Non-Officers Applying for Search Warrants

I’ve been asked several times recently whether people who are not sworn law-enforcement officers may apply for search warrants. Somewhat to my surprise, the answer is yes.

Statutory analysis. For starters, the search warrant statutes themselves suggest that anyone may apply. The statutes repeatedly refer to “the applicant” in generic terms. By contrast, they specify that execution of a search warrant is limited to a “law-enforcement officer.” G.S. 15A-247. Furthermore, G.S. 15A-245, concerning the issuance of search warrants, contains very similar language to that found in G.S. 15A-304, concerning the issuance of arrest warrants, and arrest warrants may be, and often are, issued based on the application of private citizens.

Court of appeals ruling. Any uncertainty about the proper interpretation of the statutes was removed by In re 1990 Red Cherokee Jeep, VIN 1J4FJ38L4LL146261, 131 N.C. App. 108 (1998). In connection with a town’s effort to forfeit a vehicle used in criminal activity, the court of appeals stated:

The issue before this Court, then, is whether the Town of Waynesville has standing to apply for a search warrant authorizing seizure of the Jeep. We find nothing in Article 11 of the Criminal Procedure Act, ‘Search Warrants,’ that would prohibit the Town from applying for a search warrant. The Criminal Procedure Act provides that only Justices, judges, clerks, and magistrates may issue search warrants, see N.C. Gen. Stat. § 15A-243 (1997), and that only law-enforcement officers may execute them, see N.C. Gen. Stat. § 15A-247 (1997), but it does not limit those persons or entities who may apply for search warrants. Any person or entity-including, as here, a town-may apply for a search warrant.

(Emphasis added.)

AOC form. This ruling is reflected on AOC-CR-119, the AOC search warrant and application form, which states the following under the blank for the applicant’s name: “Insert name and address; or if a law enforcement officer, name, rank, and agency.” The use of “if” allows for the possibility of a non-officer applying for a warrant.

Comment. Although legally permissible, it is extremely unusual for anyone other than an officer to apply for a search warrant, and I would not recommend that anyone do so without consulting first with the agency that will be tasked with executing the warrant.

Other jurisdictions split. As an interesting aside, other jurisdictions appear to be split on this issue.

Jurisdictions that allow non-officers to apply for search warrants.

• Louisiana. State v. Lewis, 2009 WL 385587 (La. Ct. App. 1^st Cir. 2009) (unpublished) (officer obtained search warrant for a property arguably outside the officer’s territorial jurisdiction; defendant’s motion to suppress was properly denied; “[t]he defendant offers no authority, and we find none, for his argument that only police officers may obtain search warrants”; court notes that Louisiana statutes allow any “credible person” to apply for a search warrant).
• Maryland. Hill v. State, 759 A.2d 1164 (Md. Ct. App. 2000) (university police obtained search warrant for residence outside their territorial jurisdiction; court notes that Maryland’s search warrant statute “does not address who may apply for a warrant,” though it requires that a warrant be issued to a law-enforcement officer; “[w]e will not read into the statute an additional requirement that the officer applying for the warrant have the powers of a police officer within the jurisdiction in which the items to be seized are located. [In fact,] . . . the officer in whose jurisdiction the crime has been committed will [usually] have knowledge of the investigation necessary to complete the application and affidavit”).

Jurisdictions that do not allow non-officers to apply for search warrants.

• Federal courts. See Fed. R. Crim. P. 41 (providing that only a federal law enforcement officer or a prosecutor may obtain a search warrant); Wright v. United States, 963 F. Supp. 7 (D.D.C. 1997) (“The act of applying for a search warrant has no analogous counterpart for private citizens.”).
• Georgia. Holstein v. State. 359 S.E.2d 360 (Ga. Ct. App. 1987) (noting that Georgia’s statutes only allow officers to obtain search warrants and expressly forbid private citizens from applying, the court ruled that a warrant issued to an officer who “was not a certified police officer” was issued in error; the court suppressed the evidence found when the warrant was executed).
• Missouri. United States v. Freeman, 897 F.2d 346 (8^th Cir. 1990) (investigator for Missouri Department of Revenue obtained search warrant, but Missouri statutes allow only a “peace officer or prosecuting attorney” to apply for a search warrant; court found this to be a procedural failing that did not rise to a constitutional level and did not require exclusion of evidence, citing United States v. Luk, 859 F.2d 667 (9^th Cir. 1988)).

If you have experience with non-officers applying for search warrants, or if you have an opinion about the desirability of the practice, please let me know or post a comment.