What’s the most inconsequential criminal offense in North Carolina? My personal favorite is sale of immature apples, a Class 3 misdemeanor under G.S. 106-189.2. But take a look at the list of Class 3 misdemeanors compiled by the Sentencing Commission and make your case in the comments.
Whatever your answer, now consider this: could a court properly issue a search warrant if there were probable cause to believe that evidence of a very minor crime was in a person’s home? Suppose that a sheriff’s office receives a report that a vendor is selling immature apples at a farmers’ market. A deputy applies for a search warrant for the home of the vendor in question on the basis that she likely has receipts and other evidence of the crime in her house. May a judicial official issue the warrant? Or are there some offenses that are so minor that the “cure” of the search warrant is worse than the “disease” of allowing the crime to go unpunished?
This question has come up a couple of times recently, so I decided to look into it. I didn’t find much law — if anyone knows of pertinent authorities other than those cited in this post, please let me know. My current thoughts are below.
No search warrants for infractions. As discussed in this prior blog post, G.S. 15A-242 allows the issuance of a search warrant to uncover property used in a “crime” or that is evidence of an “offense.” An infraction isn’t a crime and for consistency, I would expect a court to find that it isn’t an offense either.
Some states limit search warrants by statute, but not North Carolina. In California, search warrants generally may issue only find evidence of a felony offense. See Cal Penal Code § 1524. In Minnesota, certain minor offenses are defined as “petty misdemeanors,” which means that they are not “crimes” and so cannot support the issuance of search warrants. See State v. Suecker, 1994 WL 233613 (Minn. Ct. App. May 31, 1994) (unpublished) (stating that “[t]he possession of 42.5 grams or less of marijuana constitutes only a petty misdemeanor, for which a search warrant cannot be issued,” and citing the pertinent statutes). But North Carolina doesn’t have this kind of limitation. As noted above, a warrant may issue in connection with a “crime” or an “offense.”
Some agencies may limit search warrants by agency policy. Law enforcement agencies may establish policies and procedures, and I can imagine an agency adopting a policy of, for example, not seeking search warrants for misdemeanor offenses subject to certain exceptions. I’m not aware of any agency that has done that, but I would be interested to learn more about any pertinent agency policies.
Otherwise, it appears that a search warrant may issue for any offense. To paraphrase Dr. Seuss, a crime is a crime, no matter how small. And although it is possible to imagine an argument that (1) the touchstone of the Fourth Amendment is reasonableness, and (2) it is not reasonable to subject a person to the intrusion associated with a search warrant when the offense at issue is very minor, I haven’t found much authority for that argument. To the contrary, search warrants routinely issue for the misdemeanor offense of DWI. And existing cases seem to assume that the Fourth Amendment does not limit the issuance of search warrants for minor offenses. For example, in Illinois v. McArthur, 531 U.S. 236 (2001), a woman asked the police to accompany her while she removed her possessions from the home where she had lived with her husband. As she left, she told the officers that her husband had hidden some marijuana under the couch. The officers required the husband to exit the home and detained him for two hours while they obtained a search warrant. A subsequent search revealed “a marijuana pipe . . . and a small amount of marijuana,” and the husband was charged with two misdemeanors. The Court did not directly consider the severity of the offenses, but in ruling that exigent circumstances supported the exclusion of the husband from the home while awaiting the warrant, the Court noted simply that “the police had probable cause to believe that [the] home contained evidence of a crime and contraband, namely, unlawful drugs,” and that the husband could have destroyed them if allowed to enter the residence.
Any other thoughts? I’m a little uncomfortable with the idea of a search warrant issuing in connection with an alleged sale of immature apples. As I mentioned near the beginning of this post, if anyone is aware of authority on this issue beyond what’s contained in this post, I’d be interested to hear about it.