Confidential Informants and Search Warrants
What is a search warrant?
A search warrant is a piece of paper that gives police permission to search you or something you own. Search warrants are signed by judges or magistrates.
Under the Fourth Amendment of the Constitution, a warrant is not valid unless three requirements are met:
- There is probable cause
- The warrant is “particular”
- The judge or magistrate is neutral
The new case, Commonwealth v. Padilla, is about the second requirement, which is called particularity. The warrant must describe “with particularity” what police are searching for. This means the warrant must include a specific description of what police think they will find.
What are the facts of the case?
In Padilla, a confidential informant told police that a man was selling narcotics from the second-floor apartment of a building. The informant described what the man looked like to the officer. The officer then obtained a photo of the suspect from the Registry of Motor vehicles and showed it to the informant. The informant confirmed that the man in the photo was the dealer.
With this information, the police officer wrote an affidavit, or a sworn statement. He wrote the affidavit to include as part of his application for a search warrant to search the apartment. In the affidavit, he stated that the seller was selling “narcotics (such as cocaine, heroin, marijuana, and/or prescription medications like oxycodone hydrochloride pills).”
The officer then organized two controlled buys. A controlled buy is when a police informant or undercover police officer purchases an illegal item from a suspect to establish evidence that the suspect is guilty of criminal conduct. According to the affidavit, after each controlled buy, the informant returned with an illegal narcotic. However, the officer did not specifically say what was purchased. The officer stated in the affidavit that he deliberately withheld information about the substance(s) to protect the identity of the informant.
Based on this information in the affidavit, police applied for a search warrant. An assistant clerk magistrate issued a warrant giving police permission to search the apartment. Police executed, or acted on, the warrant and conducted a search. They located cocaine, amphetamine pills, oxycodone pills, marijuana, a firearm, ammunition, and cash. They took these items into custody. Andrew Padilla was indicted on several crimes including cocaine trafficking.
Mr. Padilla tried on multiple occasions to challenge the lawfulness of the warrant through a motion to suppress. He argued that the warrant did not establish probable cause to believe a crime was being committed because it did not specifically identify the drug(s) the informant told police that Mr. Padilla was selling or what drug was obtained after each buy.
Because of this, Mr. Padilla made a conditional guilty plea. A condition was that he be allowed to appeal the denied motion to suppress. Once his plea was accepted, he appealed to the Massachusetts Appeals Court.
Why do warrants have to be particular?
The Appeals Court explains in Padilla that the requirement that search warrants be “particular” protects the freedom and privacy of people. If warrants didn’t have to be particular, they could be general warrants which would give police too much power to search people and belongings.
How did the court rule?
The Appeals Court ruled that the search warrant was illegal. Not specifically naming which narcotic police believed they had probable cause to search meant the warrant was not particular enough. Therefore, the warrant should not have issued.
The Court’s logic was that “catch-all” categories, like “narcotics”, in warrants are impermissible. When police can specifically describe the illegal substance, they must. In Padilla, police could do so because the informant returned to the officer with the narcotic. If police did not know exactly what narcotic was suspected, they could have been less precise. The officer intentionally withheld the information to protect the informant.
The Court made another point that could be called dicta, or a comment on the law that was not necessary for the ruling. This comment was on the affidavit and whether it was attached to the search warrant. The warrant itself is a separatedocument from the affidavit. According to the Court, when a warrant is not particular enough, but an affidavit is, if the affidavit is attached to the warrant, the deficient warrant might be cured or made sufficient. The burden is on the government to prove that the affidavit was attached to the warrant when it was served. In Padilla, the Court determined that the Commonwealth did not meet its burden.
The reason why the issue of attaching the affidavit to the warrant is dicta was because regardless of if the affidavit was attached to the warrant, the affidavit was not particular enough. It therefore did not matter if the affidavit was attached to the warrant or not.
Why is the case important?
Padilla is important because it increases the privacy protections of people police are investigating. Police who believe a person is selling drugs must specifically identify in their search warrant applications what drug(s) they believe the person is selling unless they are not able to. Generally, police should include their statements of facts with their search warrants when they are served.
If police want to search you or something you own, ask to speak with an attorney first. Contact an experienced criminal defense lawyer for advice to protect your legal rights.
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