Obtaining and Executing Search Warrants

Nancy Jones Norman

• Any peace officer (sheriff, deputy sheriff, police officer, constable, conservation officer, agent of the BCA, agent of the division of alcohol and gambling enforcement, University of Minnesota peace officer, or state patrol trooper as authorized per M.S. '299D.03 Minn. Stat. '626.05 subd. 2) can apply for a search warrant. The affiant does not have to be a police officer in the city or county where the search is to occur.

• A judge, except a probate judge, who has jurisdiction in the county where the search will occur must sign and issue the warrant. Minn. Stat. '626.11.
• Any peace officer in the judge=s county or an agent of the BCA. (Minn. Stat. '626.11, 626.13) may execute the warrant once it has been signed before the judge by the affiant and signed by the judge. The officer who applies for the warrant (affiant) may not necessarily be the officer to whom the warrant is directed. For example, Anoka County wants to execute a warrant on a residence in Hennepin County. The Anoka County officer will be the affiant while the search warrant will be directed to an officer from Hennepin County who will actually execute the warrant with the Anoka County officer present.
• If a warrant is to be served by the BCA, an agent of alcohol and gambling enforcement, a state patrol trooper or a conservation officer, that officer shall notify the chief of police of an organized full-time police department in the city where the warrant will be executed, or if not in a city, the sheriff or deputy sheriff of the county in which service is to be made prior to execution. (Minn. Stat. '626.13).

• Within ten days of being issued, a warrant must be executed by the officer to whom the warrant was issued. Minn. Stat. '626.15.
• A warrant may only be executed in daylight hours (7:00 a.m. to 8:00 p.m.) unless the judge specifically authorizes a night time search based upon a finding that a nighttime search is necessary to prevent the loss, destruction, or removal of the objects of the search, or to protect the searchers or the public. Minn. Stat. '626.14.
• Before entering the residence, officers must knock and announce their presence unless the judge has authorized a Ano knock@ warrant. To satisfy the Aknock-and-announce@ rule, officers must:
• Knock;
• Identify themselves as law-enforcement officers;
• Announce their authority and purpose (search warrant); and
• Be granted admittance, refused admittance, or constructively refused admittance by no answer.
• If no admittance is granted or constructively refused, officers may enter the place to be searched. Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416 (1997); State v. Gordh, Unpublished Court of Appeals, 2/14/00 C5-99-1108.

*Exigent circumstances may arise at the threshold that were not known at the time of the request for the warrant which can authorize entrance without knocking and announcing. For example: 1) issues arise to cause concern for officer safety; 2) if an announcement is useless because the occupants know of the authority and purpose of the police; or 3) the officers gain knowledge that people in the residence were known to be attempting to destroy evidence. State v. Lien, 265 N.W.2d 833, 839 (Minn. 1978); Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914 (1995). Use of the exigent circumstances to avoid the Aknock-and-announce@ requirement will be closely scrutinized and should be used only in extreme circumstances.

• The officer who has been issued the warrant must sign and/or verify the property inventory form. Minn. Stat. '626.17
• Leave a copy of the warrant (not the affidavit in support of the warrant) and written inventory of property seized with the person who is in possession of the place searched, or if nobody is present, leave a copy of the documents in open view where the search was executed. Minn. Stat. '626.16.
• Immediately return the warrant to the Court with a written inventory of property and things taken even if nothing was found. Minn. Stat. '626.17.
• Maintain the evidence until it is needed and maintain a record of chain of custody of the evidence.

Special thanks to the Honorable Alan F. Pendleton for the use of his January 31, 1992 Anoka County Training Update relating to Search Warrants - 10 General Rules.

The Anoka County Attorney Training Updates are published and distributed monthly as a public service to more than 350 Minnesota law enforcement agencies and individuals. Any questions, comments or suggestions on training topics should be directed to Sean C. Gibbs, Assistant Anoka County Attorney at 612-323-5632 or e-mail SCGibbs@Co.Anoka.MN.US or Nancy Jones Norman, Assistant Anoka County Attorney at 612-323-5626 or e-mail at NJNorman@Co.Anoka.MN.US, Government Center, 2100 Third Avenue, Anoka, MN 55303-2265.