Motion To Quash The Search Warrant and Suppress Evidence
Motion To Quash The Search Warrant and Suppress Evidence
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF _______PEOPLE
OF THE STATE OF CALIFORNIA,
Plaintiff,
v.
_______________________,
Defendant.
) Case: ________
)
) MOTION TO QUASH THE
) SEARCH WARRANT AND
) SUPPRESS EVIDENCE
)
)
) Date: ________
) Time: ________
) Place: ________
broad;
3) the information contained in the statement of probable cause was stale;
4) the officers executing the warrant violated the constitutional and statutory knocknotice requirements;
5) the officers did not execute the search warrant with a good faith belief in its validity;
6) the warrant failed to describe with sufficient particularity the items to be seized.
This motion will be based on this notice of motion, on the attached declaration and
memorandum of points and authorities served and filed herewith, on such supplemental
memoranda of points and authorities as may hereafter be filed with the court or stated orally at
the conclusion of the hearing on the motion, on all the papers and records on file in this action,
and on such oral and documentary evidence as may be presented at the hearing of the motion.
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF _______
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
v.
_______________________,
Defendant.
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Case: ________
POINTS AND AUTHORITIES IN
SUPPORT OF THE MOTION TO
QUASH THE SEARCH WARRANT
AND SUPPRESS EVIDENCE
Date: ________
Time: ________
Place: ________
Defendant submits the following points and authorities in support of the motion to quash the
search warrant and suppress evidence:
I. THE AFFIDAVIT LACKED SUFFICIENT PROBABLE CAUSE FOR ITS ISSUANCE
Under Penal Code 1527, an affidavit of probable cause in support of the search warrant must
set forth the facts tending to establish the grounds of the application, or probable cause for
believing that they exist. Probable cause to issue a search warrant exits when, based on the
totality of circumstances described in the affidavit, there is a fair probability that contraband or
evidence of a crime will be found in a particular place. (Illinois v. Gates, 462 U.S. 213, 238,
103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)). As stated by the United States Supreme Court in
Illinois v. Gates,
The task of the issuing magistrate is simply to make a practical, commonsense decision whether,
given all the circumstances set forth in the affidavit before him, including the veracity and
basis of knowledge of persons supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place. And the duty of a
reviewing court is simply to ensure that the magistrate had a substantial basis for
conclud[ing] that probable cause existed.
The affidavit must therefore state facts that make it [fairly probable] that there is specific
property lawfully subject to seizure presently located in the particular place for which the
warrant is sought. However, the affidavit must not merely recite the opinions or conclusions of
the affiant. As again emphasized by the Illinois v. Gates, 462 U.S. 213, 239, 103 S. Ct. 2317, 76
L. Ed. 2d 527 (1983):
A mere conclusionary statement gives the magistrate virtually no basis at all for making a
judgment regarding probable cause [H]is action cannot be a mere ratification of the bare
conclusions of others. In order to ensure that such an abdication of the magistrates duty does not
occur, courts must continue to conscientiously review the sufficiency of affidavits on which
warrants are issued.
As such, a search warrant may be properly set aside where the affidavit fails as a matter of law to
set forth sufficient competent evidence supportive of the magistrates finding of probable cause.
(People v. Glenos, 7 Cal. App. 4th 1201, 1207, 10 Cal. Rptr. 2d 363 (5th Dist. 1992))
II. THE SEARCH WARRANT IS VOID ON ITS FACE, BECAUSE THE ADDRESS TO
BE SEARCHED IS OVERLY BROAD
The Fourth Amendment to the United States Constitution provides:
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 or things to be seized.
The fundamental protections of the Fourth Amendment are guaranteed by the Fourteenth
Amendment against invasion by the states. Penal Code 1525 codifies the requirements for the
issuance of a warrant in California, [a] search warrant cannot be issued but upon probable
cause, supported by affidavit, naming or describing the person, and particularly describing the
property and place to be searched. A warrant is void on its face if it fails to adequately describe
even a brief delay may preclude an inference of probable cause in some circumstances .
(Alexander v. Superior Court, 9 Cal. 3d 387, 393, 107 Cal. Rptr. 483, 508 P.2d 1131 (1973))
Probable cause to issue a search warrant in a narcotics investigation has unfounded when the
affidavit alleged that sales of narcotics took place 34 days before the search warrant was issued.
(Hemler v Superior Court, 44 Cal 3d 430, 433 (1975).). Information relied upon in a search
warrant affidavit for a narcotics investigation that is 12 days old has been held to be on the
fringe of unreasonableness. (People v. Hernandez, 43 Cal. App. 3d 581, 586, 118 Cal. Rptr. 53
(2d Dist. 1974))
IV. THE OFFICERS EXECUTING THE WARRANT VIOLATED THE
CONSTITUTIONAL AND STATUTORY KNOCK-NOTICE REQUIREMENTS
The term knock-notice refers to Penal Code 1531s requirements that law enforcement
officers, prior to entering a house to execute a search warrant, give notice of their authority and
purpose for entering, and then to wait and be refused admittance before entering the dwelling.
(People v. Howard, 18 Cal App. 4th 1544, 1546 fn 1, (1993); Pen C 844). Penal Code 1531
provides in pertinent part,
The officer may break open any outer of inner door or window of a house, or any part of a
house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he
is refused admittance.
Accordingly, before entering a residence, police officers must (1). knock or use other means
reasonably calculated to give adequate notice of their presence of the occupants, (2). identify
themselves as police officers, (3). explain the purpose of their demand for admittance, and (4).
be refused entry, verbally, by conduct, or the passage of time. (Penal Code 1531; People v.
Ramsey, 203 Cal. App. 3d 671, 680, 250 Cal. Rptr. 309 (5th Dist. 1988); Wilson v. Arkansas,
514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995)). Announcement and demand for entry
before entry to serve a warrant are part of the Fourth Amendment requirement of reasonableness.
(Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995))
The general purpose behind the knock and notice requirements is to protect the privacy of a
person in his home, to minimize the possibility of a violent confrontation between police and
private citizens which might occur if the police make sudden, surprise, unannounced entries, and
to avoid needless destruction of propertylike the battering of the front door. (People v. Trujillo,
217 Cal. App. 3d 1219, 266 Cal. Rptr. 473 (6th Dist. 1990)). Knock and notice requirements
may be excused where consent to enter the premises is given, where it is certain no one is at the
residence, or where the exigency of increased danger to the officers, destruction of evidence, or
the frustration of arresting a fleeing, dangerous felon exists. (People v. Jacobs, 43 Cal. 3d 472,
233 Cal. Rptr. 323, 729 P.2d 757 (1987))
V. THE OFFICERS DID NOT EXECUTE THE SEARCH WARRANT WITH A GOOD
FAITH BELIEF IN ITS VALIDITY.
In U.S. v. Leon, 468 U.S. 897, 920, 104 S Ct 3405 (1984), the United States Supreme Court held
that evidence may not be suppressed if the officer executing the warrant relied in good faith on a
warrant issued by a neutral and detached magistrate that later is determined to be invalid. The
United States Supreme Courts ruling is based upon the premise that since the exclusionary rule
is to deter illegal police conduct, when an officer with objective good faith has obtained a
search warrant there is no police illegality and thus nothing to deter.
However, an officer has no reasonable grounds for believing a warrant was properly issued: 1).
where the magistrate was misled by information in an affidavit which the officer knew or should
have known was false, 2). where the magistrate wholly abandoned his role, 3). where the
affidavit was so lacking in indicia of probable cause as to render belief in its existence entirely
unreasonable; and 4). where the warrant was so facially deficient that the officer could not
reasonably presume it to be valid. (U.S. v. Leon, 468 U.S. 897, 923, 104 S Ct 3405 (1984))
With regard to sufficient probable cause in the affidavit, the issue becomes whether a welltrained officer should reasonably have known that the affidavit failed to establish probable
cause. (People v. Camarella, 54 Cal. 3d 592, 596, 286 Cal. Rptr. 780, 818 P.2d 63 (1991)). The
standard of objective good faith derives from something more substantial than a hunch. (Bailey
v. Superior Court, 11 Cal. App. 4th 1107, 1113, 15 Cal. Rptr. 2d 17 (2d Dist. 1992)). This
standard requires the officer have a reasonable knowledge of what the law prohibits. (Bailey v.
Superior Court, 11 Cal. App. 4th 1107, 1113, 15 Cal. Rptr. 2d 17 (2d Dist. 1992) U.S. v. Leon,
468 U.S. 897, 919, fn. 20, 104 S Ct 3405 (1984)). Harried magistrates may not always take the
care necessary to ensure that the application for the search warrant contains sufficient allegations
of probable cause, (Bailey v. Superior Court, 11 Cal. App. 4th 1107, 1113, 15 Cal. Rptr. 2d 17
(2d Dist. 1992), citing Malley v. Briggs, 475 U.S. 335, 345-346, 106 S. Ct. 1092, 89 L. Ed. 2d
271 (1986)). and an officer may not shift all the responsibility for the protection of an accuseds
Fourth Amendment rights to the magistrate. (Bailey v. Superior Court, 11 Cal. App. 4th 1107,
1113, 15 Cal. Rptr. 2d 17 (2d Dist. 1992), citing People v. Camarella, 54 Cal. 3d 592, 604, 286
Cal. Rptr. 780, 818 P.2d 63 (1991))
VI. THE WARRANT FAILED TO DESCRIBE WITH SUFFICIENT PARTICULARITY
THE ITEMS TO BE SEIZED.
The Fourth Amendment states unambiguously 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. The fact that the application adequately describes the things
to be seized does not save the warrant from its facial invalidity. The Fourth Amendment by its
terms requires particularity in the warrant, not in the supporting documents. A court may
construe a warrant with reference to a supporting application or affidavit only if the warrant uses
appropriate words of incorporation, and if the supporting document accompanies the warrant.
However, a search warrant is invalid if it fails to describe the persons or things to be seized on its
face, notwithstanding that the requisite particularized description is provided in the search
warrant application, if this description is not incorporated by reference in search warrant itself,
and the application, having been sealed, does not accompany the warrant. Groh v. Ramirez, 540
U.S. 551, 557558, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004):
We have clearly stated that the presumptive rule against warrantless searches applies with equal
force to searches whose only defect is a lack of particularity in the warrant. [citations] The
uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to
the particularity requirement of the Fourth Amendment is unconstitutional. [citations] That rule
is in keeping with the well-established principle that except in certain carefully defined classes
of cases, a search of private property without proper consent is unreasonable unless it has been
authorized by a valid search warrant.
Groh v. Ramirez, 540 U.S. 551, 559560, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004).
The particularity rule requires the magistrate to make sure that the warrant describes things with
reasonable precision, since vague language can cause the officer performing the search to seize
objects on the mistaken assumption that they fall within the magistrates authorization.
(citation) The probable cause rule prevents the magistrate from making a mistaken authorization
to search for particular objects in the first instance, no matter how well the objects are described.
Id. The two separate rules must both be met since an unnecessary invasion of privacy can occur
either when the magistrate has a firm command of the doctrine of probable cause and a poor
command of the English language, or vice versa.
U.S. v. Weber, 923 F.2d 1338, 1342 (9th Cir. 1990).
VII. A SEARCH CANNOT BE JUSTIFIED BY ITS RESULTS.
We have had frequent occasion to point out that a search is not to be made legal by what it turns
up. In law it is good or bad when it starts and does not change character from its success. U.S.
v. Di Re, 332 U.S. 581, 595, 68 S. Ct. 222, 229, 92 L. Ed. 210 (1948).
In a motion to quash, the defendant must prove that the search or seizure under the warrant
was unreasonable, because: (1). the warrant was insufficient on its face; (2). the property
seized was not described in the warrant; (3). there was no probable cause to support the
issuance of the warrant; (4). the method of execution of the warrant violated federal or state
law.
In a motion to traverse, the defendant must prove that the facts recited in the affidavit in
support of the issuance of the warrant were inaccurate. The issues to be resolved in a motion to
traverse are: (1). did the affidavit contain material factual misstatements, and if so, (2). if the
misstatements were not intentional, did the affiant act reasonably in believing the facts to be
true. (Theodor v. Superior Court, 8 Cal. 3d 77, 101, 104 Cal. Rptr. 226, 501 P.2d 234 (1972))
Grounds for issuance: Pen C 1524(a) authorizes a search warrant to issue on the following
grounds, among others:
(1). When property was stolen or embezzled.
(2). When the property or things were used to commit a felony.
(3). When the property is in the possession of a person who intends to use it to commit a
public offense, or in the possession of another for the purpose of concealing it.
(4). When the property to be seized constitutes evidence that tends to show a felony has been
committed or that a particular person has committed a felony.
(5) When the property or things to be seized consist of evidence that tends to show that sexual
exploitation of a child;
(6) When there is a warrant to arrest a person;
(7) When the property or things to be seized include a firearm at the premises occupied by a
person arrested in connection with, a domestic violence incident involving a threat to human
life or a physical assault;
(8) When the property or things to be seized include a firearm that is in the possession of a
person who, as a result of mental disorder, is a danger to others, or to himself or herself (see W
& I 8120);
Probable cause standard: There are two probable cause prerequisites for the issuance of a
search warrant. The first is the commission element, i.e., probable cause to believe a crime
has been committed and, second, the nexus element, i.e., a factual showing that evidence
related to the suspected criminal activity probably will be found at the location to be searched
at the time of the search and not some other time. (U.S. v. Zayas-Diaz, 95 F.3d 105 (1st Cir.
1996); U.S. v. Grubbs, 547 U.S. 90, 126 S. Ct. 1494, 164 L. Ed. 2d 195, 31 A.L.R. Fed. 2d 635
(2006); U.S. v. Kennedy, 427 F.3d 1136 (8th Cir. 2005); U.S. v. Greany, 929 F.2d 523 (9th Cir.
1991); U.S. v. Hove, 848 F.2d 137 (9th Cir. 1988) (rejected by, U.S. v. Taxacher, 902 F.2d 867
(11th Cir. 1990)); Alexander v. Superior Court, 9 Cal. 3d 387, 107 Cal. Rptr. 483, 508 P.2d
1131 (1973)).
Such probable cause consists of a fair probability that contraband or evidence of a crime will
be found in a particular place at the time of the search. See Illinois v. Gates, 462 U.S. 213, 103
S. Ct. 2317, 76 L. Ed. 2d 527 (1983); U.S. v. $191,910.00 in U.S. Currency, 16 F.3d 1051 (9th
Cir. 1994) (mere suspicion that items will be found insufficient); U.S. v. Ramos, 923 F.2d
1346 (9th Cir. 1991) (overruled by, U.S. v. Ruiz, 257 F.3d 1030 (9th Cir. 2001)); U.S. v.
Grubbs, 547 U.S. 90, 126 S. Ct. 1494, 164 L. Ed. 2d 195, 31 A.L.R. Fed. 2d 635 (2006)
(anticipatory warrant cannot be executed before occurrence of triggering event, otherwise
there would be no reason to believe the item described in the warrant could be found at the
searched location); People v. Hirata, 175 Cal. App. 4th 1499, 96 Cal. Rptr. 3d 918 (2d Dist.
2009), citing U.S. v. Grubbs, 547 U.S. 90, 126 S. Ct. 1494, 164 L. Ed. 2d 195, 31 A.L.R. Fed.
2d 635 (2006)). (See 17:10.10 Quash Search warrant Staleness)
Telephonic and electronic warrants: The sworn statement supporting a search warrant
affidavit may be taken by telephone or electronic mail. (Pen C 1526(b)(2))
Good faith exception: The Supreme Court has adopted a good faith warrant exception to the
exclusionary rule. The prosecution may use evidence seized by officers acting in reasonable
reliance on a search warrant ultimately found to be unsupported by probable cause. (United
States v Leon (1984). 468 U.S. 897, 919, 104 S Ct 3405). The exception also applies to an
insufficient description of the items to be seized. (Massachusetts v. Sheppard, 468 U.S. 981,
989, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984))
The standard for the good faith exception is not based on the officers subjective belief, but
rather that the officers reliance on the search warrant was objectively reasonable. (Bailey v.
Superior Court, 11 Cal. App. 4th 1107, 1113-1114, 15 Cal. Rptr. 2d 17 (2d Dist. 1992)). The
exception is applied on the basis of what a reasonable, well-trained police officer would have
known under the circumstances. (People v. Camarella, 54 Cal. 3d 592, 605-606, 286 Cal. Rptr.
780, 818 P.2d 63 (1991)). Under this standard, despite the good faith exception, suppression is
appropriate when the affidavit is so lacking in indicia of probable cause as to make reliance on
it unreasonable. (People v. Camarella, 54 Cal. 3d 592, 596, 286 Cal. Rptr. 780, 818 P.2d 63
(1991))
Insufficient probable cause: The requirement that the affidavit supporting a search warrant
must contain facts establishing probable cause is contained in both the United States
Constitution, the California Constitution and is codified in the Penal Code. (U.S. Const, 4th
Amend; Cal Const, Art I, 13; Pen C 1525). Probable cause exists when, based on the
totality of circumstances described in the affidavit, there is a fair probability that contraband
or evidence of a crime will be found in a particular place. (Illinois v. Gates, 462 U.S. 213,
238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)). Mere conclusionary statements are
insufficient, because the magistrates action cannot be a mere ratification of the bare
conclusions of others. (Illinois v. Gates, 462 U.S. 213, 239, 103 S. Ct. 2317, 76 L. Ed. 2d 527
(1983))
Overly broad description: Both the United States Constitution and the Penal Code require
that no warrant shall issue unless the place to be searched the property to be seized is
particularly described. (U.S. Const, 4th Amend; Cal Const, Art I, 13; Pen C 1525). A
warrant is void on its face if it fails to adequately describe the place to be searched. (People v.
MacAvoy, 162 Cal. App. 3d 746, 209 Cal. Rptr. 34 (1st Dist. 1984))
Stale information: Information that is remote in time may be deemed stale and thus unworthy
of consideration in determining whether an affidavit for a search warrant is supported by
probable cause. Such information is deemed stale unless it consists of facts so closely related
to the time of the issuance of the warrant that it justifies a finding of probable cause at that
time. (Alexander v. Superior Court, 9 Cal. 3d 387, 393, 107 Cal. Rptr. 483, 508 P.2d 1131
(1973); People v. Hulland, 110 Cal. App. 4th 1646, 1652, 2 Cal. Rptr. 3d 919 (2d Dist. 2003))
Knock-Notice: The officer executing the warrant must give notice of his authority and
purpose, and then, if refused admission, may break down any outer or inner door. (Pen C
1531). Announcement and demand for entry before entry to serve a warrant are part of the
Fourth Amendment requirement of reasonableness. Refusal of entry may be communicated
verbally, by conduct, or by the passage of time. (Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct.
1914, 131 L. Ed. 2d 976 (1995)). There is no exception to the knock-notice requirement
because the object of the warrant is drugs. (Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct.
1416, 137 L. Ed. 2d 615 (1997)). However, an interval of 15 to 20 seconds, from time that
police officers conducting afternoon execution of narcotics trafficking search warrant loudly
knocked on apartment door until they forcibly entered after getting no response, was
reasonable given exigency of possible destruction based on facts known to officers. (U.S. v.
Banks, 540 U.S. 31, 124 S. Ct. 521, 157 L. Ed. 2d 343 (2003)).
Time of execution: A search warrant may be served only between the hours of 7 a.m. and 10
p.m., unless, on a showing of good cause, the magistrate inserts a direction on the warrant that
it may be served at any time of day or night. (Pen C 1533). The warrant must be executed
within 10 days after it is issued. After 10 days the warrant is void unless it has been served.
(Pen C 1534(a))
Applicable law: Proposition 8 (Cal Const, Art I, 28(d)), adopted in 1982, requires the
admission of all relevant evidence except where suppression is required by the Fourth
Amendment of the federal Constitution. (In re Lance W., 37 Cal. 3d 873, 879, 210 Cal. Rptr.
631, 694 P.2d 744 (1985)). All state courts are bound by the United Sates Supreme Court
interpretations of the federal constitutional protections. (People v. Bradley, 1 Cal. 3d 80, 86, 81
Cal. Rptr. 457, 460 P.2d 129 (1969)). Decisions of the lower federal courts on questions of
federal law are persuasive, and entitled to great weight, but are not binding precedent,
especially when the law on a particular question is not well settled. (Wagner v. Apex Marine
Ship Management Corp., 83 Cal. App. 4th 1444, 1451, 100 Cal. Rptr. 2d 533 (1st Dist. 2000);
Yee v. City of Escondido, 224 Cal. App. 3d 1349, 1351, 274 Cal. Rptr. 551 (4th Dist. 1990)).
However, deference is required where decisions on federal law by lower federal courts are
numerous and consistent. Conrad v. Bank of America, 45 Cal. App. 4th 133, 150, 53 Cal. Rptr.
2d 336 (3d Dist. 1996))
All issues must be joined: All Fourth Amendment suppression issues and arguments should
be raised in the motion because the court may prevent the defendant from serially litigating
different claims or different theories. (Lorenzana v. Superior Court, 9 Cal. 3d 626, 640, 108
Cal. Rptr. 585, 511 P.2d 33 (1973); Anderson v. Superior Court, 206 Cal. App. 3d 533, 545,
253 Cal. Rptr. 651 (4th Dist. 1988))
Computer searches: The seizure of a defendants whole computer system is not unreasonable,
so long as there was probable cause to conclude that evidence of a crime would be found on
the computer, the programs or the disks. (People v. Ulloa, 101 Cal. App. 4th 1000, 1004, 124
Cal. Rptr. 2d 799 (4th Dist. 2002); Hatch v. Superior Court, 80 Cal. App. 4th 170, 94 Cal. Rptr.
2d 453 (4th Dist. 2000); U.S. v. Hay, 231 F 3d 630, 637, (9th Cir. 2000).). However, a warrant
that authorizes the seizure of every document on a computers hardware or software does not
provide any guidance to the officers executing the warrant and thus may be overly broad. (U.S.
v. Kow, 58 F.3d 423 (9th Cir. 1995); U.S. v. Stubbs, 873 F.2d 210 (9th Cir. 1989))
Internet subscriber information: In Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L.
Ed. 2d 220 (1979), the Supreme Court held that a person has no legitimate expectation of
privacy in information he voluntarily turns over to third parties. An internet user has no
legitimate expectation of privacy under the Fourth Amendment in subscriber information he
provides to an internet service provider (ISP). The internet user may not challenge the
admissibility of identifying information the ISP provides in response to a search warrant
requiring ISP to identify the user of his Internet Protocol address. (People v. Stipo, 195 Cal.
App. 4th 664, 124 Cal. Rptr. 3d 688 (2d Dist. 2011), review filed, (June 16, 2011)).
Like the federal Electronic Communications Privacy Act (ECPA) (18 U.S.C.A. 2701 et seq.,
the state equivalent (Pen. Code, 1524.2, subd. (a)(1)), sets forth procedures for obtaining
subscriber information from Internet service providers. However, defendants do not have
exclusionary relief remedies under the ECPA or its state law counterpart. (People v. Stipo, 195
Cal. App. 4th 664, 124 Cal. Rptr. 3d 688 (2d Dist. 2011), review filed, (June 16, 2011)).
Discovery: The defendant is entitled to discover any previous application for a search warrant
in the case which was refused by a magistrate for lack of probable cause. (Pen C 1539(c))
Failure to specify items to be seized: The Fourth Amendment states unambiguously 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. The
fact that the application adequately describes the things to be seized does not save the
warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in
the warrant, not in the supporting documents. The courts have held that a court may construe a
warrant with reference to a supporting application or affidavit if the warrant uses appropriate
words of incorporation, and if the supporting document accompanies the warrant. However, a
search warrant is invalid if it fails to describe the persons or things to be seized on its face,
notwithstanding that the requisite particularized description is provided in the search warrant
application, if this description is not incorporated by reference in search warrant itself, and the
application, having been sealed, does not accompany the warrant. (Groh v. Ramirez, 540 U.S.
551, 557-558, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004)).
We have clearly stated that the presumptive rule against warrantless searches applies with
equal force to searches whose only defect is a lack of particularity in the warrant. [citations]
The uniformly applied rule is that a search conducted pursuant to a warrant that fails to
conform to the particularity requirement of the Fourth Amendment is unconstitutional.
[citations] That rule is in keeping with the well-established principle that except in certain
carefully defined classes of cases, a search of private property without proper consent is
unreasonable unless it has been authorized by a valid search warrant. (Groh v. Ramirez, 540
U.S. 551, 559-560, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004)).
Informant information: Search warrants based on information received form informants
must be analyzed under the Gates standard (Illinois v. Gates, 462 U.S. 213, 238239, 103 S.
Ct. 2317, 76 L. Ed. 2d 527 (1983)). Information received from sources who are themselves
the focus of pending criminal charges or investigations is inherently suspect. (People v.
Campa, 36 Cal. 3d 870, 882, 206 Cal. Rptr. 114, 686 P.2d 634 (1984)). For this reason the