TELEPHONIC SEARCH WARRANTS - A NEW EQUATION FOR EXIGENT CIRCUMSTANCES

• NCJ Number: 56345
• Journal: Cleveland State Law Review Volume: 27 Issue: 1 Dated: (1978) Pages: 35-46
• Author(s): E F MAREK
• Date Published: 1978
• Length: 12 pages
• Corporate Author: Cleveland State University College of Law
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE IMPACT OF A RULE PERMITTING FEDERAL LAW ENFORCEMENT OFFICERS TO OBTAIN SEARCH WARRANTS BY TELEPHONING JUDGES IS CONSIDERED.

Abstract

RULE 41(C)(2) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE AUTHORIZES JUDGES TO ISSUE SEARCH WARRANTS ON THE BASIS OF A TELEPHONE OR RADIO COMMUNICATION FROM LAW ENFORCEMENT OFFICERS. THIS 1977 RULE AFFECTS THE BODY OF DECISIONAL AUTHORITY PERMITTING WARRANTLESS SEARCHES UNDER EXIGENT CIRCUMSTANCES (E.G., LUGGAGE AT TRANSPORTATION TERMINALS, MOVABLE VEHICLES). TO A LESSER EXTENT, IT AFFECTS THE QUESTION OF WHETHER A SEARCH WARRANT IS REQUIRED (ABSENT EXIGENT CIRCUMSTANCES) TO SEARCH A HOME IN ORDER TO ARREST A PERSON FOR WHOM AN ARREST WARRANT EXISTS OR WHERE THERE IS PROBABLE CAUSE TO BELIEVE A PERSON HAD COMMITTED A FELONY. THE AVAILABILITY OF TELEPHONE- OR RADIO-OBTAINED SEARCH WARRANTS REQUIRES THAT JUDGES APPLY NEW STANDARDS IN DECIDING WHETHER EXIGENT CIRCUMSTANCES JUSTIFYING A WARRANTLESS SEARCH EXIST. FACTORS USUALLY CONTRIBUTING TO A FINDING OF EXIGENCY--LAPSE OF TIME IN OBTAINING A WARRANT, UNAVAILABILITY OF A MAGISTRATE OR JUDGE--NO LONGER JUSTIFY A WARRANTLESS SEARCH, WITH A SEARCH WARRANT ONLY A TELEPHONE CALL AWAY. A MORE COMPELLING SHOWING OF EXIGENCY IS REQUIRED. RULE 41(C)(2) HAS ALSO GIVEN THE FEDERAL COURTS ADDITIONAL GROUNDS ON WHICH TO EXCLUDE EVIDENCE OBTAINED IN WARRANTLESS SEARCHES. FAILURE TO USE A TELEPHONE-OBTAINED SEARCH WARRANT MAY INVOKE THE FEDERAL COURTS' SUPERVISORY POWER TO ENFORCE COMPLIANCE WITH THE FEDERAL RULES OF CRIMINAL PROCEDURE. THE FEDERAL JUDICIARY HAS MANIFESTED ITS PREFERENCE FOR THE USE OF TELEPHONE-OBTAINED SEARCH WARRANTS IN ITS DECISIONS, THROUGH ITS RULE MAKING AUTHORITY, AND ADMINISTRATIVELY. IT SEEMS CLEAR THAT THE AVAILABILITY OF TELEPHONE-OBTAINED SEARCH WARRANTS HAS CHANGED THE EQUATION FOR DETERMINING EXIGENT CIRCUMSTANCES EXCEPTIONS TO THE WARRANT CLAUSE OF THE FOURTH AMENDMENT. (AUTHOR ABSTRACT MODIFIED--LKM)