Beware “Cut and Paste” When Preparing a Warrant

Every investigator does it: preparing a search warrant by including some paragraphs recycled from a previous warrant. For some of us, that meant pecking at a typewriter while copying from an old carbon copy. Today, it’s cut and paste from a Word file. Shortcuts are great—unless they short-circuit the admissibility of evidence.

Wheeler was a headmaster at a private school. As a young teacher at another school, he lived with a family that boarded students. Wheeler sexually abused some of the boys. Years later, after the Jerry Sandusky story became public, one young man decided to tell his brothers about being abused by Wheeler when they were younger. One brother shared that Wheeler also abused him.

The brothers wrote to Wheeler, confronting him about the abuse. Wheeler responded. One victim took the correspondence to police. A witness-tampering investigation ensued. Investigators obtained search warrants for Wheeler’s home, office and car.

When they drafted the affidavits and warrants, the investigators cut and pasted from a “form” version of a child pornography warrant. Many child pornography warrants describe how suspects hoard illegal images for many years, thus justifying a broad temporal range for the search. The investigators copied language that did not restrict them to searching for evidence limited to the relevant time frame of the suspected witness tampering.

The court described the warrants as “virtual copies of an off-the-shelf warrant for child pornography” and went on to say that “the challenged warrants covered Wheeler’s entire digital universe and essentially had no limitations.” Pursuant to the warrants, investigators searched an Apple computer, even though they knew the particular computer was not in use during the period of the alleged witness tampering. The court observed that the Apple computer “logically could not have contained material created or recorded during the relevant time period.”

These flaws—stemming directly from the cut-and-paste language—led the court to hold that the warrants were unconstitutional general warrants. If anything underlies the Fourth Amendment, especially its particularity requirement, it is the history of abusive searches under general warrants, both in England and the American colonies.

In Riley v. California (––– U.S. ––––, 134 S.Ct. 2473 (2014)), the U.S. Supreme Court held that an arrestee’s mobile phone could not be searched under the search-incident-to-arrest exception to the warrant requirement. Citing Riley, the court in the Wheeler decision described the rigorous requirement to particularly describe the places or things to be searched when searching digital media: “Warrants directed to digital information present unique challenges in satisfying the particularity requirement, given the unprecedented volume of private information stored on devices containing such data.” The broad language contained in the Wheeler warrants ostensibly permitted a search for “child pornography to medical records to consumer information to tax returns. In short, they permitted the species of wide-ranging, exploratory searches the Framers intended to prohibit.”

The Wheeler decision doesn’t mean that investigators can never cut and paste language from other warrants. But it does remind us to think beyond whether there is probable cause to search and to remember another critical component of the Fourth Amendment, that of “particularly describing the place to be searched, and the persons or things to be seized.”

Wheeler v. State, 2016 WL 825395 (Del. 2016)

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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