Delay in Obtaining or Executing Search Warrants---How long can the police wait?

Recently, I had a client who mailed a “suspicious” package from a post office.  A Postal Inspector seized the package, but did not attempt to obtain a warrant to search it until  seven days later.  Ultimately the package was opened and was found to contain cocaine.  The Trial Court suppressed the evidence due to the delay, and the case against my client was dismissed.  This case is representative of a body of law, unknown to many attorneys, that evaluates the reasonableness of a search warrant in part by the length of time between when the evidence was seized, and when it was actually searched.

 Police frequently seek and execute search warrants during criminal investigations.  In order to obtain a warrant, they need to prepare an affidavit summarizing the facts of their investigation and explaining the need for the evidence that they seek.  They then submit the warrant to a judge for approval.  Sometimes, however, police will seize an item of evidence (i.e. a suspicious package or a cell phone) and then wait an inordinate amount of time before they actually obtain a warrant.  The delay can run afoul of a defendant’s constitutional rights, and result in dismissal of the case.

 Both the Fourth Amendment to the United States Constitution and Article 2, Section 8, of the Arizona Constitution “proscribe unreasonable search and seizure by the state.” State v. Ault, 150 Ariz. 459, 463 (1986); U.S. Const. amend. IV; Ariz. Const. art. 2, § 8. A “seizure” occurs when a police officer meaningfully interferes with a person’s possessory interest in property. United States v. Jacobsen, 466 U.S. 109, 113 (1984).  The Ninth Circuit in United States v. Dass concluded that lengthy detentions of packages (in that case 7 to 23 days) prior to obtaining a search warrant violated the possessory interest of the owner of the package, justifying suppression of any evidence found.

Anyone caught up in the criminal justice system should ask his/her lawyer whether these legal concepts apply to his/her case.

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