Why Do Search Warrants “Command” that Searches Occur?
If you read a lot of search warrants, you may have noticed something odd about the standard search warrant form. Search warrants command the officer to conduct the search. They don’t just authorize the search. Instead they order the officer to conduct the search. The warrant language is mandatory, not permissive.
Consider the federal warrant form. It not only commands the execution of the search, but it puts the command in allcaps and bold: “YOU ARE COMMANDED to execute this warrant . . .” State warrants are written in the same basic way. And authorizing statutes on issuing warrants usually have that language, too.
If you think about it, that’s pretty weird. After all, it’s the officer who applied for the warrant. The officer is seeking permission to conduct the search, so it’s a little strange to order the officer to do what the officer has asked for permission to do.
Plus, despite what the warrant form says, executing the warrant is not really mandatory. If the officer doesn’t execute the warrant, that’s not a problem. The court can just reissue the warrant if the agents later decide to search, or not if they don’t. See, e.g., State v. Nunez, 67 P.3d 831 (Iadho 2003) (holding that, where officers did not execute a warrant during the period it was active ad later sought a new warrant, the magistrate judge can just reissue the old warrant on the same piece of paper and it becomes a new warrant).
And sometimes the law doesn’t even allow the officer to execute the warrant. If probable cause is lost after the warrant is obtained but before the warrant is executed, the officer can’t do what the warrant says he is required to do. See United States v. Spencer, 530 F.3d 1003 (D.C. Cir. 2008) (Kavanaugh, J.) (“[W]hen officers learn of new facts that negate probable cause, they may not rely on an earlier-issued warrant but instead must return to the magistrate—for example, if the police learn that contraband is no longer located at the place to be searched.”).
What gives? What explains the mandatory language that gets treated as permissive language in practice?
The answer, I think, is history.
Here’s the relevant picture, at least as I understand it. At common law, the basic apparatus of government law enforcement that we know today did not exist. Police as we know it hadn’t been invented yet. Victims of crime were mostly on their own. They had to investigate crimes themselves. And they had to bring prosecutions, too. Very few criminal cases were bro
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