that are truly ‘fishing expeditions.’ There are serious, powerful, and necessary tools of investigation, but they are also tools required to protect the rights of individuals. Properly used, they can power investigations in obtaining important evidence and assist in documenting ‘wrong doing’. Improperly used, they can jeopardize an investigation and certainly infringe on personal rights.

Thankfully my exposure to these instruments has been mostly in civil matters or a criminal matter dealing with Federal regulations. Warrants, as issued by the court for entry to conduct inspections, as they relate to safety and environmental laws. As a lay person working at times as an expert on behalf of clients and their counsel, I am often on the firing line receiving subpoenas for materials and appearances, and I’m on site when entries are attempted by inspectors and owners refuse same.

So, what is a search warrant? As offered by the free dictionary [http://legal-dictionary.thefreedictionary.com] the following:

A court order authorizing the examination of a place for the purpose of discovering contraband, stolen property, or evidence of guilt to be used in the prosecution of a criminal action.

A search warrant is a judicial document that authorizes police officers to search a person or place to obtain evidence for presentation in criminal prosecutions. Police officers obtain search warrants by submitting affidavits and other evidence to a judge or magistrate to establish Probable Cause, and to believe that a search will yield evidence related to a crime. If satisfied that the officers have established probable cause, the judge or magistrate will issue the warrant.

The Fourth Amendment to the U.S. Constitution states that persons have a right to be free from unreasonable searches and seizures and that "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." State constitutions contain similar provisions.

The U.S. Supreme Court has not interpreted the Fourth Amendment to mean that police must always obtain a search warrant before conducting a search. Rather, the Supreme Court holds that a search warrant is required for a search unless it fits into a recognized exception.

Search Warrant: n. a written order by a judge which permits a law enforcement officer to search a specific place, and identifies the persons (if known) and any articles intended to be seized (often specified by type, such as "weapons," "drugs and drug paraphernalia," "evidence of bodily harm"). Such a search warrant can only be issued upon a sworn written statement of a law enforcement officer (including a prosecutor). The 4th Amendment to the Constitution specifies: "...no warrants shall issue, but upon place to be searched and the persons or things to be seized." The 14th Amendment applies the rule to the states. Evidence unconstitutionally seized cannot be probable cause, supported by oath or affirmation, and particularly describing the be used in court, nor can evidence traced through such illegal evidence. (See: search, search and seizure, probable cause, fruit of the poisonous tree)

The basis for this need for a search warrant is the 4th Amendment of the Constitution. Again, as quoted from the Free Dictionary:

The Constitution of the United States, amendments, art. 4, declares that "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 person or things to be seized.

It should also be noted that exigent circumstances exist as an exception to the need for obtaining a warrant. These deal with “immediate injury concern, destruction of evidence and personal harm.”

Exigent Circumstances: Emergency conditions. 'Those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.' United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.), cert. denied, 469 U.S. 824 (1984).

So essentially, if you don’t work for a government agency, you are never in a position to seek or enforce a search warrant. Does that make you any less knowledgeable in the process? From my experience, there is an arrogance that you or I, as lay persons, have no knowledge or ‘expertise’ in the process because we’re not a lawyer not ‘issuer’, of warrants/subpoenas.

Many agencies issue directives outlining the process for obtaining a search warrant; for example, when entry cannot be immediately gained or is refused. Most, if not all, require securement of the site (external) as needed and outreach for a search warrant. Without true exigent circumstance, circumventing the process abridges the individual’s rights and puts all data, information and materials retrieved in jeopardy. The Fruit of the Poisoned Tree!

Fruit of the Poisonous Tree: n. in criminal law, the doctrine that evidence discovered due to information found through illegal search or other unconstitutional means (such as a forced confession), may not be introduced by a prosecutor. The theory is that the tree (original illegal evidence) is poisoned and thus taints what grows from it. For example, as part of a coerced admission made without give a prime suspect the so-called “Miranda Warnings” (statement of rights, including the right to remain silent), the suspect tells the police the location of stolen property. Since the admission cannot be introduced as evidence in trial, neither can the stolen property. (See Miranda Warning)

So, it would seem that the first step is finding out who owns the property so the warrant can be properly served. In the safety and environmental areas, why put an entire investigation at risk with unwarranted entry? And why would public officials think they are the only ones with expertise, and not withstanding lawyers?

The proper exercise of a search warrant is important in preserving evidence for future prosecution. So why put that in jeopardy circumventing it and individual rights.

Subpoena: the usual writ for the summoning of witnesses or the submission of evidence, as records or documents, before a court or other deliberative body.

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